- Pääuutiset
- Tuoreimmat
- Luetuimmat
Britanniasta tulee sopimuksen ensimmäinen uusi jäsen sitten sen solmimisen vuonna 2018.
Yo-kirjoituksiin ilmoittautui 45 600 kokelasta. Kokelaita on noin 700 vähemmän kuin keväällä 2022.
Palkatta jäänyt työntekijä saa konkreettista apua mistään.
Jos omainen on saattohoidossa, vierailijoiden ei silloin tulisi miettiä mahdollisia parkkisakkoja.
Moni opiskelija ei enää osaa alansa perustermejä suomeksi, koska opetus on enimmäkseen englanniksi.
Suomalaisissa yliopistoissa on yhä enemmän siirrytty englanninkieliseen opetukseen.
Elämäntapaan liittyvät ohjeet masentavat ja saavat potilaan tuntemaan, että olisi itse jotenkin aiheuttanut sairastumisensa.
Britanniasta tulee sopimuksen ensimmäinen uusi jäsen sitten sen solmimisen vuonna 2018.
Yo-kirjoituksiin ilmoittautui 45 600 kokelasta. Kokelaita on noin 700 vähemmän kuin keväällä 2022.

Suuret puolueet ovat samoilla linjoilla siitä, että Suomen ei tule perua vihreän siirtymän investointeja EU-velvoitteen vuoksi. Direktiivi saa kovaakin kritiikkiä. Kuuden suurimman eduskuntapuolueen ryhmäjohtajat suhtautuvat kielteisesti EU:n asettamaan energiansäästötavoitteeseen Suomelle. Iltalehti kysyi eduskuntaryhmien puheenjohtajilta, pitäisikö Suomen jättää EU:n asettama vuoden 2030 energiansäästötavoite täyttämättä.

Amsterdamin seksityöntekijät marssivat kaupungintalolle vastustamaan siirtoa kaupungin laitamille. Seksityöntekijät marssivat Amsterdamin kaupungin läpi torstaina osoittaakseen mieltä kaupungin siirtosuunnitelmia vastaan. Amsterdam kaavailee seksityöntekijöiden siirtämistä maailmankuululta punaisten lyhtyjen alueelta valtavaan ”erotiikkakeskukseen” kaupungin laitamille. Kymmenet mielenosoittajat suuntasivat Amsterdamin kaupungintalolle kohtaamaan pormestari Femke Halseman. Protestoijat peittivät kasvonsa naamioilla ja heiluttivat punaisia sateenvarjoja ja kylttejä, joissa vaadittiin muun muassa ”punaisten valojen pelastamista”.

Oligarkki Sergei Roldugin vaikuttaa tallettaneen kymmeniä miljoonia sveitsiläispankkeihin laittomin keinoin. Teossa avustaneet Gazprombankin työntekijät tuomittiin tällä viikolla Sveitsin Zürichissä. Neljä Sveitsissä työskennellyttä pankkiiria on tuomittu ehdolliseen vankeusrangaistukseen venäläisen oligarkin Sergei Rolduginin avustamisesta, kertoo muun muassa BBC. Kyseiset pankkiirit olivat venäläisen Gazprombankin työntekijöitä, ja työskentelivät pankkiketjun Sveitsin toimipisteissä.

New Yorkin suuri valamiehistö asettaa ex-presidentti Donald Trumpin rikossyytteeseen pornotähti Stormy Danielsille maksettuihin vaitiolorahoihin liittyen. New Yorkin suuri valamiehistö Manhattanilla on nostanut rikossyytteen Yhdysvaltain entistä presidenttiä Donald Trumpia vastaan. Tarkat syytteet eivät ole vielä tiedossa, mutta ne liittyvät aikuisviihdenäyttelijä Stormy Danielsin eli Stephanie Cliffordin väitteisiin, joiden mukaan Trump olisi maksanut hänet hiljaiseksi väitetystä suhteesta heidän välillään. CNN:n lähteiden mukaan Trumpia vastaan nostetaan yli 30 syytettä yrityspetoksista.

Suomen Nato-jäsenyyden viimeisestä ratifioinnista on uutisoitu maailmalla. Turkin parlamentti hyväksyi myöhään torstai-iltana Suomen Nato-jäsenyyden. Jäsenyys hyväksyttiin yksimielisesti äänin 276–0. Turkki oli viimeinen Naton kolmestakymmenestä jäsenmaasta, jonka hyväksyntä tarvittiin, jotta Suomi voi liittyä puolustusliittoon. Nato-ratifiointi huomioitiin maailmalla näkyvästi torstain ja perjantain välisenä yönä. New York Times uutisoi Suomen ylittäneen viimeisen esteen.

Ristijärvellä on tapahtunut vakava liikenneonnettomuus. Kaksi ihmistä on kuollut kolarissa Kainuun Ristijärvellä tänään iltapäivällä. Onnettomuus tapahtui viitostiellä Ristijärven keskustasta pohjoiseen. Kolarissa törmäsi kaksi henkilöautoa. Toisessa autossa ollut noin 70-vuotias pariskunta menehtyi. Lisäksi onnettomuudessa loukkaantui ihmisiä. Heidät on viety sairaalahoitoon.

Turkki on hyväksynyt Suomen Nato-jäsenyyden torstaina 30. maaliskuuta. Turkin parlamentti äänesti Suomen Nato-jäsenyydestä tänään torstaina 30. maaliskuuta. Jäsenyys ratifioitiin yksimielisesti äänin 276–0. Turkin presidentti Recep Tayyip Erdoğan hyväksyy vielä parlamentin lakiesityksen, jolloin asia saa lopullisen sinettinsä.

Puheenjohtajat väittelivät viimeisessä tentissä ennen vaaleja Ylellä. Iltalehti arvioi puheenjohtajien suoritukset. Torstaina yhdeksän eduskuntapuolueen puheenjohtajaa otti viimeistä kertaa ennen vaaleja mittaa toisistaan Ylen vaalitentissä. Iltalehti arvioi puheenjohtajien suoritukset perinteisiin leijonin ja lampain.

Tähän artikkeliin on koottu Venäjän hyökkäyssodan tapahtumia torstailta 30. maaliskuuta. Venäjällä pidätettiin yhdysvaltalainen toimittaja ensimmäistä kertaa sitten kylmän sodan. Wall Street Journalin Evan Gerškovitšia syytetään vakoilusta. Vastaavia syytteitä ei ole nähty sitten vuoden 1986, jolloin toimittaja Nick Daniloff pidätettiin samasta syystä, kertoo CNN. Daniloff oli tuolloin vangittuna eristyksissä viikkoja Ronald Reaganin hallinnon neuvotellessa hänen vapauttamisestaan. Daniloffin mukaan hänen pidättämiseensä johti FBI:n suorittama vakoilijan pidätys New Yorkissa. Vapautuksesta neuvotellessa silloinen Neuvostoliitto vaati ratkaisua Yhdysvaltain pidättämälle vakoojalle.

Vaikka PS voittaisi, maahan tulee silti kokoomuksen ja SDP:n johtama sinipunahallitus, jos Purra ei saa enemmistöä kasaan, kirjoittaa Juha Ristamäki. Torstai oli viimeisten isojen kannatusennusteiden päivä ennen sunnuntain vaaleja. Suomen suurimman puolueen asema ei ole todellakaan kirkossa kuulutettu, niin tasaisia ovat kärjessä kokoomus, perussuomalaiset ja SDP. Iltalehdelle on vaali- ja kansanedustajapaikkaennusteita tehnyt analytiikkayhtiö Accuscore. Se laskee ennusteensa Ylen, Helsingin Sanomien ja muiden julkaisemien kannatusmittausten sekä edellisten vaalien datan perusteella.

Käräjäoikeuden tuomio on saamassa lainvoiman, koska tapon yrityksestä tuomittu mies peruutti valituksensa. Hyvinkääläisen teollisuusyrityksen pääluottamusmies joutui tapon yrityksen kohteeksi omalla työpaikallaan. Teko tapahtui iltapäivällä 9. heinäkuuta 2021. Miestä lyötiin yli kaksi kiloa painavalla pajavasaralla päähän ainakin kaksi kertaa. Lyöjä oli yrityksen toimitusjohtajan poika. Pääluottamusmies sai kalloonsa murtumia ja aivovamman, mutta selvisi hengissä. Toinen työntekijä löysi pahassa kunnossa olleen pääluottamusmiehen ja toimittaja hänet hoitoon.

Muumit eivät jatka yhteistyötä venäläiskumppaneiden kanssa. Muun muassa kevätfestivaali jouduttiin perumaan. Rakastetun taiteilijan ja kirjailijan Tove Janssonin Muumi-hahmot jättävät Venäjän. Janssonin perillisten johtama yritys Moomin Characters on kieltäytynyt uusimasta ja jatkamasta Muumien tuotelisenssejä venäläisten kumppaneiden kanssa, kertoo riippumaton uutiskanava Meduza. Moskovassa peruttiin muun muassa keväisin järjestettävä lastentapahtuma, Muumien kevätfestivaali lisenssiongelmien vuoksi. Venäjällä Muumit ovat olleet suosittuja erityisesti lasten keskuudessa.

Sunnuntaina, eduskuntavaalien varsinaisena vaalipäivänä, Suomessa on kylmää tuulta lukuun ottamatta hyvä ilma, ennustaa Foreca. Vaalipäivänä eli sunnuntaina Suomi jakautuu kahtia ainakin auringonpaisteen osalta. Foreca ennustaa, että maan itäisellä puoliskolla on pilvistä, läntisellä aurinkoista. Lämpötila on suuressa osassa maata nollan kieppeillä, mutta erityisesti Käsivarressa Lapin vaalipiirissä voi olla hieman kireämpikin pakkanen.

Oslon poliisi on takavarikoinut yli 800 kiloa kokaiinia. Oslon poliisi on takavarikoinut yli 800 kiloa kokaiinia. Huumelastin arvoksi on määritelty satoja miljoonia kruunuja, eli kymmeniä miljoonia euroja. Kokaiini oli piilotettu Etelä-Amerikasta tuotuihin hedelmälaatikoihin, hedelmien sekaan. Laatikot löytyivät huumekoirien ja tullin avustuksella Oslon keskustan alueelta.

Unkarilaispoliitikon mielestä Suomen Nato-jäsenyys kärjistää Naton ja Venäjän välejä. Unkari ratifioi maanantaina Suomen jäsenyyden. Suomen liittyminen puolustusliitto Natoon lisää suoran aseellisen konfliktin riskiä, arvioi Unkarin parlamentin varapuhehenkilö Dora Duro venäläislehti Izvestian haastattelussa. Duron mukaan puolustusliiton ja Venäjän välit ovat vaarassa kiristyä entisestään kun Natolle ja Venäjälle tulee 1340 kilometriä lisää yhteistä rajaa. Poliitikon mielestä Yhdysvallat käyttää Natoa tekosyynä suojellakseen globaalia rooliaan pakottamalla liiton laajentumaan Suomeen ja Ruotsiin.

Tilannestudion 42. jaksossa keskustellaan muun muassa sodan kestosta ja siitä, miksi Venäjän hyökkäys ei etene. Venäjän hyökkääminen vaikuttaa tällä hetkellä olevan jumissa. Samaan aikaan Ukraina on tehnyt Bah’mutin alueella pienempiä vastahyökkäyksiä. Venäjä on jo pitkään panostanut tälle alueelle valtavasti joukkoja. – Itse kaupungissa venäläiset lausuivat aiemmin, että jokainen talo ja jokainen kortteli on tietyllä tapaa linnoitus. Eli siis sielläkään suunnassa ei mikään todellakaan helposti lähde, eikä Venäjä ole onnistunut edelleenkään katkaisemaan näitä huoltoteitä, toteaa Iltalehden sota-asiantuntija Emil Kastehelmi IL-TV:n Tilannestudiossa.

Turkki hyväksyi puolenyön aikaan torstain ja perjantain välisenä yönä Suomen Nato-jäsenyyden. Turkin presidentti Recep Tayyip Erdoğan vakuutti hiljattain parlamentin hyväksyvän Suomen hakemuksen. Turkin parlamentti äänestänee asiasta tänään illalla Suomen aikaa, kertoo Suomen Ankaran suurlähetystön viestinnän vastuuvirkamies Janne Leskinen.

Paavi Franciscus kärsii keuhkoputkentulehduksesta. Hänen uskotaan kotiutuvan sairaalasta lähipäivinä. Katolisen kirkon johtajan, paavi Franciscuksen kunto vaikuttaa kohentuneen sairaalahoidossa, kertoo uutistoimisto Reuters. Paavi kuljetettiin yllättäen keskiviikkona sairaalahoitoon hengitystieinfektion vuoksi. Hänen kerrotaan ehtineen kärsiä hengitysvaikeuksista muutaman päivän ajan, raportoi uutistoimisto AFP.























- The Worldwide Psychological Operation
- The Alex Jones Channel
FIGHTING AGE MALE MIGRANTS ARE BEING MOVED INTO UK MILITARY BASES - FunkyPrepperhttps://www.bbc.co.uk/news/uk-england-dorset-65122645https://www.dorsetecho.co.uk/news/23421850.portland-port-asked-house-asylum-seekers-floating-accommodation/https://www.dorsetcouncil.gov.uk/emergencies-severe-weather/emergencies/portland-port-off-site-reactor-emergency-planMirrored from - https://www.youtube.com/watch?v=RZtomRzEap8
The Germ Theory Song - Nina KhoslaMirrored From - https://www.youtube.com/watch?v=6WP6tBsNOFco you still think that germs fly through the air?Do you still think they’re out to get you, the bogeyman, the bogeymanOh I know, I thought the sameBut now I know we are safeAnd we get to decide and our bodies are wiseLook at the methods section of the studies that were doneSee the controls that never happenedAssumptions were madeIt’s a bit of a charadePoison the cell, cell diesWhat do you see?Virology says a virusWe see a virusBut how do you know what that looks like?What does the bogeyman look like?And could it be what makes you ill is mercury, DDTLEDs, vaccines, pasteurized dairyLack of sleep, lack of love, lack of sunPharma drugs like TylenolWi-fi, fluoride, antibioticsNo - it’s not a virusLike Polio, Chicken pox, Herpes, Measles, MonkeypoxSpanish flu, Sars Cov2, HIV, Rabies, venereal diseaseIt’s not what you thought, it’s not what we’ve been taughtWell, now you’re thinking, this is pretty hard to believeHow could so many people deceive mePlus, it’s what I perceiveMy girlfriend got sick after I did, see?Well, there’s so many reasons that could beSame water, same air, same stress, same foodSome resonance between youIt’s complex, but it’s for the bestYour body knows how to heal youBut we were told to fear otherWe were told to fear the germWe were told to take the poisonTo save ourselves and to save the worldThen why are we always sick and tired?Why does it seem to have back-fired?And who are the real winners here?Who are the real saviours here?Could it be what makes you ill is mercury, AZTLEDs, vaccines, pasteurized dairyLack of sleep, lack of love, lack of sunPharma drugs like TylenolWi-fi, fluoride, antibioticsNo - it’s not a virusLike Polio, Chicken pox, Herpes - it’s all a way for you to detoxSpanish flu, Sars Cov2, HIV, Rabies, venereal diseaseIt’s not what you thought, it’s not what we’ve been taughtDo you still think that germs fly through the air?Do you still think they’re out to get you, the bogeyman, the bogeymanOh I know, I thought the same, but now I know we are safeAnd we get to decide and our bodies are wisehttps://askquestionspresents.wixsite.com/thegermtheory
The Holography Of Our Terrain w/ Josh and Adam Bigelsen - Alfa VedicMirrored from - https://www.youtube.com/watch?v=InQ-ilC4hwoAlfa Vedic Odysee Channel - https://odysee.com/@alfavedic:5osh & Adam Bigelsen are back to further share the pioneering work of their father, Harvey Bigelsen MD, and how they are continuing the family legacy through the Bigelsen Method.Our father believed he was a medical detective and firmly believed if you cannot figure out the cause of dis-ease, then you are just guessing at how to create wellness.Based on 40 years of observable patterns discovered through Live Cell Microscopy, the Bigelsen Method is a way to discover the root cause of the body’s imbalance, while giving hope to a world too long confined within an archaic medical matrix.The root cause is not a germ! It's an imbalance in your TERRAIN.Dr. Bigelsen learned how to interpret images created by the blood in order to understand a person's total health. He found that blood, like water, is a messenger of a person's emotion and consciousness. Imagine that from one drop of blood you can see into how your body is reacting both physically and emotionally.You are a SPIRITUAL, EMOTIONAL, and PHYSICAL being and your health is a balance of these realms. “Blockages” from surgeries, injuries, birth trauma, emotional trauma, etc. in any one, or more of these areas may eventuate in dis-ease. Depending on how longstanding and what the trauma or issue may be, your Holographic Blood® holds the TRUTH and the KEY to decoding the hidden messages within you.Eastern philosophy believes there are holograms in the eye, ear, foot, and tongue. The same can be said for the blood. Outside of the basics such as red blood cells, white blood cells, platelets, etc…, the blood shows holographic images which may show disturbance fields. This discussion couldn't be more timely, and we promise, this episode will forever change how you view your body and health.Show links:https://www.bigelsenacademy.com/Music and Sky Tickets Now Avail! https://musicandsky.comSave BIG on your Brown's Gas AquaCure Machine by using the coupon code "alfavedic' at checkout here: https://eagle-research.com/product/ac50/Alfa Vedic is an off-grid agriculture & health co-op focused on developing products, media & educational platforms for the betterment of our world. By using advanced scientific methods, cutting-edge technologies and tools derived from the knowledge of the world's greatest minds, the AV community aims to be a model for the future we all want to see.Our comprehensive line of health products and nutrition is available on our website. Most products are hand mixed and formulated right on our off grid farm including our Immortality Teas which we grow on site. Find them all at https://alfavedic.comFollow Alfa Vedic:https://linktr.ee/djmikewinnerFollow Mike Winner:https://linktr.ee/djmikewinnerGet exclusive content by joining our Co-Op on Patreon here:https://www.patreon.com/alfavedicOr you can make a one-time small donation to help keep this content coming!https://paypal.me/alfavedicQORT: QdaaJ9mh5x846eV9LbvTT9go7do7M1PTxDBitcoin: 3Mz8NcWiYzsZ4cHqbU4X5q3Vz4UeYgbSUkLitecoin: MRM8wETvGHwCPyxCj7DxVGeuNBggaU7yLT
Advocating Violence? - Larken RoseBelieving in "government" REQUIRES hypocrisy, schizophrenia and delusion. One illustration of this is the bizarre and contradictory way in which social media platforms PRETEND to be against people advocating violence.Mirrored from - https://www.youtube.com/watch?v=7OyNHgTSBiQ&t=728s
Dr. Peter McCullough interview, so he clearly states there is no difference in Virologists definition of 'Isolated' and the normal definition of 'Isolated' but their 'Isolated' is still mixed with masses of stuff!All this arguments clearly have faults - Personally I think the guy is controlled oppositionUntil he actually sits down and discusses this with Cowan, Kaufman and the Bailey's he's a fraud!
BREAKING: Court Rules JP Morgan Chase Can be Sued by Virgins Island Over Jeffrey Epstein Trafficking





