Eugene Volokh's Blog, page 171

[Josh Blackman] Today in Supreme Court History: February 8, 1941

2/8/1941: Justice Willis Van Devanter dies.

Justice Willis Van Devanter

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[Eugene Volokh] "A Major Law Firm's ChatGPT Fail"

David Lat (Original Jurisdiction) reports, in his characteristically readable and interesting style, about the latest incident (you can also read Judge Kelly Rankin's short order laying out the problem, in Wadsworth v. Walmart (D. Wyo.)). Folks, just cite-check.

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[Orin S. Kerr] "The Digital Fourth Amendment," Now Shipping

I'm pleased to say that my new book, The Digital Fourth Amendment, is now available for shipping at Amazon and elsewhere.  There were some publishing snafus that delayed it a few weeks, but it's now available in both print and Kindle formats. An audiobook version is on the way, but not for a few months.

I'm planning a few blog posts over the next week or two to introduce the basic arguments of the book and to explain why I wrote it.  But for now I just wanted to flag that the book is finally available.  More next week.

 

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[Eugene Volokh] Liking Post That Contains Porn Deepfake Can Lead to Liability, Court Says in Megan Thee Stallion Lawsuit

More from the Megan Thee Stallion lawsuit I blogged about below:

Under Section 836.13, Florida Statutes, a plaintiff may bring a civil action against anyone who "willfully and maliciously promotes" an "altered sexual depiction" of her without her consent. The statute defines "promote" broadly, covering actions like publishing, distributing, exhibiting, or presenting the altered content.

Count II of the Amended Complaint alleges Defendant did just that—first by "liking" a post on X.com containing a deepfake pornographic video of Plaintiff, then by directing her followers to her "Likes" page where the video remained accessible. The parties do not dispute that the video meets the statute's definition of an "altered sexual depiction"; they only disagree on whether Defendant's conduct amounts to "promotion." …

By "liking" an X.com post that featured the deepfake video, the video was exhibited on Defendant's X.com account's "Likes" page, "which tracked and displayed 'liked' posts for other users to see." Defendant also brought the video "before the public" when she allegedly directed viewers of her post to click on her "Likes" page where the video had been archived. (See Am. Compl. ¶ 45 ("Defendant intended for this statement [('Go to my likes.')] to encourage her followers and other members of the public to watch the [d]eepfake [v]ideo, which had been added to her 'Likes' page around the same time." (alterations added and adopted))).

Because Plaintiff plausibly alleges Defendant promoted the deepfake video under section 836.13, dismissal is unwarranted.

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[Eugene Volokh] Megan Thee Stallion's Defamation Lawsuit Against "Online Personality" "Milagro Gramz or Mobz World" Can Go Forward

From today's decision by Chief Judge Cecilia Altonaga (M.D. Fla.) in Pete v. Cooper:

The allegations are connected to the fallout from the 2022 conviction of Daystar Peterson, popularly known as Tory Lanez, a Canadian rapper and singer who was found guilty of assaulting Plaintiff with a firearm following a widely publicized trial. Plaintiff asserts that Defendant … uses [his social media accounts] to harass and defame Plaintiff by disseminating false narratives and conspiracy theories. These include claims that Plaintiff lied under oath, suffers from alcoholism, is "mentally retarded," and needs a guardian.

The court concludes that plaintiff had adequately alleged that the statements were (1) factual assertions (rather than just insults, hyperbole, or opinion), (2) false, and (3) said with knowledge or recklessness as to their being false.

The court also allows plaintiff's intentional infliction of emotional distress claim to go forward:

According to the Amended Complaint, Peterson shot at Plaintiff's feet while shouting, "Dance, bitch[,]" injuring her. At Peterson's trial—which Defendant allegedly attended—Plaintiff testified about the shooting and described the lasting trauma she endured. After that, Defendant allegedly aligned herself with Peterson, launching a campaign of harassment: publicly accusing Plaintiff of perjury, calling her a habitual drunk, suggesting she was legally incompetent, and directing followers to a deepfake pornographic video of her.

