Eugene Volokh's Blog, page 174

[Ilya Somin] Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines

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Yesterday, Donald Trump imposed 25% tariffs on Canadian and Mexican imports, and 10% on those from China. These actions will inflict immense costs on the US economy, raise prices for many goods, and poison relations with two of our closest allies and trading partners, thereby weakening the US and strengthening our enemies. They are also unlikely to do much to stem the flow of fentanyl across US borders or address illegal migration - the ostensible excuses for these actions. Fortunately, there may be a way to successfully challenge these immensely harmful actions in court. Plaintiffs should file cases based on the nondelegation and major questions doctrines. The latter, especially, has been bolstered by recent Supreme Court decisions.

The Constitution gives Congress, not the executive, the power to regulate "commerce" with foreign nations. Trump claims the authority to impose these massive tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA), a vague statute that gives the president the power to set trade restrictions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."

Trump has indeed declared a national emergency at the border. But there is nothing "extraordinary" or "unusual" about either illegal migration or cross-border fentanyl smuggling. To the contrary, these phenomena are natural and longstanding consequences of severe immigration restrictions and the War on Drugs, which predictably create large black markets, and have done so for decades. Most fentanyl smuggling is actually done by US citizens crossing through legal ports of entry, which Canada and Mexico can't do much about. Moreover, illegal border crossings were actually at a low level when Trump came into office.

The unbounded nature of the administration's claim to power here is underscored by Trump's statements that there are no concessions Canada or Mexico could make to get him to lift the tariffs. That implies they aren't really linked to anything having to do with any emergency; rather, the invocation of the IEEPA is just a pretext to impose a policy Trump likes.

Under Trump's logic, "extraordinary" or "unusual" circumstances justifying starting a massive trade war can be declared to exist at virtually any time.  This interpretation of the IEEPA runs roughshod over constitutional limitations on delegation of legislative power to the executive. For decades, to be sure, the Supreme Court has taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation. The administration's claim to virtually limitless executive discretion to impose tariffs might be a good opportunity to do just that. Such flagrant abuse by a right-wing president might even lead one or more liberal justices to loosen their traditional skepticism of nondelegation doctrine, and be willing to give it some teeth.

A claim to such sweeping authority might fail even under the "intelligible principle" framework. If an "emergency" and an "extraordinary" or "unusual" threat exists anytime the executive says so, there is no real constraint here, intelligible or otherwise.

More promising than the nondelegation argument is the possibility of attacking Trump's tariffs under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'"  If the statute is ambiguous, courts must presume that Congress didn't give the agency the power the executive claims. In recent years, the Supreme Court has relied on MQD to strike down a number of sweeping assertions of authority by the Biden administration, such as its attempt to forgive over $400 billion in student loans, and the establishment of a nationwide eviction moratorium (first begun under Trump). The imposition of massive tariffs on our two largest trading partners is pretty obviously a  decision with "vast economic and political significance," one likely to cost the public even more than Biden's loan forgiveness plan would have. And, as in the student loan and eviction moratorium cases, the statutes under which the administration claims authority are far from clear in indicating it has such sweeping power. Furthermore, some of the conservative justices might welcome an opportunity to show that MQD isn't just a tool for the political right.

I don't argue that either a nondelegation or an MQD claim is sure to succeed. But the arguments are strong, particularly on MQD. Importers and others seeking to challenge Trump's awful actions would do well to try both. Making both simultaneously would also have the advantage of making the MQD argument (which is not constitutional in nature, thereby allowing Congress to potentially give the executive sweeping power by enacting a more clear statute) seem relatively moderate by comparison.

As is often the case, litigation and political action aren't mutually exclusive. At the margin, courts may be more willing to strike down Trump's tariffs if they are unpopular. Survey data indicates large majorities oppose tariffs if reminded they increase prices. Opponents would do well to emphasize that point at every turn - even as they also battle the tariffs in court.

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[Josh Blackman] Today in Supreme Court History: February 2, 1790

2/2/1790: Justice William Cushing takes oath.

Justice William Cushing

 

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[Jonathan H. Adler] D.C. Circuit Declines to Reconsider Decision Concluding CEQ Lacks Authority to Issue NEPA Regulations

Last November, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacked the statutory authority to issue binding regulations implementing the National Environmental Policy Act (NEPA). As CEQ first issued such regulations in the 1970s, and that such regulations are often the basis of NEPA suits against federal agencies, the decision was a big deal.

The opinion, by Senior Judge Randolph (joined by Chief Judge Henderson) explained why the text of NEPA should not be read to confer any such authority. Accordingly, the panel majority concluded, federal agencies are only obligated to comply with NEPA itself, and any regulations they may have adopted on their own to implement NEPA's requirements.

Judge Srinivasan dissented, largely on the grounds that the question of CEQ's statutory authority was not properly before the court (as it had not been briefed) and was not necessary to resolve the question presented to the court.

Every party to the case petitioned the D.C. Circuit to rehear the case en banc. In the interim, President Trump issued an executive order directing CEQ to propose rescinding its NEPA regulations and revoking the Carter Administration's EO that had directed the CEQ to issue such regulations and directing agencies to comply.

Today, the D.C. Circuit denied the petition, but Judge Srinivasan wrote an opinion respecting the denial of en banc that was joined by a majority of judges on the court. This opinion (reproduced below) seems designed to contain Marin Audubon without creating a vehicle for Supreme Court review. I doubt it will have that effect, however.

The Supreme Court has made very clear that courts are to scrutinize agency assertions of regulatory authority. While few litigants have challenged CEQ's authority to issue regulations (perhaps because the Carter EO directed federal agencies to comply with those regulations and Justice Department attorneys were never instructed to challenge whether violating such regulations was proper grounds for a citizen suit), the arguments that Congress never delegated such authority to CEQ are strong, and claims an agency failed to comply with such regulations should not be justiciable. (Whereas claims an agency did not follow its own NEPA regulations, would present a different question.)

It is worth remembering that the Supreme Court is itself considering a NEPA case at the moment, and while this question is not before the Court, it will surely have reached their attention. I would not be at all surprised were some of the justices to concur separately endorsing Judge Randolph's panel opinion, in effect inviting additional litigants to raise this claim in subsequent cases. The NEPA landscape has been permanently altered.