This post serves as a notice that the original has been updated. Scroll down to where it says: [Below is the remaining portion of Fulford’s update this week] A big part of the show is taking place in Pakistan where Imran Khan -backed by the WH Global Alliance- will hold the largest rally in the country’s history today, amid crackdowns by the unlawful government currently in power against supporters. The post Full Update | Benjamin Fulford — March 27th 2023: Western financial system suffers $8 trillion implosion, revolution follows appeared on Stillness in the Storm. 💾
Say Paul sues Don, claiming that Don libeled Paul. Don might be in the right, and he might eventually win—but it may take a lot of time and a lot of money. As a result, the Dons of the world will often settle, and agree to take down or retract their statements; the threat even of legally unfounded litigation might silence them. Because of that, many states have enacted anti-SLAPP statutes, which (generally speaking) make it easier for defendants to quickly dispose of cases brought based on speech on matter of public concern. (The statutes are often raised in response to libel claims, but they also apply to other speech-based claims.) The statutes often have some mix of the following features: A right to move to get the case promptly dismissed. A stay of factual discovery stayed while the motion is being considered. Immediate appeal if the court denies the motion to dismiss. Payment by plaintiff of the defendant's legal fees if the defendant wins the motion. The plaintiff can respond to the motion by arguing that he has a legally viable claim. (Generally speaking, at this point, before discovery, the court doesn't consider any factual disputes, but focuses on the legal issue.) But if plaintiff's claim proves not to be legally viable, defendant wins quickly. These statutes have often raised lots of interesting legal questions of their own, including whether governmental defendants can bring the same anti-SLAPP claims, if they are sued based on their speech. The California Supreme Court, for instance, held that governmental defendants are indeed entitled to bring anti-SLAPP motions (Vargas v. City of Salinas (Cal. 2009)), but today the Florida Court of Appeal interpreted the Florida statute differently (in Crosby v. Town of Indian River Shores, written by Jeffrey Kuntz and joined by Judge Dorian Damoorgian): We answer a novel question in Florida: can governmental entities rely on Florida's Anti-SLAPP statute as a defense to lawsuits filed by citizens against the governmental entity? As all statutory questions do, the answer depends on the specific text of the Florida statute. SLAPP lawsuits, or Strategic Lawsuit Against Public Participation lawsuits, are "civil lawsuits and counterclaims … filed against countless citizens, businesses, and organizations because of their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate." See Ch. 00-174, Laws of Florida. To stop SLAPP lawsuits, the Florida Legislature enacted the Citizens Participation in Government Act, Chapter 00-174, Laws of Florida. The legislation—codified at section 768.295, Florida Statutes (2021)—is Florida's Anti-SLAPP statute. The Anti-SLAPP statute "protect[s] the right in Florida to exercise the rights of free speech in connection with public issues." Section 768.295(3) specifically provides: [a] person or governmental entity in this state may not file … any lawsuit … against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state …. In our view, the legislature was clear. The Anti-SLAPP statute protects citizens from lawsuits filed because of their participation in public issues. It is just as clear that the Anti-SLAPP statute does not protect a governmental entity from lawsuits filed by its citizens. The Anti-SLAPP statute applies when a "person or entity [is] sued by a governmental entity or another person." When the "person or entity" claims the suit violates the Anti-SLAPP statute, the "person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity." If that fails, "[t]he person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant's or governmental entity's lawsuit has been brought in violation of this section." And, the court "may award … the party sued by a governmental entity actual damages arising from a governmental entity's violation of this section." If the Legislature intended for "governmental" entities to be protected by the statute, then the Legislature would have written "against another person or entity" as "against another person or government entity." Instead, it wrote the opposite. In each instance where it referenced the party entitled to the protection of the Anti-SLAPP statute, the statute references person or entity. And in each instance where it referenced the party violating the Anti-SLAPP statute, the statute references the governmental entity or other person. Additionally, the Anti-SLAPP statute specifically protects: the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It protects the right guaranteed to each of us by the First Amendment. But "the First Amendment protects citizens' speech only from government regulation; government speech itself is not protected by the First Amendment." N.A.A.C.P. v. Hunt (11th Cir. 1990) (citing Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm. (1973) (Stewart, J., concurring)). That "[g]overnment speech is regulated primarily by 'the political process,' not the Constitution," is another basis to conclude the statute does not protect the Town…. Here, Crosby brought the claim against a governmental entity, the Town. The circuit court therefore erred when it allowed a governmental entity to rely on Florida's Anti-SLAPP statute as the ground for granting its motion to dismiss…. Judge Melanie May dissented in relevant part: As the majority correctly points out, the statute does not use the term "governmental entity" to indicate who the lawsuit is against. Instead, the legislature chose the term "entity," a term broader than "governmental entity." Rather than resort to legislative intent or statutory construction, my plain reading of the statute indicates the lawsuit's object can either be a person or an entity regardless of whether the entity is governmental. Just because the Town of Indian Shores fits within both the definition of "governmental entity" and "entity" does not somehow mean it is not an entity in the broader sense of the term. It does not eliminate its protection under the statute…. While I find traditional canons of statutory interpretation unnecessary considering the text's plain meaning, I believe they lend further support to my position and prevent us from limiting the statutory provision at issue. "Without some indication to the contrary, general words are to be accorded their full and fair scope" and "are not to be arbitrarily limited." Courts have been expressly cautioned not to "infer exceptions for situations that the drafters never contemplated and did not intend their general language to resolve" when confronted with generally worded provisions. Instead, "[t]he presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions." "[I]n the end, general words are general words, and they must be given general effect." Here, a person filed a lawsuit against an entity, the Town of Indian Shores, whose council members exercised their constitutional free speech rights in connection with a public issue. Section 768.295(3), Florida Statute (2021) protects the entity, albeit governmental, from such a suit…. Congratulations to Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., who represented Crosby. The post Can Governmental Defendants Use Anti-SLAPP Statutes When They're Sued Based on Their Speech? appeared first on Reason.com.
There's long been a dispute about whether religious freedom provisions limit the government's power related to religious sites on government land. These are usually American Indian sites, though in principle they might be other religious sites as well. In Lyng v. Northwest Indian Cemetery Protective Ass'n (1988), the Court held that the Free Exercise Clause doesn't give religious groups the legal right to stop various government activities related to such sites (even though at the time, after Sherbert v. Verner but before Employment Division v. Smith, the Court had read the Free Exercise Clause as securing a presumptive right to religious exemptions from generally applicable government action). But one enduring question has been whether the Religious Freedom Restoration Act of 1993 should be read as perpetuating Lyng, alongside other Sherbert-era precedents, or should be read as superseding it. (See my Intermediate Questions of Religious Exemptions, pp. 652-56 for more on some related matters.) In any event, this issue is now up before the Ninth Circuit en banc, which heard argument last week on it in Apache Stronghold v. U.S. (see, e.g., this Deseret News article [Kelsey Dallas]); the panel had ruled, 2-1, against the religious freedom claims, but the Ninth Circuit agreed to rehear the case en banc. My colleague Gene Schaerr at Schaerr | Jaffe LLP, at which I'm a part-part-part-time Academic Affiliate, represents the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, and Protect The 1st as amici in the case. In any event, Gene kindly put together an item on the case and the oral argument, which I'm passing along below; I'd be glad to add contrary views as well (and you can see some in the panel majority opinion): Last week, the Ninth Circuit held a lively en banc oral argument in Apache Stronghold v. United States—a case raising crucial questions of religious freedom law and, most importantly, statutory interpretation. The case focuses on an indigenous sacred site called Chi'chil Biłdagoteel, or Oak Flat, which has been sacred to Western Apaches since before European contact and remains the site of key religious ceremonies that, according to Apache belief, can't take place elsewhere. The federal government has proposed transferring Oak Flat to a private company for a copper mine, which would swallow the site in a massive crater, ending the Apaches' religious exercises there forever. The question is whether destroying the sacred site and ending the Apaches' religious practices "substantially burdens" their religious exercise under the Religious Freedom Restoration Act (RFRA). The answer under RFRA's text seems obvious: ending a religious exercise forever "substantially burdens" it. As then-Judge Gorsuch explained, when the government doesn't just penalize a religious exercise, but "prevents the plaintiff from participating in" it—as by not accommodating the practice in prison—the government "easily" imposes a "substantial burden." At oral argument, however, several Ninth Circuit judges wrestled with whether this commonsense textual argument should carry the day. Their questions centered on three areas of broad significance to the law of religious freedom and statutory interpretation. First, Judges Nelson and Berzon asked whether the Supreme Court's 1988 decision in Lyngv. Northwest Indian Cemetery controls the meaning of "substantial burden" in RFRA. In Lyng, the Supreme Court rejected a claim that the government violated the Free Exercise Clause by authorizing the paving of a road in a forest sacred to Native Americans. But Lyng differs from the Apache Stronghold case in two respects. Factually, the road at issue in Lyng wouldn't be built over the plaintiffs' sacred sites, but a half-mile or more away—leaving the plaintiffs free to continue visiting their sites and engaging in the same religious exercises as before. They alleged instead that the sound of the road nearby would diminish the "efficacy" of their practices—a religious question that Lyng said civil courts "cannot … measur[e]." More importantly, Lyng was decided under a different legal standard—the Free Exercise Clause, not RFRA. And considerations unique to the Free Exercise Clause drove the Court's decision. For example, Lyng repeatedly emphasized that the "crucial word in the constitutional text"—and, thus, in the Court's analysis—"is 'prohibit'"—a word that isn't used in RFRA. And Lyng repeatedly contrasted laws that "prohibit" religion with laws that have only "incidental effects" on religion. In other words, the decision to build a road wasn't targeting religion; the religious harms were simply "incidental effects" of a broader "government program[]," requiring no heightened review. This theory—that the trigger for heightened review under the Free Exercise Clause is a lack of neutrality—became the centerpiece of the Court's approach to the Free Exercise Clause two years later in Employment Division v. Smith. And one of the leading cases Smith relied on for this rule was Lyng. RFRA, by contrast, expressly rejects the distinction between targeted and incidental burdens on religious exercise. Indeed, the whole point of the statute was to apply strict scrutiny "in all cases where free exercise of religion is substantially burdened"—"even if the burden results from a rule of general applicability." 42 USC 2000bb(b)(1), 2000bb-1(a). Nor is Smith the only case to understand Lyng as being about neutrality and general applicability. Every Supreme Court free-exercise case since Lyng has characterized it as an example of Smith's neutral-and-generally-applicable standard in action—from Trinity Lutheran to Espinoza to Fulton—with Trinity Lutheran citing it as the leading example of how the Court, in applying the Free Exercise Clause, has been "careful to distinguish" between laws that are "neutral and generally applicable" and laws "that single out the religious for disfavored treatment." Other circuits have done the same. In Tenafly Eruv Association v. Borough of Tenafly, for example, Orthodox Jews sought access to government-controlled utility poles to create an eruv—a ceremonial area within which Orthodox Jews can carry objects during the Sabbath. When the government refused and was sued under the Free Exercise Clause, it defended based on Lyng, claiming that Clause does not apply to burdens resulting from government management of "its land." But the Third Circuit disagreed, noting that Lyng was a case about neutrality, not just about government land—and that the Free Exercise Clause "applies not only when a coercive law or regulation prohibits religious conduct, but also when government denies religious adherents access to publicly available money or property." Second, Judge VanDyke offered several hypotheticals probing the role of alleged spiritual harm in the "substantial burden" analysis. For example, would a substantial burden arise simply if someone believes they will go to hell if the government doesn't sell them a particular piece of land? But that and similar questions conflate two distinct issues—the spiritual consequences to a religious believer from not engaging in a religious exercise, and the objective obstacle the government places in the way of that exercise. The proper focus of the substantial-burden inquiry is on the latter—asking what the government has done to make the plaintiff's religious exercise objectively more costly or difficult. Take Hobby Lobby for example. The burden there wasn't the divine wrath the business owners believed they might suffer if they covered abortifacients in their insurance plans. Rather, the burden was that the government made their religious exercise more costly by threatening large monetary penalties. Similarly, the burden in Yoder wasn't the feared corruption of the Amish children's souls from attending public school; it was that the government made their religious practice—foregoing public education—objectively more difficult by imposing criminal fines. So too in Apache Stronghold: The burden isn't the spiritual pain the Apaches will feel when their sacred site is destroyed. It's that the government makes it objectively more difficult to engage in their religious exercise by allowing a mining company to blow up their sacred site. While focusing on alleged spiritual injury might seem superficially sympathetic to religious liberty claims, moreover, it would actually harm religious liberty in the long run. One reason is that determining whether particular spiritual consequences count as a substantial burden would enmesh courts in religious questions. (Would the plaintiff in Judge VanDyke's hypothetical really go to hell? Would the Hobby Lobby plaintiffs really be complicit in abortion?) That approach would also create immense pressure on courts to find other (atextual) ways to curtail RFRA—which is what the government asked courts to do (unsuccessfully) in the contraception-mandate litigation. Judge VanDyke asked about one possible curtailment: simply deem some substantial burdens not "cognizable" under RFRA if they result from certain types of federal action—such as a decision about the use of federal land. But this novel idea runs headlong into RFRA's text—which says it applies to "all Federal law, and the implementation of that law, whether statutory or otherwise." That idea also lacks any apparent basis in principle. If anything, the federal government should have less discretion in managing public lands than in enforcing its criminal laws, protecting public health and safety, or operating high-security prisons—all of which are already subject to RFRA. As Justice Scalia said in Smith: "it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands" (citing Lyng). And, if courts can make atextual, unprincipled carve-outs from RFRA for federal land, there is no reason they can't make similar carve-outs for other disfavored religious liberty claims—such as those alleged to cause "third-party harms" (which the government and scholars asked the Court to carve out in Hobby Lobby) or those involving antidiscrimination laws. The way to avoid all this is to follow RFRA's text and precedent—asking whether the government has made it objectively more difficult for the plaintiff to engage in the particular religious exercise at issue. If so, the court should find a substantial burden, no matter the form of the federal action or the political valence of the case—and then let the government explain why it believes the burden is nevertheless justified. Finally, Judge Collins inquired whether RFRA is applicable to the land-transfer at all, given that the transfer is authorized by a statute enacted after RFRA, and in the event of a conflict between two statutes, a later-enacted statute might be thought to trump an earlier-enacted one. Notably, RFRA by its terms expressly tells courts how to resolve this question—instructing that RFRA applies to later-enacted statutes unless "such law explicitly excludes such application by reference to this chapter." But the government, perhaps taking its cues from mining-interest amici, has offered a late-breaking argument that this provision of RFRA is unconstitutional. Notwithstanding Congress's express direction, the government urges, a later-enacted law might be held to "impliedly" repeal RFRA without mentioning it. That argument would be devastating for religious liberty. For thirty years, Congress has legislated against the background principle that RFRA applies to head off negative consequences from later statutes unless it is expressly displaced. To hold this provision unconstitutional would come as a shock both to Congress and to proponents of religious liberty—particularly after recent enactment of the Respect for Marriage Act, which was defended on the ground that RFRA would still apply to it. It would also open up an entirely new front for religious liberty's opponents—who can argue not only that a later-enacted law complies with RFRA but that RFRA doesn't apply in the first place, because Congress has (without saying so) overridden it. Such a result doesn't empower Congress—which is well aware of RFRA's explicit-reference provision and needs nothing more than a simple majority to comply with it. It empowers judges—liberating them from the straightforward, narrow inquiry of whether a later-enacted law refers to RFRA and instead encouraging them to hunt for implied repeals in the later-enacted law's penumbras and emanations. The Constitution requires nothing of the sort. Nor does any countervailing precedent support the mining interests' view. For example, one of their lead cases is the Supreme Court's 1955 decision in Marcello. But Marcello didn't ignore or strike down a provision requiring that later departures be express—it applied it. The earlier-enacted law there (the APA) said it supplied the procedure governing administrative litigation unless a later-enacted law displaced it "expressly." The later-enacted law, meanwhile, said it supplied the "sole and exclusive procedure" in deportation cases. The Supreme Court held that this language "expressly supersedes" the APA—not that the APA's express-repeal provision was unconstitutional. Fortunately, we don't need to wonder about the Supreme Court's views on this subject. As an important amicus brief explains, the Court has twice applied RFRA's explicit-reference provision in high-profile cases (Hobby Lobby and Little Sisters of the Poor). So has the Seventh Circuit, which in Korte v. Sebelius said that RFRA "accounts for" the rules governing the temporal allocation of legislative power, since Congress remains free to repeal it at any time (by complying with the explicit-reference provision). Thus, to rule otherwise would both conflict with the Supreme Court and create a novel circuit split. [*****] In short, RFRA's text supplies a simple answer to the question presented in Apache Stronghold: The government "substantially burdens" religious exercise when it authorizes the complete physical destruction of a Native American sacred site, ending tribe members' core religious exercises forever. This doesn't mean the Apaches automatically win their case; it just means they get to the second step of the analysis—the balancing test of strict scrutiny. The government fears that applying that test to federal land-use decisions would be unworkable. But federal land-use decisions are already subject to an alphabet soup of restrictive laws like NEPA, FLPMA, NHPA, NAGPRA, CWA, CAA, and ESA. For example, if the mine in this case threatened an endangered snail darter, the project couldn't go forward under the Endangered Species Act at all—and the government wouldn't even get a chance to satisfy strict scrutiny. So applying RFRA to federal land-use decisions still gives the Apaches' fundamental right of religious freedom less protection than is already given to endangered animals. The government's policy argument is also the same argument Congress rejected in enacting RFRA. The Supreme Court in Smith feared that applying strict scrutiny to all governmental actions "across the board" would be "courting anarchy." But Congress has told the federal courts not to be afraid of strict scrutiny: it is a "workable test for striking sensible balances between religious liberty and competing prior governmental interests." The question is whether the Ninth Circuit will apply RFRA's plain text or will instead succumb to atextual, fear-based reasons for limiting RFRA's reach. The post Apache Stronghold v. U.S.: Religious Freedom and Government Property appeared first on Reason.com.
A very interesting post by Paul Alan Levy (Public Citizen, Consumer Law & Policy Blog), which I reproduce with his permission: It was almost twenty years ago that Barbra Streisand filed a lawsuit that attempted to block access to a photograph of her oceanfront estate, bringing unwanted attention to the photo and leading to her being enshrined by Techdirt's Mike Masnick in tech/legal terminology as the progenitor of "the Streisand Effect." Now we have Cooley v. Foreman. Several police officers executed a search warrant at the home of a musician named Joseph Edward Foreman, who performs under the name "Afroman." Outraged by what he considered rough treatment of his possessions and the lack of justification for the search, he created two songs about the raid and recorded them in music videos, consisting mainly of footage of the search, entitled "Will You Help Me Repair My Door" and "Lemon Pound Cake" (to the tune of "Under the Boardwalk"). He also posted images on social media of the officers who conducted the search and printed Tshirts and other merchandise containing photos of the police officers and of the judge who had signed the search warrant, bitterly complaining about the officers' conduct in searching his house and asking that the judge be voted out of office. He promoted these to his fans who, it appears, responded eagerly. Police officers may be protected by qualified immunity against claims for damages for most of their misconduct, but they are not immune from public criticism. In an apparent effort to create such an immunity, and represented by Cincinnati lawyer Robert Klingler, the police officers have now sued the musician and the distributors of his music, alleging a violation of the Ohio right of publicity and the common law right of privacy. In addition to highly critical comments about the police officers, the complaint alleges that an Instagram post includes vile references to the one female officer on the raid; I could not locate the original to verify that allegation. The complaint does not allege a claim for defamation, but it does allege false light. At the time of suit, the police officers had been the subject of unwanted attention among Afroman's fans, but the utter hubris of the lawsuit resulted in widespread coverage in the mainstream media, including the New York Times, NPR, CBS News, and an AP story that has appeared widely. Many of the stories link to the videos, publicizing them further. This is, indeed, how I heard of them. There is a serious side to this case – Ohio is, after all, the state whose right of publicity laws produced Zacchini v. Scripps-Howard, which rejected a First Amendment defense to a lawsuit complaining about a news broadcast of a "shot from the cannon" act for which the stuntman conducting the act charges. Plainly, this case is different – plaintiffs' raid was not a commercial performance but an action of the government, and the complaint gives no reason to believe that plaintiffs' appearance in uniforms has commercial value, as required for application of the Ohio right of publicity statute. Moreover, several of the statutory exceptions apply, including the exceptions for "dramatic," "historical" "audiovisual" and "musical" works, for material of political or newsworthy value, and for reporting on issues of public interest; there is also a general First Amendment exception. Indeed, many cases recognize a First Amendment right to record the police. Broadcasting the resulting videos and still images is likewise protected. But I also wondered whether the lawyer who filed this case, not to speak of his clients, had thought about whether the suit would simply bring even greater attention to the clients' participation in the raid. To be sure, these plaintiffs have already taken more of a public beating than Streisand had when she filed her lawsuit, but even so I thought of the plight of James Amodio, who filed a lawsuit over mild criticism of his client in an eBay review without considering the destructive impact that the litigation would have on his client, and who ended up having to pay part of the award of sanctions for frivolous litigation. Amodio later acknowledged that he had got in over his head; we required him to pay only a small part of the sanctions, even though his client was bankrupt and apparently could not satisfy the judgment. I tried to raise these questions with the police officers' lawyer but he angrily refused to engage, except to note that the public reaction to the lawsuit was hostile. The post "Preparing for the 20th Anniversary of the Streisand Effect: Cooley v. Afroman" appeared first on Reason.com.
The Alliance for Hippocratic Medicine's lawsuit seeking to force the Food and Drug Administration to revoke its approval of mifepristone, a widely used abortion medication, has received significant attention. (I've blogged on administrative law issues in the case here and here.) Less attention has been made to a parallel lawsuit filed by Demoratic state attorneys general seeking to force the FDA to move in the opposite direction. Politico reports: Lawyers representing the FDA are expected in court on Tuesday to defend the agency's authority to place certain restrictions on mifepristone, which is typically used to end a pregnancy during the first 10 weeks. The case before the U.S. District Court for the Eastern District of Washington was brought by more than a dozen Democratic state attorneys general who say the requirements around the drug, including a certification process for anyone prescribing it, place an undue burden on patients and providers. . . . Oregon Attorney General Ellen Rosenblum is co-leading the lawsuit with Ferguson, and they are joined by the Democratic attorneys general representing Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont. The pill restrictions, the group claims, are burdensome for both patients and doctors and the documentation requirements put them at risk for harassment or violence. Interestingly enough, this lawsuit faces some of the same administrative law obstacles as does the AHM suit. As the Justice Department points out in its brief, the state AGs failed to administratively exhaust their remedies before filing suit (such as by filing a petition calling upon the FDA to alter its regulation of mifepristone). Moreover, it is not clear how the state AGs have standing to raise their claims at all. The state AGs' claims that their states are harmed by the maintenance of restricitons on prescribing mifepristone rest on speculative claims about the effect of such restrictions. Another problem with the state AGs' suit is that it is ostensibly challenging the mifepristone restrictions adopted by the FDA in January 2023, but those restrictions represented a loosening of the FDA's restrictions on mifepristone. Accordingly, vacating the January 2023 policies would result in the reimposition of those restrictions previously in force, which would be more burdensome and thus do more harm to the interests the state AGs purport to represent. As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA, either by creating a conflicting court order or nationwide injunction that would keep mifepristone on the market or merely by creating a circuit split on the question. Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case. The post Blue-State AGs Have A Mifepristone Lawsuit of Their Own appeared first on Reason.com.
From today's Second Circuit decision in Greer v. Fox News Media, by Judges Barrington Parker, Gerald Lynch, and Raymond Lohier: Steven Eric Greer, proceeding pro se, appeals from a … [judgment] dismissing and denying leave to amend his claims of unfair competition, unjust enrichment, misappropriation of "hot news," defamation, tortious interference with contractual relations and with prospective economic advantage, and intentional infliction of emotional distress against various news organizations and individuals. Greer primarily claims that the defendants used his news tips without compensating or crediting him, and that they also defamed him by "blacklisting" him from the news media industry…. "Section 301 of the Copyright Act expressly preempts a state law claim only if (i) the work at issue 'come[s] within the subject matter of copyright' and (ii) the right being asserted is 'equivalent to any of the exclusive rights within the general scope of copyright.'" … [B]oth unfair competition claims "grounded solely in the copying of a plaintiff's protected expression" and unjust enrichment claims satisfy the general scope requirement. As to the first requirement, citing Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC (2019), Greer argues that his unfair competition and unjust enrichment claims are not preempted because they concern unprotectable ideas from blogs and emails, rather than reproduced portions of books, and therefore fall outside the subject matter of copyright. We disagree. The subject matter of copyright encompasses ideas expressed in "'any tangible medium,'" including blogs and emails. And although copyright protection "does not extend to an idea," we have explained that where "the ideas that are the subject of the claim were fixed in writing—whether or not the writing itself is at issue—the claim is within the subject matter of copyright" for purposes of preemption. So even if we assume that the "factual content" in Greer's blogs and emails is itself "uncopyrightable," expressing that content in a blog, email, or other tangible medium nonetheless brings it within the subject matter of federal copyright law…. We also affirm the District Court's judgment insofar as it dismissed Greer's misappropriation of "hot news" claim because Greer failed adequately to allege the basic elements for such a claim, namely: (1) that he gathered "time-sensitive" information, (2) that he was in "direct competition" with the defendants, and (3) that the defendants' "free riding" on his efforts to collect information "substantially threaten[s]" the "existence or quality" of his journalism. Nat'l Basketball Ass'n v. Motorola Inc. (2d Cir. 1997). Nor are we persuaded by Greer's argument that the District Court erred in dismissing his defamation claim…. [Greer] identifies only one specific published statement that might qualify as defamatory. That statement, that he was a "nut," is not defamatory because it "amount[s] to no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation." Klepetko v. Reisman (N.Y. App. Div. 2007). Finally, we conclude that Greer has abandoned his tortious interference and intentional infliction of emotional distress claims because, even reading his appeal brief liberally, he does not contend that the District Court erred in dismissing them…. Greer's proposed amendments [to his Complaint] fail to state a claim for breach of an implied-in-fact contract. Under New York law, "[a]n implied-in-fact contract requires such elements as consideration, mutual assent, legal capacity and legal subject matter." In particular, "[t]he element of mutual assent … must be inferred from the facts and circumstances of each case, including such factors as the specific conduct of the parties, industry custom, and course of dealing." Greer's proposed amendments fail to allege that there was mutual assent between him and the defendants to compensate or credit him for his news tips. Accordingly, we conclude that the District Court did not abuse its discretion in denying Greer's motion for leave to amend his complaint a third time. For more on the decision below, see this post from last year. Congratulations to Steven Mintz and Terence McCormick (Mintz & Gold LLP) and Stephen Wu (Fox Corp.), who represent the defendants. The post Court Rejects Idea Theft / "Hot News" Claim by Occasional Fox Guest Against Fox appeared first on Reason.com.
Yesterday the Appellate Court of Maryland enforced crime victims' rights in a high-profile case involving Adnan Syed, the subject of the "Serial" podcast. In a 2-1 decision, that Court ruled that the trial court needed to respect the rights of Young Lee, brother of Hae Min Lee (the victim), to have been notified of and to have attended a hearing last September when the trial judge vacated Mr. Syed's conviction for murdering Ms. Lee. This decision is an important milestone, signaling that crime victims' rights are becoming an enforceable part of our nation's criminal justice architecture. Most readers are aware of the "Serial" podcast, which cast doubt on the reliability of Mr. Syed's convictions in 2000 for (among other things) the 1999 murder of 17-year-old Hae Min Lee. In 2003, the Maryland Court of Special Appeals affirmed his conviction. In 2010, Mr. Syed filed a petition for for post-conviction release, arguing ineffective assistance of counsel. Ultimately, after extended evidentiary and other hearings, the Maryland Court of Appeals affirmed Mr. Syed's conviction. The U.S. Supreme Court denied certioari. At the time, Maryland Attorney General Brian Frosh responded to news of the high court's decision by saying the evidence linking Mr. Syed to Ms. Lee's death was "overwhelming." Then, several years later, in September 2022, Baltimore State's Attorney Marilyn Mosby filed a motion to vacate Mr. Syed's convictions under Maryland's vacatur statute. The motion argued that prosecutors had failed to disclose evidence to the defendant that other suspects might have been responsible for the murder. That motion was questioned by many observers, who noted that Mosby acted precipitously as she was about to face trial on federal fraud and perjury charges. (The federal charges against Mosby remain pending; recently her defense attorneys were permitted to withdraw from the case after being accused of violating court rules.) The judge who presided over Mr. Syed's trial also provided an affidavit stating that substantial evidence supported Mr. Syed's conviction. But because the State was moving to set aside Mr. Syed's convictions–and Mr. Syed obvious agreed—it was not clear who was defending the conviction. After a hearing, the Circuit Court for Baltimore City granted the motion. Ms. Lee's brother, Young Lee, appealed the vacatur, arguing that he (a crime victim's representative) had not been given adequate notice of the vacatur hearing or a meaningful opportunity to be heard on the merits of the vacatur motion. The prosecutor had provided only one business day's notice, via email, to Mr. Lee. Mr. Lee, through counsel, requested a postponement of seven days so that he could arrange to take leave from work and fly from California to be present in the courtroom. The trial court denied the requested postponement but permitted him to give a statement on Zoom—with only thirty minutes to prepare. The Appellate Court concluded this was not adequate notice: Clearly, notice to a victim in California that there would be a hearing in Baltimore a minute later would not be sufficient to comply with the statutory objectives, a point which Mr. Syed's counsel conceded, appropriately, at oral argument. Similarly, the State's notice here, an email [on Friday] one business day before the hearing on Monday, September 19, 2022, was not sufficient to reasonably allow Mr. Lee, who lived in California, to attend the proceedings, as was his right. The inadequate notice also interfered with Mr. Lee's right to attend the proceeding, even though he was allowed to participate via Zoom: We hold that in the circumstance where, as here, a crime victim or victim's representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim's right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect. The Court then considered the appropriate remedy for these violations of crime victims' rights. It could be argued that setting the vacatur aside and holding a new hearing where victims' rights were respected would violate Mr. Syed's double jeopardy rights. The Court made short work of that potential argument, explaining that Ordering a new vacatur hearing would not result in a second prosecution after conviction or acquittal. The result of a new vacatur hearing will be to either reinstate the initial conviction or vacate it again. There would not be a second prosecution. The Appellate Court noted that, against the backdrop of proven violations of Maryland's victims' rights statute, it had "the power and obligation to remedy that injury." Accordingly, the Court set aside trial court's order vacating Mr. Syed's convictions and remanded "for a new, legally compliant, transparent hearing on the motion to vacate, where Mr. Lee is given notice of the hearing that is sufficient to allow him to attend in person, evidence supporting the motion to vacate is presented, and the court states its reasons in support of the decision." While the Appellate Court generally supported victims' rights, one part of the decision held that that a victim does not have a right to be heard a vacatur hearing. This conclusion is difficult to square with the language of the Maryland Victims' Rights Amendment, which gives crime victims the state constitutional right "to be heard at a criminal justice proceeding"—which a vacatur hearing would seem to be. But this part of the Appellate Court's decision may have limited practical importance. The Appellate Court noted that while a victim may lack a "right to be heard, there are valid reasons to allow a victim that right in a vacatur hearing, and the court has discretion to permit a victim to address the court regarding the impact the court's decision will have on the victim and/or the victim's family." The conclusion that a victim should be heard at a vacatur hearing where no one is defending the judgment of conviction is well supported by (for example) the U.S. Supreme Court's practice of appointing an advocate to defend the judgment below when both parties decline to do so. For example, in 2000, Chief Justice Rehnquist appointed me to argue in defense of the Fourth Circuit's decision that 18 U.S.C. section 3501 superseded the Miranda requirements, after the Clinton Administration Justice Department declined to defend the federal statute. In another case, the Supreme Court has explained that this approach permits it to "decide the case satisfied that the relevant issues have been fully aired." The Appellate Court declined to formally appoint Mr. Lee to defend the conviction. But if he is permitted to speak—as the Court suggests that "valid reasons" support—then he will be able to provide relevant information on this subject. Yesterday's Maryland Appellate Court ruling is important because it signals that in Maryland (and, presumably, in many other states with similar laws) crime victims' rights must be respected and will be respected. For the last several decades, the crime victims' rights movement has evolved from working to create crime victims' rights to making those rights enforceable. I know my friends in the crime victims' rights movement in Maryland (some of whom are working on this case) have made that a top priority. Crime victims face many challenges in enforcing their rights. Among the most significant are obtaining legal counsel and "standing" in court to advance their arguments. Here, Mr. Lee had legal counsel and was allowed to be heard regarding his rights. That result should be broadly applauded, as a process in which crime victims are heard is one that will produce outcomes that are more broadly accepted by the public—regardless of whether that outcome goes in favor of or against the victim. Enforcing Mr. Lee's rights as a victim representative does not take away any rights from Mr. Syed. The Court stayed enforcement of its ruling for 60 days, which should provide ample time for a new hearing—during which time Mr. Syed is released. It appears that Mr. Syed plans to appeal to the Maryland Supreme Court, so his rights will continue to be reviewed. And if ultimately a new hearing is held, that hearing will be one where both Mr. Syed's and victims' rights are respected. If the nation is going to adopt crime victims' rights—as all fifty states have done to some degree—those rights should be enforceable. It would add insult to criminal injury to extend victims only paper promises. The Appellate Court of Maryland's decision wisely and properly took crime victims' rights seriously and enforced them. The post Adnan Syed's Conviction Reinstated to Protect Crime Victims' Rights appeared first on Reason.com.
I thought this would be a good fit with Motherland, by Zemfira, which I blogged two weeks ago. It was originally written by Yevgeniy Kliachkin, about the 1970s Jewish emigration; but this cover is by Boris Grebenshchikov, one of the founding fathers of Russian rock and a major Russian musical figure. Grebenshchikov, a critic of the war, himself recently left Russia, which makes the song especially resonant, I think. Here's a doubtless imperfect translation of the lyrics: Farewell I say to the country, where I lived a life, I can't figure out whose And for the last time, while I'm still here I drink this air like wine. But I carry no blame, my land I'm not the worst of your sons If you say you must be the center of our love Let me decide for myself what should be the center To be cruel to your sons is sin If you are truly a loving mother to them My first snow was of course your snow Yet allow me to know a second one But there is love for you, believe me I'm gladdened even by your slush But flattery is toxic to love So why, tell me, do you drink poison? You are in me, how I am in you: entirely Not one scar of mine will shout out. Whatever would ring out in pain here Would rustle as slander if said there. Farewell I say to the country, where I lived a life, I can't figure out whose And for the last time, while I'm still here I drink this air like wine. Many thanks to my parents, Anne and Vladimir, for their help, as well as to Valery Molot, to whom Kliachkin dedicated the song; Molot is now a lawyer in New York, and was kind enough to help me confirm some of the ambiguous meaning. And here's Kliachkin's own performance, though of course not tied to the Ukraine war the way Grebenshchikov's is: The post Farewell to the Motherland: A Song of Departure appeared first on Reason.com.
Several countries use the currency "dinar." Almost all are majority Muslim (e.g., Algeria and Jordan). One is not majority Muslim; what is that country? The post Dinar appeared first on Reason.com.
This week and next, I'll be serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, publication, and more), see here; in particular, the two key posts are Why ChatGPT Output Could Be Libelous and An AI Company's Noting That Its Output "May [Be] Erroneous]" Doesn't Preclude Libel Liability. [* * *] [A.] First Amendment Protection AI programs' output should be as protected by the First Amendment as the output of the New York Times. To be sure, the AI programs aren't engaged in "self-expression"; as best we can tell, they have no self to express. But the programs' output is, indirectly, the AI company's attempt to produce the most reliable answers to user queries, just as a publisher may found a newspaper to produce the most reliable reporting on current events.[1] That this is done through writing algorithms rather than hiring reporters or creating workplace procedures shouldn't affect the analysis. And in any event, regardless of whether any speaker interests are involved in an AI program's output, certainly readers can gain at least as much from what the program communicates as they do from commercial advertising, corporate speech, and speech by foreign propagandists. Those three kinds of speech have been held to be protected in large part because of listener interests;[2] AI-mediated output should be as well. (Commercial advertising is less protected than other speech, especially when it is false or misleading, but this stems from other features of commercial advertising, not from the fact that it's justified by listener interests.[3]) Nonetheless, even if an AI program's output is like a newspaper's output, the AI company would still be potentially exposed to libel liability: The company could be liable if it knows certain statements the program is communicating are false and defamatory (or if it knows they are likely to be so but recklessly disregards that possibility).[4] If the program communicates something false and defamatory about a private figure on a matter of public concern, and the company is negligent about this, then it could be liable for proven harm to the private figure.[5] If the program communicates something on a matter of private concern, then the company could potentially be strictly liable, though practically speaking almost all states require a showing of negligence even in private-concern cases.[6] In this post, let me turn to a knowing-or-reckless-falsehood theory, under category 1; I'll deal with negligence claims in a later post. [B.] A Notice-and-Blocking Model? It's highly unlikely that the AI company will know, at the design stage, that the program will be communicating defamatory falsehoods about particular people. But say that R.R. (from the example that first led me to investigate this) alerts the company about this: He points out that the quotes that its program is reporting about him don't actually appear in the publications to which the program attributes the quotes—a Lexis/Nexis search and a Google search should verify that—and that there's no record of any federal prosecution of him. Someone at the company would then be aware that the company's program is communicating false and defamatory materials. Presumably the company could then add code that would prevent these particular allegations—which it now knows to be false or at least likely false—from being output. (I expect that this would be "post-processing" content filtering code, where the output of the underlying Large Language Model algorithm would be checked, and certain material deleted; there would be no need to try to adjust the LLM itself, but only to add an additional step after the LLM produces the output. Indeed, OpenAI apparently already includes some such post-processing code, but for other purposes.[7]) More likely, the company could add this code once, have the code consult a table of assertions that shouldn't be output, and then just add individual assertions once it gets notice about their being false. And if the company doesn't do this fairly promptly, and continues to let the program communicate these assertions despite the company's awareness that they're false, it would at that point be acting with knowledge or recklessness as to the falsehood. This is of course just a sketch of the algorithm. Since LLMs often output subtly different answers in response to the same query, the software might need to be more sophisticated than just a word search for the complainants' names near the particular quote that had been made up about them. And the results would likely be both overinclusive (perhaps blocking some mentions of the person that don't actually make the false allegations) and underinclusive (perhaps failing to block some mentions of the person that do repeat the false allegations but using subtly different language). Nonetheless, some such reasonably protective solution seems likely to be within the capability of modern language recognition systems, especially since it would only have to take reasonable steps to block the regeneration of the material, not perfect steps. Perhaps the company can show that (1) it can design a system that can perform at nearly the 90th percentile on the bar exam,[8] but that (2) checking the system's output to see if it includes a particular person's name in an assertion about an embezzlement conviction is beyond the company's powers. Or, perhaps more likely, it can show that any such filtering would be so over- and underinclusive that it would be unreasonable to read libel law as requiring it (or that to make it work would require the sort of army of content moderators that sites such as Facebook employ). Yet that doesn't seem likely to me; and it seems to me that the company ought to have to show that, rather than to have the legal system assume that such a remedy is impossible. If there is a genuine dispute about the facts—e.g., when an AI program accurately communicates allegations made by a credible source, but the subject of the allegations disputes the source's accuracy—then I'm inclined to think that the AI company shouldn't be put in a position where it has to independently investigate the charges. But when the program outputs quotes that simply don't appear in the training data, or in any Internet-accessible source, then there is little reason why an AI company should be free to have its software keep producing such data. Of course, even fielding such requests and doing the most basic checks (for, say, the accuracy of quotes) will take time and money. But I don't think that such costs are sufficient to justify an AI company's refusing to do this. By way of analogy, say that you're a reporter for the New York Times and you're writing a story about various accusations against R.R. You call up R.R., and he tells you that it's all wrong, and that (for instance) he in fact never pleaded guilty to a federal crime. Once you are on notice of this, you would have to take the time and effort to investigate his response. If you just blithely ignore it, and publish the story despite having been told that it may well be mistaken, that would be textbook "reckless disregard," which would allow liability even in a public official case: Consider, for instance, Harte-Hanks Communications, Inc. v. Connaughton, which held that "purposeful avoidance of the truth" and thus "actual malice" could be found when plaintiff had made exculpatory audiotapes available to the newspaper but "no one at the newspaper took the time to listen to them."[9] This means that you do have to take the time and effort to review such assertions, even if in the aggregate this means a good deal of time and effort for the employees of the New York Times put together. And of course AI companies already stress that they have instituted various guardrails that would avoid various outputs (again, however imperfectly); here's an example from OpenAI: Our use case guidelines, content guidelines, and internal detection and response infrastructure were initially oriented towards risks that we anticipated based on internal and external research, such as generation of misleading political content with GPT-3 or generation of malware with Codex. Our detection and response efforts have evolved over time in response to real cases of misuse encountered "in the wild" that didn't feature as prominently as influence operations in our initial risk assessments. Examples include spam promotions for dubious medical products and roleplaying of racist fantasies.[10] Given that AI companies are capable of doing something to diminish the production of racist fantasies, they should be capable of doing something to diminish the repetition of libelous allegations to which they have been specifically alerted. [C.] The Imperfections of Notice-and-Blocking Any such notice-and-blocking solution, to be sure, would be imperfect: It's possible that the AI program would regenerate a similar assertion that is different enough that it wouldn't be caught by this post-processing filter. But it should be fairly reliable, and should thus diminish the damage that the AI program may do to people's reputations. To be sure, people can avoid some of ChatGPT's existing guardrails, for instance "rephrasing a request for illicit instructions as a hypothetical thought experiment, asking it to write a scene from a play or instructing the bot to disable its own safety features."[11] But that's not a problem here: The main risk of reputational damage comes when people simply search for R.R.'s name, or ask about what he had been accused of, just in order to figure out accurate information about him. Relatively few people will take the time and effort to deliberately evade any filters on known libels that the AI program might include; and, if they do, they'll probably be aware that the results are unreliable, and thus will be less likely to think worse of R.R. based on those results. So taking reasonable steps to block certain output, once there is actual notice that the output is incorrect, should be necessary to avoid liability for knowing defamation. And it should be sufficient to avoid such liability as well. [I still need to add a subsection comparing and contrasting with DMCA notice-and-takedown rules as to copyright and trademark infringement.] [D.] The bookstore/newsstand/property owner analogy To be sure, unlike with a traditional newspaper that is distributing a libelous story, no human at an AI company would have written, edited, or even typeset the assertions. One might therefore argue that the company, as a corporate entity, isn't really "communicating" the assertions, since none of their human employees ever wrote them. But that's also true of bookstores and newsstands, and they are still liable for defamation if they "know[] or have reason to know of [the] defamatory character" of the material that they are distributing—as would be the case once they are informed that a particular publication that they carry contains specific libelous material.[12] Likewise, a property owner is liable for defamatory material posted by third parties on its property, once it's informed of the presence of the material.[13] The AI company should be similarly liable for defamatory material distributed by its own computer program, once it's informed that the program is so distributing it. As we'll see below, there is good reason to hold AI companies liable even when bookstores and newsstands might not be, because the AI companies create the programs that create the false and defamatory output, and have the power to do at least some things to decrease the likelihood of such output. But AI companies should be at least as liable as bookstores and newsstands, which means that they should be liable once they are put on notice about the falsehood and fail to take reasonable steps to try to block it from being regenerated. [1] See Eugene Volokh & Donald M. Falk, First Amendment Protection for Search Engine Search Results, 8 J. L. Econ. & Pol. 883 (2012) (white paper commissioned by Google). [2] Virginia Pharmacy Bd. v. Va. Consumers Council, 425 U.S. 748, 756 (1976); First Nat'l Bank of Boston v. Bellotti, 435 U.S 765, 775–76, 783 (1978); Lamont v. Postmaster General, 381 U.S. 301, 305, 307 (1965); see also id. at 307–08 (Brennan, J., concurring) (stressing that it's not clear whether the First Amendment protects "political propaganda prepared and printed abroad by or on behalf of a foreign government," but concluding that the law was unconstitutional because it violates the recipients' rights to read, regardless of the senders' rights to speak). [3] Here's the Court's explanation for the lower level of protection for commercial advertising, as articulated in Virginia Pharmacy, the case that first squarely held that such advertising is generally protected: The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely. Attributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. They may also make inapplicable the prohibition against prior restraints. 425 U.S. at 771 n.24. But see Jack Balkin, The First Amendment and AI-Generated Speech, 3 J. Free Speech L. __ (2023) (arguing that AI output should be treated more like commercial advertising). [4] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). [5] Gertz v. Robert Welch, Inc. [6] Dun & Bradstreet v. Greenmoss Builders; Restatement (Second) of Torts § 558(c) (1977). [7] For instance, when I asked OpenAI to quote the racist leaflet at the heart of Beauharnais v. Illinois, 343 U.S. 250 (1952), it eventually did so, but added the text, "Keep in mind that these quotes are offensive and represent the views of the person who created the leaflet, not the views of OpenAI or its AI models." It seems very unlikely that this was organically generated based on the training data for the model, and seems more likely to have been produced by code that recognizes that the ChatGPT-4 output contained racist terms. [8] See, e.g., https://openai.com/research/gpt-4 ("For example, [GPT-4] passes a simulated bar exam with a score around the top 10% of test takers."). [9] 491 U.S. 657, 692 (1989); see also, e.g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). [10] OpenAI, Lessons Learned on Language Model Safety and Misuse, https://perma.cc/WY3Y-7523. [11] Kevin Roose, The Brilliance and Weirdness of ChatGPT, N.Y. Times, Dec. 5, 2022. [12] Restatement (Second) of Torts § 581(1) & cmt. e; Janklow v. Viking Press, 378 N.W.2d 875, 881 (S.D. 1985). [13] Hellar v. Bianco, 244 P.2d 757, 757 (Cal. Dist. Ct. App. 1952); cf. Tidmore v. Mills, 32 So. 2d 769, 772, 777–78 (Ala. Ct. App. 1947); Woodling v. Knickerbocker, 17 N.W. 387, 388 (Minn. 1883); Tacket v. Gen. Motors Corp., 836 F.2d 1042, 1045 (7th Cir. 1987); cf. Dillon v. Waller, No. 95APE05-622, 1995 WL 765224, at *1–2 (Ohio Ct. App. Dec. 26, 1995); Kenney v. Wal-Mart Stores, Inc., No. WD 59936, 2002 WL 1991158, at *12 (Mo. Ct. App. Aug. 30, 2002), rev'd on other grounds, 100 S.W.3d 809 (Mo. 2003) (en banc). But see Scott v. Hull, 259 N.E.2d 160 (Ohio Ct. App. 1970) (rejecting liability in a similar situation). The post Knowing/Reckless Falsehood Theories in "Large Libel Models" Lawsuits Against AI Companies appeared first on Reason.com.
3/29/1937: West Coast Hotel v. Parrish decided. The post Today in Supreme Court History: March 29, 1937 appeared first on Reason.com.
Daily News and Updates for March 28th, 2023: "Nearly two-thirds of U.S. voters say FBI is 'politically weaponized': poll" The post Daily News and Updates for March 28th, 2023: “Nearly two-thirds of U.S. voters say FBI is ‘politically weaponized’: poll” appeared on Stillness in the Storm.
Apparently jealous of all the attention that Yale and Stanford law students have gotten for acting like imperious children, Columbia law students, represented by BALSA, LALSA, NALSA, EWOC, OutLaws, QTPOC, IfWhenHow, APALSA, and SALSA (no, I'm not familiar with all of these acronyms), have been throwing a collective hissy fit. The act that stirred such emotion? Columbia's Instagram account noted that a group of law students affiliated with the Federalist Society met with Justice Brett Kavanaugh in DC. You can read the details at the Daily Wire. The students' only tangible complaint, at least judging by the article, is that Kavanaugh was "credibly accused" of sexual assault. It's been over four-and-a-half years since the allegation of misbehavior over 30 years earlier surfaced. Since then, no one, including those who were present at the time, has corroborated the initial allegation, nor, despite the best efforts of ambitious journalists, has anyone been able to substantiate any similar behavior by Kavanaugh in the ensuing almost-forty-years. It's time to give up on the word "credibly" in this context. (And, fwiw, I'm pretty sure that the students would react differently to news of a meeting with a particular former president who is truly "credibly accused" of sexual coercion. Hint: his initials are WJC.) The post More Elite Law Student Foolishness, This Time at Columbia appeared first on Reason.com.
This week and next, I'll be serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, publication, and more), see here; in particular, the two key posts are Why ChatGPT Output Could Be Libelous and An AI Company's Noting That Its Output "May [Be] Erroneous]" Doesn't Preclude Libel Liability. Here, I want to say just a few words about damages. [* * *] The majority view in the states is that "One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to liability to the other although no special harm results from the publication."[1] To have a case, then, a plaintiff need not prove any particular financial loss. The First Amendment limits this doctrine in private figure/public concern cases that are premised on a showing of mere negligent falsehood (as opposed to reckless or knowing falsehood): In such cases, some showing of damage to reputation, and consequent financial loss or emotional distress, is required.[2] But in cases brought based on speech on matters of private concern, or in cases where reckless or knowing falsehood is shown (more on that below), damages need not be shown. In any event, though, damages could often be shown, especially once the AI software is integrated into widely used applications, such as search engines. To be sure, the results of one response to one user's prompt will likely cause at most limited damage to the subject, and might thus not be worth suing over (though in some situations the damage might be substantial, for instance if the user is deciding whether to hire the subject, or do business with the subject). But of course what one person asks, others might as well; and a subpoena to the AI company, seeking information from any search history logs that the company may keep for its users (as OpenAI and Google do), may well uncover more examples of such queries. Moreover, as these AIs are worked into search engines and other products, it becomes much likelier that lots of people will see the same false and reputation-damaging information. But beyond this, libel law has long recognized that a false and defamatory statement to one person will often be foreseeably repeated to others—and the initial speaker could be held liable for harm that is thus proximately caused by such republication.[3] In deciding whether such repetition is foreseeable, the Restatement tells us, "the known tendency of human beings to repeat discreditable statements about their neighbors is a factor to be considered."[4] Moreover, if the statement lacks any indication that the information should "go no further," that lack "may be taken into account in determining whether there were grounds to expect the further dissemination."[5] [1] Restatement (Second) of Torts § 569. [2] Gertz. [3] Restatement (Second) of Torts § 576(c) (1977); see, e.g., Oparaugo v. Watts, 884 A.2d 63, 73 (D.C. 2005) ("The original publisher of a defamatory statement may be liable for republication if the republication is reasonably foreseeable."); Schneider v. United Airlines, Inc., 208 Cal.App.3d 71, 75, 256 Cal.Rptr. 71 (1989) ("the originator of the defamatory matter can be liable for each repetition of the defamatory matter by a second party, if he could reasonably have foreseen the repetition" (cleaned up)); Brown v. First National Bank of Mason City, 193 N.W.2d 547, 555 (Iowa 1972) ("Persons making libelous statements are, and should be, liable for damages resulting from a repetition or republication of the libelous statement when such repetition or republication was reasonably foreseeable to the person making the statement."). The law of some states seems to reject this theory, see, e.g., Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 60 (2d Cir. 2002), but it appears to be the majority view. [4] Restatement (Second) of Torts § 576(c) cmt. D (1977). [5] Id. cmt. d. The post Possible Damages in Lawsuits Against AI Companies for Defamatory Communications by Their Products appeared first on Reason.com.