Taken in isolation, any one of these allegations might not suffice. But taken together, and against the backdrop of Plaintiff's alleged trauma—including suicidal thoughts following the shooting—the conduct plausibly rises to the level of extreme and outrageous. "[W]here the alleged conduct on the part of the [d]efendants may not be considered outrageous when the victim is of ordinary emotional and mental status, such conduct may become actionable … when the alleged victim suffers from known emotional and/or psychological trauma."

Second, even if Defendant's conduct was not independently extreme, dismissal would be premature given the undeveloped factual record. "[T]he lack of any record evidence at this point concerning" Plaintiff's "mental state" and Defendant's "level of knowledge about it" precludes such an early determination. Because Plaintiff's trauma and Defendant's alleged exploitation of it are central to the IIED analysis, the Court cannot conclude at this stage that the claim fails as a matter of law.

I'm concerned about the reasoning as to IIED, because it seems not to be limited to defamation cases (IIED is a separate tort from defamation); the logic seems to apply to opinions and to true statements, and not just false ones. And I don't think that the First Amendment would allow liability for expression of offensive opinion about public figures, based on the highly subjective "extreme and outrageous" standard (see Hustler Magazine v. Falwell (1988)). If the case eventually goes to trial, I hope that the court will make clear to the jurors that (as Hustler v. Falwell suggests) they can't find either defamation liability or IIED liability unless they find the speech to be false and defamatory.

Read the opinion for more details; I'll also try to blog separately about some other theories in the case.

Daniel L. Humphrey, Julian Schoen, Mari Henderson, and Olga M. Vieira (Quinn Emanuel Urquhart & Sullivan LLP) represent plaintiff.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

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

New on the Short Circuit podcast: City officials just can't help themselves from tearing down people's homes.

In 2014, the Russia-backed Donetsk People's Republic shoots down Malaysia Airlines Flight 17, en route from Amsterdam to Kuala Lumpur, killing all 298 people aboard. (Russia denies involvement.) The family of an American passenger sues Sberbank, alleging that its U.S. branches facilitated money transfers to DPR that funded terrorism. Russia then becomes majority owner of the bank—meaning that the bank is now immune from suit, right? Second Circuit: Wading through several issues of first impression, the court holds that neither the Foreign Sovereign Immunities Act nor the Anti-Terrorism Act shield Sberbank from suit. Following horrific, race-motivated shooting in a Charleston, S.C. church, one of the victim's children sued Facebook for allegedly recommending extremist groups to the shooter (via algorithm) that fueled his radicalization. Fourth Circuit: Facebook is immune from the child's state tort claims under Section 230 of the Communications Decency Act because it merely curated and displayed others' speech. Case dismissed. Partial dissent: Curating content is one thing; "'You Should Join' this hate group" is Facebook's own speech. Claims regarding the latter allegations should proceed. To combat the opioid crisis, Congress permits certain healthcare providers to administer methadone—provided they give patients counseling services as well. Asheville, N.C. physician assistant files False Claims Act suit against her former employer, alleging the company systematically documented therapy and counseling sessions that never took place. Fourth Circuit: Yikes. All this at least gets her past the pleadings; most of the case can proceed.