UPDATE: The concurring statement makes clear that the next time a NEPA case implicating CEQ's regulations gets to the D.C. Circuit, the court is likely to disregard the Marin Audubon Society decision as dicta (assuming, of course, that the regulations have not been rescinded by then). The outcome of any such decision, however, is almost certain Supreme Court review, and it would be quite surprising were a majority of justices to disagree with Judge Randolph's analysis.

*  *  *

The Srinivasan opinion respecting the denial of en banc reconsideration is below.

SRINIVASAN, Chief Judge, with whom Circuit Judges MILLETT, PILLARD, WILKINS, CHILDS, PAN, and GARCIA join, concurring in the denial of rehearing en banc:

All parties have sought en banc rehearing with respect to Part II of the panel opinion, in which the panel majority opined that the CEQ lacks authority to issue binding NEPA regulations. Because no party raised or briefed that issue, the panel majority's engagement with it, in my view, ran afoul of the principle of party presentation. See United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020); Marin Audubon Soc'y v. FAA, 121 F.4th 902, 920–22 (D.C. Cir. 2024) (Srinivasan, C.J., dissenting in part).

While all parties have agreed and urged the en banc court to grant review and excise that part of the panel's opinion, I concur in the denial of en banc rehearing. The panel unanimously ruled in favor of the challenge in this case on an entirely separate ground (one that the parties did raise and brief), see id. at 915–18, meaning that the panel majority's rejection of the CEQ's authority to issue binding NEPA regulations was unnecessary to the panel's disposition, see id. at 921 (Srinivasan, C.J., dissenting in part). That conclusion in fact could not independently support the panel's disposition to set aside the agencies' challenged action: because the relevant CEQ regulation does not require an agency to do anything but instead gives an agency the option to rely on a categorical NEPA exclusion, see id. at 922 (Srinivasan, C.J., dissenting in part); Gov't Pet. for Reh'g En Banc at 14, any conclusion that the CEQ lacks authority to issue binding regulations would leave unaffected the agencies' challenged choice here to make use of a categorical exclusion. In these circumstances, there is no cause to grant en banc rehearing. See Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (Sentelle, C.J., and Ginsburg, Henderson, Rogers, Tatel, Garland, & Griffith, JJ., concurring in the denial of rehearing en banc) ("declin[ing] to en banc this 2 case" because "the panel's discussion of [the relevant] question is not necessary to the disposition of the merits").

 

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[Josh Blackman] If Biden Knocked Tiktok, Can Trump Deep-Six DeepSeek?

Long-time readers know I am ambivalent about AI. I refuse to use it, even as I know others think it gives them a competitive advantage. I am confident in my ability to write, research, and ideate better without AI. Maybe I'm wrong, but so be it.

I also reacted with some ambivalence to the launch of DeepSeek, a new Chinese AI App. I have no clue whether it is better or worse than OpenAI. But I do worry about the fact that millions of Americans are installing a Chinese AI app on their phones, and will submit troves of proprietary information about anything on their minds. Remember, every query can be tracked by DeepSeek, and by extension, the PRC. We learned as much from the TikTok litigation. We aren't simply talking about people watching dance videos. People ask their AI apps about everything. And I suspect submitting privileged information to a foreign adversary waives any sort of Attorney-Client privilege. The risk of potential blackmail and other compromise is unlimited.

Moreover, as could be expected, the app is generating Pro-PRC answers. You can call it data manipulation. The New York Times reports: "If you're among the millions of people who have downloaded DeepSeek, the free new chatbot from China powered by artificial intelligence, know this: The answers it gives you will largely reflect the worldview of the Chinese Communist Party."

Whatever interest may have supported the TikTok ban seems even greater for DeepSeek. And while the TikTok creators arguably had a First Amendment right to use the app to make videos, there is not a similar expressive interest here. To be sure, I've long argued that some algorithmic outputs may warrant First Amendment scrutiny. But as we move towards general AI, which has very little intercession of the human mind, the First Amendment right are harder to justify. (I anticipated this shift in a 2013 article.)

Biden knocked TikTok. Will Trump deep-six DeepSeek?

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[Eugene Volokh] U Tenn Pharmacy School Pays $250K Settlement for Trying to Expel Student for Sexually Themed Tweets

FIRE, which represented the student (Kimberly Diei) reports:

After her First Amendment lawsuit set precedent last fall for student free speech rights, Memphis pharmacist Kimberly Diei agreed to a $250,000 settlement with the University of Tennessee. [The settlement was $180K to Diei, and $70K to her lawyers at FIRE. -EV]

Just a month into her studies in September 2019, UT's pharmacy school investigated Kim for her social media content focused on sexuality, fashion, and music. The college justified the investigation by using vague "professionalism" standards—standards it never provided to Kim—but ultimately dropped that first investigation.

In one tweet, Kim contributed to a trending discussion on Twitter about the song "WAP" by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, she posted a selfie and referenced lyrics from a popular Beyoncé song. [Just to be clear, the lyrics were pretty sexually themed, though that rightly didn't change the First Amendment analysis. -EV]

Unfortunately, Kim's ordeal was not unique. For years, colleges around the country have wielded professionalism codes against students for their expression even when the student's speech has no bearing on their ability to succeed in a given field. Kim's posts were wholly separate from the college, as her accounts operated under a pseudonym and did not reveal her then-identity as a student.

Yet by the following year, Kim was under a second investigation, and UT administrators voted to expel her. In the midst of preparing for exams, she appealed to the dean, who reversed the decision after hearing from FIRE. Then, FIRE sued on behalf of Kim in February 2021….

In 2024, a federal appeals court agreed, ruling that her expression—which administrators called "sexual," "crude," and "vulgar"—was "clearly protected" by the First Amendment. Crucially, in a blow to the qualified immunity that often shields government actors from paying damages for violating constitutional rights, the court emphasized that previous Supreme Court precedent and prior Sixth Circuit rulings put "beyond debate" that the First Amendment protects Kim's speech.