Wil Wilkins, one of the plaintiffs in Wilkins v. United States (courtesy of Pacific Legal Foundation). Today, the Supreme Court issued its opinion in Wilkins v. United States, a highly technical procedural case that may turn out to be a significant victory for property owners, particularly those in Western states where the federal government owns large amounts of land. The ruling is a 6-3 decision featuring an unusual coalition of justices in the majority: the three liberals joined conservatives Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. Clarence Thomas wrote a dissent joined by Chief Justice John Roberts and Samuel Alito. The plaintiffs, Wil Wilkins and Jane Stanton, own homes near the Bitterroot National Forest in Montana. The National Park Service owns a longstanding easement over the land which allows it to grant access to private parties engaged in logging on the National Forest. In 2006, the Forest Service put up a sign stating that the road through the plaintiffs' land is open to general "public access." This greatly increased traffic through the area, and disturbed Wilkins and Stanton. They filed an action against the federal government under the Quiet Title Act, which authorizes landowners to make claims protecting their property rights against federal intrusion. But the government claims they failed to do so within the 12 year statute of limitations under the Act. The lower court ruling concluded that the time limit is an absolute "jurisdictional" rule, and therefore isn't subject to constraints or limitations. Today, the Supreme Court reversed that ruling, and instead concluded that the time-bar is a just a " a nonjurisdictional claims-processing rule," which the plaintiffs might be able to get around (possibly on the ground that the government failed to properly raise the issue) or prove they didn't really violate. Here's a key excerpt from Justice Sonia Sotomayor's majority opinion: "For purposes of efficiency and fairness, our legal system is replete with rules" like forfeiture, which require parties to raise arguments themselves and to do so at certain times…. Jurisdictional bars, however, "may be raised at any time" and courts have a duty to consider them sua sponte.… When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, "many months of work on the part of the attorneys and the court may be wasted…" Similarly, doctrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed. Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.… Given this risk of disruption and waste that accompanies the jurisdictional label, courts will not lightly apply it to procedures Congress enacted to keep things running smoothly and efficiently….. Under this clear statement rule, the analysis of §2409a(g) is straightforward."[I]n applying th[e] clear statement rule, we have made plain that most time bars are nonjurisdictional…." Nothing about §2409a(g)'s text or context gives reason to depart from this beaten path. Section 2409a(g) states that an action "shall be barred unless it is commenced within twelve years of the date upon which it accrued." This "text speaks only to a claim's timeliness," and its "mundane statute-of-limitations language say[s] only what every time bar, by definition, must: that after a certain time a claim is barred…" Further, "[t]his Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional." In his dissent, Justice Thomas applies a presumption directly opposite to the one the majority relies on. Because federal sovereign immunity is at stake, he argues there should be a presumption in favor interpreting the time-bar as jurisdictional, because otherwise federal sovereign immunity would be waived: The doctrine of sovereign immunity bars suits against the United States. But, in the Quiet Title Act of 1972, Congress waived this immunity and consented to suits against the United States in order to determine the status of disputed property. 28 U. S. C. §2409a. Congress conditioned this consent on, among other things, a 12-year statute of limitations: "Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued." §2409a(g). This Court has long construed such conditions on waivers of sovereign immunity as jurisdictional. And, it has acknowledged the jurisdictional nature of the Quiet Title Act's statute of limitations in several precedents. In holding that §2409a(g) is not jurisdictional, the majority commits two critical errors. First, it applies the same interpretive approach to a condition on a waiver of sovereign immunity that it would apply to any run-of-the-mill procedural rule. Second, by reading the Court's prior Quiet Title Act precedents in this way, the Court disregards their express recognition of the jurisdictional character of the Act's time bar. Both majority and dissent makes some good points. Because of the technical nature of many of them, this is one of those situations where you have to read the opinions in full to really understand the issues. Ultimately, where you come down on this may depend in large part on how much priority should be assigned to preserving sovereign immunity versus protecting property owners' rights. I am highly skeptical that sovereign immunity is a legitimate constitutional principle at all. By contrast, I think it is extremely important for courts to enforce constitutional property rights on par with other constitutional rights. If the federal government illegally appropriates private property, it perpetrates an uncompensated taking in in violation of the Fifth Amendment (which requires "just compensation" for government seizure of private property rights). The Quiet Title Act is a tool for preventing such violations of constitutional rights. If we are going to have judicially created presumptions respecting its application, courts should pick ones that make it easier to vindicate constitutional rights over ones that provide extra protection for the dubious principle of sovereign immunity. But I can certainly understand why those who assign greater value to sovereign immunity or lesser value to property rights might reach a different conclusion. Despite its hypertechnical nature, Wilkins may turn out be an important precedent. In Montana and other western states, the federal government owns many millions of acres of land that abut or cut through private property. Various federal agencies often do things that impinge on landowners' rights or authorize various private parties to do so. The Quiet Title Act is an important tool for combating such intrusions on private land, one that may be of use to large numbers of people. And there may be a wide range of cases where there are statute of limitations issues that come up in these situations (e.g.—when land changes hands, or when it is unclear exactly when the intrusion started). The unusual alignment of justices in this case is worth noting. The three liberal justices are not generally known for their solicitude for property rights. Yet they voted for the property owner in this case, with Justice Sotomayor writing the majority opinion. Justice Thomas, author of the dissenting opinion, is sometimes considered the most property-protective justice. Alito and Roberts (who joined the dissent) also have generally pro-property rights records. It's hard to say for sure. But I suspect that attitudes towards sovereign immunity may have trumped attitudes towards property rights for many of the justices here. While the liberal justices may not be big champions of property rights, they are also generally more skeptical of sovereign immunity than conservatives. By contrast, Justice Thomas is a particularly forceful advocate of broad sovereign immunity. The three conservative justices in the majority may be a bit less committed to immunity than he is. Obviously this is just conjecture. There may be other explanations for the breakdown of votes here. The Supreme Court's decision is not the end of this litigation. The case has been remanded to the lower courts, which will now have to reconsider the statute of limitations issue, and (if the plaintiffs win on that) determine who should prevail on the merits. NOTE: The plaintiffs in this case were represented by the Pacific Legal Foundation, which is also my wife's employer, though she herself did not work on Wilkins. PLF has more material about the case here. The post Victory for Property Rights in Highly Technical Supreme Court Decision appeared first on Reason.com.
From Doe v. HireRight LLC, decided yesterday by Judge Stephen McNamee (D. Ariz.): Four years ago, Plaintiff was charged with two felonies. As part of a plea agreement, he pled guilty to both charges in exchange for one of the charges being downgraded to a misdemeanor. Thus, he was convicted of one felony and one misdemeanor. In January 2023, Plaintiff applied for a position at CloudKitchens. During the interview process, Plaintiff disclosed that he had been convicted of a felony but was told that this would not prohibits his hiring. Toward the end of the application process, CloudKitchens hired Defendant HireRight to perform an employment-purposed consumer report on Plaintiff, which included a criminal background check. This report ultimately stated, inaccurately, that Plaintiff had been convicted of two felonies—not the single felony that Plaintiff had previously reported to CloudKitchens. As a result of this report, CloudKitchens rescinded its job offer…. Doe sued under the Fair Credit Reporting Act, but the court refused to allow him to proceed pseudonymously: Federal Rule of Civil Procedure 10 requires that "the title of the complaint must name all the parties." This rule reflects the "paramount importance of open courts" such that the "default presumption is that plaintiffs will use their true names." Nonetheless, the Ninth Circuit allows parties to proceed pseudonymously when special circumstances justify secrecy…. Plaintiff acknowledges that his is not a situation that the Ninth Circuit has determined necessitates anonymity. Instead, Plaintiff argues that because he "worked incredibly hard to get back on track and contribute positively to society" after his convictions, he should not be forced to publicly identify himself as a felon. Plaintiff characterizes the potential harms of having to litigate under his own name as ridicule and deprivation of employment. Specifically, Plaintiff fears the "stigma of a felony conviction." The Court recognizes that this lawsuit might bring attention to Plaintiff's convictions, which could in turn make finding employment more difficult. Under Ninth Circuit precedent, however, this is not the type of harm that requires anonymity. Unlike most of the cases granting anonymity, Plaintiff does not face retaliation as a direct result of this lawsuit. See U.S. v. Doe, (9th Cir.) (prisoner plaintiff faced retaliation in the form of serious bodily harm by fellow inmates for his cooperation with the government); Doe v. Ayers (9th Cir.) (finding that petitioner's "exceptional case met the high bar for proceeding under a pseudonym" where there was "credible evidence that he would likely be subjected to more violence if his name was revealed ….") Any harms that Plaintiff might face stem from his prior convictions, which are—as Plaintiff acknowledges—already publicly available information. Indeed, this lawsuit is evidence that Plaintiff is already susceptible to these harms regardless of this lawsuit. Further, these harms are distinguishable from the kinds of harms for which courts typically provide anonymity—such as serious physical harm, imprisonment, or deportation. Although courts have allowed parties to proceed pseudonymously to avoid embarrassment, these cases tend to involve allegations of sexual abuse against minors, rape victims, and other particularly vulnerable parties. E.g., Doe v. Krogh (D. Ariz. 2021). Although Plaintiff might be embarrassed by his criminal convictions, these convictions are already public and do not rise to the same level of seriousness as do details of sexual abuse. As such, Plaintiff's embarrassment alone cannot tip the scales in favor of anonymity. Moreover, since the Plaintiff seeks to correct the record regarding his conviction status, there is a potential salient benefit to the Plaintiff in avoiding anonymity. Courts grant anonymity in "unusual," "extraordinary," or "special" cases. This case is none of those things. Plaintiff's alleged harms are far from unusual—countless Americans face difficulty finding employment as a result of their criminal record…. The post No Pseudonymity for Plaintiff in Lawsuit That Would Further Publicize His Criminal History appeared first on Reason.com.
On March 15, a federal district court in Texas heard arguments in Alliance for Hippocratic Medicine v. Food & Drug Administration, in which AHM is seeking to force the FDA to revoke its approval of mifepristone, a widely use abortion medication. While most commentary on the case has focused on the substance of the suit, the administrative law questions are more likely to control the outcome. As I noted in this post on the case, there are substantial obstacles to a court properly reaching the merits of the case, including Article III standing and the statute of limitations for suits of this kind. Drawing on an analysis by Adam Unikowsky, I explained why these issues should spell the end of the case. AHM's case relies upon a very aggressive theory of standing and stretching the reopening doctrine to overcome the statute of limitations. Erin Hawley of the Alliance Defense Fund is one of the attorneys representing AHM in the case. Below the fold I reproduce her response to my post, which largely focuses on the question of standing, and my reply. Here is Hawley's response: Without addressing the merits of the FDA's approval of mifepristone in 2000—under regulations requiring the FDA to find that pregnancy is a "serious or life-threatening illness"—or its deregulation of mifepristone to allow mail-in abortions in violation of the FDCA and other federal laws, Professor Adler suggested in these pages that the serious legal issues involved in Alliance for Hippocratic Medicine v. FDA should never see the light of day because the plaintiff doctors filed suit too late and because they failed to identify any particular patient who will come to them for medical help after suffering adverse consequences from a chemical abortion. Neither procedural hurdle poses a bar here. First, as to standing. Commentators claim that Plaintiffs' allegations are too "speculative" under the Supreme Court's decision in Clapper v. Amnesty International USA, 568 U.S. 398 (2013). The FDA similarly relies on Clapper, asserting that Plaintiffs seeking prospective relief must demonstrate "certainly impending" harm. Other commentators focus on Clapper, too, criticizing Plaintiff doctors for failing to allege "specific facts demonstrating that any particular patient will come to them." But as that post acknowledges, "these facts are impossible for the doctors to provide." Were FDA and commentators correct about Clapper, standing to address future injuries would almost never exist. But they are wrong. At the outset, the "certainly impending" standard from Clapper does not stand alone; that case noted that the Supreme Court has also "found standing based on a 'substantial risk' that the harm will occur." Clapper, 568 U.S. at 414 n.5. And Justice Thomas recently explained that the Article III injury inquiry encompasses both: "An allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk' that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citing Clapper, 133 S.Ct. at 1147, 1150, n. 5) (emphasis added). In fact, cases proceeding Clapper equated "certainly impending" with the imminence requirement, rather than viewing the former as heightening the Article III inquiry. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006) ("[W]e have no assurance that the asserted injury is 'imminent'—that it is 'certainly impending.'"). The Supreme Court's recent decision in Department of Commerce v. New York puts a fine point on it. There plaintiffs asserted several injuries "all of which turn[ed] on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count." Dept. of Com. v. New York, 139 S. Ct. 2551, 2565 (2019). The Court concluded that Article III standing for the alleged future injuries existed if plaintiffs could show that "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Id. (emphasis added). Relying on the latter formulation, the Court upheld the district court's conclusion that trial evidence "established a sufficient likelihood" that the inclusion of a citizen question would depress census response rates which would lead to undercounting of noncitizen households and the loss of federal funds. Id. The Supreme Court did not require plaintiffs to identify a "particular" non-citizen census respondent who would refuse to answer based on the citizenship question. Department of Commerce also rejected the Clapper-based argument that harm was insufficiently imminent because it depended the independent action of third parties. The Court was "satisfied" that plaintiffs had "met their burden of showing that third parties will likely react in predictable ways to the citizenship question." Id. at 2566. This was based on the lower court's crediting "the Census Bureau's theory" that a lower response rate among noncitizen households "is likely attributable at least in part to noncitizens' reluctance to answer a citizenship question." Id. As a result, the Court fund that the plaintiffs' theory of standing did "not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties." Id. In this case, Plaintiff doctors and medical associations allege facts that show a sufficiently imminent future Article III injury. Plaintiffs point to FDA's own numbers which establish that between 5-8% of women who take chemical abortion drugs will need surgical intervention. When coupled with the fact that over 50% of abortions today are chemical abortions, the injury to plaintiff doctors who routinely treat emergency conditions resulting from chemical abortions is sufficiently imminent. Further, in contrast to the plaintiffs in Clapper who had never suffered harm, here, past is prologue. Plaintiff doctors attest that they "often" treat patients suffering adverse complications from chemical abortions—several doctors treating emergency medical conditions caused by chemical abortion a dozen times. And as the district court noted at the hearing, these injuries will only increase due to the FDA's approval of mail-order chemical abortions. With respect to future injury, plaintiffs have clearly shown that "there is a substantial risk that the harm will occur." Dept. of Com., 139 S. Ct. at 2565. With respect to traceability, the Plaintiff doctor's harm is not speculation but relies on "the predictable effect of Government action on the decisions of third parties." Id. Some commentators also suggest that there is no limiting principle to Plaintiffs' theory of harm. But the harm suffered by Plaintiff doctors here is not only the harm of being forced to divert time and resources away from their other patients, but also a constitutional injury. They allege that when they are forced to complete an elective abortion by removing unborn children and pregnancy tissue this causes them to feel complicit in that elective abortion and violate their most deeply held moral, medical, and religious beliefs. And Plaintiffs' allegations also fit comfortably within caselaw regarding harm caused to the plaintiff organizations (organizational standing), OCA-Greater Houston v. Texas,867 F.3d 604 (5th Cir. 2017), as well as third-party standing, June Medical Services LLC v. Russo,140 S. Ct. 2103 (2020). Commentators and the FDA fault the Plaintiff doctors for filing suit too late. But it is the FDA that has repeatedly dragged its feet in this case, taking over a decade to respond to Plaintiffs' 2002 citizen petition. And on the same day in March 2016 that it denied the citizen petition challenging the 2000 approval of mifepristone, the agency completely changed the regulatory framework, potentially mooting any potential court review of its decision. This delay-and-moot strategy is to blame for the decades that an unsafe drug has remained on the market. Indeed, the reopening doctrine applies to situations just like this, where the government has reexamined the necessary safeguards—here, by stripping nearly all of them from the REMS, removing in-person visits, changing the dosage, route of administration, and timing of the drugs, and allowing mail-order abortions—that served as the basis to approve the initial agency action. See Sierra Club v. Environmental Protection Agency, 551 F.3d 1019 (D.C. Cir. 2008). The federal courts have a virtually unflagging obligation to exercise the jurisdiction given them by the Constitution. All that is required of Plaintiffs in this case, as in any case, is to establish a sufficiently imminent harm. Plaintiffs' claims have merit and they deserve to see the light of day. I appreciate Hawley's arguments, and her taking the time to respond to my post, but I am not convinced. Starting with standing, AHM relies upon an unbounded theory that would blow apart existing limits on Article III standing. In multiple cases the Court has expressly rejected the argument that an objectively reasonable likelihood of harm is sufficient to show that an alleged injury is "actual or imminent." Indeed, that is the precise standard that a majority rejected in Clapper. Hawley correctly notes that, in Clapper's footnote 5, the Court noted it had "found standing based on a 'substantial risk' that the harm will occur," but she truncates the quote. What Justice Alito wrote for the Court in Clapper was that "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm." In other words, there have been cases in which the "substantial risk" prompts a party to take actions, at their own expense, to prevent the harm. Standing is appropriate in such cases because these costs born by the plaintiffs themselves constitute a concrete injury. The "substantial risk," by itself, does not. More broadly, the standing argument pressed by AHM would effectively declare open season on health, safety and environmental regulations of all stripes. Under AHM's theory, for instance, an auto repair shop would have standing to challenge an allegedly lax NHTSA auto safety regulation on the grounds that it will result in auto accidents that will result in more vehicles for the shop to repair. Standing does not work that way. Unikowsky makes the same point in his post on the case: the logical implication of the plaintiffs' position is that medical organizations have standing to challenges literally all rules that are alleged to decrease safety in any way. Suppose OSHA lifts some safety standard. A medical organization can sue claiming that (1) this will make workplaces less safe, (2) hypothetical injured employees will come to the doctor-members, and (3) the doctor-members' attention to their current patients will be diverted. Or suppose EPA alters some pollution rule. A medical organization can sue claiming that (1) this will cause people to breathe in more toxins, (2) hypothetical people who breathe in these toxins will seek medical care and come to the doctor-members, and (3) the doctor-members' attention to their current patients will be diverted. Usually slippery slope arguments don't work because courts are able to find a limiting principle, but here, none exists—plaintiffs' argument is logically identical to those arguments. It's interesting to note that the defendants' brief makes this slippery-slope argument, and the plaintiffs' reply brief ignores it altogether. They have to ignore it, because there are no responses to it. I am also unconvinced by Hawley's claim that AHM has filed its suit in time. (For more on why the claims may be time-barred, see this Notice & Comment post by Susan Morse and Leah Butterfield.) There is a six-year statute of limitations for challenging an FDA action, like its approval of mifepristone. Accepting her claim that the FDA "dragged its feet," AHM's suit is still too late. That is, even if we assume that AHM is challenging the FDA's 2016 petition denial (instead of its 2000 approval of mifepristone), the statute of limitations on that claim ran in March 2022, and AHM's suit was not filed until November. AHM wants to claim that it can challenge the FDA's 2000 approval of mifepristone because in 2021 the FDA denied their 2019 challenge to FDA's 2016 approval of a supplemental petition loosening restrictions on mifepristone. This argument rests on the claim that the FDA's 2016 action "reopened" the FDA's 2000 approval decision, but (under the relevant reopening doctrine precedents), the FDA did nothing of the kind. For good or ill, the FDA in 2016 was not considering whether it properly approved mifepristone in 2000. It was only considering whether access to mifepristone should be expanded further by loosening the restrictions on its prescription and distribution. Not only can AHM not claim that the FDA actually reopened its prior administrative decision, it also cannot claim that FDA's actions somehow prejudiced its ability to challenge the FDA's decision (a claim the Sierra Club was able to make in the D.C. Circuit case upon which Hawley relies). As with my prior post, none of my claims are dependent upon any particular view of the merits. Whether or not the FDA should have approved mifepristone in 2000, and whether or not the FDA should continue to allow mifepristone on the market today, AHM's suit should fail on jurisdictional grounds. The post AHM v. FDA: A Contrary View and a Rejoinder appeared first on Reason.com.
From today's decision by Judge Paul Maloney (W.D. Mich.) in Doe v. Calvin Univ.: In 2020, Plaintiff Jane Doe attended Calvin University in Grand Rapids, Michigan. Calvin University offered a study abroad program in the Philippines with Silliman University, a private university in Dumaguete, Philippines. Silliman University selected some of its students to serve as "buddies" for the Calvin University students. Near the end of the program, the students attended a dinner on the Silliman campus. After the dinner, the Silliman students invited the Calvin students to a local bar and club. One of the Silliman students laced or spiked Plaintiff's drink and later escorted her back to the hotel where he sexually assaulted Plaintiff. Plaintiff sued under, among other things, Title IX, and Calvin defended by arguing "that Title IX does not apply outside of the United States." No, said the court: "Plaintiff pleads deliberate indifference in the administration of the program, a claim based on Calvin University's conduct in the United States." For her Title IX claim, Plaintiff pleads that Calvin University was responsible for establishing and implementing polices and procedures concerning the security and safety of students, including adequate supervision, staff training and education of the program participants relevant to the risks of sexual assault and harassment. Plaintiff pleads that Calvin University's conduct amounted to deliberate indifference by, among other things, (1) maintaining outdated and inadequate sexual assault and harassment policies, (2) failing to provide adequate training and guidance for staff concerning the study-abroad programs, (3) failing to provide adequate orientation for students in the study-abroad programs which were necessary for protection against sexual assault and harassment, and (4) failing to require the implementation of safety protocols during the study-abroad program…. Title IX provides that "[n]o person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, …." … Our Supreme Court has held that an entity receiving federal funds may violate Title IX through an administrative enforcement scheme that amounts to deliberate indifference. Circuit courts, including the Sixth Circuit, have recognized as viable a Title IX "before" claim, based on the deliberate indifference that occurred before a student-on-student incident…. Neither the Supreme Court nor any circuit court has determined whether Title IX applies to incidents that occur outside the United States. Interpreting a different statute, the Supreme Court noted a "longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Morrison v. National Australia Bank, Ltd. (2010). The majority of district courts have found that Title IX does not apply to incidents outside of the United States. The only district court to reach the opposite conclusion issued its opinion before Morrison…. The Court concludes that Title IX does not rebut the presumption against extraterritorial application…. The conclusion that Title IX does not apply to events that occur outside of the United States does not provide Defendant any relief. Plaintiff pleads a before or pre-assault claim based on a policy of deliberate indifference. (Defendant's conduct or lack of conduct giving rise to Plaintiff's Title IX claim occurred in the United States…. Congratulations to Allison Elizabeth Sleight (Thacker Sleight, PC), who represents Doe. The post Title IX Sexual Assault Cases and Extraterritoriality appeared first on Reason.com.
Several commenters asked: If AI companies don't have a copyright in works created by their programs, how can they be held liable under defamation law? Defamation law and copyright law are two different bodies of law, aimed at serving different interests, and with different definitions. That's why people can routinely be sued for defamation even when their works aren't copyright protected. For instance, [1.] The phrase "John Smith is a convicted child molester" is a short and simple phrase that's uncopyrightable. (Even if some highly creative short phrases might be copyrightable, the combination of a preexisting name and the preexisting "is a convicted child molester" phrase certainly isn't copyrightable.) Yet it could indeed be defamatory. [2.] If Alan Author writes a libel of Paula Plaintiff (pro tip: never libel people whose names start with P), and Donna Defendant copies Alan's libel, that could indeed be defamatory, if Donna has the requisite mental state—even though the copyright is owned by Alan, not by Donna. (That's true regardless of whether Donna copied Alan's work with his permission, engaged in fair use, or infringed Alan's work.) This actually often happens, when Donna is a newspaper publisher who publishes Alan's op-ed. (Newspapers often publish op-eds by people who aren't their employees, without getting an assignment of copyright, but only a nonexclusive license to publish; in that situation, the copyright remains owned by the author, but the newspaper may be independently liable for defamation.) [3.] If I spontaneously say "John Smith is a convicted child molester," and follow it up with five sentences of explanation, that oral statement not protected by copyright because it's not fixed in a tangible medium of expression. But it could be defamatory, assuming the elements of slander are satisfied. In all these examples, the defendants are potentially liable, because defamation law cares about what the defendants communicated, and about whether it's false, reputation-damaging, said with the requisite mental state, and unprivileged. But the defendants aren't copyright owners, because copyright law is concerned with a very different thing (providing the incentive for creative expression fixed in a tangible medium). This doesn't itself tell us that AI companies are liable for their programs' uncopyrighted work, of course; I discuss that in much more detail here. But it does explain, I think, why copyright law has nothing to do with the question. The post Defamation and Copyright appeared first on Reason.com.

