Eugene Volokh's Blog, page 107

[Jonathan H. Adler] Who's More Liberal, Law Professors or Their Students?

[An interesting new study on the ideological concordance between law faculty and law students.]

Several years ago, Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), published a paper showing that the legal academy is significantly more liberal than the legal profession. As I noted when the paper was first released, this was interesting because the legal profession itself is more liberal than the public at large.

The same authors have a new study, "Ideological Concordance Between Students and Professors," looking at the alignment, or lack thereof, between law professors and law students. The abstract reads:

The largely liberal composition of American university faculties is frequently lamented in academic discourse and public debate, largely out of concern that professors "brainwash" younger generations with left-leaning principles. However, these complaints often fail to acknowledge that university students are also overwhelmingly liberal. It is thus possible that university professors are more liberal than the American public but more conservative than their students. In this article, we develop a measure of student-professor ideological concordance based on the share of faculty members who are more liberal than the students at a given school. We then use data on the ideology of students and professors in American law schools over more than a twenty-year period to estimate the degree of ideological concordance in the legal academy. We find that although professors have become more liberal over time, they have also become more conservative than their students.

Their assessment is largely backward looking, as the study relies upon data between 1988 and 2011, but it is interesting nonetheless. One has to wonder, however, whether anything has changed in the academy over the past fourteen years. Did law professors continue to become more liberal over this time? And, if so, did students as well?

One other thing worth noting is that the authors explicitly consider whether law professors are influencing the ideology of their students, and conclude that this is unlikely. On this point, they write:

Another possible concern with the validity of our results is that the correspondence between student and professor ideology may be driven by professors having a causal impact on their students' ideology. The reason that this is a concern is that students largely make political donations after law school, and any correspondence between professors and students could be driven by the students' ideology being moved by the professors' ideologies.

Although it is certainly possible that professors exert some influence on law students' political views, we believe this is unlikely to be sufficient to drive our results. Importantly, although there is some evidence of peer effects on ideology from college students' roommates (Strother et al., 2021), there is no general evidence suggesting that exposure to a liberal environment in college moves students to become more liberal (Mariani and Hewitt, 2008). Moreover, by the time students attend law school, it is more likely that their ideology is stable (Green et al., 2004; Bonica, 2014). Relatedly, there is evidence that judges do not affect the ideology of their law clerks (Bonica et al., 2019). Although law school is likely an important life experience, clerking is typically thought to be an intense experience where recent law graduates work in extremely close quarters with judges. If clerking does not change a recent law graduate's ideological leanings, it is reasonable to think that law professors also would not have a large influence.

To investigate the possibility that professors may be having a causal impact on their students' ideology in our setting, we compare students' CFscores from donations made during and before law school to CFscores from donations made after law school. More specifically, Column 3 of Table 3 regresses CFscore based on all donations after law school on CFscore of all donations during or before law school, and Column 4 regresses CFscore based on donations within 10 years after law school on CFscore of all donations made during or before law school. We find that CFscores before law school strongly predict the CFscores after law school (a 0.77:1 and 0.70:1 relationship between these measures), suggesting that reverse causation is unlikely to be driving our results.

As with everything this quartet produces, the study is interesting. Alas, one of them has decided to become a Dean, so there may not be too many more of these papers coming.

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[Eugene Volokh] Reasonable to Deny Pseudonymity to Plaintiff Who Seeks to Conceal That She Has Epilepsy

[So holds the Eleventh Circuit.]

From today's Eleventh Circuit opinion in Tessa G. v. Secretary, decided by Judges Adalberto Jordan, Robert Luck, and Embry Kidd:

In June 2023, Tessa G. filed a pro se complaint against HHS, her former employer, alleging disability discrimination, failure to accommodate, retaliation, illegal disclosure under the Americans with Disabilities Act, and deprivation of due process under the Fifth Amendment. In support of her complaint, Tessa G. explained that she has suffered from several disabilities, including epilepsy, for most of her life. Following surgical intervention that abated her seizures, she earned her law degree and began working with HHS in June 2013.

About a year into her tenure with HHS, Tessa G. disclosed her epilepsy diagnosis to request medical leave and inform her supervisor that she required an accommodation to be driven to any off-site meetings. Soon thereafter, HHS hired someone to replace Tessa G., gave her limited work to complete, and ultimately terminated her in November 2014. Tessa G. asserted that she found it difficult to find new employment and that she gained several new health conditions after her firing.

Tessa G. further explained that, shortly after her termination, she filed an Equal Employment Opportunity Commission ("EEOC") complaint against HHS, challenging her demotion and termination, and alleging that HHS disparaged her to others in her field. Although an administrative law judge ultimately entered default judgment in her favor, her recovery was limited due to the nature of her fixed-term contract with HHS, so she brought the instant case to pursue further relief.