Here's my September post on the Sixth Circuit opinion:

From [the] opinion in Diei v. Boyd, written by Judge Chad Readler and joined by Judges Joan Larsen and Stephanie Davis:

Kimberly Diei enrolled at the University of Tennessee Health Science Center College of Pharmacy to pursue a doctorate in pharmacy. At the time, Diei maintained social media accounts under the pseudonym "KimmyKasi," where she posted about song lyrics, fashion, and sexuality. According to Diei, her social media posts neither identified her "as a College of Pharmacy student" nor "indicated any affiliation with the University of Tennessee." Those accounts would nevertheless put Diei at the center of a school investigation.

Just a month into her studies, Diei was informed by Christa George, Chair of the College's Professional Conduct Committee, that the Committee had received an anonymous complaint regarding Diei's social media activity. George explained that the Committee would review the posts to decide whether they violated the "Standards for Student Professionalism Conduct," requirements Diei asserts she was never provided. Following an investigation, the Committee unanimously held that Diei's postings were "sexual," "crude," and "vulgar" in nature, and thereby violated the College's professionalism standards. The Committee, however, did not vote to expel Diei.

The following school year, George notified Diei that the Committee had received a second complaint similar to the first. After a hearing, the Committee informed Diei that the content of the newly complained-of posts also violated the College's professionalism standards. The Committee deemed Diei's social media activity "a serious breach of the norms and expectations of the profession[]," and concluded that Diei did not "meet the threshold of professional behavior or the requirements of the Technical Standards for students." Accordingly, the Committee voted unanimously to dismiss Diei from the College. Diei appealed that decision to the school's Dean. Roughly three weeks later, the Dean reversed the Committee's decision.

Diei sued, claiming the original decision violated the First Amendment, and the Sixth Circuit held that her case could go forward:

First Amendment freedoms are somewhat constrained in the educational context. Generally speaking, "students do not 'shed their constitutional rights to freedom of speech or expression,' even 'at the schoolhouse gate.'" At the same time, public high schools and universities have considerable authority to control student speech in light of the pedagogical roles of those institutions. That is not to say the First Amendment necessarily affords the same protection to speech by a high school freshman as it does to a graduate student. Rather, the First Amendment permits teachers, administrators, and courts to consider the "'level of maturity' of the student."

The Supreme Court has directed us in weighing these competing interests. "[S]chools," we understand, "have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others." But "the leeway the First Amendment grants to schools in light of their special characteristics is diminished" when the speech at issue occurs off campus. "[T]he less the speech has to do with the curriculum and school-sponsored activities, the less likely any suppression will further a 'legitimate pedagogical concern[],' which is why the First Amendment permits suppression under those circumstances only if the speech causes 'substantial disruption of or material interference with school activities.'" …

As alleged, Diei's social media posts were unrelated to the College of Pharmacy and caused no disruption. She posted about sexuality, fashion, and song lyrics—topics that have little bearing on pharmacy studies. Her posts made no reference to her scholarship or her classmates. And she used a pseudonym to make the posts, further distancing her speech from the College; indeed, Diei alleged that her posts "never identified" her "as a College of Pharmacy student" nor "indicated any affiliation with the University of Tennessee." This is a far cry from a case like Yoder v. University of Louisville (6th Cir. 2013), where a nursing student was expelled for inappropriate blog posts. In that case, after all, the plaintiff both identified herself as a student and violated the confidentiality of her patients. Based on the allegations in the complaint, which we accept as true, Diei's speech did not identify her with the College, had no connection to her studies, and did not lead to disruption. So unless the College had a genuine educational purpose for regulating Diei's speech, her communications fell safely within the confines of First Amendment protection.

Defendants counter that they did have a legitimate pedagogical purpose: training their students to comport with the norms of the pharmacy profession. For support, they cite Al-Dabagh v. Case Western Reserve University (6th Cir. 2015). There, a medical student was denied a degree due to his asserted lack of professionalism, both inside and outside the classroom. But the basis for the student's punishment was his conduct—arriving late, sexual harassment, poor academic performance, and driving while intoxicated—not his speech.

Nor do defendants' citations to two out-of-circuit cases—Hunt v. Board of Regents of the University of New Mexico (10th Cir. 2019), and Keefe v. Adams (8th Cir. 2016)—alter this conclusion. In Hunt, a medical student was punished for online speech. But unlike here, the speech there disparaged and "harass[ed] others," including other students, albeit not by name. Keefe is similarly distinguishable. In that case, a student was removed from a nursing program after the school received complaints about his online posts. 840 F.3d at 525. Yet those posts, it bears noting, were about the school, were directed at other students in the program, and caused material disruption to the "educational experience."

Finally, recall that Diei has alleged that she was never provided with the professionalism policies that formed the basis for her discipline, even when she asked. So those policies are not properly before us. It is thus difficult, at this stage of the litigation, for us to credit the College's claim of a pedagogical purpose. For instance, the College asserts an interest in teaching students to comply with the "professional standards that practicing Tennessee pharmacists live and work under 365 days a year." Perhaps so. But because we have no record at this point whether the College ever imparted such standards, we cannot make that judgment. And even were we to agree that an interest in teaching professionalism may sometimes legitimately curtail a student's speech, the interest evaporates entirely if the College's professionalism regulations bear little resemblance to those of the profession. Again, assessing that relationship would require not only access to the policies, but also a sense of how they are enforced. Neither inquiry is one we can perform on the basis of the complaint alone. At bottom, Diei has adequately alleged that defendants lacked a "legitimate pedagogical concern[]" justifying regulation of her off-campus, online, pseudonymous speech about topics unrelated to the College of Pharmacy that caused no disruption….

And the court also concluded that, if the facts are as plaintiff alleges, defendants should be denied qualified immunity. An excerpt:

[In] Papish v. Board of Curators of the University of Missouri, … a graduate student was expelled for distributing a newspaper on campus "containing forms of indecent speech." … The Supreme Court … [held] that universities cannot rely on "conventions of decency" alone to stifle protected speech. "[I]n the absence of any disruption of campus order or interference with the rights of others," the Supreme Court explained, a university cannot "proscribe" speech based on its content—"no matter how offensive to good taste" the speech may be. The First Amendment, the Supreme Court observed, "leaves no room for the operation of a dual standard in the academic community with respect to the content of speech." …

And the court went on to say:

This is not to say that a professionalism policy may never serve a pedagogical purpose. A university may use a policy of that ilk to inculcate graduate students with the norms and expectations of their professions, preparing them for their future endeavors. In some cases, in other words, instructional purposes may give universities "space" to discipline "speech by students in professional schools that appears to be at odds with customary professional standards."