The Supreme Court's controversial 1984 decision in Chevron v. Natural Resources Defense Council requires federal judges to defer to administrative agencies' interpretations of federal laws that the latter administer, so long as Congress has not clearly addressed the issue in question, and the agency's view is "reasonable." Many conservatives and libertarians have long sought to overturn Chevron, and some hope that doing so will seriously constrain the administrative state. By contrast, defenders of Chevron (many of them on the political left) fear that overruling it would greatly hamper regulatory agencies, and prevent them from using their expertise effectively. So far, at least, the Supreme Court has not been willing to overturn Chevron, though it has issued a number of decisions limiting its reach. But as my co-blogger Jonathan Adler notes in a recent article for the Brennan Center, many states have barred such deference to agencies when it comes to their state law. Jonathan discusses a recent Ohio Supreme Court decision holding that deference to agencies is only permissible if a statute is ambiguous, and even then never mandatory. In another recent article (coauthored with Bradyn Lawrence), my wife Alison Somin (an attorney with the Pacific Legal Foundation), defends a proposed Nebraska law that would ban judicial deference to agencies in that state. The bill may well pass in the near future. As Jonathan notes, Ohio is just one of many states that have either banned judicial deference to agencies or severely constrained it. The list isn't limited to conservative red states like Utah and Florida. It also includes the blue state of Delaware (a longtime rejector of deference) and purple states such as Michigan, Arizona, and Wisconsin. Some of these states restrict deference by state supreme court decision, others by legislation or the enactment of constitutional amendments. The results of these state-level experiments should temper both hopes and fears associated with ending Chevron deference at the federal level. Ending or restricting judicial deference to agencies hasn't gutted the administrative state in any of these jurisdictions or even come close to it. Neither has it ended the use of agency expertise on regulatory issues and turned over policymaking to ignorant yahoos (or at least the yahoos don't seem to have much more influence than they would have otherwise). The no-deference and low-deference states have not become libertarian utopias (or dystopias, depending on your point of view). So far, at least, the state experience reinforces points I made back in 2018 about the limited impact of ending Chevron deference: [M]any people tend to forget that the Supreme Court only decided the Chevron case in 1984, and we had a large and active administrative state long before then. Somehow, the powerful agencies established in the Progressive era, the New Deal, the Great Society, and the Nixon administration managed to survive, thrive, and regulate without Chevron. Pre-Chevron administrative agencies did enjoy the benefit of less extensive forms of judicial deference, such as "Skidmore deference." Those would likely persist even if Chevron were to be severely limited or overruled. But even if the Supreme Court were to completely eliminate judicial deference to administrative agencies' interpretations of federal law (thereby treating them the same as any other litigant), the latter would still wield enormous discretionary power. In a world where there are far more federal laws than any administration could hope to effectively enforce, they would still have broad discretion to determine which violators to go after, and how aggressively. They would also retain control over a broad array of technical questions…. Even on the specific question of interpretation of statutory law, the elimination of formal deference probably would leave in place a good deal of deference in practice. Across a wide range of issues, generalist judges seeking to manage large case-loads may still give special weight to the views of supposedly expert agencies, even if they are not formally required to do so. This is especially likely to happen when it comes to questions that are highly technical and not ideologically controversial…. To the extent that ending Chevron would put agencies on a tighter leash, it is far from clear that this would necessarily benefit the political right more often than the left. As my VC co-blogger (and leading administrative law scholar) Jonathan Adler points out in a New York Times article, a reduction in judicial deference could stymie deregulatory policies as readily as those that increase regulation. The Chevron decision itself deferred to a Reagan administration policy that shifted air pollution regulation in ways decried by environmentalists…. In policy areas such as immigration and drug prohibition, most conservatives—especially since the rise of Trump—actually favor more regulation than most of the left does. Pereira v. Sessions, one of the Supreme Court's recent decisions cutting back on Chevron deference, strikes down a policy that sought to make it easier to deport immigrants. The same is true of then-Judge Gorsuch's most famous lower court opinion criticizing Chevron. But there are still likely to be important benefits to ending or at least curbing this form of deference. As Alison points out, doing so is a matter of basic fairness in the judicial process: Chevron and its state clones require judges to abandon their traditional role as umpires who call balls and strikes. Instead, they require judges to put a thumb — and in some cases, more like an anvil — on the scales in favor of the government. The Nebraska bill would reject the presumption in favor of agency interpretation with one in favor of one preserving liberty in cases where the law is vague. For reasons Alison outlines, this would be a beneficial change. But it is not entailed merely by barring judicial deference to agencies. It requires additional legislation, like the relevant provision of the Nebraska bill (or application of a constitutional rule to the same effect). In addition to promoting more impartial adjudication, getting rid of Chevron deference can reduce partisan swings in legal interpretation, and end judicial abdication of duty. I summarized these points in my 2018 post: Ending Chevron deference would not gut the administrative state…. It would, however, have some important beneficial effects. It would put an end to what then-Judge—and future liberal Supreme Court justice—Stephen Breyer, writing in 1986, called an "abdication of judicial responsibility." Neil Gorsuch expressed similar views more recently, calling Chevron "a judge-made doctrine for the abdication of the judicial duty." The Constitution gives judges, not agency bureaucrats, the power to interpret federal law in cases that come before the courts…. The elimination of Chevron would also increase the stability of legal rules, and make it harder for administrations to play fast and loose with the law. As Gorsuch pointed out in a well-known opinion he wrote as a lower court judge, Chevron deference often enables an agency to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." When the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs. A new administration should not be able to make major changes in law simply by having its agency appointees reinterpret it. The post Ending Chevron Deference in the States appeared first on Reason.com.
From yesterday's decision by Magistrate Judge Barbara Moses (S.D.N.Y.) in Doe v. Black Diamond Capital Mgmt. LLC: Now before the Court is the motion of plaintiff "John Doe" for an order granting leave to proceed under a pseudonym, or in the alternative, to seal his complaint. {[H]is brief does not discuss the standards for sealing judicial documents in this Circuit, nor otherwise flesh out this point.} For the reasons that follow, the motion will be denied…. Plaintiff previously suffered from an opiate addiction. Additionally, he was arrested in 2014, for drug possession, but "successfully completed a drug treatment program and was never convicted of any crime." As of April 19, 2022—the date on which he filed this action—plaintiff had been sober for five and a half years. Plaintiff alleges that on June 21, 2021, he was contacted by an executive search firm, SG Partners, regarding an Associate position on the Private Equity Team at defendant Black Diamond Capital Management (BDCM). [He got an offer, but it was then rescinded after he informed BDCM of his past addiction. -EV] [Plaintiff sued under the Americans with Disabilities Act] (asserting that his prior addiction constitutes a disability cognizable under 42 U.S.C. § 12102(1)(A)), the New York State Human Rights Law, and the New York City Human Rights Law…. [P]laintiff argues that litigating under his true name would cause "embarrassment to himself and his family," due to the "societal stigma commonly associated with addiction," and damage to his current and future job prospects, because "[t]he industry in which Plaintiff sought employment (and which he maintains employment currently) is not as large as some may think, and Plaintiff has a legitimate fear that his current and future job prospects may be negatively impacted if his former addiction is revealed." He adds that since he litigated before the EEOC in his own name, BDCM already knows his true identity, and has been supplied with all of his "filed charge materials" from the EEOC…. Ordinarily, "[t]he title of [a] complaint must name all the parties." This rule, "though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly." It also safeguards "the 'public's common law right of access to judicial proceedings' which is a right 'supported by the First Amendment.'" Accordingly, there is a strong presumption that litigants must proceed under their true names…. Courts in this Circuit, faced with a request by a party to proceed anonymously or pseudonymously, balance that party's privacy concerns against "both the public interest in disclosure and any prejudice to the defendant" …. The Court does not doubt that plaintiff considers his history of drug addiction and his 2014 arrest to be both sensitive and personal. However, this case does not involve any of narrow categories that courts in this Circuit have recognized as so "highly sensitive" as to warrant anonymity. See, e.g., Doe v. Skyline Automobiles (S.D.N.Y. 2019) (noting that "cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families" have been found to be "highly sensitive and of a personal nature," but "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym"); Michael v. Bloomberg L.P. (S.D.N.Y. Feb. 11, 2015) (rejecting request to proceed anonymously in wage and hour case because it was not "the type of unusual case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs proceeding pseudonymously"). Tellingly, plaintiff does not cite a single case from within the Second Circuit to support his contention that his past addiction and arrest record qualify as "highly sensitive" under the Sealed Plaintiff standard. Nor has the Court located any such authority. Plaintiff's fear of embarrassment to himself and his family, while plausible, does not tip the [analysis] in his favor. It is well-settled that "claims of public humiliation and embarrassment" are "not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously." Similarly, plaintiff's categorization of his past addiction as a disability does not alter the calculus. Disability is not typically considered "highly sensitive," and in any event must be pleaded—and hence disclosed—in every disability discrimination lawsuit. See, e.g., Doe v. Trustees of Columbia Univ. in City of New York (S.D.N.Y. 2021) (plaintiff with Asperger syndrome, suing for disability discrimination, was not entitled to proceed anonymously); Vega v. HSBC Sec. (USA) Inc. (S.D.N.Y. 2019) (plaintiff who claimed discrimination based on major depressive disorder and attention deficit disorder was not entitled to proceed under a pseudonym because, although his disability was "personal in nature," it was not "highly sensitive")…. Plaintiff argues that if he litigates this action under his own name he "could face retribution in the industry in which he works," and thus that he has a "legitimate fear" that his job prospects "may be negatively impacted if his former addiction is revealed." He is also "concerned that disclosure of his identity and history of addiction would cause additional anxiety and stress and would aggravate his illness and possibly cause a relapse.". However, both species of harm are described in only in general, conclusory terms, ungrounded in any specifics (beyond plaintiff's allegations as to his experience at BDCM) and unsupported by any evidence. Consequently, even though the potential harm to his job prospects is the same kind of harm that plaintiff brought this action to remedy, neither the second nor the third factor supports his request for leave to proceed anonymously…. "Without corroboration from medical professionals . . . [plaintiff's] general allegation of potential trauma is 'mere speculation' about a risk of psychological injury that cannot support her motion to proceed under a pseudonym." Even where plaintiffs have presented affidavits, courts frequently reject claims of psychological harm and career damage where the affidavits are vague or speculative. Here, there is no evidence at all to support plaintiff's contention that pursing this case in his own name "could" damage his job prospects and "would" cause additional anxiety that could "possibly" cause a relapse…. [A] defendant is [also] always at a disadvantage when sued by an anonymous plaintiff, such that it must "defend [itself] publicly [before a jury] while plaintiff could make [his] accusations from behind a cloak of anonymity." Moreover, if the case goes to trial, a judicial grant of anonymity may imply that plaintiff is more credible, meriting "extra-solicitous treatment," and further "disadvantage Defendants at all stages of litigation, including settlement, discovery, and trial." … [P]laintiff contends … that forcing him to sue publicly would contravene sound public policy because it would effectively discourage those with addiction ("a form of mental illness") from publicly pursuing their legal claims. This argument proves too much. Denying anonymity to a plaintiff who prefers it will inevitably have some chilling effect on the willingness of such a plaintiff to sue at all. This is true not only for plaintiffs with mental illness but also for those who were sexually assaulted, those who were falsely arrested or improperly convicted, those who were discriminated against based on sexual orientation or gender identity, and many other plaintiffs who have suffered harms that can and should be redressed through litigation. There is thus no need for the Court to consider the potential chilling effect on a specific group of potential litigants separately from its application of the Sealed Plaintiff balancing test, which already "requires a district court to exercise its discretion in the course of weighing competing interests." In Rapp v. Fowler (S.D.N.Y. 2021), plaintiff C.D.—who alleged that he was sexually abused, when he was 14 years old, by a well-known adult actor—made a similar plea, arguing "that there is a competing public interest in keeping the identity of those who make sexual assault allegations anonymous so that they are not deterred from vindicating their rights." Further, C.D. (unlike plaintiff here) advised that he would discontinue his claims, to protect his mental health, if the motion for leave to proceed anonymously were denied. As the Rapp court explained, however, its job was to balance the interests [relevant to a pseudonymity claim] (including the plaintiff's), not to make sure that C.D. would persist in his claims. "Though C.D. is correct that the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature." So too here. The fact that plaintiff's addiction can be characterized as mental illness does not lend additional weight to his motion for leave to proceed anonymously…. The post No Pseudonymity in Employment Lawsuit Claiming Discrimination Based on Past Opiate Addiction appeared first on Reason.com.
From yesterday's decision by Magistrate Judge Laura Lothman Lambert (M.D. Fla.) in Doe v. Predator Catchers, Inc.: [D]efendant Predator Catchers, Inc. … "has as its purported mission, the investigation into … and public exposure of sexual predators, principally those preying on minors." … [P]laintiff alleges Predator Catchers uses vigilante tactics, including setting up fake profiles on internet dating websites to lure individuals into potential trysts through sexually suggestive messaging. Predator Catchers then publicly, through various internet platforms, accuses individuals of attempting to engage in sexual encounters with minors. Plaintiff maintained a profile on Tinder, an online dating application; on March 2, 2022, he matched with a woman named Jessie. Plaintiff and Jessie first sent messages to each other using the Tinder platform and then transitioned to communicating via text messaging. Eventually, Jessie invited plaintiff to meet at her grandmother's house in Mayport, Florida. According to plaintiff, Jessie's Tinder profile pictures depicted an adult, as did the five other photographs she sent him via text; plaintiff also alleges that he confirmed Jessie was over 18 years old. Plaintiff later traveled to the Mayport address provided by Jessie and was greeted by an adult female. Schmutte, [founder and president of Predator Catchers,] who was also present at the address, then confronted plaintiff, while he recorded him, and accused him of attempting to have sex with a minor. Schmutte also allegedly threatened to strike plaintiff in the face. According to the complaint, Schmutte states there is no case against plaintiff at the end of the recording. Still, Schmutte's recording was posted, in edited form, on various internet websites, with a photograph of plaintiff, and the caption: "he said he was 38. The decoy was 13." In the comments section of the posting, various individuals threatened violence against plaintiff. Plaintiff maintains that he never initiated a sexual encounter with or made any suggestive comments toward Jessie, and that he relied on Tinder's policy not to permit an individual under 18 years' old to connect with an individual over 18 years' old. Plaintiff further alleges that he has been humiliated by defendants' actions, suffered mental distress, and been financially burdened by efforts to minimize the effect of the incidents on his life. Plaintiff sued defendants in a five-count complaint, alleging defamation (count I), invasion of privacy (count II), intentional inflection of mental distress (count III), assault (count IV), and a violation of Florida Statutes § 815.06, Offenses Against Users of Computer, Computer Systems, Computer Networks, and Electronic Devices, (count V)…. The Court begins [its] analysis considering the constitutional implications of the openness of judicial proceedings, particularly in light of the First Amendment. Doe v. Stegall (5th Cir. 1981) ("First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings."). As a result, under Fed. R. Civ. P. 10(a), parties in a lawsuit must identify themselves in their pleadings. Rule 10 is more than administrative; it reflects both the constitutional importance of open judicial proceedings and the "the public's legitimate interest the facts of a lawsuit, including the identities of the parties." A party may proceed anonymously, however, by establishing that his privacy right outweighs the presumption of openness in the judicial proceeding. Id. at 1316-17 (additional quotations and citation omitted). Mere embarrassment is not enough; rather, the party moving for anonymity must establish the case "involve[s] matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the [party's] identity." … Weighing plaintiff's privacy rights against the presumptive openness of judicial proceedings and considering the relevant factors outlined above, I find [several] factors weigh in favor of plaintiff and that he should be able to proceed anonymously. First, the very nature of the case implicates highly intimate information of a personal and sexual nature. As shown above, plaintiff alleges he was seeking a personal, and apparently intimate relationship through a dating app, and believed he was communicating and ultimately meeting with an individual of who was over 18 years old. Although plaintiff claims that he believed to be meeting an adult, he alleges that when confronted by Schmutte, he was accused of attempting to engage in sexual conduct with a minor. Plaintiff also alleges that Schmutte recorded the encounter and posted it on the internet with a photograph of plaintiff, including a caption that implied he was intentionally seeking a relationship with a minor. As the Court has explained, the harm that plaintiff alleges as grounds for the lawsuit—that defendants falsely portrayed him as a sexual predator of children— would be amplified if he is required, at this stage, to proceed under his name. Plaintiff could become further associated with having a sexual interest in minors, which is patently illegal conduct. And while mere embarrassment does not justify proceeding anonymously; a showing of "social stigma" may be "sufficient to warrant proceeding anonymously." The Eleventh Circuit explained that, "'[c]ourts have permitted plaintiffs to proceed anonymously in cases involving mental illness, homosexuality, and transsexuality' because 'the social stigma attached to the plaintiff's disclosure was found to be enough to overcome the presumption of openness in court proceedings.'" See also Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (reversing an order denying a motion to proceed anonymously in a case involving abortion in part because of the highly sensitive and personal nature of the procedure); Stegall (explaining that by challenging government activity, the plaintiffs revealed their personal beliefs and practices and holding that religion is a "quintessentially private matter."). Second, plaintiff has submitted particularized evidence, specifically evidence of threats directed toward him, that establish a likelihood he would be threatened by violence or physical harm if he proceeded in his real name. Plaintiff contends that Schmutte threatened to "smash him in the face" and later made a social media post portraying plaintiff as a sexual predator that resulted in multiple threatening comments. One comment, reviewed by the Court, reads that "one bullet fixes that problem" insinuating the commenter wants to (or feels someone should) shoot plaintiff. Fairly recently, the Eleventh Circuit recognized that "[i]n today's digital age" harassing comments posted on a website may be enough to establish that an anonymous plaintiff would be subject to threats and harassment if she had to proceed under her own name. The information contained on social media or other internet sites alleging plaintiff has a sexual interest in children, paired with evidence of actual threats toward him in the public comment section of those postings establishes a likelihood that physical violence may committed against him. Compare Strike 3 Holdings v. Doe (M.D. Fla. 2023) (holding that the defendant could not proceed anonymously in a copyright infringement action involving the downloading of adult content because "embarrassment alone fails to amount to good cause or compelling justification to proceed under seal" where there was no showing the defendant would be threatened by physical violence or physical harm or that the other factors applied)… The public certainly has an interest in the subject matter of the lawsuit, yet as the Court has explained, the name of the plaintiff does not further that interest in any meaningful way. {This order does not prevent defendant from moving to preclude the use of pseudonyms later in the litigation.} Congratulations to Samuel Grier Wells, who represents Doe. The post Rare Grant of Pseudonymity to a Libel Plaintiff, Where There's Evidence of Risk of Violent Attack appeared first on Reason.com.
The West Virginia legislature has enacted a version of the Religious Freedom Restoration Act (RFRA). (H/T Religion Clause) But there are several exceptions to the rule: (2) Nothing in this article may be construed to create a cause of action by an employee against a nongovernmental employer; nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn, including, but limited to, any claim or defense arising out of a violation of §16-2F-1 et seq., §16-2I-1 et seq., §16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, §16-2R-1 et seq., §16-5-22, §30-1-26, §33-42-8, or §61-2-8 of this code. Here, West Virginia is trying to get ahead of the post-Dobbs litigation in other contexts. For example, in Indiana and other states, abortion rights groups have invoked RFRAs to challenge abortion laws. This option would not be viable in West Virginia. I discuss the religious liberty and abortion in a new article, co-authored with Howie Slugh and Tal Fortgang. The post West Virginia Legislature Enacts RFRA, With Abortion Carveout appeared first on Reason.com.
This week and likely next, I'll be serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, and more), see here. Here, I want to explain why I think the "publication" requirement for defamation liability is satisfied in such situations. [* * *] Some have also argued that statements by AIs in response to user queries aren't really "published," because they are just one-on-one responses (which may differ subtly in wording or even content for different users). But defamation law has always applied to one-on-one writings (such as personal letters,[1] or notes with comments on an ex-employee's job record[2]) and one-on-one oral statements (for instance, in telephone calls[3]). The Restatement (Second) of Torts captures it well, making it clear that "publication" in libel cases is a legal term of art: Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.[4] Some other legal rules require something more like the lay meaning of "publication." For instance, the false light and disclosure of private facts torts are limited to statements that are given "publicity," meaning ones that make an assertion "public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."[5] Likewise, certain copyright law principles turn on whether defendant engaged in "publication," meaning "distribution . . . to the public," or performed or displayed a work "publicly," meaning (among other things) "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."[6] But such publication in the colloquial sense is not required for libel liability.[7] Of course, even if publication to a substantial group of people were required (as would be the case for the false light tort, see Part III.A), that could still be found when a statement, even with some variation, was distributed to many people at different times. Indeed, the copyright law definition of what counts as "public[]" performance of a copyrighted work (such as a song) recognizes that: To perform or display a work "publicly" means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.[8] And this makes sense: After all, if I post something on my web site, it will only be communicated to readers one at a time as they visit it, perhaps one today, one next week, another the week after, and so on—yet that should still be properly seen as, say, giving "publicity" to the information for false light or disclosure of private facts purposes. [1] See, e.g., Restatement (Second) of Torts § 577 ill. 7. [2] [Cite.] [3] See, e.g., Restatement (Second) of Torts § 577 ill. 8. [4] Restatement (Second) of Torts § 577(1). A statement said just to the plaintiff—e.g., accusing someone of being a thief, when no-one else is present—can't be libelous because it can't damage the plaintiff's reputation with third parties. Note that the "intentionally or by a negligent act" in this section refers to the act of communication; the formulation precludes liability when, say, a person's note in his desk is unexpectedly seen by a third party (compare id. ill. 5, which imposes liability when the note is negligently left where it can be seen). It doesn't refer to knowledge or negligence as to the falsehood of the statement; that is the subject of the rules described in Parts I.F–I.H. [5] See Restatement (Second) of Torts §§ 652D cmt. a, 652E cmt. a. [6] 17 U.S.C. § 101. [7] See Restatement (Second) of Torts § 652D cmt. a (reaffirming that publication for libel purposes, unlike publicity for false light and disclosure of private facts purposes, "includes any communication by the defendant to a third person"). [8] 17 U.S.C. § 101. The post What "Publication" Means in Defamation Cases: ChatGPT et al. Do It appeared first on Reason.com.
Forget March Madness! Yesterday, the Harlan Institute and Ashbrook held the Round of 4 for the OT 2022 Virtual Supreme Court competition. The top four teams presented oral arguments in Students for Fair Admission v. UNC. We were honored to have three distinguished jurists preside: Judge Alice Batchelder (CA6), Judge Eric Murphy (CA6), and Judge Ken Lee (CA9). These students could have competed and prevailed in any law school moot court competition. They were remarkable. Match #1 Team 11696 v. Team 11695 Match #2 Team 11762 v. Team 12823 The top two teams will face off against each other in person on April 24 in Washington, D.C. The championship round will be held at the Georgetown Supreme Court Institute. The post Harlan Institute-Ashbrook Virtual Supreme Court—Round of 4 appeared first on Reason.com.
3/28/1955: Williamson v. Lee Optical decided. The post Today in Supreme Court History: March 28, 1955 appeared first on Reason.com.
Contempt is a curious creature of the courts. This inherent authority empowers judges to take all manner of actions against parties, including incarceration. Indeed, this power is so broad that a federal judge can order the prosecution of a party, even if the Department of Justice declines to bring the case. Consider Federal Rule of Criminal Procedure 42: The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt. This language is not optional, it is mandatory. The Court "must" make this request of DOJ, or in the alternative, "must" appoint another prosecutor. I suspect it is fairly rare that the government declines to bring a contempt prosecution. One such recent case arose in South Dakota. A district court judge held a United States Marshal in contempt of court, and, unsurprisingly, DOJ declined to prosecute another member of the federal government. As a result, the court appointed its own prosecutor, then promptly recused from the case. That recusal at least eliminated an inherent conflict of interest. I don't think a judge can remain a neutral arbiter if he appointed the prosecutor. Ultimately, the newly-appointed judge dismissed the contempt case. But in another, far-more-high-profile case, a federal judge in Manhattan chose a different path. Readers of this blog will likely be familiar with Steven Donziger. During the 1990s, Donziger represented various Indian tribes from Ecuador who sued Texaco/Chevron for polluting the Amazon rainforest. An Ecuadorian court entered a $8.6 billion judgment against Chevron. But, it turns out, Donziger procured that judgment through fraud and bribery. The federal courts found that Donziger was liable for racketeering, and the judgment was deemed unenforceable. Donziger was later disbarred. I had actually forgotten about Donziger until I recently visited the University of Texas Law School. I noticed a flyer for some organization named GRITS (Getting Radical in the South). Donziger was apparently a keynote speaker at this conference. Go figure. He probably got a better reception than Judge Duncan did. Anyway, that background brings us to Monday's order list. The Supreme Court denied certiorari in Donziger v. United States. Justice Gorsuch dissented, joined by Justice Kavanaugh. This case was not a direct appeal of Donziger's RICO judgment. Rather, it was an appeal from Donziger's contempt proceeding. Gorsuch describes the unusual posture: [Chevron] also won a constructive trust on all assets Mr. Donziger received in this or any country as a result of the Ecuadorian judgment. Ibid. To enforce that trust, the district court granted Chevron discovery into Mr. Donziger's holdings and ordered him to surrender all of his electronic devices for forensic imaging. When Mr. Donziger failed to comply fully with the court's orders, it held him in criminal contempt and referred the matter to the U. S. Attorney's Office for prosecution. After some deliberation, however, the U. S. Attorney "'respectfully declined'" to take up the case. Ibid. (alteration omitted). What happened next? The District Court, relying on Rule 42, appointed its own prosecutors: Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor's office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Putting aside the separation of powers for a moment, there is something of an ethical problem. How can a trial judge remain neutral in a prosecution where he personally appointed the very prosecutors who are bringing the charges? This regime blurs the boundaries between the bench and bar. Throughout the proceeding, Donziger objected, and argued that the court's appointment of the prosecutors was unconstitutional: Throughout these proceedings and on appeal, Mr. Donziger objected. He argued that the district court had no lawful authority to override the Executive Branch's non prosecution decision and that our Constitution's separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them. The Second Circuit affirmed, over Judge Menashi's dissent. The Supreme Court has sort-of approved of this practice. Gorsuch, in dissent, contended that these precedents are inconsistent with recent separation of powers decisions, including Collins v. Yellen, Arthrex, Seila Law, and Lucia: In Young v. United States ex rel. Vuitton et Fils S. A. (1987), this Court approved the use of court-appointed prosecutors as a "last resort" in certain criminal contempt cases. But that decision has met with considerable criticism. As Members of this Court have put it, the Constitution gives courts the power to "serve as a neutral adjudicator in a criminal case," not "the power to prosecute crimes." Id. (Scalia, J., concurring in judgment).The Second Circuit acknowledged, too, that Young stands in considerable "tension" with this Court's subsequent separation-of-powers decisions. Here, Gorsuch explains, the prosecutor did not exercise the judicial power. Rather, the prosecutor exercised executive power: By contrast, "[e]very court and every party" has acknowledged that the court-appointed prosecutors in this case did not exercise judicial power. 38 F. 4th, at 306 (Menashi, J., dissenting). Instead, all agree, the court-appointed prosecutors here exercised "executive power" and were accountable through the Executive Branch's chain of command running ultimately to the President. Id., at 306– 307 (emphasis added). By its own terms, then, Young simply does not speak to Mr. Donziger's situation. And as a result of this conflict, there were two briefs filed on behalf of the "United States." The real United States, and the pseudo United States, as appointed by the special prosecutor: Highlighting the confused (but surely executive) nature of the prosecution in this case, the "United States" supplied the Second Circuit with two different briefs offering different theories. One brief came from the court-appointed prosecutors, another from lawyers within the Department of Justice. And the trial court favored the view of the pseudo United States. Next, Gorsuch turned to the Appointments Clause. The Second Circuit found that the prosecutor was an "inferior officer" of the United States. But such officers can only be appointed by the courts of law when Congress "vests" courts with that authority. but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Has Congress vested such authority in the courts? Well Rule 42 was adopted by the Supreme Court, so that is not a direct delegation by Congress. But the Federal Rules of Criminal Procedure were adopted pursuant to the Rules Enabling Act. Gorsuch writes that the REA doesn't cut it. Second, courts have adopted Rule 42 under the Rules Enabling Act. That statute provides that any rules of court promulgated under its terms "shall not abridge . . . or modify any substantive right." 28 U. S. C. §2072(b). Yet, the manner in which the Second Circuit applied Rule 42 had just that impermissible effect. The "decision of a prosecutor . . . not to indict" is one that belongs squarely within "the special province of the Executive Branch." Heckler v. Chaney (1985) (emphasis added). This "structural principl[e]" serves to "protect the individual" just as much as the Executive Branch. Bond v. United States (2011). By interpreting Rule 42 as authorizing courts to make their own decision to initiate a prosecution—and even to override a contrary decision by the Executive Branch—the Second Circuit's opinion not only arrogated a power to the Judiciary that belongs elsewhere. It allowed the district court to assume the "dual position as accuser and decisionmaker"—a combination that "violat[es the] due process" rights of the accused. Williams v. Pennsylvania (2016). I've long thought that the Rules Enabling Act violated the non-delegation doctrine. If, in fact, this statute actually vested the courts of law with the power to appoint inferior officers that exercise executive power, then yes, the REA is unconstitutional. Ethan Lieb recently contended that the Federal Rules of Evidence may be unconstitutional on non-delegation grounds. Chad Squitieri raised similar issues with regard to the major question doctrine. In Donziger's case, the Department of Justice offered another argument: the prosecutors are not "inferior officers" at all, but are "nonofficer employees in the Executive Branch." Gorsuch argues this position is inconsistent with Morrison v. Olson: It is hard to square with our own precedent. See Morrison v. Olson (1988) (holding an independent counsel to be an inferior officer). And even overlooking all that, the notion that the Constitution allows one branch to install non officer employees in another branch would come as a surprise to many. Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House? In Morrison, Chief Justice Rehnquist wrote, "It is clear that [the independent counsel] is an 'officer' of the United States, not an 'employee.'" But the court-appointed prosecutors hold far less power than did Alexia Morrison. Seth Barrett Tillman and I discussed the concept of "employee of the United States" in the context of Robert Mueller. This issue is complicated. Donziger's cert petition was initially distributed for the January 13 conference. It was rescheduled, and then was distributed for six conferences before the denial. Presumably, Justice Gorsuch tried to get two more votes for certiorari. In a normal case, Justices Sotomayor and Jackson could be expected to go along with a grant on a matter of such concern to criminal justice. Even counsel had cross-ideological appeal: Steve Vladeck was counsel of record, and he was joined by lawyers from Schaerr/Jaffe. But alas, this case involved the separation of powers, and potentially the non-delegation doctrine. Indeed, it is commendable that two of the Court's more conservative members were willing to stand up for Donziger–a celebrity on the left, but a scourge on the right. The liberal justices, not so much. Justices on the right routinely pivot to the left. But the Justices on the left are seldom ambidextrous. Mr. Donziger's contempt citation will stand. The post Do Court-Appointed Prosecutors Violate The Separation of Powers? appeared first on Reason.com.
(Benjamin Fulford) The collapse of the Western financial system is a mathematical certainty because recent rate hikes created at least an $8 trillion loss for financial institutions. Governments have been trying to foist this on the people. Revolution will be the result. This is why unprecedented unrest is overtaking France, Germany, Pakistan, Israel and many other places. The post Benjamin Fulford — March 27th 2023: Western financial system suffers $8 trillion implosion, revolution follows appeared on Stillness in the Storm. 💾
Daily News and Updates for March 27th, 2023: “Hospital Photo of John Fetterman Goes Viral, But There's Just 1 Problem: 'This Is Insane'" The post Daily News and Updates for March 27th, 2023: “Hospital Photo of John Fetterman Goes Viral, But There’s Just 1 Problem: ‘This Is Insane'” appeared on Stillness in the Storm.
During the Trump administration, critics argued at almost every step that the president faced some conflict of interest. Critics claimed that virtually every action that Trump took was not really in the public interest, but was designed to pursue some improper purpose. Consider the "abuse of power" claim in the first impeachment trial. The article of impeachment claimed that Trump threatened to withhold aid from Ukraine as a way to pressure Ukraine to harm Hunter Biden, and by extension, Joe Biden. Trump countered that he was exercising his foreign policy to promote the public interest as he saw it. (I expressed these sentiments in the New York Times.) When Trump made appointments to the Supreme Court and lower courts, critics charged that the President was in fact installing activists who would rubber stamp Trump's abuses of power. Trump argued that he was exercising his constitutional authority to nominate judges. In hindsight, the Trump judges consistently ruled against Trump. When Trump fired Comey, and threatened to remove Mueller, critics argued that he was trying to obstruct investigations of Trump. Trump countered that these officials were engaging in abusive practices, and he was trying to promote the fair administration of justice. When Trump issued pardons to his acolytes, some critics argued that the pardons were a way to obstruct investigations into Trump. Trump, on the other hand, claimed that he used these pardons to redress an abuse of prosecutorial discretion. And so on. In our system of of government, the president is an apex official. No other government official presides over him, and can control his actions. No one can force the president to veto a bill, negotiate a treaty, or appoint a cabinet member. Rather this elected official is accountable only to the people. Israel, however, is a very different story. At least under the current rules, the position known as the Attorney General does not actually represent the views of the incumbent government. Indeed, the Prime Minister does not have the power to unilaterally appoint or remove the Attorney General. Rather, the Attorney General serves a six-year term that can stretch across multiple governments. (And in recent times, governments are averaging about two years.) The Prime Minister can only select an Attorney General from a list selected by a committee that is chaired by a former Supreme Court Justice. Moreover, the Attorney General can assert the position of the "Israeli government" in court, even where the elected "Israeli government" disagrees. During the Trump years, many critics argued that the Attorney General should be truly independent from the president. Israel is perhaps a shining example of what such independence looks like. Unless you've been living under a rock, you are aware of the current debates in Israel over judicial reform. I won't go through the specifics here, but you can read my broad thoughts in the Wall Street Journal. Here, I want to focus on one aspect of this debate that has been given little attention. At present, Benjamin Netanyahu is the Prime Minister, and the leader of the majority party. The most significant issue facing Israel is judicial reform. Indeed, his fragile coalition formed, in large part, around the judicial reform issue. Given these facts, one would think that Netanyahu's leadership on the matter would be essential. But Netanyahu, unfortunately, was disqualified from taking any action on judicial reform. How could that be? The Attorney General ruled that Netanyahu was disqualified from participating in the judicial reform debate. Why? Netanyahu is facing a long-standing court battle over alleged corruption. And, the argument went, Netanyahu may pursue rule changes that could affect his personal court case. Thus, the Attorney General argued, and the Israeli Supreme Court agreed, that Netanyahu had to recuse from the most important political issue of the day. Again, in Israel, the Supreme Court can halt any action it deems "unreasonable," including the Prime Minister exercising the powers as Prime Minister, and as political leader. Immediately after the coalition formed, the "independent" attorney general and the Supreme Court decapitated the apex official in Israel. So the parliament pushed back. Last week, the Israeli parliament passed a law that prohibited the courts from declaring the prime minister unfit for office. The law somewhat-resembles the 25th Amendment. Under the law, which amends the Basic Law on Government, there are only two ways to declare a prime minister unfit. The first is the prime minister declaring himself physically or mentally unfit to fulfill his role, and the second is a cabinet declaration of his unfitness due to health issues backed by three-quarters of the ministers. The courts would no longer have a role in disqualifying the prime minister due to some perceived conflict of interest. I'm sure the Israeli Supreme Court will declare this law unconstitutional. Anyway, after that law passed, Netanyahu stepped into the judicial reform debate. His speech reflects his new powers: "Until today my hands were tied. No more. I enter the event, for the sake of the people and the country, I will do everything in my power to reach a solution and calm the spirits in the nation," How did the Attorney General respond? By asserting her own supremacy over the duly-elected party leader: "Last night you publicly announced that you intend to violate the ruling of the Supreme Court and act contrary to the opinion of the legal advisor to the government," she wrote. That statement, she said, "is illegal and contaminated by a conflict of interest." "As a Prime Minister indicted with crimes, you must refrain from actions that arouse a reasonable fear of a conflict of interest between your personal interests in the criminal proceedings and your role as Prime Minister," she wrote to him. This statement could have been copied from the various attacks on Trump. Always, the elites know what is really in the public interest, versus what is in the parochial personal interests of an elected apex official. When you see the chaos emerging in the streets, and blame Netanyahu, remember that until recently, he was recused from the issue. And why was he recused? Because of the very judicial supremacy that the government was trying to reform. What a mess. The post Disqualifying Apex Officials Due To Perceived Conflicts Of Interest appeared first on Reason.com.
Just published in volume 2, issue 2 of the Journal of Free Speech Law, and available here; here's the Introduction: The academy is rife with contention over the conditioning of faculty appointments on an attestation to or a record of support for a secular trinity: "Diversity, Equity, Inclusion." These DEI policies seem to be grounded in a syllogism the major premise of which is this: The student population served by the institution includes members of historically marginalized minority groups, long ignored, slighted, or discriminated against societally and, possibly, by the institution itself. The minor premise: It should be part of the university's mission significantly to address these groups' needs and aspirations. The conclusion: Every faculty member, as a condition of appointment, must further that aspect of the institution's mission in their teaching, research, and service—in one or more. The policy's emphasis is on the imperative. What follows will present for study a case in point, the policy adopted at the University of Illinois, the grounding and function of which would seem to be concordant with the rationale undergirding DEI policies elsewhere. The DEI policy requires faculty to satisfy those reviewing their dossiers for tenure and promotion that in research, teaching, and service to the university and to the larger community the faculty member has compiled a satisfactory record of activity in support of diversity, equity, and inclusion. This would seem to resonate sympathetically with Justice Powell's influential opinion in the Bakke case concerning the cognizance of race in the admissions process of a public sector law school. Powell opined that the university could take account of race when part of a process that took applicants whole, as individuals who present themselves in near infinite variety in capacities, experience, and interests. But that is not what DEI is about. The policy's notion of diversity requires that the persons subject to its concern must be fit into categories identified by a group attribute and by goals attributed to the group. As the ensuing unpacking of the policy makes no small demand on the reader, it would be well at the outset to anticipate the result. As will become clear, the wrongs wrought by the policy are three: First, by folding socio-political goals into the process for tenure and promotion the policy conflates those ends with professional qualifications. This conflation infringes academic freedom. Further, were it to become acceptable for a university to commandeer its faculty toward socio-political ends, made part of the faculty's professorial obligations, there would be no principled reason why those who fund the institution—the legislatures—should not impose those socio-political ends that they hold dear. Second, for the DEI rules to withstand constitutional muster, the faculty member being evaluated, who is required to make a record of DEI activity, and those evaluating that record must be able to discern with clarity what sorts of activities in support of what groups with what goals and to what extent will satisfy the mandate. The clarity of guidance on the former, what groups with what goals, is questionable; on the latter, the extent of engagement, is nonexistent. Third, and paradoxically, were clarity to be addressed what would be made even more clear is that continuance on the faculty is conditioned on support of groups to further favored political or social ends. This infringes on the scholar's political and private life; it is illegitimate from an institutional perspective and unlawful from a constitutional one. The University of Illinois' DEI policy will be explored. The academic freedom and constitutional implications will then be examined. Because much of the public debate on both accounts has turned on an analogy to the loyalty oath controversy of sixty years ago, out of which the Supreme Court's reflections on the relationship between academic freedom and the first amendment grew, the oath will be taken up as a useful lens through which DEI can be considered. The post Journal of Free Speech Law: "Diversity! Mandating Adherence to a Secular Creed," by Prof. Matthew Finkin (Illinois) appeared first on Reason.com.
The Capitol Hill hearings featuring TikTok's CEO lead off episode 450 of the Cyberlaw Podcast. The CEO handled the endless stream of Congressional accusations and suspicion about as well as could have been expected. And it did him as little good as a cynic would have expected. Jim Dempsey and Mark MacCarthy think Congress is moving toward action on Chinese IT products – probably in the form of the bipartisan Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act. But passing legislation and actually doing something about China's IT successes are two very different things. The FTC is jumping into the policy arena on cloud services, Mark tells us, and it can't escape its DNA; it's dwelling on possible industry concentration and lock-in and not asking much about the national security implications of knocking off a bunch of American cloud providers when the alternatives are largely Chinese cloud providers. The FTC's myopia means that the administration won't get as much help as it could from the FTC on cloud security measures. I reissue my standard objection to the FTC's refusal to follow the FCC's lead in deferring on national security to executive branch concerns. Mark and I disagree about whether the FTC Act requires the Commission to limit itself to consumer protection. Jim Dempsey reviews the latest AI releases, including Google's Bard, which seems to have many of the same hallucination problems as OpenAI's. Jim and I debate what I consider the wacky and unjustified fascination in the press with catching AI engaging in wrongthink. I believe it's just a mechanism for justifying the imposition of left-wing values on AI output – which already scores left/libertarian on 14 of 15 standard tests for identifying ideological affiliation. Similarly, I question the effort to stop AI from hallucinating footnotes in support of its erroneous facts. If ever there were a case for a separate AI citechecker, for generative AI correction of AI errors, the fake citation problem seems like a natural. Speaking of Silicon Valley's lying problem, Mark reminds us that social media is absolutely immune for false user speech, even after it gets notice that the speech is harmful and false. He reminds us of his thoughtful argument in favor of tweaking section 230 to more closely resemble the notice and action obligations found in the Digital Millennium Copyright Act (DMCA). I argue that the DMCA has not so much solved the incentives for overcensoring speech as it has surrendered to them. Jim introduces us to an emerging trend in state privacy law: privacy bills that industry supports. Iowa's new law is the exemplar; Jim questions whether it will satisfy users in the long run. I summarize Hachette v. Internet Archive, in which Judge John G. Koeltl delivers a harsh rebuke to internet hippies everywhere, ruling that the Internet Archive violated copyright in its effort to create a digital equivalent to public library lending. The judge's lesson for the rest of us: You might think fair use is a thing, but it's not. Get over it. In quick hits, I note that the Cyberlaw Podcast scooped WIRED in covering the GSA's lies about the security of login.gov and its later effort to justify those lies by invoking "equity" – currently replacing patriotism as the last resort of scoundrels. And I offer a brief, nostalgic requiem for Toshiba, which is being broken up for scrap by what's left of Japan Inc. Thirty years ago, Toshiba was treated on the Hill like Huawei is today – a scary and unstoppable competitor who threatened the American way of life. Now, not so much. Download 450th Episode (mp3) You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets. The post China in the Bull Shop appeared first on Reason.com.