In 1940, fourteen Atlantic coastal states (and Pennsylvania) formed the Atlantic States Marine Fisheries Commission, with Congress's blessing, to recommend fishery-management plans to the compacting states. Last year, the Commission voted to adopt a plan that recommends limiting the customers of Maryland charter boats to keeping one striped bass per day. Maryland charter boats: Wait … what? That's unconstitutional! Fourth Circuit: You're not regulated by the Commission, but by Maryland, which you haven't sued and which has more stringent laws than the Commission's plan. No standing. (Obligatory maritime pun at page 5: "But striped bass were still not off the hook."). Allegation: Maryland has allowed ineligible people to vote, which violates my rights by diluting my vote. Fourth Circuit: "The vote dilution caused by the counting of an unknown number of invalid third-party votes affects all voters in a State in the same way. That generalized injury cannot support Article III standing." The owners of a Charleston, S.C. timber farm want to develop a portion into 9,000 new homes, schools, city services, and a medical center. They've been seeking permits from numerous agencies since 2012, culminating in a set of permit modifications in 2024 to ensure construction did not unduly disturb the endangered northern long-eared bat. Though no such bats have ever actually been seen on the property, and it represents just a fraction of forest habitat in the state, a coalition of conservation groups sue to block construction pending further environmental review. Fourth Circuit: We appreciate you going to bat for these critters, but there's no need for more environmental paperwork. In 2019, a Baltimore, Md. worker drowns in vat of sewage after a catwalk collapses. District court: And though state investigators found a bevy of safety violations at the wastewater treatment plant that contributed to her death, the city is off the hook on these § 1983 claims because there's no allegation it intended to drown anyone in a vat of sewage. Case dismissed! Fourth Circuit: Which, it turns out, was not a final order because some of the claims against private defendants remain pending. The Fifth Circuit answers a timely and burning question: Whether President Biden could impose a $15 minimum wage for federal contractors via executive order in 2021 under the Federal Property and Administrative Services Act. Turns out he can. What he'll do with the information is anyone's guess. Also, the panel seems to really not like Lochner v. New York (1905), as it states the case was overruled by Day-Brite Lighting (1952) and by Ferguson v. Skrupa (1963) and abrogated by West Coast Hotel (1937). Ok, jeez, we get it. Via footnote 1 of this Fifth Circuit opinion, we learn this week that the gentleman ("affectionately labeled 'Dr. Shush' and 'noise's bogeyman'" by Time Magazine in 1932) who invented silencers also adapted them for industrial uses, including early combustion engines, which made a fearful racket. Not unrelatedly, the panel holds that silencers are not protected by the Second Amendment. The winner of Oregon County, Mo. county clerk election keeps the loser in office as a deputy clerk. Bygones are not let to be bygones, however; the loser marries a judge, who then engineers a contempt prosecution against the winning clerk that is ultimately quashed by the Missouri Supreme Court. Clerk sues, alleging retaliation in violation of her First Amendment rights. Eighth Circuit: Sure, a private citizen could sue for a baseless political prosecution, but maybe for some reason public employees can sue only if their job is adversely affected. At least, that maybe is enough to give the contempt conspirators qualified immunity. Iowa man smokes pot three to four times a week. Cops find him with a Glock 20 pistol in his car during a traffic stop. He's sentenced to 37 months in prison for being a drug user in possession. Second Amendment violation? Eighth Circuit: Could be! Remand for more facts. He should win if he's not dangerously mentally ill or going around menacing people. Qualified immunity protects a lot, but it does not—says this unpublished Ninth Circuit opinion—protect searching for the subject of an arrest warrant by destroying a number of "objects too small to hide" the suspect. James Huntsman, son of Utah billionaire Jon Huntsman Sr., tithed more than $2.6 mil to the LDS Church between 2003 and 2015. When he learned in 2019 that the church had been using tithe funds for commercial