But even when a professional school adopts a policy regulating student conduct for pedagogical reasons, the policy must genuinely reflect the professional norms and provide students with sufficient notice of what activity could subject them to discipline. Without sufficient notice, the university policy risks becoming a tool for chilling student speech rather than fostering student development. This concern becomes a reality when, as alleged here, a university fails to provide students with the policy in the first place. It is exceedingly difficult to see how any professionalism policy could serve a pedagogical purpose if students are unaware of its existence.

Based on Diei's complaint, the College's treatment of her speech clearly transgressed the school's authority. Diei alleges that her speech did not concern her courses, classmates, or school, nor did it have any disruptive effect on school activities. Further, Diei alleges that she never received the professionalism policies that gave rise to her punishment. In Diei's case, then, the professionalism policies served no pedagogical purpose….

I think the proper First Amendment rule is more speech protective than the panel's analysis: Papish expressly rejected the notion that the university's "legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination" extends to "disapproved content … rather than the time, place, or manner of its distribution." And Papish expressly held that "the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech," which is to say a different standard than the First Amendment applies to the government as regulator. Or, to quote Healy v. James (1972),

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."

This means that, outside class discussions and assignments, public universities generally may not restrict otherwise protected student speech based on its content, even if they view the message of the speech as "disruptive" or not "professional." (I say "otherwise protected" because of course some speech, such as true threats of illegal conduct, solicitation of illegal conduct, and so on, is generally unprotected, even against criminal punishment or civil liability. Under such circumstances, the government as educator has the power to punish such unprotected speech through university discipline as well. Likewise, when the university has students provide patient care or client services at law school, it can restrict their disclosure of confidential material that they acquire through such mechanisms—just as the government as sovereign can restrict the disclosure of confidential material acquired by litigants in discovery.) But in any event, I think the court's result here was quite right.

Here, by the way, is Diei's speech, as alleged in the Complaint:

[60.] For example, in the following tweet, Diei contributed to a trending discussion on Twitter about the song "WAP" by Cardi B featuring Megan Thee Stallion by suggesting lyrics for a possible remix:

[62.] In another tweet, Diei defended the lyrics of "WAP" against criticism from other users—who were arguing that those lyrics were inappropriate—by pointing out that humans are inherently sexual beings:

[63.] And in another tweet, Diei joked about the amount of time she spends getting prepared to go out for the evening by referencing the popular song "Partition" by Beyoncé:

Greg H. Greubel, Katlyn A. Patton, JT Morris, and Raul A. Ruiz of FIRE (the Foundation for Individual Rights & Expression) 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.

Hey, what's new? Us? Oh, not much . . . except IJ is headed to the U.S. Supreme Court for the 13th time! On Monday afternoon, the Court granted IJ's petition for certiorari in Martin v. United States, a case that seeks to hold the FBI accountable for sending a SWAT team to the wrong house, where they traumatized an innocent family—Trina Martin, her then-seven-year-old son Gabe, and her partner Toi Cliatt, none of whom had committed any crime. When the feds refused to pay for the harm they'd caused, Trina, Gabe, and Toi sued. But the Eleventh Circuit held their claims were barred by sovereign immunity. Now, the Supreme Court has a chance to set things right and hold the gov't accountable. Read more here!

Also this week: A new Bound By Oath podcast! Renowned civil rights litigator Marshall Krause tells the story of Camara v. Municipal Court of the City & County of San Francisco, which he argued at the Supreme Court in 1967. And we tell the story of how the Fourth Amendment's protections against invasions of the home became less robust when it's a code inspector rather than a police officer knocking at the door.