Tessa G. also sought pseudonymity, but the lower court said no, and the Eleventh Circuit upheld that decision:

In reviewing such an order [denying pseudonymity], we apply the abuse of discretion standard. "A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous." …

As a general rule, "parties to a lawsuit must identify themselves in their respective pleadings." "This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." … Nevertheless, "[a] party may proceed anonymously … by showing that [s]he has a substantial privacy  right  which  outweighs  the  customary  and constitutionally-embedded presumption of openness in judicial proceedings."

Tessa G.'s arguments … regarding epilepsy's social stigma and intimate nature are largely based on the assertion that her diagnosis is sufficiently similar to conditions for which courts have previously granted anonymity. In Francis, we noted that the "utmost intimacy" standard had previously been applied to cases involving abortion, prayer, and personal religious beliefs. However, we noted that district courts have denied requests to proceed anonymously in cases involving sexual assault, "even when revealing the plaintiff's identity may cause her to suffer some personal embarrassment." In Frank, we held that the stigma attached to the disclosure of a plaintiff's alcoholism was insufficient to overcome the presumption of openness in judicial proceedings. We noted that parties have been permitted to proceed anonymously in cases involving mental illness, homosexuality, and transgender status due to the social stigma associated with those disclosures.

We have never held that epilepsy carries such a stigma, and we are not now persuaded that having epilepsy status is sufficiently sensitive to warrant anonymity. In fact, Tessa G. concedes in her brief that she is unaware of any cases "expressly address[ing] whether one's epilepsy status is information of the 'utmost intimacy'—or directly assess[ing] whether the stigma surrounding epilepsy specifically justifies anonymity," so she attempted to relate epilepsy to HIV and mental illness. However, HIV, to which Tessa G. repeatedly draws comparison, differs significantly from epilepsy, as it is a communicable disease, is significantly more likely to be fatal, and can be associated with stigmatized statuses for which courts have permitted parties to proceed anonymously.

Tessa G. also contends that her diagnosis is of the utmost intimacy because it constitutes medical information, disclosure of her epilepsy resulted in discrimination, and further public dissemination of this information would result in more discrimination. However, disability discrimination suits regularly involve personal medical information and an allegation that the disclosure of that information subjected the plaintiff to discrimination. Indeed, as both the magistrate judge and district judge noted when denying Tessa G.'s motion, courts are aware of the sensitive information that a plaintiff must disclose to pursue these cases, so they regularly allow for redaction or sealed filings so that a litigant's privacy may be protected.

We further find that the district court properly evaluated the totality of the circumstances in reaching the conclusion that anonymity was not warranted in Tessa G.'s case. The court not only explicitly weighed the [various] factors we have identified as relevant to such an analysis, but as outlined above, it also considered the alleged social stigma associated with epilepsy and Tessa G.'s right to privacy in her medical information….

Accordingly, we find that the district court did not abuse its discretion, as it did not apply the law in an unreasonable or incorrect manner when concluding that Tessa G.'s interests in anonymity did not outweigh the requirements of Rule 10(a) and the presumption of openness in judicial proceedings….

Melaine A. Williams represents the government.

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[Eugene Volokh] "Justice Is Not Served by Allowing This Game of Whack-a-Mole to Continue"

From today's decision by Judge Steven McAuliffe (D.N.H.) in Beres v. RELX, Inc.:

After multiple unsuccessful defamation suits against RELX, Inc., d/b/a LEXIS NEXIS USA, and Portfolio Media, Inc., in other courts, Christopher Beres, who is a lawyer proceeding pro se, brought the same claims in Hillsborough County (New Hampshire) Superior Court. Defendants removed the action to this court, but Beres then added Andrew Delaney as a plaintiff to destroy diversity jurisdiction and sought remand to state court.

The court granted the defendants' motion to sever Delaney from the case to preserve diversity jurisdiction, and denied the plaintiffs' motion to remand. Delaney is no longer a party in this case.

In response, Beres filed a notice of voluntary dismissal without prejudice. Defendants move to convert Beres's notice of voluntary dismissal without prejudice to dismissal with prejudice and also seek an award of fees incurred in litigating this case….

The factual backstory:

Delaney was employed in a temporary position at a law firm, where he worked on a project for the firm's client, Toyota, and apparently had access to confidential documents. The project was suspended during the COVID pandemic, resulting in Delaney losing his job. Delaney, through Beres, who was acting as his legal counsel, sent a demand letter to Toyota, but Toyota did not respond. In April of 2020, Beres filed a lawsuit against Toyota on Delaney's behalf in Brevard County, Florida. Beres included allegedly sensitive information about Toyota in that complaint. Delaney later dismissed the suit without prejudice.

The agency that employed Delaney and placed him in a temporary position at the law firm filed suit against Delaney in federal court in the Southern District of New York, alleging breach of contract and other claims, arising from information about Toyota that Delaney included in the complaint filed in Florida state court. That case remains stayed because of Delaney's ongoing bankruptcy proceeding. Defendant RELX owns PMI, which publishes Law360, an internet legal news service. Between December 20, 2021, and January 6, 2023, Law360 published articles about the case against Delaney in the Southern District of New York. Delaney and Beres then filed a series of defamation lawsuits against PMI and RELX, based upon statements published in those articles.