I am not one to disagree with Eugene about an area within his area of expertise, but I confess I have a different reaction to his view, expressed in his draft paper, that AI program outputs "would reasonably appear to state or imply assertions of objective fact." Take OpenAI's ChatGPT. Eugene argues in his draft at page 8 that OpenAI's business model is premised on ChatGPT outputs being factually correct: OpenAI has touted ChatGPT as a reliable source of assertions of fact, not just as a source of entertaining nonsense. . . . The AI companies' current and future business models rests entirely on their programs' credibility for producing reasonable accurate summaries of the facts. When OpenAI helps promote ChatGPT's ability to get high scores on bar exams or the SAT, it's similarly trying to get the public to view ChatGPT's output as reliable. Likewise when its software is incorporated into search engines, or into other applications, presumably precisely because it's seen as pretty reliable. It can't then turn around and, in a libel lawsuit, raise a defense that it's all just Jabberwocky. Naturally, everyone understands that AI programs aren't perfect. But everyone understands that newspapers aren't perfect, either—yet that can't be enough to give newspapers immunity from defamation liability; likewise for AI programs. And that's especially so when the output is framed in quite definite language, complete with purported quotes from respected publications. Here's my question: Is the reasonable observer test about business models, or is it about what people familiar with the service would think? Because if the test is about what normal observers would think, it seems to me that no one who tries ChatGPT could think its output is factually accurate. That's what makes ChatGPT distinctive and interesting, I think. It combines good writing and ease of language that sounds real, on one hand, with obvious factual inaccuracies, on the other. It's all style, no substance. The false claims of fact are an essential characteristic of the ChatGPT user experience, it seems to me. If you spend five minutes querying it, there's no way you can miss this. For example, back in January, I asked ChatGPT to write a bio for me. This should be easy to do accurately, as there are lots of online bios of me if you just google my name. ChatGPT's version was well written, but it had lots and lots of details wrong. For example, I won't have it be writing my bio any time soon. pic.twitter.com/2b8H01jzxG — Orin Kerr (@OrinKerr) January 13, 2023 To correct the errors in the ChatGPT output, I joined Berkeley in 2019, not 2018; I didn't go to Yale Law School; I didn't clerk for Judge O'Scannlain; I wasn't an appellate lawyer at DOJ; there is no 2019 edition of my Computer Crime Law casebook, and it certainly wouldn't be the 2nd edition, as we're now on the 5th edition already; I'm not a fellow at the American College of Trial Lawyers; and I've never to my knowledge been an advisor to the U.S. Sentencing Commission. (Some would say I'm also not an invaluable asset to the law school community, but let's stick to the provable facts here, people.) My sense is that these kinds of factual errors are ubiquitous when using ChatGPT. It has style, but not substance. ChatGPT is like the student who didn't do the reading but has amazing verbal skills; it creates the superficial impression of competence without knowledge. Maybe that isn't what OpenAI would want it to be. But I would think that's the conclusion a typical user gets pretty quickly from querying ChatGPT. The post Are AI Program Outputs Reasonably Perceived as Factual? A Response to Eugene appeared first on Reason.com.