projects instead of purely charitable purposes, he sued. Ninth Circuit (2023): These secular fraud claims don't implicate the ecclesiastical abstention doctrine, and there's enough here to go to trial. Ninth Circuit (2025, en banc): Dismissed! Huntsman didn't identify any fraudulent claims, so no need to consider the ecclesiastical abstention doctrine. Concurrence: The First Amendment actually requires we consider it and dismiss on those grounds. Like all good hoary legal principles, sovereign immunity derives from a Latin maxim: Rex non potest peccare ("the king can do no wrong"). Some might say that when we ditched the rex, we also chucked his need for sovereign immunity. Though the Supreme Court has long disagreed, it has recognized several exceptions to states' sovereign immunity—including when Congress is legislating in support of raising armies and navies because part of the bargain of joining the Union was that the federal gov't would have primacy over common defense. Eleventh Circuit: And that means Alabama doesn't have sovereign immunity against claims under the Family and Medical Leave Act having to do with leave related to military servicemembers. Dissatisfied with Walmart's policies, eight Alabamians set fires in four stores, causing $7 mil in damages. They have a "Declaration of War" with seven demands (including providing six months maternity leave, implementing a climate plan, and paying at least $18/hour) that would need to be met for the fires to stop. They're caught. One pleads out, and prosecutors recommend five years' imprisonment. District court: How about three times that? Eleventh Circuit: No problem. Florida's Fish and Wildlife Conservation Commission restricts where and how Florida-registered fishing boats can harvest the Florida pompano in federal waters off the coast of Florida. Florida fisherman: Wait … what? That's an obvious equal-protection violation, because Florida lets non-Florida boats do whatever they want with the pompano! Eleventh Circuit: Florida doesn't actually have any power to regulate non-Florida boats in non-Florida waters, so there's no equal-protection problem here. (Obligatory maritime pun at page 29: "[The plaintiff's] argument immediately finds itself in troubled waters … "). An inmate of a federal prison in Florida sues a prison official, alleging that the inmate's poor living conditions exposed her to mold, water leaks, asbestos, and COVID-19, in violation of, inter alia, her Eighth Amendment rights. The lower court concluded that the inmate pled an Eighth Amendment claim under Bivens but did not address qualified immunity. Can the prison official immediately appeal that decision under the collateral-order doctrine? Eleventh Circuit: No, the doctrine creates a narrow exception that Bivens-extension orders "seldom (if ever) slip through." Appeal dismissed for lack of jurisdiction. And in en banc news, the D.C. Circuit will not reconsider its decision that the Council on Environmental Quality doesn't have the power to issue regulations—50 years of practice notwithstanding—because it was created by executive order, not by Congress. Chief Judge Srinivasan, joined by six other judges, chides the original panel for reaching an issue not raised by either side, violating the party presentation principle, but concurs in the denial of en banc rehearing because the panel opinion had an alternative holding reaching the same merits outcome on less dramatic grounds. And in more en banc news, the Fifth Circuit will not reconsider its decision that two Texas physicians lacked standing to challenge a Biden-era notification that, following the Supreme Court's ruling in Bostock, Section 1557 of the Affordable Care Act prohibits discrimination on the basis of gender identity. The original panel held that nothing the physicians wanted to do (or refrain from doing) was discriminatory. Judge Ho called for an en banc vote, which the court rejected 16-1. Concurring in the denial, Judge Duncan, joined by six other judges, argues that a recent executive order by President Trump moots the case anyway. And in additional en banc news, the Sixth Circuit will not reconsider its decision that a farmer who won a racial discrimination lawsuit challenging the American Rescue Plan Act shouldn't get legal fees. And in further en banc news, the Ninth Circuit will reconsider its decision that a lawsuit challenging the L.A. school district's COVID-19 vaccine policy could continue because of the voluntary cessation exception to mootness.