The first defamation suit was filed in federal court in the Southern District of Florida on February 10, 2022, challenging eight statements in four of the Law360 articles as defamatory. When defendants moved to dismiss the claims, Delaney and Beres voluntarily dismissed the suit without prejudice.

A year later, however, Delaney and Beres filed an identical complaint in Florida state court, and, again, when defendants moved to dismiss, Delaney and Beres voluntarily dismissed the suit. In that suit, the court awarded defendants fees under Florida's two-dismissal rule and Florida's Anti-SLAPP statute, because Beres and Delaney had previously dismissed the same defamation claims against the same defendants in the federal action.

Several months later, Delaney and Beres, undeterred, filed a third suit in Florida state court, alleging defamation based on the same statements as well as three additional statements in new Law360 articles. And, once again, when defendants moved to dismiss, Delaney and Beres filed a notice of voluntary dismissal.

Delaney then filed a similar defamation complaint in Minnesota state court, and when that suit was dismissed, filed a new and similar action in New York state court. Beres filed this suit in Rockingham County Superior Court (New Hampshire) on January 3, 2025, alleging defamation against the same defendants based on many of the same claims that were previously dismissed in Florida federal and state courts, Minnesota state court, and New York state court….

The New Hampshire federal court concluded that the claims should be "dismissed with prejudice under the two-dismissal rule," which provides:

Under the circumstances presented here, a "plaintiff may dismiss an action without a court order by filing [] a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Unless otherwise stated, a voluntary dismissal is without prejudice. "But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits."

The court concluded the rule applied here:

As the Minnesota court wrote when dismissing Delaney's defamation claims against the same defendants: "Justice is not served by allowing this game of whack-a-mole to continue."

And the court concluded that defendants were entitled to attorney fees under New Hampshire law, which allows such fees "when one party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, when the litigant's conduct can be characterized as unreasonably obdurate or obstinate, and when it should have been unnecessary for the successful party to have defended the action":

Beres's practice of filing multiple defamation actions against these defendants arising out of the same or similar claims and then voluntarily dismissing the actions without prejudice, only to refile the same claims, is plainly vexatious. Beres and Delaney have continued that practice here, which appears to be aimed at harassing the defendants despite a demonstrated lack of merit in the claims. The harassing and vexatious conduct here included adding Delaney as a party to destroy subject matter jurisdiction in this case. That maneuver required defendants and the court to spend time and resources sorting through plaintiffs' tangled litigation history to determine that Delaney did not belong in this case.

There is no doubt that Beres's litigation tactics were pursued in bad faith and were vexatious. In the interests of justice and to discourage Beres's practice of filing frivolous lawsuits, defendants are entitled to an award of fees.

For a post about an earlier Beres/Delaney libel case against a different legal publication, see Court Dismisses Lawyer's and Client's $120M Libel Lawsuit Against Legal Newspaper.

Olivia F. Bensinger (Shaheen & Gordon) and Elizabeth A. McNamara, John M. Browning, and Celyra I. Myers (Davis Wright Tremaine) represent defendants.

The post "Justice Is Not Served by Allowing This Game of Whack-a-Mole to Continue" appeared first on Reason.com.

[Paul Cassell] Should a Killer's Victim Be Able to "Speak" at a Sentencing Through AI?

[An Arizona trial court judge allowed this innovative approach to presenting a victim impact statement, which seems like a useful step toward justice.]

Last week, the road-rage killer of an Arizona man was sentenced to 10 1/2 years in prison after his victim "spoke" to the court via a victim impact statement (VIS) created through artificial intelligence. The trial court judge allowed the victim's family to play an AI-generated video with a version of the victim—including his face and body and a lifelike voice—which appeared to ask the judge for leniency. The family has posted the statement here on YouTube. The defendant was apparently sentenced to the maximum term and has promised to challenge the statement on appeal. In my view, this kind of statement seems like a useful technological innovation that should be generally allowed, subject to reasonable limitations imposed by the trial court (which I discuss at the end of this post).

In this post, I discuss this AI-generated victim-impact statement against the backdrop of  the existing legal landscape in this country. All fifty states and the federal system allow victims to deliver victim impact statements, as I outline in this article. (Interestingly, many other countries use some form of victim impact statement as well.) In homicide cases such as this Arizona case, the victim's family members step into his shoes as his representative to deliver the statement. I have made the general case for allowing victim impact statements in two papers, "In Defense of Victim Impact Statements" and "How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing" (co-authored with Professor Edna Erez). The U.S. Supreme Court has also approved victim impact statements even in capital cases, in Payne v. Tennessee (1991). To be sure, academics such as Professor Susan Bandes and Professor Mike Vitiello have raised objections to VISs. But for purposes of this post, I will assume that the legitimacy of VISs  and address the narrower question of whether an AI-generated statement should be permitted.