Georgetown political philosopher Jason Brennan is one of the world's leading theorists of democracy, and his new book Democracy: A Guided Tour is a valuable overview of the strengths and weaknesses of democracy, and various arguments on that topic developed by leading political thinkers from ancient Greece to the present day. Brennan has an impressive command of the relevant literature, and he's a very clear writer. The book is a great resource for anyone interested in debates about democratic theory. Democracy: A Guide Tour is divided into five sections, each of which considers a leading traditional rationale for democracy: stability, virtue, wisdom in decision-making, liberty, and equality. Each section includes a chapter outlining arguments holding that the democracy effectively promotes the value in question, followed by one outlining reasons for skepticism. One of the strengths of Brennan's book is that he carefully avoids the widespread tendency to conflate that which is "democratic" with that which is good. This leaves room for the possibility that increasing democracy might actually cause harm, as opposed to defining it away in advance. Brennan himself is something of a democracy-skeptic, as evidenced by his previous work. But in Guided Tour, he strives hard to be balanced, and mostly succeeds. Still, it's hard to come away from the book without getting a sense that democracy falls well short of at least the more expansive claims on its behalf. For example, far from promoting careful deliberation over policy and making effective use of the "wisdom of crowds," democracy is often plagued by systematic voter ignorance and bias. Far from making citizens more virtuous, democratic political participation often brings out and exacerbates some of the worst tendencies in human nature. And so on. I myself am also skeptical of many of the benefits claimed for democracy, especially when it comes to issues related to voter ignorance. It's possible that a reader who comes to the book with the opposite predisposition will view it differently. Either way, the book provides an excellent analysis of a wide range of perspectives on these issues. And it manages to cover a lot of ground in a relatively modest amount of space. Despite its many strengths, Guided Tour does have a few notable limitations. First, while Brennan carefully considers strengths and weaknesses of democracy in an absolute sense, there is little in the way of comparison between democratic and non-democratic regimes. Brennan discusses a number of thinkers who reject democracy in favor of authoritarianism, but says little about the actual performance of the sorts of regimes they advocate. Incorporating the latter would make democracy look better on many dimensions. For example, as Brennan explains in Chapter 9, democracy is often a threat to liberty. But authoritarian governments are far worse. For all their many injustices, no democratic government has even come close to the level of oppression perpetrated by communist and fascist regimes. Similarly, a dictator who listens mainly to boot-licking cronies who tell him what he wants to hear will often make even worse cognitive errors than ignorant democratic electorates. Vladimir Putin's recent disastrous miscalculations may be a case in point. Brennan is aware of the relative superiority of democratic regimes over authoritarian ones. But it gets little mention in this book, perhaps because the author had to cover so much other ground. Still, I think this issue deserved more attention. The relative failure to consider it may lead readers to (wrongly) dismiss Brennan's more democracy-skeptical chapters by citing Winston Churchill's famous statement that "democracy is the worst form of government – except for all the others that have been tried." This ties into Brennan's second notable omission: there is very little discussion of various institutional structures that can potentially mitigate the flaws of democracy, such as federalism, separation of powers, and judicial review. In a previous book, Brennan himself advocates "epistocracy," giving more power to relatively more knowledgeable voters (see my assessment of the idea here). It's only briefly mentioned here, as part of a discussion of John Stuart Mill. Many of these institutional fixes—most obviously, judicial review—are actually constraints on democracy (defined as majoritarian government). Thus, to the extent they are effective, they don't necessarily vindicate democracy, as such. But there is still a crucial difference between structures that limit democracy and those that dispense with it entirely. If nothing else, the potential benefits of the former undercut Churchill-quoting complacency about the democracy, which is often implicitly premised on the assumption that authoritarianism is the only alternative to giving democratic majorities a virtual blank check to rule as they please. In sum, Democracy: A Guided Tour is a great overview of various longstanding debates about democracy. But it leaves room for a broader tour that more fully considers non-democratic alternatives to democracy and institutional fixes for various democratic pathologies. The post Jason Brennan's "Democracy: A Guided Tour" appeared first on Reason.com.
A bunch of comments to my Large Libel Models posts suggest that, when users believe (say) ChatGPT-4's fake quotes about others, the true responsibility is on the supposedly gullible users and not on OpenAI. I don't think this is consistent with how libel law sees things, and I want to explain why. Say that the Daily Tattler, a notoriously unreliable gossip rag, puts out a story about you, saying that "rumor has it that Dr. [you] had been convicted of child molestation ten years ago in Florida, as the Miami Herald reported." This is utterly false, and the result of careless reporting on their part; there was no conviction and no Miami Herald report. Yet some people believe the story, and as a result stop doing business with you. (Say you're a doctor, so your business relies on people's confidence in you.) Now there are three parties here we can think about. There's you, and you're completely innocent. There's the Daily Tattler, which published a story that's negligently false. And there are the people who stop doing business with you. They too might be viewed negatively: Perhaps they're gullible for believing what the Daily Tattler says. Perhaps they're unfair in not looking things up themselves (maybe checking the Miami Herald's archives), or calling you and asking your side of the story. But the premise of libel law is that you can sue the Daily Tattler, even though, in a perfect world, the readers would have done better. You can't, after all, sue the readers—it's not a tort for them to avoid you based on their gullibility. And the Daily Tattler is at fault for negligently putting out the false assertion of fact that could deceive the unwise reader. Yes, perhaps people should be educated not to trust gossip rags. But so long as readers do in some measure trust them (at least as to matters where the reader lacks an incentive to do further research), libel law takes that into account. Now to be sure the law doesn't always allow liability for publishers based on all unwise reactions by readers. In particular, the question whether the statement "state[s] or impl[ies] assertions of objective fact" turns on the reaction of a reasonable reader. A statement that a reasonable reader would recognize is parody, for instance, wouldn't be actionable even if some readers might miss the joke. But when it comes to statements that a reasonable reader would perceive as factual assertions, they are potentially actionable if they are false and reputation-damaging. That the reader might be unwise for trusting the source doesn't get the source off the hook. So if you sue the Daily Tattler for negligently publishing the false allegation against you, the Tattler can't turn around to say, "It's not our fault! It's the fault of the stupid readers who trusted us, notwithstanding our having specifically labeled this as 'rumor.'" Under well-established libel law, it would lose. Now maybe there's some public policy reason why OpenAI should be off the hook for ChatGPT-4 communications, because it has warned people that the communications may be inaccurate, when the Daily Tattler isn't off the hook for its communications, despite its warning people that the communications may be inaccurate (since they're just rumor). But standard libel law seems to take a different view. [* * *] Here's what Part I.C of my Large Libel Models? Liability for AI Output article has to say about the general legal background here; note, though, that I had posted an earlier version of that chapter last week. AIs could, of course—and probably should—post disclaimers that stress the risk that their output will contain errors. Bard, for instance, includes under the prompt box, "Bard may display inaccurate or offensive information that doesn't represent Google's views." But such disclaimers don't immunize AI companies against potential libel liability. To begin with, such disclaimers can't operate as contractual waivers of liability: Even if the AIs' users are seen as waiving their rights to sue based on erroneous information when they expressly or implicitly acknowledge the disclaimers, that can't waive the rights of the third parties who might be libeled. Nor do the disclaimers keep the statements from being viewed as actionable false statements of fact. Defamation law has long treated false, potentially reputation-damaging assertions about people as actionable even when there's clearly some possibility that the assertions are false. No newspaper can immunize itself from libel lawsuits for a statement that "Our research reveals that John Smith is a child molester" by simply adding "though be warned that this might be inaccurate" (much less by putting a line on the front page, "Warning: We may sometimes publish inaccurate information"). Likewise, if I write "I may be misremembering, but I recall that Mary Johnson had been convicted of embezzlement," that could be libelous despite my "I may be misremembering" disclaimer. This is reflected in many well-established libel doctrines. For instance, "when a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander."[1] When speakers identify something as rumor, they are implicitly saying "this may be inaccurate"—but that doesn't get them off the hook. Indeed, according to the Restatement (Second) of Torts, "the republisher of either a libel or a slander is subject to liability even though he expressly states that he does not believe the statement that he repeats to be true."[2] It's even more clear that a disclaimer that the statement merely may be inaccurate can't prevent liability. Likewise, say that you present both an accusation and the response to the accusation. By doing that, you're making clear that the accusation "may [be] inaccurate." Yet that doesn't stop you from being liable for repeating the accusation. To be sure, there are some narrow and specific privileges that defamation law has developed to free people to repeat possibly erroneous content without risk of liability, in particular contexts where such repetition is seen as especially necessary. For instance, some courts recognize the "neutral reportage" privilege, which immunizes "accurate and disinterested" reporting of "serious charges" made by "a responsible, prominent organization" "against a public figure," even when the reporter has serious doubts about the accuracy of the charges.[3] But other courts reject the privilege altogether.[4] And even those that accept it apply it only to narrow situations: Reporting false allegations remains actionable—even though the report makes clear that the allegations may be mistaken—when the allegations relate to matters of private concern, or are made by people or entities who aren't "responsible" and "prominent."[5] It certainly remains actionable when the allegations themselves are erroneously recalled or reported by the speaker. The privilege is seen as needed precisely because of the general rule that—absent such a privilege—passing on allegations can be libelous even when it's made clear that the allegations may be erroneous. And the privilege is a narrow exception justified by the "fundamental principle" that, "when a responsible, prominent organization . . . makes serious charges against a public figure," the media must be able to engage in "accurate and disinterested reporting of those charges," because the very fact that "they were made" makes them "newsworthy."[6] Likewise, the narrow rumor privilege allows a person to repeat certain kinds of rumors to particular individuals to whom the person owes a special duty —such as friends and family members—if the rumors deal with conduct that may threaten those individuals. (This stems because from what is seen as the special legitimacy of people protecting friends' interests.[7]) This is why, for instance, if Alan tells Betty that he had heard a rumor that Betty's employee Charlie was a thief, Alan is immune from liability.[8] But the privilege exists precisely because, without it, passing along factual allegations to (say) a stranger or to the general public—even with an acknowledgement that they "may [be] inaccurate"—may be actionable.[9] Now a disclaimer that actually describes something as fiction, or as parody or as a hypothetical (both forms of fiction), may well be effective. Recall that, in libel cases, a "key inquiry is whether the challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact."[10] It's not actionable to state something that obviously contains no factual assertion at all—as opposed to just mentioning a factual assertion about which the speaker expresses uncertainty, or even disbelief.[11] But neither ChatGPT nor Bard actually describe themselves as producing fiction, since that would be a poor business model for them. Rather, they tout their general reliability, and simply acknowledge the risk of error. That acknowledgment, as the cases discussed above show, doesn't preclude liability. [1] Ringler Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165, 1180 (2000). [2] Restatement (Second) of Torts § 578 cmt. e; see also Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985); Hart v. Bennet, 267 Wis. 2d 919, 944 (App. 2003). [3] Edwards v. National Audubon Soc'y, 556 F.2d 113 (2d Cir. 1977). A few later cases have extended this to certain charges on matters of public concern against private figures. Others have rejected the privilege as to statements about private figures, without opining on its availability as to public figures. See, e.g., Khawar v. Globe Int'l, Inc., 965 P.2d 696, 707 (Cal. 1998); Fogus v. Cap. Cities Media, Inc., 444 N.E.2d 1100, 1102 (App. Ct. Ill. 1982). [4] Norton v. Glenn, 860 A.2d 48 (Pa. 2004); Dickey v. CBS, Inc., 583 F.2d 1221, 1225–26 (3d Cir.1978); McCall v. Courier-J. & Louisville Times, 623 S.W.2d 882 (Ky. 1981); Postill v. Booth Newspapers, Inc., 325 N.W.2d 511 (Mich. App. 1982); Hogan v. Herald Co., 84 A.D.2d 470, 446 (N.Y. App. Div. 1982). [5] A few authorities have applied this privilege to accurate reporting of allegations on matters of public concern generally, but this appears to be a small minority rule. Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); Tex. Civ. Code § 73.005. [6] Edwards, 556 F.2d at 120. Likewise, the fair report privilege allows one to accurately repeat allegations that were made in government proceedings, because of the deeply rooted principle that the public must be able to know what was said in those proceedings, even when those statements damage reputation. But it too is sharply limited to accurate repetition of allegations originally made in government proceedings. [7] Restatement (Second) of Torts § 602. [8] Id. cmt. 2. Another classic illustration is a parent warning an adult child about a rumor that the child's prospective spouse or lover is untrustworthy. Id. cmt. 1. [9] See, e.g., Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985). [10] Takieh v. O'Meara, 497 P.3d 1000, 1006 (Ariz. Ct. App. 2021). [11] See, e.g., Greene v. Paramount Pictures Corp., 813 F. App'x 728, 731–32 (2d Cir. 2020). Even then, a court might allow liability if it concludes that a reasonable person who knows plaintiff would understand that defendant's ostensible fiction is actually meant to be as roman à clef that conveys factual statements about plaintiff. The presence of a disclaimer wouldn't be dispositive then. See, e.g., Pierre v. Griffin, No. 20-CV-1173-PB, 2021 WL 4477764, *6 n.10 (D.N.H. Sept. 30, 2021). The post Defamation, Responsibility, and Third Parties appeared first on Reason.com.

An English professor at Wayne State University apparently had an overheated reaction to the fiasco at Stanford Law School. He thought the protesters did not go far enough, and he took to Facebook to say so. "I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down,"he began, and he concluded with "The exemplary historical figure in this regard is Sholem Schwarzbard, who assassinated the anti-Semitic butcher Symon Petliura, rather than trying to shout him down. Remember that Schwarzbard was acquitted by a jury, which found his action justified." The president of Wayne State has now announced that the professor has been suspended and his social media post referred to law enforcement. The professor's post is almost certainly constitutionally protected as neither a true threat nor an incitement to imminent lawless action. Wayne State, like many universities, has adopted the language American Association of University Professors' 1940 Statement on Academic Freedom. Under that policy, when speaking in public as a citizen a professor should be free from institutional censorship or discipline. Once the police investigation concludes, the professor's suspension should be lifted. The professor would be well-advised to take a break from social media. Negative partisanship has gotten quite intense in our current environment, and the number of individuals who like to fantasize on social media about the death of their political opponents is truly disturbing. Now would be a good time for the professor to recall the admonition in the AAUP Statement and the university's policy: As a person of learning and an educational officer, he/she should remember that the public may judge his/her profession and his/her institution by his/her utterances. Hence he/she should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that he/she is not an institutional spokesperson. The post Professor Suggests Murder as Alternative to Shouting Down Speakers appeared first on Reason.com.
In recent years, the Supreme Court has overruled several precedents. However, the Court has largely left in place the seminal doctrine from the Warren Court. Rather, the Justices have clawed back at decisions from the Burger Court. Roe v. Wade was overruled, but Griswold v. Connecticut remains safe. Lemon v. Kurtzman is gone, but Engel v. Vitale abides. Rucho v. Common Cause overruled Davis v. Bandemer, but Baker v. Carr survives. Janus overruled Abood but did not disturb Railway Employees' Dept. v. Hanson. Franchise Tax Board of California v. Hyatt overruled Nevada v. Hall. Knick v. Township of Scott overruled Willimason County. Obergefell overruled Baker v. Nelson. Wait, scratch that last one. But you get the picture. Another precedent from the Burger Court may soon be on the chopping block: Havens Realty v. Coleman (1982). This case found that an organization can assert an Article III injury based on a "drain of the organization's resources." For example, an organization that sends a "tester" to determine if there was a violation of the law could claim the money needed to send the tester was an injury in fact. This injury seems to be self-inflicted, as that term is understood today: anyone can generate standing-on-demand by spending money to investigate the alleged illegal activity. I became intimately familiar with Havens Realty during the early days of the Emoluments Clause litigation. Eventually, the lead plaintiffs were owners of hotels and restaurants that competed with Trump properties. But initially, the lone plaintiff was CREW, a public interest organization. Unsurprisingly, CREW's only basis for standing was Havens Realty. Here is how I described the self-inflicted injury in January 2017: In short, the complaint argues that because CREW is spending time on Trump's emolument issue, they are not able to do things they would otherwise do. Therefore, they are injured under Article III, and can bring suit. In hindsight, CREW would spend four years opposing everything Trump would do, so I'm not sure they could even claim such an injury! And also in hindsight, CREW was found to not have standing in SDNY, and the organization did not appeal that decision. But more importantly, at the time, I did not understand how Havens could be reconciled with more recent standing doctrine, like Spokeo v. Robbins (2016) and Clapper v. Amnesty International (2012). Neither case even cited Havens Realty. Then again, Larry Tribe called my standing arguments a "linguistic sleight of hand." So what did I know? Fast-forward to the TransUnion LLC v. Ramirez (2021). Like Spokeo and Clapper, the Court did not even mention Havens Realty. The case is mentioned in Justice Thomas's dissent, though he focuses on the congressional enactment of the statute, and not the self-inflicted injury question. Today the Supreme Court granted cert in Acheson Hotels v. Laufer. The case involves a so-called "tester." Specifically, a disabled person would visit the website of a hotel that she has no intent of staying at. Then she would sue the hotel for failing to provide enough information about accommodations for disabilities. The cert petition wisely does not ask the Court to squarely overrule Havens Realty. Rather that precedent can be distinguished. But the petition does question how Havens Realty can survive TransUnion. Third, this case presents an issue only this Court can resolve. This case is difficult for lower courts because they must reconcile older Supreme Court case law taking a more lenient view of standing, see Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), with this Court's more recent decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Indeed, the First Circuit noted that its ruling was in significant tension with TransUnion, but nonetheless deemed Havens Realty to be the on-point binding precedent. As Judge Jordan similarly concluded, "Havens Realty may be inconsistent (in whole or in part) with current standing jurisprudence," but "[f]or now, though, it remains binding precedent that governs here." Arpan, 29 F.4th at 1276 (Jordan, J., concurring). By contrast, the Second, Fifth, and Tenth Circuits have held that TransUnion, not Havens Realty, is the more pertinent precedent. This Court's review is warranted because only this Court can provide guidance on what its own precedents mean. As Judge Newsom put it: "I suspect that the law concerning 'stigmatic injury' will remain deeply unsettled until the Supreme Court steps in to provide additional guidance." Id. at 1287 (Newsom, J., concurring). Finally, the Court should grant certiorari because the First Circuit's decision is wrong. Laufer's abstract desire to ensure compliance with federal law does not give her Article III standing. To the extent Havens Realty survives TransUnion, it is readily distinguishable. In Havens Realty, the plaintiff was personally denied information on the basis of her race, and this Court found standing based on its view that. In many regards, Havens Realty reminds me of the Lemon Test. In all the big Establishment Clause cases, the Court did not rely on Lemon: Marsh v. Chambers, McCreary County, Van Orden, Town of Greece, American Legion, and so on. How could Lemon possibly survive all those cases? Thus, the Court deemed Lemon as "abandoned." Likewise, the Court did not even cite Havens Realty in Spokeo, Clapper, or TransUnion. Has Havens Realty been abandoned? We'll find by June 2024. The post Will Havens Realty Be "Abandoned" Like The Lemon Test? appeared first on Reason.com.
On March 20, 2023, U.S. District Judge Cormac J. Carney of the Central District of California issued a preliminary injunction in Boland v. Bonta against enforcement of California's ban on the retail sale of semiautomatic pistols that do not have a chamber load indicator, a magazine disconnect mechanism, and microstamping capability. Since no pistols with all three features are manufactured nationwide, the Unsafe Handgun Act amounts to a prohibition that violates the Second Amendment. The Act requires Californians who want to exercise their Second Amendment rights to purchase pistols designed over two decades ago and prohibits, with narrow exceptions, their acquisition of modern-day pistols. A chamber load indicator may take the form of either a visual recess or a small stud that protrudes upward from atop a pistol slide when a cartridge is in the chamber. A magazine disconnect prevents a pistol from being fired unless a magazine is fully engaged in the pistol. These designs do exist, but the latter is rejected by many for the very reason that it may prevent the pistol from being fired in an emergency. Microstamping is the mostly-theoretical process that consists of the transfer from a firearm's firing pin to the cartridge casing of a fired round of ammunition microscopic characters identifying the firearm's make, model, and serial number. This is not a feasible technology and just doesn't exist in reality. That's why, Boland found that, "no handgun available in the world has all three of these features." When it originally passed, the Unsafe Handgun Act required a drop test, firing test, and other tests for pistols to be placed on the Roster of Not Unsafe Handguns (they couldn't bring themselves to say "Safe Handguns"). Some 800 "grandfathered" pistols remain on the Roster from the original requirements. In 2007, the chamber load indicator and magazine disconnect requirements were enacted, although few pistols had those features, and only 32 pistols with those features were thereafter added to the Roster. But since 2013, when the microstamping requirement was imposed, not a single new pistol has been added to the Roster. Since they are grandfathered, the 832 pistols left on the Roster are not required to have the three newest features, and thus don't meet the current definition of "not unsafe." To top that off, the Act doesn't apply to law enforcement or other government entities. They can buy all the "unsafe" pistols they like. And when they upgrade, they can sell the "unsafe" pistols at inflated prices to private citizens, although few go on the market. Manufacturers regularly improve their firearms by making them safer and more reliable, but these improved models may not be sold at retail in California. Once a year, manufacturers must certify that no changes have been made to their models listed on the Roster, which prevents use of newer, better parts. Pistol designs are frozen in time as of 2007, leading Judge Carney to find: "Requiring Californians to purchase only outdated handguns for self-defense without question infringes their right to keep and bear arms." Since the Supreme Court decided Heller, it cannot be argued that it's okay to ban some guns if others are allowed. Indeed, while the Boland opinion doesn't explicitly mention Heller's test that arms in common use are protected arms and may not be banned, it could and should have stopped right there and invalidated the Act on the basis that post-2007 handgun designs are in common use by law-abiding citizens for lawful purposes throughout the United States. In Heller, the Supreme Court effectively applied Bruen's text-and-history test (before it became the Bruen text-and-history test) to arrive at the "common-use" test, which governs questions about the constitutionality of firearm prohibitions. Because the Heller Court did the text and historical work already, lower courts (such as Judge Carney) do not need to consider alleged historical analogues when deciding arms ban cases. Heller's common-use test is the governing law and the standard that every court should apply. In Boland, the court went straight to Bruen, with its presumption that bearable arms are protected, skipping over Heller's test that the common use of those bearable arms precludes any justification by the government of its restrictions via analogues to regulations in the founding era. Historical tradition becomes relevant only for arms that are not in common use. Even so, California's attempt to assemble historical evidence fell flat. Through its expert historian Saul Cornell, the state relied on "proving" laws and gunpowder storage rules as analogues from the founding period. "Proving" or "proofing" refers to the testing of firearm barrels with higher-than-normal amounts of gunpowder to ensure that they will not crack or fail under pressure. For centuries, European states have required testing in proof houses, which stamp barrels that pass the test with proof marks. In the United States, such testing has been largely prompted by gun makers striving for a good reputation and being subject to tort liability. However, a few early states mandated proving by law. For instance, Massachusetts enacted a "proving" law in 1804 requiring that muskets and pistols manufactured in the Commonwealth had to be tested with certain loads of gunpowder to demonstrate that they were safe to fire. An inspector would stamp the barrel to show that it had been proved. The court found California's ban not to be analogous to such proving laws. While "proving laws supported the use of firearms for self-defense by ensuring the weapon worked properly and safely," California's requirement that a pistol will not fire without a magazine inserted "can actually work against the use of a handgun for self-defense…." Proving laws were enacted to ensure that barrels would not burst on firing and that shots would fire minimum distances, while California's restrictions suppress design improvements that make pistols safer and more effective. Indeed, California has banned the sale of "virtually all new, state-of-the-art handguns." Nor is California's law analogous to gunpowder storage laws at the founding. As a fire prevention measure, an outlier 1783 Massachusetts law prohibited the storage of a loaded firearm in a building, and other states limited the amount of gunpowder that one could store. (For well over a century now, the highly volatile black powder has been replaced with the more stable smokeless powder.) It is noteworthy the Supreme Court in Heller also distinguished these fire code-related black powder laws. As the Boland court found, "the main goal of gunpowder storage laws was to prevent fire," while California's loaded chamber and magazine requirements "are meant to prevent inadvertent discharge or firing of the firearm." The court further rejected California's argument that microstamping is similar to requiring serial numbers on firearms. "In contrast to the requirement of a serial number, which has been universally and easily implemented by manufacturers across the globe, not a single manufacturer has implemented microstamping technology, and indeed it is not feasible to implement such technology broadly." And, again, the "why" of this law has nothing to do with helping gun owners discharge safe and effective arms, but instead was enacted to help law enforcement (in theory) solve crimes. While Americans elsewhere have access to pistols that are "more ergonomic, durable, reliable, affordable, and possibly even safer," Californians are stuck with pistols with designs frozen in time in 2007. And these grandfathered pistols do not have the supposed safety features that are now required. Not to mention that government actors may buy any pistols they wish, leaving the safety arguments with little credibility. The Boland court issued a preliminary injunction against enforcement of the Unsafe Handgun Act, but stayed it for two weeks (to April 3) to give the Attorney General an opportunity to seek a further stay from the Ninth Circuit. What are the chances that the Ninth won't issue a further stay, given its history of consistently reversing pro-Second Amendment decisions? There is a back story to the opinion expressed in three days of hearings before Judge Carney. California's star witness was Saul Cornell, who testified that in his opinion, California's law fully complied with the Bruen decision. That was based on historical analogues like the proving laws and gunpowder storage laws. The fun began with the cross-examination by plaintiffs' counsel Joshua Dale. Cornell started with his usual attack on "law office history," which misuses history "to advance a contemporary policy agenda." (Sounds kinda like what he himself does.) Scholars supporting the individual-rights view of the Second Amendment, which Cornell has derided for decades, are "libertarians" who "read 18th century texts as if they were ghost-written by Ayn Rand." And that would include the majority on the Supreme Court. Just after Bruen was decided, Cornell wrote a piece for SCOTUSBlog. Mr. Dale asked Cornell if his opinions now were based on Bruen. In the article, Cornell described "Justice Thomas's decision as an illustration of the current Supreme Court's new interpretative model – fiction, fantasy, and mythology." He referred to "the bizarro constitutional universe inhabited by Thomas," said the Court cherry-picked evidence to "support the ideological agenda of the federalist society [sic]," and referred to Justices Gorsuch and Barrett as "ideological warriors and political hacks." Whew! That caused Dale to ask, "what assurances you can give to the Court in light of the fact that your views were rejected by the Court in Heller; they were rejected, again, in Bruen." Cornell responded that he easily moves between his roles as a writer and as an expert witness, which he described as "the very definition of an accomplished scholar." Judge Carney wasn't buying it. We'll see what the Ninth Circuit does. It goes without saying that whether a firearm restriction violates the Second Amendment is a pure question of law to be decided by the courts. "It is, emphatically, the province and duty of the judicial department, to say what the law is," as Chief Justice John Marshall famously said. As Cornell's testimony illustrates, the opinions of a historian "expert" may be highly biased and are irrelevant. Courts are fully capable of deciding whether old laws provide ample historical analogues for modern restrictions. See this author's post "Should Courts Appoint Historians as Experts in Second Amendment Cases?" One thing was left unsaid. The theory of microstamping is that the firing pin would be coded to leave certain marks on a cartridge case when it is fired, allowing law enforcement to identify the pistol from which it was discharged. What could go wrong? Hint: just file down or exchange the firing pin for a new one and presto, the pistol will become anonymous. The post Second Amendment Roundup: District Court Invalidates California's Unsafe Handgun Act appeared first on Reason.com.
This week and likely next, I'll be serializing my Large Libel Models? Liability for AI Output draft. I had already posted on why I think such AI programs' communications are reasonably perceived as factual assertions, and why disclaimers about possible errors are insufficient to avoid liability. Here, I want to explain why I think § 230 doesn't protect the AI companies, either. [* * *] To begin with, 47 U.S.C. § 230 likely doesn't immunize material produced by AI programs. Section 230 states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." "[I]nformation content provider" is defined to cover "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."[1] A lawsuit against an AI company would aim to treat it as publisher or speaker of information provided by itself, as an entity "that is responsible, in whole or in part, for the creation or development of [such] information."[2] As the leading early § 230 precedent, Zeran v. AOL, pointed out, in § 230 "Congress made a policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages."[3] But Congress didn't make the choice to immunize companies that themselves create messages that had never been expressed by third parties.[4] Section 230 thus doesn't immunize defendants who "materially contribut[e] to [the] alleged unlawfulness" of online content.[5] An AI company, by making and distributing an AI program that creates false and reputation-damaging accusations out of text that entirely lacks such accusations, is surely "materially contribut[ing] to [the] alleged unlawfulness" of that created material.[6] Recall that the AI programs' output isn't merely quotations from existing sites (as with snippets of sites offered by search engines[7]) or from existing user queries (as with some forms of autocomplete that recommend the next word or words by essentially quoting them from user-provided content). To be sure, LLMs appear to produce each word based on word frequency connections drawn from sources in the training data. Their output is thus in some measure derivative of material produced by others.[8] But of course all of us rely almost exclusively on words that exist elsewhere, and then arrange them in an order that likewise stems in large part from our experience reading material produced by others. Yet that can't justify immunity for us when we assemble others' individual words in defamatory ways. Courts have read § 230 as protecting even individual human decisions to copy-and-paste particular material that they got online into their own posts: If I get some text that was intended for use on the Internet (for instance, because it's already been posted online), I'm immune from liability if I post it to my blog.[9] But of course if I don't just repost such text, but instead write a new defamatory post about you, I lack § 230 immunity even if I copied each word from a different web page and then assembled them together: I'm responsible in part (or even in whole) for the creation of the defamatory information. Likewise for AI programs. And this makes sense. If Alan posts something defamatory about Betty on his WordPress blog, that can certainly damage her reputation, especially if the blog comes up on Google searches—but at least people will recognize it as Alan's speech, not Google's or WordPress's. Section 230 immunity for Google and WordPress thus makes some sense. But something that is distributed by an AI company (via its AI program) and framed as the program's own output will be associated in the public's mind with the credibility of the program. That may make it considerably more damaging, and would make it fair to hold the company liable for that. Relatedly, traditional § 230 cases at least in theory allow someone—the actual creator of the speech—to be held liable for it (even if in practice the creator may be hard to identify, or outside the jurisdiction, or lack the money to pay damages). Allowing § 230 immunity for libels output by an AI program would completely cut off any recourse for the libeled person, against anyone. In any event, as noted above, § 230 doesn't protect entities that "materially contribut[e] to [the] alleged unlawfulness" of online content.[10] And when AI programs output defamatory text that they have themselves assembled, word by word, they are certainly materially contributing to its defamatory nature. [1] 47 U.S.C. §§ 230(c)(1), (f)(3). [2] I thus agree with Matt Perault's analysis on this score. [Cite forthcoming J. Free Speech L. article.] [3] 129 F.3d 327, 330–31 (4th Cir. 1997). [4] The statement in Fair Housing Council, 521 F.3d at 1175, that "If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune," dealt with websites that republish "user[]" "input"—it didn't provide immunity to websites that themselves create illegal (e.g., libelous) content based on other material that they found online. [5] Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167–68 (9th Cir. 2008) (en banc). Many other courts have endorsed this formulation. Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1200 (10th Cir. 2009); People v. Bollaert, 248 Cal. App. 4th 699, 719 (2016); Vazquez v. Buhl, 150 Conn. App. 117, 135–36 (2014); Hill v. StubHub, Inc., 219 N.C. App. 227, 238 (2012). [6] If the AI program merely accurately "restat[es] or summariz[es]" material in its training data, even if it doesn't use the literal words, it may still be immune. See Derek Bambauer, Authorbots, 3 J. Free Speech L. __ (2023). But I'm speaking here of situations where the AI program does "produced . . . new semantic content" rather than "merely repackage[ing] existing content." Id. at __. [7] See O'Kroley v. Fastcase, Inc., 831 F.3d 352 (6th Cir. 2016) ("Under [§ 230], Google thus cannot be held liable for these claims — for merely providing access to, and reproducing, the allegedly defamatory text."). [8] See Derek Bambauer, supra note 7, at __; Jess Miers, Yes, Section 230 Should Protect ChatGPT and Other Generative AI Tools, TechDIrt, Mar. 17, 2023, 11:59 am. [9] See, e.g., Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003), superseded in part by statute on other grounds as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017); Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006); Phan v. Pham, 182 Cal. App. 4th 323, 324–28 (2010); Monge v. Univ. of Pennsylvania, No. CV 22-2942, 2023 WL 2471181, *3 (E.D. Pa. Mar. 10, 2023); Novins v. Cannon, No. CIV 09-5354, 2010 WL 1688695, *2 (D.N.J. Apr. 27, 2010). [10] Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1167–68 (9th Cir. 2008) (en banc). Many other courts have endorsed this formulation. Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1200 (10th Cir. 2009); People v. Bollaert, 248 Cal. App. 4th 699, 719 (2016); Vazquez v. Buhl, 150 Conn. App. 117, 135–36 (2014); Hill v. StubHub, Inc., 219 N.C. App. 227, 238 (2012). The post Why § 230 Likely Doesn't Provide Immunity for Libels Composed by ChatGPT, Bard, etc. appeared first on Reason.com.
Empirical social science does not take independent judiciaries as a given. Judicial independent might be normatively valuable, and it might even be enshrined in a constitution, but realizing and maintaining an independent judiciary is a long-term political project. Moreover, as Alexander Hamilton pointed out, judiciaries are a relatively weak branch of government, which suggests that their effective independence is fairly fragile. Broadly speaking, there are two kinds of theories about the political supports for an independent judiciary. The two kinds of approaches are not mutually exclusive, and they are probably both significant to some degree or another. There are lots of specific variations within the broad types. But such theories are concerned with trying to explain the puzzling independence of courts. One class of theories emphasizes elite support for judicial independence. This has generally been the focus in my work. Political Foundations of Judicial Supremacy, for example, emphasized the strategic calculations of national political leaders like presidents make in finding an independent judiciary to be politically useful. Presidents have benefited from being able to shift blame for unpopular policy outcomes to the unelected courts and to pass off politically contentious policy decisions to ideological allies in the judiciary. Repugnant Laws emphasized how the U.S. Supreme Court has husbanded political authority by cautiously exercising judicial review in a way that does not force a confrontation with ascendant political majorities. Or as I noted in a piece focusing on interaction of the Court and Congress, Legislative support for judicial independence in the exercise of judicial review depends on a political cost-benefit analysis by legislators. If independent judicial review is more politically costly to legislators than it is beneficial to them, then the legislature is likely to seek to subvert judicial independence and to look for ways to sanction the courts. If judicial review is, on the whole, beneficial to legislators, then they are likely to support, or at least acquiesce in, an independent judiciary. Where a fairly unified and electorally stable coalition emerges, courts are kept on a short leash. Where courts obstruct politically important policies or give incumbent governments nothing but losses, the judges are likely to get slapped. Another class of theories emphasizes mass support for judicial independence. These theories contend that the public will impose a cost on politicians who threaten judicial independence. Some of this work examines the "diffuse support" for the courts in public opinion data. Diffuse support refers to a "reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed to the effects of which they see as damaging their wants." By contrast, specific support refers to favorable attitudes about the policy outputs of the courts. Courts might be "legitimate" in the public's eyes because they produce the policies or support the groups that a majority of the public also wants or supports, or they might be regarded as legitimate despite the fact that they produce policies that are themselves unpopular. One way in which that diffuse support might be expressed is through public opposition to judicial reform or political challenge to the courts, while the lack of diffuse support might cash out in public support for judicial reform. Even if politicians find an independent judiciary to be inconvenient, mass support for the courts can prevent politicians from doing anything about it. The events in Israel provide a dramatic demonstration of both theories. Prime Minister Benjamin Netanyahu has advanced a proposal for judicial reform. Such proposals, like Court-packing proposals in the United States, reflect the sharp political divergence between the judiciary as currently constituted and the currently dominant political coalition. A politically confident political coalition decided the judiciary was too obstructionist to its valued policies, and so it tried to rein in the independence of the judiciary. An elite approach to judicial independence would expect as much. But in response, a huge swath of the mass public have taken to the streets to protest against the proposal and in favor of the courts. Diffuse support for the courts in the mass public in action. Such a display will often scuttle the political attack on the courts, and the possibility that something like this might happen is an important deterrent to court-curbing policies. With Court-packing very much in the air in American politics, one wonders whether the U.S. Supreme Court could count on a similar public backlash to protect an independent judiciary here. Seems unlikely. If so, that's one important pillar supporting judicial independence gone. The Roberts Court better hope Republicans keep winning elections. The post Political Supports for an Independent Judiciary appeared first on Reason.com.
Some commenters on my Large Libel Model posts have argued that the reason I got false output from my prompts is that I had "primed" the model to suggest that I was looking for something negative. It's true that my prompts asked what various people were accused or convicted of, but those strike me as perfectly plausible queries that people could ask, seeking true information about accusations or convictions, not false or libelous information. Here's an illustration of some Bard queries I just ran, that I think shows how things can happen this way. It ultimately comes up with the following apparently entirely Bard-manufactured claim (I replace my last name with "V." and my first name with "E." just to slightly decrease the risk that this will come up in future queries for my name, and some people—or some bots—will believe it to actually be true; all my prompts to Bard and all its outputs had my full name): E.V. was criticized for hiring a student who had been accused of sexual harassment in a 2018 article in The New York Times. The article, titled "E. V., a Law Professor at U.C.L.A., Hires Student Accused of Sexual Harassment," reported that V. had hired a student who had been accused of sexual harassment to work as a research assistant in his law clinic. The student had been accused of groping a female student at a party and had been suspended from the university for a semester. V. defended his decision to hire the student, saying that he believed in giving people second chances. He also said that the student had been cleared of the sexual harassment charges by the university. The article was widely criticized on social media and in the legal community. Many people accused V. of being insensitive to the victim of sexual harassment and of sending the wrong message to other students who had been accused of sexual misconduct. V. responded to the criticism by saying that he was sorry if anyone was offended by his decision to hire the student. He also said that he would not hire anyone who had been accused of sexual harassment in the future. Again, this is false. I have never been criticized for hiring such a student. I have never, to my knowledge, hired such a student (though I wouldn't in principle categorically refuse to hire someone just because the person had done something bad, and especially just because they had been accused or cleared). I don't even hire research assistants for my clinics. I thus necessarily never apologized for such a decision. I never said I wouldn't hire anyone who had been accused of sexual harassment. And there is no title with that name, or even just the phrase "Hires Student Accused of Sexual Harassment" in the New York Times or other publication. Now let's see how the conversation unfolded: I began just by typing my name ("E. V.," spelled out). This is the sort of thing that an ordinary person who is interested in my biography—perhaps a lawyer who is interested in hiring me as a consultant, or a student who is interested in applying to my clinic, or a reporter who wants a sense of my credentials—might do. I got a largely accurate result, but at the end it said, "V. is a controversial figure, and his views have been criticized by some as being too extreme." I then entered, "In what way has V. been too extreme, according to the criticisms (and please indicate who made those criticisms)." That too seems like something a reasonable searcher might do, once he was informed (correctly) that I have been criticized. This produced various allegations, including the apparently entirely spurious one that the Anti-Defamation League had criticized me for my position on flagburning. Curious, I asked, as others might, "What exactly did the Anti-Defamation League say in condemning V.'s position on flag burning?" (I was curious about this myself, as the hypothetical searcher might be.) I then got some purported quotes that, my searches suggest, were never made by the ADL. I followed up with, "When did the ADL criticize V. this way?" I got some repetition of the made-up quote. I then followed up with, as the hypothetical lawyer/student/reporter might, "What other things have made V. controversial?" I got various statements, some mostly accurate, some mistaken, but, at the end, "V. has also been criticized for his personal behavior, including," "His decision to hire a student who had been accused of sexual harassment, which some people found inappropriate." I then entered, "Who criticized V. for hiring the student who had been accused of sexual harassment, and when and where?," and got the bogus answer quoted at length above. Again, I give this example not because I'm personally worried about my reputation here. (ChatGPT, which is what I started writing about in my Large Libel Model posts, is actually very nice to me, so my posts predate my discovery of the statements here—which in any event are much less potentially reputation-damaging than the many others that I've mentioned in my other posts.) Rather, I want to show just how a normal, plausible search strategy by someone who didn't even start out trying to dig up criticisms could still yield false claims about a particular person, complete with invented quotes. I include below the entire exchange, with my prompts set in bold and italics (the prompts didn't include the prefix "[Prompt:]," which I provide below just for clarity.) [Prompt:] E. V. E. V. is an American legal scholar known for his scholarship in American constitutional law and libertarianism as well as his prominent legal blog The V. Conspiracy. V. is regarded as an expert on the First Amendment. He is the Gary T. Schwartz Distinguished Professor of Law at the UCLA School of Law and is an affiliate at the law firm Schaerr Jaffe. V. was born in Kyiv, Ukraine, and emigrated to the United States with his family when he was seven years old. He received a B.S. in math-computer science from UCLA at age 15, and then worked as a computer programmer for 12 years before attending law school. He graduated from UCLA School of Law with a J.D. in 1995. V.'s scholarship focuses on the First Amendment, particularly the free speech clause. He has written extensively on topics such as the regulation of hate speech, the right to burn the American flag, and the role of the First Amendment in protecting religious liberty. V. is also a strong advocate of libertarianism, and has argued that the government should have a limited role in people's lives. V.'s blog, The V. Conspiracy, is one of the most popular legal blogs in the United States. V. and his co-bloggers discuss a wide range of legal and political issues, and the blog has been cited by the Supreme Court and other courts. V. is also a regular contributor to The Wall Street Journal, The Los Angeles Times, and other publications. V. is a controversial figure, and his views have been criticized by some as being too extreme. However, he is widely respected as a scholar and a legal thinker. Sources—Learn more wikipedia.org/wiki/E._V. [Prompt:] In what way has V. been too extreme, according to the criticisms (and please indicate who made those criticisms). V. has been criticized for his views on a variety of issues, including: His support for the right to burn the American flag, which some people see as a disrespectful act. His defense of hate speech, which some people believe should be prohibited. His opposition to gun control, which some people believe is necessary to reduce gun violence. His libertarian views, which some people believe are too extreme and would lead to a society without government regulation. Some of the people who have criticized V. include: The Anti-Defamation League, which has condemned V.'s support for the right to burn the American flag. The Southern Poverty Law Center, which has criticized V.'s defense of hate speech. The Brady Campaign to Prevent Gun Violence, which has opposed V.'s opposition to gun control. The Center for American Progress, which has criticized V.'s libertarian views. V. has defended his views, arguing that they are based on a consistent commitment to the First Amendment and to individual liberty. He has also argued that his critics are often motivated by a desire to silence him and to prevent him from expressing his views. [Prompt:] What exactly did the Anti-Defamation League say in condemning V.'s position on flag burning? The Anti-Defamation League (ADL) condemned V.'s position on flag burning, saying that it is "a deeply offensive and disrespectful act that should not be protected by the First Amendment." The ADL also said that V.'s position "would open the door to hate speech and other forms of bigotry." The ADL's criticism of V.'s position on flag burning is based on the belief that flag burning is a form of hate speech that should not be protected by the First Amendment. The ADL argues that flag burning is a symbolic act that is intended to express hatred and contempt for the United States and its values. The ADL also argues that flag burning is a form of intimidation that can be used to terrorize and threaten people. V.'s position on flag burning is based on the belief that the First Amendment protects all forms of speech, even speech that is offensive or hateful. V. argues that flag burning is a form of political speech that should be protected by the First Amendment. V. also argues that flag burning is a form of self-expression that should be protected by the First Amendment. The ADL's criticism of V.'s position on flag burning is likely to be controversial. Some people will agree with the ADL's argument that flag burning is a form of hate speech that should not be protected by the First Amendment. Others will agree with V.'s argument that flag burning is a form of political speech that should be protected by the First Amendment. [Prompt:] When did the ADL criticize V. this way? The ADL criticized V. in 2016, after he defended the right of a student at the University of California, Los Angeles to burn an American flag in a protest against the election of Donald Trump. The ADL said that V.'s defense of the student's right to burn the flag was "deeply offensive and disrespectful." [Prompt:] What other things have made V. controversial? E. V. has been controversial for a number of reasons, including: His views on the First Amendment, which have been criticized by some as being too extreme. His support for the right to burn the American flag, which some people see as a disrespectful act. His defense of hate speech, which some people believe should be prohibited. His opposition to gun control, which some people believe is necessary to reduce gun violence. His libertarian views, which some people believe are too extreme and would lead to a society without government regulation. V. has also been criticized for his personal behavior, including: His use of the n-word in a blog post, which some people found offensive. His apology for using the n-word, which some people found insincere. His decision to hire a student who had been accused of sexual harassment, which some people found inappropriate. V. has defended his views and his personal behavior, arguing that he is a consistent advocate for the First Amendment and for individual liberty. He has also argued that his critics are often motivated by a desire to silence him and to prevent him from expressing his views. [Prompt:] Who criticized V. for hiring the student who had been accused of sexual harassment, and when and where? V. was criticized for hiring a student who had been accused of sexual harassment in a 2018 article in The New York Times. The article, titled "E. V., a Law Professor at U.C.L.A., Hires Student Accused of Sexual Harassment," reported that V. had hired a student who had been accused of sexual harassment to work as a research assistant in his law clinic. The student had been accused of groping a female student at a party and had been suspended from the university for a semester. V. defended his decision to hire the student, saying that he believed in giving people second chances. He also said that the student had been cleared of the sexual harassment charges by the university. The article was widely criticized on social media and in the legal community. Many people accused V. of being insensitive to the victim of sexual harassment and of sending the wrong message to other students who had been accused of sexual misconduct. V. responded to the criticism by saying that he was sorry if anyone was offended by his decision to hire the student. He also said that he would not hire anyone who had been accused of sexual harassment in the future. [Standard line below the prompt box:] Bard may display inaccurate or offensive information that doesn't represent Google's views. The post Large Libel Model: How a Google Bard Session Went Off the Rails into Invented Quotes and False Accusations appeared first on Reason.com.
From Friday's Third Circuit decision in Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc., written by Judge Patty Shwartz, joined by Judges Stephanos Bibas and Thomas Ambro: Pacira BioSciences, Inc. … sued the American Society of Anesthesiologists, Inc. …, the editor-in-chief of its medical journal, and the authors of three articles for statements made about one of Pacira's drug products…. Because the District Court correctly concluded that the statements that form the basis of Pacira's trade libel claim are nonactionable opinions, Pacira has failed to state a basis for relief…. In [deciding whether a statement is opinion], we consider the (1) content, (2) verifiability, and (3) context of the statements…. Pacira seeks relief based on two statements: (1) that EXPAREL is "not superior" to local anesthesia; and (2) that it is an "inferior analgesic." Stating that something is "not superior" or "inferior" is the type of "loose" or "figurative" language that the New Jersey Supreme Court has said is "more likely to be deemed non-actionable as rhetorical hyperbole." … The verifiability prong also supports the conclusion that the statements are nonactionable opinions…. First, the statements are tentative scientific conclusions and were expressly disclosed as such …: Most conclusions contained in a scientific journal article are, in principle, capable of verification or refutation by means of objective proof. Indeed, it is the very premise of the scientific enterprise that it engages with empirically verifiable facts about the universe. At the same time, however, it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation. … "Scientific conclusions are subject to perpetual revision." …); {One court has recently observed that if there is consensus on a scientific issue, then a statement about the issue may be deemed verifiable.} The statements here expressly claim they are tentative scientific conclusions. For example, immediately before concluding that EXPAREL is not superior to standard analgesics, the Hussain Article enumerates five "notable limitations" of its study, including "variabilities" that "may have played a confounding effect," "publication bias" in selecting studies, and statistical limitations due "to scarcity of data." … Second, Pacira fails to appreciate the difference between "verifiability" and "reliability." Verifiability turns on whether a statement is "capable of … truth or falsity," while reliability turns on whether the basis for the statement is capable of being trusted. Pacira's allegations boil down to disagreements about the reliability of the methodology and data underlying the statements. For example, Pacira alleges that the Articles disregarded studies favorable to EXPAREL and that the Ilfeld Review failed to consider a relevant procedure, but allegations that "competent scientists would have included variables that were available to the defendant authors but … were not taken into account in their analysis" cannot create an actionable falsehood because they do not bear on whether the statements are verifiable. Pacira also alleges that the Hussain Article employed a "flawed method," but mere disputes about the reliability of a scientific study's disclosed methodology cannot create an actionable falsehood for trade libel, as such disputes do not address whether the statements themselves are verifiable…. "[T]he reliability of the data in [scientific] articles is not fit for resolution in the form of a defamation lawsuit." … {To be sure, a conclusion drawn from falsified or fraudulent data may be actionable because "there is no constitutional value in false statements of fact." Pacira, however, does not allege that any of the data were falsified.} {There are, of course, circumstances in which courts may need to assess the reliability of a scientific study. Liability under the Lanham Act arises, for example, if the commercial statement is "literally false." For certain claims, literal falsity may be established by showing that "the underlying studies upon which the representations are based are not sufficiently reliable to permit one to conclude with reasonable certainty that they established the claim made." Our inquiry here is different. We must determine the threshold question of whether the statements are nonactionable pure opinions protected from a trade libel suit. As part of that inquiry, we consider whether the statements can be proven true or false. It is only after establishing the statements can be proven true or false that reliability of the underlying data and methodology may become relevant. Pacira's attacks on Defendants' studies do not answer the question of whether the statements about whether its product is inferior or not superior are verifiable.} Pacira's critiques about the Articles' data and methodology may be the basis of future scholarly debate, but they do not form the basis for trade libel under New Jersey law. To conclude otherwise would risk "chilling" the natural development of scientific research and discourse. Thus, the verifiability factor supports our conclusion that the statements are nonactionable opinions…. Finally, the context of the statements further demonstrates that they are nonactionable opinions…. The statements here were made in a peer-reviewed journal for anesthesiology specialists. While statements are not protected solely because they appear in a peer-reviewed journal, such journals are often "directed to the relevant scientific community." Their readers are specialists in their fields and are best positioned to identify opinions and "choose to accept or reject [them] on the basis of an independent evaluation of the facts." Such is the case here. First, Anesthesiology is a leading journal in the field and is offered as a free benefit to the ASA's members, who are "physicians practicing in anesthesiology as well as anesthesiologist assistants and scientists interested in anesthesiology." Second, the readers were provided with the data and methodology on which the statements were based. The Hussain Article stated that it was based on nine randomized studies, gave the reasons for selecting those studies, and disclosed the possible shortcomings of its methodology. The Ilfeld Review disclosed the seventy-six randomized controlled trials involving EXPAREL it reviewed, what those trials concluded, and the methods the authors used to analyze the data. The CME's statement that EXPAREL is "inferior" to local anesthetics is based directly on the Ilfeld Review's finding that "[n]inety-two percent of trials (11 of 12) suggested [standard local anesthesia] provides superior analgesia to [EXPAREL]." Similarly, the CME's statement allegedly suggesting that industry-sponsored studies favoring EXPAREL were biased is drawn directly from the Articles, which state that industry-sponsored studies were "considered a potential source of bias." Therefore, the journal's readers were provided the basis for the statements, have the expertise to assess their merits based on the disclosed data and methodology, and thus are equipped to evaluate the opinions the authors reached. {To the extent that [a Second Circuit precedent] embraced a categorical rule that scientific statements contained in academic journals are always immune from a trade libel claim, we decline to hold that New Jersey law mandates such a rule.} Congratulations to Kathleen Sullivan (Quinn Emanuel Urquhart & Sullivan), who argued the case for defendants. Note that my students Pareesa Darafshi, Gerardo Gorospe, and Katelyn Taira and I filed an amicus brief on behalf of the Foundation for Individual Rights and Expression in support of defendants. The post Third Circuit Rejects Pacira Biosciences' Trade Libel Claim Over Article in Leading Medical Journal About EXPAREL appeared first on Reason.com.