After a FOIA request goes ignored, an advocacy group sues the U.S. Park Police seeking information about, among other things, pre-lawsuit settlements. The Park Police produces documents about three claims but withholds the names of the officers involved under FOIA's exception for "clearly unwarranted invasion of personal privacy." D.C. Circuit: And since the Park Police hasn't given any justification besides the idea of privacy itself, that's a no-go. Release the names. Also, no clawbacks of other FOIA-able documents that the agency produced by accident. Also also, the last vowel in "de minimis" is still an I. More FOIA news. In 2021, President Biden directed federal agencies to submit to the White House "strategic plans" to "promote voter registration and voter participation." Conservative group America First Legal FOIA-ed those plans. Sorry, holds the D.C. Circuit. The plans are exempt from disclosure under the "presidential communications privilege." The phrase "sometimes a cigar is just a cigar" is often attributed to Sigmund Freud, although there's no evidence he ever said or wrote it. We won't begin to guess what Freud would think of the difference between a "premium cigar" and a cigarette, but—according to the D.C. Circuit—it was arbitrary and capricious for the FDA to regulate them the same way without considering the differences in use patterns and health risks. Two decades ago, the D.C. fire department effectively banned beards. Which was good, maybe, for ensuring an airtight seal around facemasks, but not so good for firefighters compelled to grow beards for religious reasons. Said bearded firefighters secured an injunction banning the ban under the Religious Freedom Restoration Act. But, following COVID-19, the department effectively reintroduced the same ban because of a perceived need for firefighters to wear N95 masks. Civil contempt for violating the injunction? D.C. Circuit: Maybe. The district court should've decided despite the department's apparent good faith. There are legitimate defenses to contempt, but caution in extraordinary circumstances isn't one of them. The North Atlantic right whale is believed to have been so named because it was the "right" whale to hunt: It swims slowly and usually floats after death. Driven to near extinction by whaling, there are now estimated to be fewer than 400 North Atlantic right whales remaining, of which fewer than 100 are breeding females. To protect the whales' migration routes, the National Marine Fisheries Service issued a final rule seasonally banning vertical buoy lines used in lobster and Jonah crab trap fishing in federal waters off the coast of Massachusetts. Lobstermen challenge the rule. First Circuit: The whales win. In 1676, during the reign of Charles II ("the Merry Monarch"), the colonial governor of New York entered an order, endorsed by the Unkechaug Nation, that its members may "freely whale or fish." Is this a "treaty" that, for modern-day members of the tribe, preempts New York's prohibition on harvesting glass eels? Second Circuit: There was no "United States" in 1676 so there cannot be any preemption. Go talk to Charles III. The right of public employees to speak their minds on matters of public concern is so messy even unpublished cases draw dissents. Take, for example, this Third Circuit (unpublished) matter, in which a group of Springfield Township, Penn. cops are told they can't display "Thin Blue Line American Flags" while on the job. The majority thinks the policy fails the Pickering balancing test, while the dissent thinks that test does not require the gov't to show "actual, specific, and already-transpired harm." South Carolina death row inmate challenges his death sentence in state court as a violation of the Eighth Amendment because he claims to have intellectual disabilities. More than a year and a half later, he tries to amend his application to add a claim that he also has fetal alcohol spectrum disorder, which he argues should similarly bar his execution. The state court denies the request to amend, his intellectual disability claim fails, and he seeks habeas review in federal court. Fourth Circuit: Regardless of whether Supreme Court precedent prohibiting the execution of the intellectually disabled should be extended to people with FASD, the claim is procedurally barred. In 2024, the FTC issued new rules governing car dealerships, but two-thirds of this Fifth Circuit panel holds that the FTC failed to give sufficient advance notice of the rules, rejects the argument that the Dodd-Frank Act changed the notice requirements, and declines the FTC's invitation to wait right here for just a minute while they check with their manager about a better price on that TruCoat. Complaint: These officers should have known the suspect they had arrested needed medical attention because she'd just been in four (4) separate car accidents over the course of several minutes. Fifth Circuit: "Should have known better" may count in grade school, but around here, the constitutional standard requires them to actually have known. (Concurrence: The standard is also "it was obvious," but nobody made that argument here.) In which the Fifth Circuit holds that the Department of Transportation has the statutory authority to issue rules about airfare disclosures in general—but it can't issue this particular rule, which requires more noticing-and-commenting. Federal law prohibits Federal Firearms Licensees from selling handguns to anyone under the age of 21. Does this violate the Second Amendment as applied to adults aged 18-20? Fifth Circuit: We upheld the law in 2012, but that was before the Supreme Court told us to look to history to determine the scope of the Second Amendment's protection. And the history says 18-year-olds could keep and bear arms. State trial court makes a series of rulings (including striking defense witnesses for not being disclosed 20 days before trial even though the defense was still receiving new discovery from the prosecution as trial began) that ultimately prevent the defendant foster father from introducing evidence showing his accuser had made very similar false accusations of abuse against previous foster parents. State appeals court: Those are unfortunate mistakes, but they don't require reversal. Sixth Circuit: Those are unfortunate mistakes, and they violate the Constitution. Habeas corpus'd! All good things must come to an end, including, the Sixth Circuit reminds us, the royalties you were earning for your patent after that patent expires. For more than two decades, the Sixth Circuit has been issuing unpublished opinions saying that early termination of supervised release is "only warranted" upon a showing of "exceptionally good behavior." Tennessee man, whose behavior while on supervised release was not quite up to that standard, says the unpublished opinions are wrong. Sixth Circuit (published this time): He's right. That's not anywhere in the statute. Owner of a medical-marijuana business is convicted of failure to pay taxes and ordered to pay $2.75 mil in restitution. He appeals, arguing that—guess what?!—Congress doesn't even have the power to regulate marijuana. Sixth Circuit (unpublished): "Suffice it to say, Raich suggests that Congress . . . has the power to regulate a business that sells well over a million dollars' worth of marijuana in a year." Kentucky man who shot himself in the leg: My pistol didn't have a safety, which is unsafe and makes Sig Sauer liable for the shooting! Sixth Circuit: The trial court should have allowed expert testimony about how the pistol works, even if the experts didn't have an opinion about how this particular guy got shot in that particular leg. Dissent: Sig Sauer sells this exact pistol with a manual safety, and this guy chose to buy the version without one. Why would we assume he'd have kept the safety engaged if the pistol had one in the first place? On New Year's Eve 2018, DUI suspect is arrested and brought to the Cass County, Ind. jail. In response to some of his struggles, an officer twice slams his face into a wall, executes a leg sweep that causes him to hit his head again, slams a door into him, and performs a "hip toss" that lifts him up and slams him onto the ground. Civil-rights litigation ensues, culminating in a jury award against the officer of $400,000 in compensatory damages and $850,000 in punitive. Seventh Circuit: The punitive-damages award was not excessive, not least because, even at trial, the officer came across as "flippant." Illinois woman sues her former employer after she's fired for refusing the COVID-19 vaccine. District court: This dispute is obviously covered by your arbitration agreement. Case dismissed. Seventh Circuit: Technically, the district court should've stayed the suit pending arbitration, not dismissed it, which would've been a non-appealable interlocutory order. But the court here didn't do that. So we guess this appeal is properly before us. And it's sanctionably bad, so you get to pay your erstwhile employer's appellate expenses. Following a murder investigation in Rockford, Ill., police get a warrant and arrest a man whom a witness identified as one of the assailants. Within a few weeks, though, it's determined that DNA under the victim's fingernails doesn't match that of the arrestee. Police also confirm the arrestee has an alibi: a timecard from work and a supervisor who says it's not possible for the arrestee to have been at the murder scene. Nevertheless, the man spends 13 months in jail before the charges are dropped. He sues. Seventh Circuit: And his claims fail, since there was probable cause for the arrest warrant and the later grand-jury indictment, and none of the exculpatory evidence conclusively proved he didn't do it. Federal law makes it illegal for a non-citizen to be in the United States without permission. Iowa's legislature passed a law that makes it even more illegal. The United States sued Iowa state officials and asked for a preliminary injunction, arguing the law was preempted because it's such a federal thing that there's no room for the state variety. Eighth Circuit (issued four days after the change in administration, and apparently before any AUSAs filed anything new): Yes, the law is preempted. PI affirmed. Remember that cultural moment when then-Congressman Devin Nunes was filing defamation suits against a whole bunch of folks and media companies (including a cow on Twitter)? He didn't fare too well, although the Eighth Circuit (2021) did keep alive part of his case against reporter Ryan Lizza and the publisher of Esquire. Well, in this blast from the past he has now lost on the merits at the Eighth Circuit, affirming the district court which found that the article "Milking the System," about his family's dairy farm, was not defamatory. In this Ninth Circuit case, where most everything is under seal, all we know is this: "Client" invoked his Fifth Amendment privilege against self-incrimination during a tax-evasion investigation, leading to a grand jury to subpoena "Law Firm" for the docs and requiring a privilege log if any were withheld. "Client" then intervened to stop any privilege log, the district court ordered a log, and "Client" appealed. And prevailed, at least if the docs were provided to "Law Firm" for the purpose of legal advice (to be determined on remand). Arizona death-row inmate challenges his conviction in state court, claiming ineffective assistance of counsel at the guilt phase of his trial. When that fails, he seeks federal habeas, raising for the first time arguments that he also had ineffective assistance at the penalty phase and that he is intellectually disabled. Can the federal court hold his habeas proceedings in abeyance while he exhausts these claims in state court? Ninth Circuit: We're not certain the state courts would say the arguments are procedurally barred, so we can stay the petition while they figure that out. Dissent: It's very clear they're barred. Feds accuse a guy of using stolen Social Security numbers to apply for gov't benefits, a felony requiring a grand-jury indictment instead of just a grand-juryless information. Feds file the information in time but miss the statute of limitations for the indictment (as grand juries were suspended due to COVID-19). Guy: So let me go. Eleventh Circuit: Nope. History shows that filing the information in time is all the gov't needs to do to make its deadline. Concurrence: Our decision means prosecutors could file the information and then wait as long as they want to file the indictment. Congress should fix this. The FCC enacted a rule in 2023 that prohibits telemarketing and advertising calls/texts unless the recipient provides prior written consent—and that consent is only valid if it's given for one entity at a time and covers related subject matter. Eleventh Circuit: Congress drew a line in the text of the statute—requiring prior express consent—and the FCC stepped right over it by requiring way more. Rule vacated. Per footnote three of this Eleventh Circuit (unpublished) decision, if this plaintiff had "simply trusted the [insurance] agents' misrepresentations without reviewing the actual terms of the policies, this might be a different case." Instead, he read the contract, asked the agents about the apparent conflict between the original misrepresentations and the terms of the contract, and then simply trusted the agents' subsequent misrepresentation that he was mistaken in believing there was a conflict. So case dismissed. Under federal law, a child born outside of the United States to alien parents gains automatic U.S. citizenship upon "[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents," as long as the child is under 18 and has a green card at the time of the naturalization. But what if the legally separated parents remarry before the naturalization? Eleventh Circuit (Judge Aileen Cannon, sitting by designation): Doesn't count. Dissent: Where's that in the statute? It's not an Article III court, but your editors thought it would be a hoot to check if the Court of Appeals for the Armed Forces issued one of its relatively rare published opinions this week (they issue only about two or three dozen a year). Now buckle up for JAG: Short Circuit, in which the CAAF holds that the cumulative error doctrine does not apply to pre-trial proceedings in courts-martial. And in en banc news, the Fifth Circuit will not rehear its earlier decision holding that the Orleans Parish Sheriff's Office must abide by a 2013 consent decree and complete construction of housing for prisoners with mental health issues and medical needs. The original panel opinions drew a scathing dissent from Judge Jerry Smith, and this en banc denial draws an equally scathing dissent (this time courtesy of Judge Oldham).