This question should be assessed in light of the recognized purposes of victim impact statements. The first purpose is to provide relevant information to the sentencers, often (as in this Arizona case) a judge. This purpose has been described as the "informational rationale" for victim impact statements. Through a VIS, the victim's family members are allowed to provide "a quick glimpse of the life" the defendant "chose to extinguish," thereby reminding the sentencer that "the person whose life was taken was a unique human being," as Justice O'Connor explained in her concurring opinion in Payne. An AI-generated statement simply builds on that approach.

An AI-generated statement is not too far removed from previously used technologies, which help to provide the glimpse into the victim's life. For example, in homicide trials, it has long been the practice to allow the prosecution to introduce a photograph of the victim taken when the victim was alive. For example, a Utah statute (enacted in 1994 to enforce Utah's Victims' Rights Amendment) provides that "[i]n any homicide prosecution, the prosecution may introduce a photograph of the victim taken before the homicide to establish that the victim was a human  being, the identity of the victim, and for other relevant purposes." Of course, in a criminal case by the time of sentencing, the defendant has been proven guilty beyond a reasonable doubt, and so issues related to potential bias while determining guilt are no longer in play.

At sentencing, appellate courts have approved of video montages of photographs of a victim and even videos of a victim. For example, in 2009, the California Supreme Court considered the admissibility in a death penalty case of an eight-minute video of the victim and his family enjoying a trip to Disneyland. The Court rejected a defendant's challenge, calling the tape an "awkwardly shot 'home movie'" lacking the elements generally designed to stir up emotions." People v. Dykes, 209 P3d 1, 44-45 (Cal. 2009).

However, such videos can go too far. For example, in 2004, a federal district court excluded a victim video in a death penalty case. The court explained that the video, made for a memorial  service, "was about twenty-seven minutes in length and featured over 200 still photographs of the victim, in roughly chronological order, from the time he was born until the time just before his death. The pictures were set to evocative contemporary music, including that of the Beatles and James Taylor." This video, the court concluded, when too far "because its probative value was outweighed by the danger of unfair prejudice, and created a danger of provoking undue sympathy and a verdict based on passion as opposed to reason." United States v. Sampson, 335 F. Supp. 2d 166, 191 (D. Mass. 2004). At the same time, however, the district court noted that other courts had allowed some video clips to be used, but in "each of these cases, the admitted video was brief and found to be probative of some aspect of the victim's life."

An AI-generated statement is simply a technological advance on this tradition of victim videos, and thus helps to address one of the core problems that VIS are designed to address. If no victim statement is allowed, it turns the killer's victim "into a faceless stranger" and thus "deprives the State of the full moral force of its evidence," as the U.S. Supreme Court recognized in Payne. Through the AI-generated statement in this Arizona case, the victim—Christopher Pellkey—was no longer a "faceless stranger" to the proceedings but rather a unique human being whose life the defendant extinguished.

In determining whether an AI-generated statement should be allowed, it is also useful to compare two situations. Suppose the defendant has seriously injured a victim by striking a non-deadly blow. In that case, the victim himself is allowed to deliver a victim impact statement about what happened. For comparison, suppose that the defendant has killed a victim by intentionally striking a lethal blow. In that case, the victim is obviously unavailable to deliver his own statement. An AI-generated statement is simply a technological substitute for the fact that the defendant has criminally chosen to make the victim unavailable. In balancing the equities between an innocent victim and a killer, of course, the equities lie with the victim and his family representatives. Because the defendant has chosen to commit his deadly crime, any doubts should be resolved against him in deciding whether an artificially created substitute for the victim is an appropriate response to the victim's absence .

This fairness point was emphasized by Justice Souter's in his concurring opinion in Payne, where he explained:

Murder has foreseeable consequences. When it happens, it is always to distinct individuals, and, after it happens, other victims are left behind. Every defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, "survivors," who will suffer harms and deprivations from the victim's death.
Just as defendants know that they are not faceless human ciphers, they know that their victims are not valueless fungibles; and just as defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk of a victim's death, this choice necessarily relates to a whole human being and threatens an association of others, who may be distinctly hurt. The fact that the defendant may not know the details of a victim's life and characteristics, or the exact identities and needs of those who may survive, should not in any way obscure the further facts that death is always to a "unique" individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable.

A second purpose for victim impact statements is to serve expressive and communicative functions that can produce therapeutic benefits for victims (and, in homicide cases, for their families). This therapeutic rationale for victim statements is well supported by the field of therapeutic jurisprudence or "TJ." And the AI-generated statement in the Arizona case illustrates this purpose well. In the statement, "Christopher Pellkey" (as reconstructed through AI) gets to give his last goodbyes to his family and friends, in the formal setting of the sentencing of his killer. Pellkey's AI-generated last words are haunting, but might reasonably be expected to provide some small measure of comfort to his family and friends:

Thank you to everyone for being here. It means more than you know. Well, I'm gonna go fishin' now. Love you all. See you on the other side.