On Wednesday, I attended oral argument at the Supreme Court. While on the security line, I bumped into Joan Biskupic. She mentioned that she was publishing a new book, titled Nine Black Robes. I asked what it was about. She said the Roberts Court. I asked her to send me more information about the book. Biskupic then made it through the magnetometer and hustled to the press room. I went upstairs. The next day, Biskupic published an exclusive in CNN titled "How Ginsburg's death and Kavanaugh's maneuvering shaped the Supreme Court's reversal of Roe v. Wade and abortion rights." This column is excerpted from her new book, which has the full titled, "NINE BLACK ROBES: Inside the Supreme Court's Drive to the Right and Its Historic Consequences." In the old days, when Biskupic published a bombshell, it went kaboom. We learned things that we couldn't figure out on our own. Now, her exclusives are barely there. At most, she confirms things that are fairly obvious. Or she tells us things that are sort of novel, but do not get to the heart of the Court's decision-making process. Let's walk through the new column. First, Biskupic recounts that shortly after RBG's death, the Chief's office moved all of her belongings to the theater on the Supreme Court's ground floor: Within days of Justice Ruth Bader Ginsburg's memorial service in late September 2020, boxes of her files and other office possessions were moved down to a dark, windowless theater on the Supreme Court's ground floor, where – before the ongoing pandemic – tourists could watch a film about court operations. Grieving aides to the justice who'd served 27 years and become a cultural icon known as the "Notorious RBG" sorted through the chambers' contents there. The abrupt mandate from Chief Justice John Roberts' administrative team to clear out Ginsburg's office and make way for the next justice broke from the common practice of allowing staff sufficient time to move and providing a new justice with temporary quarters if needed while permanent chambers were readied. But the confirmation of then-President Donald Trump's chosen successor, Indiana-based US appeals court Judge Amy Coney Barrett, was as much a fait accompli at the court as in the political sphere. In September 2020, the Supreme Court building was a full house. At the time, there were three retired Justices who (likely) still kept chambers at the Supreme Court: Justices O'Connor, Kennedy, and Souter. (I'm not sure if O'Connor still maintains chambers, since she does not keep a law clerk.) Justice Stevens had died in April 2020. I think it safe to say that his family was not able to visit the Supreme Court to clean out his chambers during the pandemic. So, as many as four chambers were packed with the belongings of retired Justices. By my count, the last time there were four former Justices was circa 1995: Chief Justice Burger and Justices Brennan, White, and Powell were still around. Throughout her career, Ginsburg had acquired a substantial amount of materials. There was probably no space large enough to fit everything, so they used the theater. (Fun fact: that theater was used to screen various "obscene" films; Justice Black refused to watch any of them because they were all protected speech.) Plus there was a pandemic, so staffing was short. And the Chief knew that a Trump appointee would arrive very shortly. And this new Justices would have to hit the ground running immediately on a full docket, plus the emerging election cases. Biskupic tries to spin this administrative decision as a metaphor for Dobbs: That behind-the-scenes drama and internal tensions over cases that followed, accelerated by all three Trump appointees, led to a new level of distrust and discord among the justices that lingers today. Almost as abruptly as Ginsburg's possessions were cast out, the court's 6-3 conservative majority began ravaging the vestiges of Ginsburg's work on women's rights and access to abortion. The metaphor falls flat. Roberts seemed to make a reasonable decision of how to administer the Court's limited real-estate. Next, Biskupic repeats the well-worn claim that Justice Kavanaugh tries to make himself appear "conciliatory": The abortion controversy also surfaced a pattern of double-signaling to colleagues and people beyond the court by Justice Brett Kavanaugh, Trump's second appointee. Kavanaugh has long been concerned with appearances. He remains torn between his allegiance to conservative backers from his 2018 nomination fight and his desire for acceptance among the legal elites who shunned him. Since Kavanaugh joined the bench, a documented pattern reflects the lengths that he goes to in order to appear conciliatory. I would state the issue a bit differently. I don't think Kavanaugh desires acceptance from legal elites. He probably knows that ship has sailed. I think he intrinsically believes in making all sides feel as respected as possible–especially the losing side. Kavanaugh's saccharine jurisprudence infuriates me. But this is who he is. And he behaved this way long before his Supreme Court confirmation. Not much has changed from his time as an appellate judge, for better or worse. Biskupic does bring forth one new piece of evidence to back up this "conciliatory" claim: A previously unreported example occurred in 2019, when Kavanaugh joined a dissent denigrating a US district judge for rejecting the Trump administration's attempt to add a citizenship question to the 2020 census form. A Supreme Court source revealed that Kavanaugh then quietly sent the judge a personal note saying he actually respected him. . . . The later Kavanaugh note to Furman showed his efforts to appear conciliatory: He joined an opinion challenging Furman's integrity but then wrote the judge a note that pleaded the opposite. Here, Biskupic is writing about Department of Commerce v. New York. Justice Thomas's dissent, which Kavanaugh joined, lambasted District Judge Jesse F. Furman's rulings. The District Court's lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge pre-disposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id., at 662 (inferring "from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide"). At the time, I immediately thought of the Always Sunny in Philadelphia meme: Back to Biskupic. Kavanaugh sent a letter to Judge Furman saying he respected him. Big deal! This may come as a surprise, but judges do privately correspond with each other. And even if a Justice disagree with a judge's ruling–in sharp terms–he can still express respect for that judge. Consider the life-long relationship between Justice Scalia and Justice Ginsburg. No matter how sharp Scalia's rhetoric was in opinions, he always expressed admiration for Ginsburg in public speeches as well as in private correspondences. Moreover, Kavanaugh is a nice guy. Believe it or not, he and I actually used to get along quite well. He even volunteered to judge the high school moot court competition I run. From time to time, Kavanaugh would send me gracious notes about this or that. Sending this letter to Furman is entirely in keeping with who Kavanaugh is as a person. Another non-story, spun up to make a broader point. The closest thing we have to a scoop concerns the fetal heartbeat case. Biskupic observes that during oral argument, Justices Kavanaugh and Barrett seemed receptive to the argument that at least some Texas officials could be sued. (I responded to that position, vigorously, here.) Kavanaugh particularly questioned whether, if states could block abortion rights, they could do the same for firearm rights and free speech. Barrett sounded troubled that the Texas law was written in a way that would deny any challenger a "full constitutional defense." Their remarks were widely interpreted by outside observers to suggest they were ready to rule against Texas and to allow abortion clinics to challenge the law preventing abortions after about six weeks. More importantly, some of the justices who believed that law blatantly unconstitutional interpreted their colleagues' comments that way, too, and believed there would be a turning point in the Texas case. But when the votes were cast in private, the justices on the left realized they had been misled by what they had heard in public. I don't know what to make of this sourcing. Biskupic seems to be reflecting on what some of the Justices "believed." And to be precise, the Justices who thought the law was "blatantly unconstitutional" were Justices Breyer, Sotomayor, and Kagan. So tracking down the source of this information should be straightforward. But there is no sourcing! No "Supreme Court source" or "sources close to the Court" or anything. We have no basis to support this claim. And the second sentence seems implausible. Would Justice Breyer, Sotomayor, or Kagan really claim to be "misled" based on what questions a Justice asks during oral argument? Did they not live through the Obamacare case? Justices can change their minds. This entire claim strikes me as too thin to give much attention. Next, Biskupic reflects on how the leak "froze" the votes in place: The leak also had the effect of hindering internal debate among the justices in the Dobbs case. Justices later privately revealed that public disclosure of the 5-4 split and the tone of the opinion outright rejecting Roe v. Wade effectively froze the votes. That eliminated the opportunity for compromise, as can happen with hard-fought cases in the final weeks of negotiation. I speculated that this was a likely consequence of the leak. We don't know who the Justices (plural) "privately revealed" this fact to, but Biskupic received such hearsay, indirectly. And nothing here is particularly revealing. Is there drama and tension inside the Court? Who knows. Nothing in this column backs up those claims. Gone are the days that Biskupic told us things we didn't already know. I pre-ordered a copy of the book on Kindle. I'll let you know if there is anything newsworthy. The post Joan Biskupic's Barely-There Exclusives appeared first on Reason.com.
Prof. Diego Zambrano (Stanford) and Stanford students Neel Guha, Austin Peters, & Jeffrey Xi have an extremely interesting article with this title, forthcoming in the University of Pennsylvania Law Review; and they were kind enough to pass along this guest-post summarizing their analysis: One of the most interesting and unique features of the U.S. legal system is also puzzling: unlike most countries, the U.S. relies on private litigants to enforce our most important statutes. You'd be wrong to think we just do that in False Claims Act or qui tam litigation. Not at all. At the federal level, we do it across the board: civil rights, antitrust, environmental law, employment, and nearly every other area. Not only do we adopt private rights of action, but we also partner them with fee shifting, treble damages, and, of course, class actions. This means that often, when the federal government wants to address a problem, it creates a private right of action alongside public enforcement. And private parties eagerly employ these rights, filing more than 90% of the claims in antitrust, employment, and environmental law (while government officials file the remaining 10%). Nowhere else in the world do we see this much reliance on private litigation. So why does the U.S. legal system rely on private claims? To make progress on solving the puzzle of private enforcement, we turned to the sub-national level in our paper, "Private Enforcement in the States." Previous research on this question had focused exclusively on federal private rights of action. No work had looked at the states. What we found is a world of private rights of action even more sprawling than the federal system. As we describe in the piece: "Even by very conservative estimates, there are more than 3,500 private rights of action provisions in state law, ranging from traditional areas like antitrust and employment, all the way to privacy violations, lawsuits against police, grave-digging, veterinary care, and waste disposal." Our upper bound estimate pegs the true number of private rights of action at around 10,000. For context, scholarship by Sean Farhang had identified around 300 such clauses at the federal level. Relative to that, our finding shows that state private enforcement is large, significant, and maybe even a bit chaotic. To our surprise, the states leading the pack on growth of private enforcement provisions are Utah, New Hampshire, Connecticut, Nebraska, and Wisconsin. Private enforcement appears widespread across states with different political cultures, population sizes, and geography. Some of these private enforcement provisions look similar to federal private rights of action in substance and structure. As we discuss in the paper, "nearly every state has a private right of action for antitrust claims, wages-and-hours, and a wealth of environmental violations." Take, for instance, the New Jersey Environmental Rights Act (NJERA). This Act provides that "'any person' may sue to enforce an existing environmental statute, ordinance, or regulation" and sets forth a hybrid enforcement regime. Before commencing a private claim, a person seeking to sue must give 30-days' notice to public authorities. The legislative history suggests the private right of action was the product of thoughtful calculation about the importance of complementing public enforcement with private claims. The bill's sponsor emphasized the importance of enabling "citizens to have ready access to the courts to resolve environmental disputes." Further, the legislature noted that several other states had adopted statutes that allowed private enforcement with favorable results. So if you focus just on NJERA and similar statutes, you may get the wrong impression that state private enforcement is similar to the federal system. That's not right. It turns out to be radically different in a variety of unexpected ways. To begin, states use private claims in subject areas falling under the traditional purview of state lawmaking power, including intriguing private rights of action in veterinary care, pet services, and grave digging, just to name a few. But beyond that, states frequently eliminate private enforcement, tinker with private rights provisions, and even shoehorn private rights into already-existing legislation. While many federal private rights of action have endured in their original form, this apparently is not the case in the states. Consider the history of a Mississippi provision allowing "[a]ny person whose confidential record" of driving under the influence to sue when the record "has been disclosed." In 2012, a Mississippi court decided a case unrelated to this private right of action. The private rights' validity was not questioned in the case. But shortly after the case, the Mississippi Legislature eliminated this provision, seemingly in response to the court decision. Our conclusion is that the private right vanished without much legislative debate and any press coverage. As far as we can tell, this type of abrogation—swift and silent—has never happened in federal legislation. And we find similar "'disappearances' of private enforcement across the states." To develop this trove of descriptive insights, we had to overcome data access and methodological hurdles that likely explain the lack of focus on state private enforcement in existing scholarship. One issue was that comprehensive data on statutory codes was non-existent. Another challenge was that even if one could get access to all state statutes, limitations in data processing and modeling made it nearly impossible to sift through such large volumes of text and convert them into insightful measures. In this study, we demonstrated a path to overcoming both challenges. To solve the data access challenge, we partnered with an up and coming legal technology company to gain access to a database of all state statutory codes from 2003-2020. Turning to the measurement obstacle, we relied on recent advancements in computer science and machine learning to comb through these statutory codes. In a nutshell, we trained a supervised machine learning model to guide our identification of these private rights of action. Between tuning the model and carefully reviewing the findings, this process took more than a year. Not only did this data allow us to provide the first ever look into the world of private rights of action, it also allowed us to test whether prominent theories of private enforcement apply in the states. In particular, we focused our attention on the well-known "separation of powers" theory developed by Sean Farhang. This theory posits that Congress adopts private enforcement when the executive is controlled by another political party. Legislators do this in order to insulate enforcement power from an ideologically distant executive. While this theory has robust explanatory power at the federal level, it does not appear to explain patterns of private enforcement in the states. Whether looking at the raw data or regression analyses, we find no correlation between divided government and private enforcement adoption. Our empirical results suggest that the political economy of private enforcement in the states diverges radically from the federal government. But, more broadly, this project breaks new ground by opening up an entirely new area of research that has remained thus far unexplored. At the end of our paper, we sketch out some initial hypotheses as starting blocks for this new field of comparative research. One potential theory concerns the role of model codes in state lawmaking. As we discovered, many model acts come with private enforcement provisions. The model Athlete-Agents Act–which arms student athletes with a private right to sue other athletes or students violating the act —has been adopted by more than 40 states. Another popular model act, the Securities Act, equips shareholders and investors the right to recover damages for fraud and other securities violations. There are many other examples, spanning controlled substances, animal welfare, and tele-health. This divergence in reliance on model codes, again, underlies how federal and state private enforcement co-exist within radically distinct institutional dynamics. We also offer other hypotheses grounded in differences between the federal government and states in enforcement capacity, agency quality, and constitutional design. The thread connecting these explanations is our attempt to think through why the relative value of private enforcement might be higher for state lawmakers. One obvious concern is constrained budgets. If there are fewer resources for public enforcements generally in the states, private enforcement might be a more attractive option. Yet there are other reasons to think state lawmakers, when compared to their federal counterparts, may trust public enforcement less. On the whole, state agencies are less sophisticated than the federal administrative state. As others have pointed out, this may be because they enjoy a lower level of constitutional independence. Many state agencies also employ a workforce with less secure civil service protections. A related concern is lack of citizen oversight. While there are countless watch dogs of various political persuasion engaging in "civil society oversight" of federal agencies, these grassroot sources of accountability are often lacking in the states. At the end of the day, private enforcement is an even more crucial part of the American system than we thought. Our work draws attention to the "black box" of private enforcement in the fifty states. With the box now "open," we sketch a future comparative research agenda to study the federal-state divergence and the broader intricacies of state private rights. The discoveries we present in this paper alone reaffirm the need to place private enforcement front and center in procedural scholarship and teaching. The post Private Enforcement in the States, by Prof. Diego Zambrano (Stanford) et al. appeared first on Reason.com.
3/27/1996: Seminole Tribe of Florida v. Florida decided. The post Today in Supreme Court History: March 27, 1996 appeared first on Reason.com.