Proponents of occupational licensing never claim the laws are about shutting out competition—they always claim they're needed to protect health and safety. In a new IJ report, we put those claims to the test for two of the most pervasively licensed occupations in America: barbering and manicuring. The report, Clean Cut, looks at whether nail salons and barbershops in states with differing licensing burdens for workers did better or worse when it came to health inspections. The answer was clear: There was no difference in inspection outcomes across the states. Learn more here.

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[Eugene Volokh] No One-Sided Pseudonymity in Case Against Political Candidate Alleging Revenge Porn

From Doe v. Maloit, decided today by Magistrate Judge Kathryn Starnella (D. Colo.):

Plaintiff and Defendant were married from 2006 to 2018. In April or May 2022, Plaintiff "began receiving phone calls and emails at her place of employment—a school—from strangers, who informed Plaintiff that there were compromising photographs of her online. Some had been taken by Defendant, others by Plaintiff of herself, all while they had been married. They were taken for her and Defendant's private use, and she never consented to their broader disclosure.

At some point between May and August 2022, Defendant admitted that he had previously posted the photographs to a website called RedClouds, where users can share pornographic content. The photographs then spread to other websites, some of which posted them alongside Plaintiff's name, employment information, and work contact information. Plaintiff had to bring the matter to her employer's attention and hired a lawyer to attempt to get the photographs removed from various websites, but only some of the websites have complied. Plaintiff alleges that Defendant disclosed her photographs online. She lodges three claims against Defendant: (1) disclosure of intimate images, in violation of 15 U.S.C. § 6851; (2) unauthorized disclosure of intimate images, in violation of Colo. Rev. Stat. § 13-21-1401 et seq.; and (3) a request for permanent injunctive relief against Defendant.

Defendant denies wrongdoing, alleging that Plaintiff participated in and consented to the posting of the photographs online. He "assisted Plaintiff, with her knowledge, with trying to take some photographs down since 2022." He assisted her in hiring an attorney to attempt to remove photos that had spread beyond RedClouds, but not all websites complied.

Defendant has also asserted counterclaims against Plaintiff. He alleges that he and Plaintiff were consumers of RedClouds content from 2006 to 2009, and that in 2009 or 2010, they "began using RedClouds as both content consumers and content creators." Plaintiff allegedly "explicitly consented" to posting various photographs to RedClouds, initially with her face blacked out but eventually with her face visible. Defendant alleges that the parties continued to engage in erotic photography content creation until 2022, when they were no longer married.