A third purpose for victim impact statements is to explain the full harm of the defendant's crime—to the defendant. This purpose is unrelated to the sentence that is ultimately imposed in the case, but rather rests on the consequences of a victim looking the "defendant in the eye and let[ting] him know the suffering his misconduct has caused" (as the Ninth Circuit as explained in its Kenna decision, 435 F.3d 1011, 1016 (9th Cir. 2006)). To be sure, eye-to-eye contact between victim and defendant is not physically possible in a homicide case. But an AI-generated substitute might begin to serve the same purpose of encouraging the defendant to work toward rehabilitation.

This particular Arizona victim impact statement provides a good illustration. In the statement, the reconstructed Pellkey speaks directly to the defendant:

To Gabriel Horcasitas, the man who shot me: It is a shame that we encountered each other on that day in those circumstances. In another life, we probably could have been friends. I believe in forgiveness and God who forgives. I always have. And I still do.

The final purpose of a victim impact statement is serving a public educative function. Even critics of such statements have conceded that they can potentially work towards this goal. For example, Professor Bandes admits that VISs might serve to "call[] attention to crimes that are poorly understood and underenforced." Here again, Pellkey's AI-generated statement illustrates this point. The statement powerfully illustrates the far-reaching harms and lasting consequences of road rage escalations. Hopefully someone, somewhere will view that statement on YouTube and think twice before escalating to deadly force. Of course, that hope is speculative, and no one knows for certain whether the statement will produce any public benefit. But it seems worth a try.

When an AI-generated victim impact statement is allowed in a homicide case, the trial court should scrutinize it to ensure it meets several criteria:

The statement should be reasonably related to describing the impact of the crime, as that is an underlying purpose of the statement. In other words, the statement should be focused on providing "a quick glimpse of the life" the defendant chose to extinguish. The statement should not personally attack the defendant or speak to issues beyond the scope of a legitimate victim impact statement. For example, the Utah Supreme Court reversed a sentence in murder case where the victim's family members used their victim impact statement to call the defendant a "terrorist" who could not be rehabilitated. The Court concluded that these characterizations were unduly prejudicial and went beyond the bounds of an appropriate victim impact statement. State v. Ott, 2010 UT 1. An AI-generated statement would need to respect such boundaries as well. The statement should focus on the victim who was killed without inviting comparative judgments to others in the community. One of the criticisms of VISs is that they invite the sentencer to decide who is a "worthy" and "unworthy" victim. Payne responded to this concern, explaining that "victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim's uniqueness as an individual human being." An AI-generated statement would need to follow that path as well. The statement should respect any restrictions imposed in the jurisdiction or the  particular case about whether a sentencing recommendation by the victim or victim's family is allowed. In capital cases, for example, current Supreme Court precedent (Bosse v. Oklahoma) does not permit a victim's family to give an opinion, one way or the other, about whether a death penalty should be imposed. An AI-generated statement should not be used to circumvent that limitation. Finally, the statement should follow whatever reasonable time limitations and other restrictions the trial judge might choose to impose. The Arizona statement was less than four minutes long. In my research on the Nassar victim impact statements, Professor Erez and I found that the sex assault victims' statements averaged about 1,200 words or eight minutes in length. Of course, what is a reasonable length would need to be assessed by the trial judge handing a particular case against the backdrop of that case and the judge's docket management needs.

One additional concern an AI-generated statement raises is whether the technology will be available to all victims' families, regardless of their financial circumstances. It is unclear how much this Arizona statement cost to produce. As AI-technology becomes more broadly available, no doubt the cost to create such a statement will fall substantially. But in the immediate short term, prosecutor's offices and victim service organizations should be alert to resource disparities and try to arrange pro bono or other low-cost help to victim's families who wish to use such statement.

As it advances, AI will offer important innovations in many areas of law and life. The desirability of each of those innovations will need to be assessed on its own merits. The innovation of an appropriate, non-prejudicial AI-generated victim impact statement appears to be a positive one.

The post Should a Killer's Victim Be Able to "Speak" at a Sentencing Through AI? appeared first on Reason.com.

[Eugene Volokh] Claim Can Go Forward Against American Publisher That Allegedly Knew Knew Author It Paid Was Hamas Hostage-Holder

[The claim is under the Alien Tort Statute, which allows lawsuits in U.S. courts for aiding and abetting terrorism (among other things).]

From Jan v. People Media Project, decided Tuesday by Judge Tiffany Cartwright (W.D. Wash.):

This case arises from the kidnapping of Plaintiffs Almog Meir Jan, Shlomi Ziv, and Audrey Kozlov by Hamas during the terrorist attack of October 7, 2023. Plaintiffs are Israeli citizens who were kidnapped at the Nova Music Festival and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, doing business as the Palestine Chronicle, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.

Plaintiffs allege that Defendants employed and compensated Aljamal for work as a journalist before and after the October 7 attack, despite knowing Aljamal was a Hamas operative. Plaintiffs assert that through these actions, Defendants aided and abetted their kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute ("ATS") ….

The following facts are those alleged in the amended complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him ….