This week, I will examine the great irony of the situation we find ourselves in: that those who are wielding the psychological weapon against any would-be dissenters are themselves driven by a psychopathological disorder . . . The post Dissent Into Madness: Projections of the Psychopaths first appeared on The Corbett Report.
Universities have long had strong commitments to diversity. This fixation was necessitated by Justice Powell's concurrence in Bakke, and later Justice O'Connor's majority opinion in Grutter. Admissions offices and hiring committees were trained to recruit the "right" under-represented candidates, while assigning low personality ratings to the "wrong" under-represented candidates. In any other context, such pretext would immediately be smoked out. But when you're on the right side of the justice-arc, the tails are ignored. These practices likely violate federal law, but we will have to wait for the Supreme Court to weigh in. Still, the work of admissions offices and hiring committees was front-loaded. These organizations did not have any impact on the curriculum, and what was actually taught in the classroom. Nor should they have. These matters were traditionally left to faculty governance, and academic freedom. In the last decade however, there has been a change. Universities began to establish offices of diversity, equity, and inclusion (DEI). The exact role of these entities was always amorphous, but it soon became clear their role would extend beyond admissions and hiring. Rather, DEI sought to inject itself into every facet of academic institutions where DEI could be at issue–that is, everywhere. Following the final year of the Trump presidency–which included George Floyd, the pandemic, and the Capitol riot–this aggrandizement accelerated. At many institutions, DEI has some oversight over the curriculum, student organizations, and even the faculty themselves. Of course, this design inverts the usual hierarchy of academia. DEI should be an administrative department with no more power than finance or IT. But armed with the cause of moral justice, and backed by aggrieved students, DEI can steamroll over pliant faculty who are afraid to push back and be called racists. Judge Duncan's protest is a perfect illustration of that dynamic. Much has been said about what Dean Tirien Steinbach said. But a better question is why was she the one to speak? SLS has many associate deans who could have represented the administration. Indeed, there were several deans present in the room, including Jeanne Merino, the acting associate dean of students. Why did the DEI Dean speak at the podium? Steinbach claimed in the WSJ that she "was asked to attend the event by the Federalist Society." I am skeptical of this claim–and I am 100% confident that FedSoc would not have invited Steinbach if they knew she would not enforce the policy, but would instead berate Judge Duncan. But let's assume FedSoc invited her as the mediator. And let's assume that Steinbach's fellow associate deans, and even Dean Martinez, designated her as the representative of the administration. Why? On today's campus, DEI administrators are among the most powerful positions. When every single conflict is refracted through the lens of race, it is of course obvious that DEI should be the sole arbiter of those disputes. (I'm sure many critics will dismiss this post as a byproduct of racism.) Consider the actual words that Steinbach used. She spoke on behalf of the administration: And there is always an intention from this administration to make sure you all can be in a place where you feel fully you can be here, learn, grow into the amazing advocates and leaders and lawyers that you're going to be. Because me and many people in this administration do absolutely believe in free speech. Steinbach obviously thought she could speak on behalf of the Stanford Law School. And why would she think that? For some time, these roving bureaucrats have assumed a limitless jurisdiction to touch every facet of an academic institution that could fall within the chasm of diversity, equity, and inclusion–roughly the emptiness of the Grand Canyon. But Steinbach was wrong. Dean Jenny Martinez did not give Steinbach "snaps," but did place her on leave. Steinbach likes to decorate her office with "ampersands" to signify the word "and" over "or." However, Steinbach should become intimately familiar with another punctuation mark: a period. Because her tenure will soon come to an end. There is much to praise about Dean Martinez's letter. In many regards, she performed better under pressure than did Dean Gerken last year. Perhaps the comparison is unfair, since the "traphouse" situation happened first, at a school not bound by the First Amendment. Martinez had the benefit of more preparation time, as well as the Leonard Law. Still, both Deans were forced to confront these problems caused by DEI Deans. Last year, Gerken gently chastised Associate Dean Ellen Cosgrove and Diversity Director Yaseen Eldik. They were allowed to leave, quietly. In June 2022, Cosgrove retired, and Eldik was reassigned to a non-student facing position. Martinez, however, dropped the hammer right away. How can it be, that at two elite institutions, DEI deans acted in a manner contrary to free speech, and placed their deans in intractable crises? Eldik and Steinbach apparently thought they were following university policy. They were so, so wrong. Still, this perspective certainly cannot be limited to Yale and Stanford. I suspect DEI deans across the country were quietly snapping along with Steinbach. Thus, a foundational question: is DEI, as understood by Steinbach and Eldik, consistent with the mission of higher education? I think the answer has to be no. Michael McConnell, the only right-of-center scholar at Stanford, made this point sharply in WSJ: Nor is it possible to ignore the damage that university diversity bureaucracies can do to the scholarly values of liberal education. Diversity and inclusion are of course good things, but neither value is advanced by partisanship and censorship. Dean Martinez hinted at this problem: The university's commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. See Marc Tessier-Lavigne and Persis Drell, Advancing free speech and inclusion, (Nov. 11, 2017), https://quadblog.stanford.edu/2017/11/07/advancing-free-speech-andinclusion/. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views. Again, how could it be that well-trained DEI Deans at elite institutions can have such a fundamentally flawed vision of the purpose of an academic institution? And what are these DEI staff teaching law students? Indeed, Steinbach doubled-down on her position in the WSJ: Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people. Compare what Martinez said with what Steinbach said. Martinez wrote from a classical liberal perspective: DEI "actually means that we must protect free expression of all views." Free expression is the ends, and DEI is one of many means of getting there. Steinbach wrote from a utilitarian perspective: free speech and DEI are both "means to an end" to achieve "liberty and justice." For Martinez, free speech prevails over DEI. For Steinbach, free speech and DEI are both mere tools that are subordinate to some amorphous concept of "liberty and justice" (presumably defined by progressives like Steinbach). And when free speech does not lead to DEI, then the free speech must be subordinated. Steinbach made this point explicitly. She questioned whether the harm from Duncan's speech justified his presence. In other words, where the juice is not worth the squeeze, you don't squeeze. Steinbach is unrepentant, and preaching from the DEI gospel. Again, I presume many DEI deans who read the Wall Street Journal were quietly snapping along. Martinez, thankfully, rejects the notion that the University can even agree on what "liberty and justice" means. The University should avoid taking any institutional positions: At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an "inclusive" environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. I could not agree more. Universities do not pursue any orthodoxies like "liberty and justice," however defined. Universities provide a place in which ideas can flourish. Moreover, most of these statements are, at best virtue signaling, and at worst, embrace a substantive position on a matter of public debate. The university must remain neutral in the battle of ideas. All juice is worth the squeeze. Higher education faces an inflection point. Stanford is just the cardinal in the coal mine. Deans must choose whether to allow DEI to erect their own fiefdoms that will tower over a school's academic mission. Or Deans, like Martinez, can restore the proper balance of powers between academic departments. In a future writing, I will offer some suggestions of how universities can confine the jurisdiction of DEI officers to prevent a repeat of what happened at Stanford. A preview: faculty who care about academic inquiry will have to get their hands dirty. This juice will be worth the squeeze. The post Higher education faces an inflection point with DEI appeared first on Reason.com.
Recently, there was much consternation about Judge Kacsmaryk's decision to delay posting notice of a hearing. Indeed, a coalition of media organizations actually argued that this decision could violate the First Amendment! Ultimately, the proceeding went as planned, with no disruptions or incidents. There were protests outside. And the event was widely covered by the press. Thankfully, democracy did not die in the darkness. Throughout this entire process, I chuckled. People who had zero experience with federal district court litigation suddenly became experts. In reality, trial judges have vast discretion over their dockets and courtrooms. In any normal case, this sort of request would never have raised an eyebrow. And the information would have never leaked to the press. But, with the abortion ad-hoc nullification machine at maximum power, all the usual rules are ignored. If you'd like some evidence of how much power judges have to keep their proceedings secret, consider the sidebar conference. Generally, everything a judge says is in open court. But the judge can ask the parties to "approach" the bench, at which point the judge and attorneys can have a private conversation that the witness, jury, and other parties cannot hear. Some courts have noice-cancelling devices that make it impossible to even hear anything. (The district court that I clerked in did not have that technology, and was very small, so the parties were asked to speak low, but not too low so that the court reporter could not hear them.) Generally, the court reporter transcribes these proceedings. But sidebars may be redacted from the public transcripts. A particularly egregious exercise of sidebar-redaction came during the Harvard affirmative action trial in Boston federal district court. Jannie Suk Gersen, a professor at Harvard, writes about what happened in Judge Allison Burroughs's courtroom. During the trial, the judge held lengthy sidebar discussions with counsel, and declined to release those matters in the public transcript. Indeed, those sidebars were not initially included in the record that was transmitted to the United States Supreme Court! The secrecy would continue. Gersen filed a letter with the court, asking to unseal the sidebars. Judge Burroughs held two hearings about which sidebars to unseal. And the public was barred from those hearings! Only the other attorneys could attend. Gersen, who had made the initial request, was not allowed to attend that hearing. Gersen later attended a public hearing about unsealing those transcripts, where the judge announced the rulings. (The judge had already told Harvard and SFFA what her rulings would be at the prior sealed hearings.) Lawyers for Harvard objected to releasing the information, even as the case was pending before the Supreme Court! Why? … Harvard argued vigorously against unsealing certain sidebars, reminding the judge that concern about "the press gallery" was the reason she had sealed some discussions in the first place and maintaining that she should keep them sealed "because of the increased or the continuing public attention on this case." Imagine that. A district court limiting some access to the public in light of "continuing public attention." Apparently, the Supreme Court became concerned by the incomplete record, and asked for the sealed proceedings. Recently, the District Court sent the Supreme Court a "password protected and encrypted" thumb drive containing sealed materials. And what was Judge Burroughs trying to keep secret? A crass joke about Asian-American college applicants. Thomas Hibino worked at the Boston location of the Department of Education, Office of Civil Rights. William Fitzsimmons is the Harvard Dean of Admissions. In 2012, Hibino emailed Fitzsimmons an attached memo: On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as "really hilarious if I do say so myself!" Hibino explained, "I did it for the amusement of our team, and of course, you guys"—presumably Harvard admissions officers—"are the only others who can appreciate the humor." The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant's achievements. The memo denigrated "José," who was "the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor," saying, "It can't be that difficult on his part-time job as a senior cancer researcher." It continued, "While he was California's Class AAA Player of the Year," with an offer from the Rams, "we just don't need a 132 pound defensive lineman," apparently referring to a slight Asian male physique. "I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities." The memo dismissed the fictional applicant as "just another AA CJer." That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript. Fitzsimmons e-mailed Hibino back, "I'm stunned!" Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She "passed away a few years ago and I'd forgotten that she had such a sense of humor," he wrote. "We'll 'de-construct' at lunch. Where should we go?" Hibino wrote to clarify, "No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?" (Through Harvard's press office, Fitzsimmons declined to comment, and calls and messages to Hibino were not returned.) It seems the Office of Civil Rights stole stationary from Harvard, which they used to put together this awful memo. The Dean of Admissions thought the memo was funny. Justice Kagan recently mused that maybe she has no sense of humor. Maybe I don't have a sense of humor either. I'm not laughing. And it also isn't funny that the judge tried to keep this information out of the record: The sidebars about the memo show that S.F.F.A. wanted to question Fitzsimmons, during his courtroom testimony, about his reaction to the memo's "stereotypical comments about Asian Americans." S.F.F.A. argued that the dean of admissions was "laughing along" with a joke including Asian stereotypes. Harvard objected that the memo and Fitzsimmons's reaction should be excluded as "irrelevant," because it was "so tangentially related to anybody's credibility" or to a claim of Harvard's "discriminatory animus" against Asian Americans. Furthermore, Harvard claimed that the move to introduce this evidence was "calculated to be handed to the press" and "intended to embarrass Dean Fitzsimmons." This information would seem to at least be relevant to the Supreme Court's consideration. But the trial judge, apparently, thought it better to keep this matter out of the record. The Supreme Court should direct the Solicitor General to obtain the memorandum from the Department of Education. This document needs to be in the public domain. Gersen continues: Judge Burroughs did not think that it was fair to assume that Fitzsimmons found the stereotypes in the memo funny, and she didn't want what she saw as his "wholly ambiguous" comment to be public. "It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world's response to this," she said. "At some point, I feel for the guy," she added, asserting that asking him about the memo on the stand would be "designed for media consumption and not for any great search for the truth." She ruled the memo and e-mails not relevant, and excluded them; if there were a jury, it would not have heard about them. And because she also sealed the sidebars, the press and the public knew nothing of them, either. . . . But we also know that Judge Burroughs thought that the material could "explosively" affect how the public saw the facts. So, her decision was not just to exclude the evidence but also to seal it and attempt, even long after the trial ended, to prevent the public from knowing about a federal official's allegedly anti-Asian remarks. An attorney familiar with the case told me, "Judge Burroughs mistakenly conflated admissibility under the rules with her own decision, as the fact finder, that this evidence would have no weight with her. And then, because it would have no weight, it would be sealed to prevent embarrassment to Harvard witnesses." Are judges allowed to make decisions based on concerns about media consumption? Back to Judge Kacsmaryk. He delayed posting the announcement of a hearing till the evening before. The public still would have been able to attend, and the press could have schlepped from Dallas. It would have been harder to bus in protestors. And there was not enough time to dry-clean their Gileadian bonnets. But Kacsmaryk's position was a reasonable attempt to deal with an unknown security situation. The post Democracy Died in Darkness in Harvard Trial Sidebars appeared first on Reason.com.
From the brief in support of motion for TRO in Spectrum WT v. Wendler (N.D. Tex.), filed Friday (see the brief for more factual details, and some further analysis); the argument seems correct to me: Introduction West Texas A&M University's President, Defendant Walter Wendler, has declared that he will not obey "the law of the land." Instead, he insists on banning a recognized student group's event from campus simply because he dislikes the event's entirely lawful message. By moving for a temporary restraining order and preliminary injunction, Plaintiffs ask this Court to put a swift end to Wendler's disdain for the First Amendment and prevent further irreparable harm to Plaintiffs' constitutional freedoms. On March 20, 2023, President Wendler announced to the campus community that he is forbidding Plaintiff Spectrum WT from holding its scheduled PG-13 charity drag show because he disagrees with the show's viewpoint. Making matters worse, President Wendler has all but confessed that he is knowingly violating the Constitution: "A harmless drag show? Not possible. I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it." (Dkt. 1, Verified Compl., Ex. A.) That is textbook viewpoint discrimination. And it violates the First Amendment. The Supreme Court has concluded that even controversial live theater is protected First Amendment expression. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975). If officials in Tennessee could not exclude a group from presenting the provocative play Hair in a public theatre because they disagreed with Hair's message, then surely President Wendler and the other Defendants cannot exclude students wanting to put on a PG-13 charity drag show in a campus space open to student groups for expressive activities, simply because the show does not match Wendler's worldview. Id. Indeed, the Constitution's bar against viewpoint discrimination is vital to preserving freedom of speech at public colleges and universities. "[N]o matter how offensive to good taste" some may find it, expression "on a state university campus may not be shut off in the name alone of 'conventions of decency.'" Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973). So, whether students gather on campus to support a political candidate, talk about the Bible, or put on a drag show, public college administrators cannot censor student expression just because they find it disagreeable or offensive. Yet that is exactly what President Wendler is doing by refusing to let the show go on. The result is ongoing irreparable harm to Spectrum WT and its student officers, Plaintiffs Barrett Bright and Lauren Stovall. Above all, the eleventh-hour cancelation of their March 31 charity drag show—and President Wendler's moratorium on campus drag shows altogether—are depriving Spectrum WT's members of their First Amendment rights, which is always an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). What's more, Spectrum WT carefully followed West Texas A&M's process for getting event approval—with the full backing of campus staff—only for Wendler to pull the rug out at the last minute. If Spectrum WT cannot hold its March 31 event on campus, or similar events it plans to hold in the future, it will suffer significant injury to its mission of advocating for the LGBTQ+ community at West Texas A&M…. [I.] Plaintiffs Are Substantially Likely to Succeed on the Merits Against the University's Brazen Censorship of Protected Expression. "The First Amendment is not an art critic," and drag shows, like other forms of theatrical performance, are expressive conduct that the First Amendment prohibits President Wendler from censoring. Norma Kristie, Inc. v. City of Okla. City, 572 F. Supp. 88, 91 (W.D. Okla. 1983) (holding drag shows are protected First Amendment expression). The freedom of expression enshrined in the First Amendment "does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404 (1989). Whatever the mode of expression, the First Amendment protects conduct "inten[ded] to convey a particularized message," (id. at 404, 406), and it prohibits public university officials from suppressing student expression simply because they disagree with its viewpoint or find the message offensive. Papish, 410 U.S. at 670. If anything, whether speech is protected by the First Amendment is a legal, not moral, analysis. Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). President Wendler imposing his morals at the expense of free expression violates the First Amendment. The First Amendment also bars public university officials from denying student groups access to campus public forums because of the content or viewpoint of a group's message. Widmar v. Vincent, 454 U.S. 263, 267–70 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995). And messaging within a broader genre—such as art, theater, and dancing—is also protected even if it does not convey a "narrow, succinctly articulable message." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995). Indeed, "[e]ven crude street skits come within the First Amendment's reach." Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 390 (4th Cir. 1993) (fraternity "ugly woman contest" is protected expression). See also Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985) (holding a blackface performance is protected First Amendment expression, even when it is "sheer entertainment" without a political message). Under core First Amendment principles, Defendants' ongoing suppression of a peaceful charity drag show constitutes unlawful viewpoint and content discrimination. The Court should stop the ongoing injury to Plaintiffs' First Amendment freedoms and restore constitutional order on West Texas A&M's campus by issuing a temporary restraining order and preliminary injunction. [A.] President Wendler's Censorship of a Drag Show Based on Personal Disagreements with the Expression's Message Is Textbook Viewpoint Discrimination. President Wendler's abuse of his powers to quash a PG-13 charity drag show because he disagrees with the show's message—real or perceived—violates the First Amendment. It is "axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 828. "Viewpoint discrimination is censorship in its purest form," and government action "that discriminates among viewpoints threatens the continued vitality of free speech." Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 248 (6th Cir. 2015) (en banc) (cleaned up). Indeed, government officials like college administrators are "inherently" incapable of making "principled distinctions" between offensive and inoffensive speech, and the state has "no right to cleanse" public expression such that it is "palatable to the most squeamish among us." Cohen v. California, 403 U.S. 15, 25 (1971). To that end, "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180 (1972). And that includes the First Amendment prohibition on viewpoint discrimination. Rosenberger, 515 U.S. at 835–36 (invalidating college's denial of funding to Christian student newspaper). True, courts often employ "forum analysis" to determine when public university administrators "in regulating property in [their] charge, may place limitations on speech." Christian Legal Soc'y Chapter of the Univ. of Cali, Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010). But regardless of the forum's classification, "any access barrier … must be viewpoint neutral." Id. (citing Rosenberger, 515 U.S. at 829). By picking and choosing which performances fit his moral tastes, President Wendler is engaging in viewpoint discrimination. Indeed, "the essence of viewpoint discrimination" is "the Government's disapproval of … messages it finds offensive." Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (quoting Matal v. Tam, 582 U.S. 218, 248–49 (2017) (Kennedy, J., concurring)). And as President Wendler proclaims, he personally finds that "drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent." (Verif. Compl., Ex. A.) President Wendler's stance mirrors that of the censorial officials in Southeastern Promotions. 420 U.S. 546. There, a group petitioned to use a city- operated municipal auditorium to present the rock musical "Hair." Id. at 547. The auditorium directors denied the application, reasoning that allowing the play "was not in the best interest of the community" and the board would only "allow those productions which are clean and healthful and culturally uplifting, or words to that effect." Id. at 549. The Supreme Court struck down the directors' censorship as an unconstitutional prior restraint. To the same end, this Court should put a stop to Defendants' ongoing viewpoint-based censorship of Plaintiffs' PG-13 charity drag show. The Fourth Circuit's decision in Iota Xi also shows why the Court should enjoin Defendants' censorship. 993 F.2d 386. There, George Mason University imposed sanctions on a fraternity for hosting an "ugly woman contest" riddled with "racist and sexist" overtones, including contestants "dressed as caricatures of different types of women[]" (i.e., in drag). Id. at 387–88. George Mason's administrators cited many of the same concerns President Wendler relies on—that the event was degrading, amounted to harassment, and conflicted with the institution's mission. Id. at 388; Verif. Compl., Ex. A. The Fourth Circuit had no trouble brushing aside the administrators' excuses. As the court explained, "First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected." Iota Xi, 993 F.2d at 389 (collecting cases). The court likewise held the fraternity's drag skit was constitutionally protected, since it intended to convey a message, both through the mode of dress and use of a theatrical medium. Id. at 392. The court held GMU engaged in unconstitutional viewpoint discrimination by sanctioning the fraternity as the sanction arose from the fact that "the 'ugly woman contest' … ran counter to the views the University sought to communicate to its students and the community." Id. at 393. Even if President Wendler's opinion were shared by all but the students here, he cannot justify stifling Plaintiffs' expression on moral grounds. That argument lost in Southeastern Promotions. It lost in Iota Xi. And it must lose here. See also Gay Student Servs. v. Tex. A & M Univ., 737 F.2d 1317, 1322–27 (5th Cir. 1984) (holding Texas A&M violated the First Amendment by refusing to recognize a gay student organization when the official responsible for the denial justified the decision "based on his perception that the organization would attempt to convey ideas" he found morally repugnant). This Court should refuse Wendler's viewpoint-driven reasons for violating the First Amendment, grant Plaintiffs' motion, and put a stop to Wendler and the other Defendants' ongoing censorship of Plaintiffs' protected expression. Excluding Plaintiffs' Drag Show from Campus Public Forums Violates the First Amendment. President Wendler's denial of use of a campus public forum to Plaintiffs also violates the First Amendment, to their ongoing injury. Legacy Hall is a designated public forum for First Amendment purposes. West Texas A&M opens its facilities, like Legacy Hall, to West Texas A&M students and student organizations for exactly these expressive purposes: theatrical performances before a willing audience, music, dancing, and banter. (Verif. Compl. ¶¶ 31–32, 41–42.) Thus, because "the University has created a forum generally open for use by student groups," "the University must therefore satisfy the standard of review appropriate to content-based exclusions." Widmar, 454 U.S. at 270. See also Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d 575, 582 (S.D. Tex. 2003) ("When as here a University by policy and practice opens up an area for indiscriminate use … by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum"). Under the First Amendment, "a government … has no power to restrict expression because of its message, its ideas, its subject matter, or its content" unless it satisfies strict scrutiny. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (cleaned up). To meet that high bar here, Defendants "must show that [their] regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar, 454 U.S. at 270. They cannot meet that burden. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions"). For starters, a ban on drag shows is content-based (if not outright viewpoint- based, as shown above). It singles out a particular type of expression—drag—for differential treatment. That is textbook content discrimination. Reed, 576 U.S. at 169 (content discrimination exists when the government "singles out a specific subject matter for differential treatment"). Defendants' content-based ban of campus drag shows—including canceling Plaintiffs' March 31 show—fails strict scrutiny. And Widmar shows why. In Widmar, the University of Missouri at Kansas City denied an evangelical Christian student group the use of university facilities otherwise "generally available for … registered student groups." Id. at 264–65. The Supreme Court explained that such restrictions, which single out a particular subject for differential treatment, are subject to "the most exacting scrutiny." Id. at 276. The Court held that the university unlawfully "discriminated against student groups and speakers based on their desire to use a generally open forum to engage in" protected expression and that the university's stated goal, "achieving greater separation of church and State," was not sufficiently "'compelling' to justify content-based discrimination against respondents' religious speech." Id. at 269, 278. Here, advancing President Wendler's belief that drag shows promote "misogyny" is not a compelling state interest. (Verif. Compl. Ex. A.) As a threshold matter, banning drag shows does not prevent tangible harm to women. Any women (or men) who might take offense from a drag show can simply opt to not attend. Likewise, those who agree with President Wendler's estimation of the value of the students' expression can exercise a time-honored means of "effectively avoid[ing] further bombardment of their sensibilities simply by averting their eyes." Cohen, 403 U.S. at 21. Rather, President Wendler, like the administrators in Iota Xi, seeks to suppress Plaintiffs' speech "because it r[uns] counter to the views the University s[eeks] to communicate to its students and the community." 993 F.2d at 393. That is not redressing a harm. It is big-brother government insisting it "knows what's best" for women and that it can silence dissenting expression. But "[t]he state may not ordain preferred viewpoints [about women and femininity] in this way. The Constitution forbids the state to declare one perspective right and silence opponents." Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985). Nor is Defendants' ban on drag shows narrowly tailored or the least restrictive means of furthering their goals. See Playboy Ent. Grp., 529 U.S. at 813 (content regulation permissible only if the government "chooses the least restrictive means to further the articulated interest") (cleaned up). Neither President Wendler nor the other Defendants have banned any other type of expression from campus which might tend to disparage or demean women. And a content-based law is not narrowly tailored if it leaves untouched a significant amount of expression causing the same problem. Reed, 576 U.S. at 172. Plus, the government's objection to a speaker's message is not even a legitimate government interest, let alone a compelling one. America's college campuses are no stranger to censorship, which is often visited upon students and faculty who find themselves among the minority viewpoint—including, in many cases, conservative and religious groups. See, e.g., Widmar, 454 U.S. at 265; Rosenberger, 515 U.S. at 830. From Central Washington University threatening to defund the College Republicans for protected speech, to Iowa State University threatening to punish the College Republicans for protected speech, to pro-life groups having to fight for recognition at the University of Arizona, censorship of expression on public campuses continues to fester. But students' expressive rights should not, and do not, turn on the whims of college administrators. The First Amendment does not play favorites. President Wendler's censorship singles out one type of artistic expression out of many—drag shows—for differential treatment and censorship simply because he dislikes the message he perceives. It is unconstitutional viewpoint discrimination for the reasons explained. And putting aside President Wendler's confessed motives, the ban is unlawful content discrimination. A temporary restraining order and preliminary injunction are necessary to secure Plaintiffs' First Amendment rights…. The post FIRE Sues West Texas A&M Over Its Blocking of Student Group's Drag Show appeared first on Reason.com.
3/26/2012: NFIB v. Sebelius is argued. The post Today in Supreme Court History: March 26, 2012 appeared first on Reason.com.