Around that time, the parties began having disagreements over parenting and custody, disputes which continued through August 2024. Ultimately, Defendant decided to run for office, which he announced on August 29, 2024. Given the timing of Plaintiff's Complaint, which she filed on August 29, 2024, Defendant believes his children told her about his run for office and she "timed the filing of this action to coincide with [Defendant's] announcement" in a bid to harm his reputation. Defendant lodges two counterclaims against Plaintiff: abuse of process and extreme and outrageous conduct….

The court rejected Doe's attempt to proceed pseudonymously, even though such pseudonymous litigation is pretty common in so-called "revenge porn" cases (but see Doe v. Smith (7th Cir. 2005), denying pseudonymity for similar reasons). The court stated the general rule against pseudonymity, and concluded that this wasn't one of the exceptional cases where pseudonymity was allowed:

Courts in this Circuit have permitted pseudonymous litigation under situations involving, for example, "birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families[.]" Similarly, plaintiffs alleging that they were sexually abused as minors often may proceed pseudonymously. However, courts "have generally required adult plaintiffs to proceed in their own name" even when their allegations relate to sexual assault or sexual harassment. Thus, while the Court recognizes Plaintiff's asserted privacy interests, the Court is not persuaded that the subject matter of this lawsuit necessarily justifies Plaintiff proceeding pseudonymously. Cf., e.g., Levy v. Shuster (D. Colo. 2023) (stating that the court "remain[ed] unconvinced that the subject matter of this case [i.e., cases involving "differing understandings of sexual encounters over a year-long relationship"] inherently compels pseudonymity").

This is especially true given Plaintiff's decision to identify Defendant by name in her publicly filed Complaint, which also identified him as her ex-husband of more than 11 years. This case proceeded for nearly a month before Plaintiff took any effort to shield Defendant's identity, even while he was running for public office. For his part, Defendant alleges that Plaintiff's filing of this suit was intended to harm his reputation, and he argues that she successfully caused a public frenzy. Response [#36] at 2 ("Plaintiff's multiple public filings … directly led to members of the public finding and posting Plaintiff's action on the City of Erie Facebook page, leading to a Boulder Weekly Article."). Even in this Motion, Plaintiff asks the Court to broadly enjoin Defendant's ability to discuss her or this lawsuit, without any corresponding limitations on her own speech or conduct.

To the extent that Plaintiff's and Defendant's sexual history and engagement with erotic photography are highly sensitive and personal topics, they are sensitive and personal to both parties involved. However, Plaintiff has not conducted this litigation as though it involves matters of a highly sensitive and personal nature—instead, she would cloak herself in pseudonymity, and the protections it affords, while publicly lobbing allegations at Defendant by name. {For example, on October 29, 2024, Plaintiff publicly filed her Response to Defendant's Motion for Sanctions, which reasserted her theory of the case and (ironically) lambasted Defendant for "elect[ing] to draw further attention to this matter by filing a ridiculous Answer with Counterclaims, the latter in excess of 162 paragraphs, which—much like this instant Motion—may very well be aimed at generating attention for yet another political campaign by Defendant." Of course, Defendant was required to file an Answer along with any compulsory counterclaims he had at that time.} The Court does not find that the sensitive or personal nature of the allegations warrants pseudonymity….

[T]he Court [also] does not find that "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Taking her allegations as true, the injury of which Plaintiff complains has already occurred, as far as Defendant is concerned: the photographs were allegedly taken between 2006 and 2012 and posted "as far back as 2016" before spreading to various websites along with Plaintiff's personally identifying information. Plaintiff has already brought the matter to her employer's attention and taken various remedial steps—including having her employer remove her work photograph from its website and change her work email address, hiring an attorney to attempt to remove the photographs from various websites, paying for a subscription to PimEyes, and making requests to Google to remove various URLs from its search results. Although these efforts were not completely successful, Plaintiff does not allege that Defendant is continuing to upload or disseminate these photographs.

Plaintiff admits that her identity "can potentially be gleaned from the allegations made in the pleadings thus far" and that "information regarding this lawsuit has already been made available to the public at large." More than that, Plaintiff publicly named Defendant in her Complaint and identified him as her ex-husband of more than 11 years. As a result, nearly anyone who personally knows Plaintiff or Defendant can easily identify her simply by reading her Complaint. Moreover, Plaintiff has not disputed Defendant's assertion that her allegations have already gone public on Facebook and through the Boulder Weekly article. See also A.M. ex rel. D.M. v. Poudre Sch. Dist. (D. Colo. 2024) (denying parents' and a minor plaintiff's request to proceed pseudonymously where their parents had "separately publicized their abuse allegations and this lawsuit to the press").

Any damage from this case's publicization has already been incurred; therefore, the "need for the cloak of anonymity" is not apparent. See, e.g., Lindsey v. Dayton-Hudson Corp. (10th Cir. 1979) (affirming denial of leave to proceed pseudonymously where the plaintiff "had already suffered the worst of the publicity and embarrassment"); Luo v. Wang (10th Cir. 2023) (concluding that "the injury [the plaintiff] litigated against[,] … [the defendant's previous] alleged defamation and disclosure of her private information—would not be incurred as a result of the disclosure of her identity in this case") (internal quotation marks and modification omitted).

Importantly, in finding that the injury Plaintiff complains of has already occurred, the Court does not minimize the risk that these photographs will spread further now that they are on the internet or the harm that could cause to Plaintiff—but that is neither the injury nor the parties against whom Plaintiff is currently litigating. Plaintiff has not named any websites, domain name owners, or internet users as defendants in this matter and she does not seek to enjoin the further dissemination of her photographs; rather, she is suing her ex-husband for his alleged prior act of posting her photographs online and the damage that act caused.

While she asks the Court for injunctive relief, she does not allege that Defendant has continued to disseminate photographs of her or that he is likely to do so now that he has been summoned into federal court. Thus, even though Plaintiff seeks prospective relief, her damages are predominantly retrospective in nature, and the injury she is litigating against is not likely to be incurred because of the disclosure of her identity in this case. In summary, because Plaintiff has not shown that exceptional circumstances exist warranting pseudonymity, the Court will not allow her to proceed pseudonymously….