Plaintiffs allege that beginning in May 2019, Aljamal worked as a journalist for the Palestine Chronicle, which regularly published his articles. However, "Aljamal also served as an official spokesperson for Hamas's Ministry of Labor" and "Defendants knew that … Aljamal was an operative and official spokesperson for Hamas." For example, Plaintiffs allege that Aljamal's Facebook page included a photo of his son wearing Hamas headbands posted on June 6, 2023, and a graphic that is the symbol for Hamas's internal security bureau. Following October 7, Plaintiffs allege that Aljamal posted on his Facebook page and TikTok account a message supporting the attack. They assert that individual "Defendants regularly viewed and interacted with" Aljamal's social media posts.

After October 7, Aljamal's publications on the Palestine Chronicle "increased exponentially, often publishing two to three pieces per day[.]" And to receive and publish Aljamal's articles, Plaintiffs allege that "Defendants were in consistent, direct, and substantial contact with Aljamal, using electronic and internet means." Specifically, "Defendants used electronic and internet means, including, but not limited to, WhatsApp and Skype, to communicate with Hamas Operative Aljamal following October 7, 2023 to coordinate Defendants' publishing of Hamas propaganda, including the publishing of justifications for Aljamal's imprisonment of Israeli citizens." Plaintiffs further assert that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking through their close employment relationship and their personal connections, e.g., Aljamal and Defendant Baroud are from the same hometown in Gaza."

Plaintiffs were rescued on June 8, 2024. They allege that once Aljamal's name and identity was reported in the news, "Defendants attempted to minimize their connection to Plaintiffs' captor." The next day, the Palestine Chronicle changed Aljamal's position on its website from a "correspondent" to a "contributor." But "[r]egardless of his employment status," Plaintiffs assert that "it is indisputable that Defendants provided Hamas Operative Aljamal, whose connections to Hamas were publicly known, with a U.S.-based and taxpayer subsidized platform to publish Hamas propaganda[.]" Plaintiffs also allege that "the compensation Defendants paid Hamas Operative Aljamal for his propaganda directly enabled him to imprison Plaintiffs in his home." Thus, "[b]y compensating Hamas Operative Aljamal for his propaganda, all the while knowing that Aljamal was a Hamas operative involved in Hamas's October 7, 2023 attacks … Defendants aided, abetted, and materially supported both Hamas Operative Aljamal and Hamas itself in their acts of terrorism, including kidnapping and holding Plaintiffs hostage for 246 days, in violation of international law." …

The court concluded that plaintiffs had adequately alleged that defendants had aided and abetted the hostage-taking, by providing substantial assistance to Aljamal, and doing so knowing that Aljamal was involved in Hamas hostage-taking

Plaintiffs allege "that Aljamal was a Hamas operative and spokesperson before, during, and in the months after the October 7, 2023 attacks," and that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking" …. Plaintiffs have supported these allegations by pleading facts, based on Aljamal's social media and communications with the Defendants, to support a reasonable inference that Defendants knew Aljamal was affiliated with Hamas and involved in the October 7 attack. For example, on October 7, 2023, "Aljamal publicly praised Hamas's terrorist attack on his Facebook page stating, 'Praise to be God, thank you very much … Oh God, pay back.'" That day, he also "posted on his public TikTok … 'Praise be to God, abundant, good and blessed praise … O God, guide us … O God grant us the victory that you promised … O God, acceptance, acceptance, acceptance … Your victory, O God.'"

Plaintiffs further contend that along with "regularly viewing Aljamal's public media posts, 'Defendants were in consistent, direct, and substantial contact with Aljamal' before and after October 7, 2023." And when Aljamal stopped publicly posting to social media, Plaintiffs assert that his communications with Defendants moved to other forms of electronic communications such as Skype and WhatsApp. They argue that the "Defendants' communications with Aljamal dramatically increased after October 7 as Aljamal began regularly providing text of stories, digital images, and other material to [the] Palestine Chronicle."

Defendants contend that Plaintiffs' claims fail because they "do not allege anywhere in the Amended Complaint that Defendants had any idea, or could have had any idea, that Hamas was planning to carry out their operations on October 7, 2023, including any kidnappings." … [But] Plaintiffs allege that Defendants had actual knowledge that Aljamal was a Hamas operative in the months following the October 7 attacks, when it was commonly known that Hamas was holding Israeli hostages in Gaza. For accomplice liability under the ATS, "it is not necessary that the aider or abettor know the precise crime that was intended and was in fact committed—if the accused is aware that one of a number of crimes will probably be committed, and one of those crimes is committed," the mens rea standard is satisfied. "[W]hen ongoing abuses are common knowledge, knowing action may be imputed to the defendant."

Plaintiffs' assertion of actual knowledge is supported by sufficient factual allegations. For example, Plaintiffs allege that Aljamal "publicly appeared in Arab media as a spokesperson for the Hamas-run Ministry of Labor." They also assert that Aljamal posted a photo on his public Facebook page on June 6, 2023, which shows his son wearing a Hamas headband. They also allege that Aljamal posted a graphic of a symbol representing Hamas's internal security bureau. On October 7, 2023, Aljamal publicly supported the attacks by expressing gratitude for the event on his public Facebook page and TikTok. Plaintiffs allege that Defendants knew of Aljamal's affiliation with Hamas because they regularly viewed his social media posts.