First-round victory! Friends, last year, Norfolk, Va. officials blanketed the city with license plate reader cameras from Flock Safety that enable police to track all vehicle movements, which are then made available for 30 days to law enforcement across the country at the click of a button—no probable cause, no warrants, no judicial oversight whatsoever. What the Flock!? But this week a federal district court denied the city's motion to dismiss IJ's Fourth Amendment challenge to the program, finding that it could violate people's reasonable expectations of privacy. Click here to learn more.

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[Josh Blackman] Today in Supreme Court History: February 7, 1870

2/7/1870: Hepburn v. Griswold decided.

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[Eugene Volokh] Friday Open Thread

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[David Bernstein] Three Books for Black History Month

February is Black History Month, and this year's this is "African Americans and Labor." Here are three books I recommend:

1. Robert Higgs, Competition and Coercion: Blacks in the American Economy 1865-1914. Higgs argues that despite significant coercion, there were sufficient competitive forces in the American (and in particular southern, where most black Americans lived) economy to allow African Americans as a group to significantly improve their standard of living during the relevant time period. The book, written in the 1970s, received an undeservedly negative reception from the Marxist-dominated labor history world.

2. Paul Moreno, Black Americans and Organized Labor: A New History. In my review of this book, I wrote:

Moreno, unlike many historians, does not treat black workers and the black people more generally as passive bit players in a larger class conflict between "capital" and "labor." Nor, unlike many historians, does he pay disproportionate attention to the relatively few examples of racially egalitarian unions in the pre–New Deal period, which some historians use as purported exemplars of the true spirit of labor solidarity. Rather, he properly treats African Americans as striving as best they can to promote their individual and collective well-being in a hostile economic and social environment.

3. David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. My book started from a simple premise that went almost entirely unrecognized in the relevant literature: given that black Americans lacked political power, one could expect that labor regulations at best would not take their interests into account, and at worse would intentionally be used to exclude them from the labor market. I back up that basic intuition with studies of laws restricting labor recruitment in the south, licensing laws, railroad labor laws, prevailing wage legislation, and New Deal labor laws. I also note that contrary to conventional wisdom, court decisions protecting free labor competition tended to help black workers in the relevant time period.

I'm not going to argue that these are necessarily the three *best* books one can read on African American labor. But I would say that if you are interested at all in the subject, you have probably already read books and articles from a more standard progressive or Marxist perspective, and these books are both well-researched and provide a more market-friendly and regulation-skeptical perspective.

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[Josh Blackman] The Fair Labor Standards Act Imposed A Ban On Child Labor That Was "Identical" To the Child Labor Provision Declared Unconstitutional In Hammer v. Dagenhart

This week, I taught cases on enumerated powers from the Progressive Era and during the New Deal. In Hammer v. Dagenhart (1918), the Supreme Court declared unconstitutional a federal law that banned the transportation of good made by child labor. The Court found that this law was in fact an attempt to regulate local labor conditions, and the focus on shipping the goods was something of a pretext.

More than two decades later, the Supreme Court overruled Hammer in United States v. Darby (1941). This precedent upheld the constitutionality of the Fair Labor Standards Act (FLSA). Darby was largely an extension of NLRB v. Jones & Laughlin Steel (1935). These two decisions replaced the "direct effects" test with the "substantial effects" test. Under this regime, Congress could regulate any local activity that had a substantial effect on interstate commerce. The Court would also review such regulations with something akin to rational basis scrutiny, and require only a reasonable fit between the means Congress has taken, and the ends Congress is seeking to accomplish.

While teaching Darby, I wondered how Solicitor General Francis Biddle distinguished Hammer. So I pulled the government's brief. To Biddle's credit, he acknowledged that the FLSA contained a child labor provision that was "identical" to the law declared unconstitutional in Hammer:

. . . we recognize that the statute declared unconstitutional in Hammer v. Dagenhart is identical with the child-labor provisions in the present Act. And the prohibition against transporting goods produced by adults working under substandard labor conditions which is involved in this case cannot be distinguished in theory from the ban upon shipping goods produced by children.

The SG argued that subsequent precedent was "inconsistent" with Hammer, including Mulford v. Smith (1939). But the FLSA was enacted in 1938, the year before Mulford.

Of course, Biddle asked the Court to overrule Hammer, which it ultimately did:

It is submitted that the Court has abandoned the principles which controlled the decision in Hammer v. Dagenhart, and that the case should be expressly overruled.

But Congress and the President cannot anticipate the overruling of a Supreme Court precedent. Or at least they are not supposed to.

There you have it. Hammer declared a federal statute unconstitutional. Two decades later, Congress re-enacted an "identical" statute, and the President signed it into law, with no contrary precedent on the books.

I find it very difficult to get worked up over the current events of the day. If the President determines that a Supreme Court precedent is wrong (Humphrey's Executor for example), he can choose to take actions inconsistent with it, and let the Courts decide whether to maintain that precedent. Presidents from Jefferson to Lincoln to Roosevelt understood departmentalism. The ABA had a conniption when President George W. Bush issued a signing statement. Trump is making departmentalism great again.

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