Additionally, Plaintiffs assert that Defendants were in direct contact with Aljamal prior to and after October 7 because the Palestine Chronicle continued publishing his articles. Specifically, Defendants communicated with Aljamal through WhatsApp and Skype to coordinate the publication of Aljamal's articles after October 7, which "increased exponentially, often publishing two to three pieces per day[.]" Despite knowing that "Hamas was committing numerous international crimes, including … kidnapping [and] holding hostages for ransom," Plaintiffs allege that Defendants continued compensating Aljamal as a journalist.

Defendants argue that Plaintiffs lack specificity in their allegations with respect to Aljamal's participation in kidnapping Plaintiffs and holding them hostage in his home. But at the motion to dismiss stage, Plaintiffs need not plead "detailed factual allegations" but rather "enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Plaintiffs have done so here. They allege that Defendants regularly viewed and interacted with Aljamal's social media posts which expressed his support and affiliation with Hamas before and on October 7. Importantly, Plaintiffs assert that after October 7, Defendants continued to directly communicate with Aljamal and increasingly published his articles, demonstrating a "close employment relationship." Along with publishing the articles, Plaintiffs allege that Defendants kept paying Aljamal for his writing, even though at the time, it was commonly known that Hamas was holding hostages in Gaza….

For earlier decisions in the case, see Alien Tort Statute Liability for American Publisher Would Turn on Whether It Knew Author It Paid Was Hamas Hostage-Holder and Publishing Pro-Hamas Propaganda Is Protected by First Amendment. Mark Goldfeder (National Jewish Advocacy Center, Inc.), Jason Torchinsky, Erielle Davidson, John J. Cycon, and Kellen Dwyer (Holtzman Vogel Baran Torchinsky & Josefiak PLLC), and David Schoen represent plaintiffs.

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[Eugene Volokh] Dating Violence Restraining Order Reversed Because Court Relied on Unauthenticated Anonymous Communications

From Adams v. Cox, decided last week by the Florida Court of Appeal (Judge John MacIver, joined by Judges Harvey Jay and Adrian Soud):

Cox petitioned for injunction for protection against dating violence, alleging that Adams had committed acts of violence against her and that she feared imminent future violence. In her petition, Cox described two incidents of past violence by Adams and claimed that she had recently received harassing phone calls and text messages from unknown numbers, which she believed were initiated by Adams….

At the hearing, Cox testified that Adams had physically attacked her two times during their relationship. Adams, in turn, denied ever harming Cox. Cox also testified that over the months preceding the hearing, she had been repeatedly called or texted by three unfamiliar phone numbers. She stated that one voicemail message left by an unknown caller sounded like Adams's voice, and that some text messages contained personal information (such as her home address and her child's school) that led her to suspect Adams was behind them. Yet Cox admitted she was not certain that Adams was the caller, and she did not present the actual voicemail or text messages as evidence.

For his part, Adams tried to introduce documentary evidence—apparently phone records or other proof—to show that the phone numbers were not associated with him, but the trial court declined to admit these documents. The judge told Adams to "hold on" to his papers and explained, "I need to figure out whether two people should legally be separated from one another. That's why I need to talk to you. Your words are what matter." The court did not permit Adams to call any other witnesses or to authenticate his proof regarding the messages.

After briefly questioning both parties, the court found that "there was an active dating relationship; there was violence, by the competent and substantial evidence," and announced that it would grant the injunction….

A trial court may issue an injunction for protection against dating violence only if the petitioner proves both that she was a victim of dating violence and that she has "reasonable cause to believe [she] is in imminent danger of another act of dating violence." {Florida law is clear that to obtain an injunction for protection against dating violence, "[i]t is not sufficient to have been the victim … of dating violence in the past."} … Cox's evidence established the first two statutory elements—a recent dating relationship and an incident of past violence—but failed to establish the critical third element of imminent future violence.

Cox, for example, did not testify that Adams threatened her with further harm after their breakup, and it was unrefuted that the two had no direct contact for several months before the injunction hearing. The only evidence offered to show a continuing threat were the anonymous phone calls and texts that Cox suspected were from Adams.

That said, suspicion alone is not proof. Cox conceded she lacked concrete evidence tying those communications to Adams, and the content of the messages—while disturbing—was not shown to include any direct threats or uniquely identifying information known only to Adams. In fact, Cox herself acknowledged in her petition that she was "almost" certain the messages came from Adams, implying she was not sure. Because the sender of the messages was never authenticated and no other objective evidence of looming danger was presented, Cox's fear of imminent violence rested only on Adams's past conduct…. We thus conclude that the injunction is not supported by the evidence and cannot stand….

Adams was [also] not afforded a full opportunity to defend himself at the injunction hearing. The trial judge prevented Adams from introducing the documents he had brought to refute Cox's allegations about the phone calls. The trial judge also never allowed Adams to call any other witnesses or to cross-examine Cox. Instead, the trial court limited the proceeding to a brief narrative from each party and the court's own questions. By effectively cutting off any evidentiary presentation by Adams, the court denied him a meaningful chance to challenge Cox's evidence or to prove that he did not send the messages at issue. This diverged from the essential requirements of due process….

Martin A. Pedata represents Adams.

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[Eugene Volokh] Penalty Based Partly on Divorcing Wife's Destroying $1800 Bottle of Scotch

From last week's Ohio Court of Appeals decision in Edelstein v. Edelstein:

Father claimed that Mother denied him the opportunity to retrieve his personal items from the marital home. Father testified he had left behind familial memorabilia, religious heirlooms, and other personal items when he had moved out. Father explained that while he was given a brief opportunity to collect a few of his personal items from the home, Mother never gave him a sufficient opportunity to meaningfully collect his belongings. Mother told Father that she put the items he had left behind in storage and that he would be able to retrieve them the next time she was in Ohio.

Despite communicating to Father that his possessions were in storage and that he would be able to retrieve them, Mother testified that after she had determined that storage was too much of an inconvenience, she called a trash service and had Father's personal property destroyed. Mother admitted that she did not notify Father prior to having his belongings destroyed….

Mother takes issue with the court's $5,000 contempt penalty for having Father's items destroyed. This penalty, however, constitutes an equitable offset, given that Mother denied Father the opportunity to collect his equitable distribution of household goods and furnishings. This offset included all "remaining household goods, keepsakes, and furnishings," which would include the bottle of 1976 Glenrothes Single Malt Scotch. Thus, Mother's claim that the court failed to include the value of the bottle of scotch in the marital assets is without merit….

If you want to celebrate this decision, you can buy such a bottle yourself.

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[Josh Blackman] Today in Supreme Court History: May 8, 1884

5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

 

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[Ilya Somin] Colorado Federal District Court Issues Additional Alien Enemies Act Ruling Against Trump

[The court instituted a preliminary injunction against the Administration's use of the Act to deport Venezuelans. ]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Earlier today, federal District Judge Charlotte Sweeney of the District of Colorado issued a ruling against the Trump Administration in an Alien Enemies Act (AEA) case. Trump has been trying to use the Alien Enemies Act of 1798 as a tool for deporting Venezuelan migrants with virtually no due process. But the Act can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." In today's decision, Judge Sweeney built on her own earlier ruling imposing a temporary restraining order (TRO) against AEA deportations in her district, and also a recent AEA ruling by a federal district court in Texas. Her new decision replaces the TRO with a longer-lasting preliminary injunction.

Like those other rulings, Judge Sweeney's most recent opinion concludes that none of the requirements for invocation of the AEA has been met. The activities of the Tren de Aragua drug gang (cited by Trump as justification for using the AEA) don't qualify as an "invasion" or a "predatory incursion," and TdA is pretty obviously not a "nation or government" (Judge Sweeney is the sole federal judge to have addressed this latter issue, so far). Moreover, US intelligence agencies have concluded that TdA probably isn't even acting at the direction of the Venezuelan government. It is a private criminal organization.

I have defended the view that "invasion" requires a military attack, in greater detail in my previous writings on the meaning of the term in the AEA and the Constitution. The two meanings are necessarily intertwined, as several federal courts have now recognized.

Judge Sweeney's ruling reaches the right result, and is generally well-reasoned. But there is one regrettable aspect of her analysis, adapted from a recent ruling by Judge Fernando Rodriguez of the Southern District of Texas. Like him, she concludes that the meaning of "invasion" is not an unreviewable "political question," but also suggests that the factual determination of whether an "invasion" exists is. This is irrelevant to the current state of AEA litigation because Trump has not - so far - alleged that a foreign government is invading the US in the sense of launching a military attack. But he could potentially make such an assertion, and  I would not put it past this administration to make bogus claims of that sort.

For that reason, among others, my reservations about Judge Rodriguez's reasoning on this point also apply to the Colorado ruling:

Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants)….

[U]nder the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.

It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" exists is pretty obviously false, and pretextual.

Despite this one flaw, the new Colorado ruling is yet another indication of a growing consensus among federal judges that Trump has invoked AEA illegally because "invasion" and "predatory incursion" are forms of organized armed attack. Illegal migration and drug smuggling don't qualify. Both lower-court judges and the Supreme Court have also uniformly rejected the notion that invocation of the AEA isn't subject to judicial review.

The legal battle over the AEA will continue, and this ruling, like other lower-court decisions going against the administration, is likely to be appealed. But, so far, Trump is has suffered an almost unbroken series of well-deserved losses in AEA litigation.

The administration's only notable win to date was on the procedural issue of where AEA detainees must file their claims. And that victory has been undercut by the ongoing willingness of judges' to rule against him on the merits, and certify class actions.  For reasons I summarized here and here, class action certification is crucial to ensuring that poor migrants and those with limited English proficiency are able to secure meaningful judicial protection for their rights.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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