Note that defendant lost the Nov. 5 election, getting 18.5% of the vote in the four-way race (in which the top two vote-getters got seats).

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[Eugene Volokh] Maine Constitution Forbids Revival of Civil Claims for Which Statute of Limitations Had Already Lapsed

[UPDATE 1/31/2025, 5:29 pm: As it happens, just today the North Carolina Supreme Court handed down a decision interpreting the North Carolina Constitution, McKinney v. Goins, and reached the opposite result from the Maine high court's decision below.]

An interesting (though very long) majority and dissent handed down Tuesday, in Dupuis v. Roman Catholic Bishop [UPDATE: link added]. The opinions well illustrate how many state courts interpret their state constitutions. Some very brief excerpts from the majority

Legislation reviving claims that have expired under the statutes of limitations applicable at the time of the operative events was not deemed by the framers to be a "law" within the power of the Legislature to enact…. This constitutional hostility to legislative efforts to retroactively impair rights, privileges, and/or property, viewing such efforts as beyond the Legislature's function, is reflected in the earliest of our case law [citing a case from 1823, three years after Maine became a state]….

Contemporaneous common law principles can inform the meaning of constitutional provisions because many constitutional concepts originated in the common law. Post-enactment common law and statutes can also illuminate timeless social understandings and values embedded in the Constitution. Long before the adoption of the Maine Constitution, the common law condemned the concept of retroactive liability….

In terms of sheer numbers, at the time of the adoption of our Constitution and for a lengthy period thereafter, the great majority of jurisdictions precluded the revival of claims after their statutes of limitations had expired. After the Supreme Court's decision in Campbell v. Holt (1885), in which the majority held that revival was permitted, some courts deviated from this position. If one includes jurisdictions with
constitutions that contain express anti-retroactivity provisions … then, despite the Supreme Court's view, the majority of state courts of last resort continue to adhere to the view that revival is precluded.

The Supreme Court's "right-remedy" approach, set forth in Campbell, is not persuasive because it fails to acknowledge the impact of the revival of an expired claim….

The Supreme Court's post-Campbell balancing approach is not persuasive because it is contrary to our longstanding and sound constitutional protection of vested rights….

Sociological considerations support prospective, not retroactive, elimination of statutes of limitations for sexual assaults….

There's a lot more there, of course. Some excerpts from Justice Douglas's dissent, joined by Justice Lawrence:

True, some of our prior decisions may have said or implied that lapsed claims cannot be revived. Never before, though, have we squarely confronted the issue presented by this case: whether the Maine Constitution prohibits the Legislature from enacting a statute that retroactively repeals a statute of limitations, thereby allowing a previously barred claim to proceed. I therefore do not find these prior decisions—or, more precisely, statements amounting to dicta made in the course of those decisions—to be binding or persuasive here. Moreover, the fact that the Legislature previously may not have enacted such legislation does not negate its constitutional authority to do so. Rather, it simply may spotlight the uniqueness and urgency of the circumstances prompting the Legislature to rebalance competing policies—and to take the action it did—in this particular instance….

I do not agree that the running of a statute of limitations—an arbitrary constraint on
bringing suit that "represent[s] a public policy about the privilege to litigate," first imposed, then removed, by the Legislature—amounts to a vested right consistent with those that our jurisprudence has recognized to date. To conclude otherwise, as the Court does here, effectively confers an absolute constitutional right upon an alleged tortfeasor to be relieved of having to answer to a lawsuit of this nature based on the age of the claim, regardless of the circumstances and contrary to other express constitutional guarantees. "[T]here is no such thing as a vested right to do wrong …."

The case involved a statute reviving long-expired statutes of limitations for child sexual abuse claims. I have no firm view myself on that question, but I am quite skeptical of the modern trend to allow claims that are many decades old (whether by reviving expiring statutes of limitations or having no statute of limitations on them at all). In particular, in this case the lawsuit was brought in 2022 based on alleged behavior in 1961; I can't see how justice could have effectively been done in this situation, when so many witnesses would have died, so many documents would have been destroyed, and so many memories would have faded or would have otherwise become less accurate.

I was pleased to see the majority citing Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672 (2012) several times; Michael is a colleague and friend of mine, and both he and Nathan Chapman have guest-blogged here before (though on matters other than their article).

Gerald F. Petruccelli, Scott D. Dolan, James B. Haddow, and Michael K. Martin (Petruccelli, Martin & Haddow, LLP) represent the Roman Catholic Bishop.

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[Eugene Volokh] Another Nevada S. Ct. Decision as to #TheyLied Sexual Assault Defamation Claim Brought by Nickolas Carter (Backstreet Boys)

From Tuesday's Nevada Supreme Court decision in (for more on an earlier decision in Ruth v. Carter, see here):

This appeal arises out of a defamation countersuit brought by respondent Nickolas Carter against appellants Melissa and Jerome Schuman (collectively, the Schumans). Over the span of several years, the Schumans made statements about Carter's alleged sexual assault of Melissa and other women. One of the other women, Shannon Ruth, sued Carter for sexual battery, and Carter countersued for defamation and related torts and joined the Schumans as counter-defendants. The Schumans filed an anti-SLAPP special motion to dismiss Carter's claims against them….

[Under the Nevada anti-SLAPP statute, once a court determines that] "… the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern[,]" … [the person making the claim must] show "with prima facie evidence a probability of prevailing on the claim." …

"To prevail on a defamation claim, [a public figure] must show (1) a false and defamatory statement; (2) unprivileged publication to a third person; (3) fault; (4) damages, presumed or actual; and … (5) actual malice." Actual malice is demonstrated when a statement "is published with knowledge that it was false or with reckless disregard for its veracity." … "[T]o demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the [non-moving party's] evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice." …

The Schumans … claim that Carter's declarations and evidence did not refute aspects of the allegations regarding the assault of Melissa, do not demonstrate that Melissa consented to sexual intercourse or that Jerome did not believe his daughter, and do not prove that the Schumans believed that Ruth's account of being assaulted was untrue.

Viewing the evidence in the light most favorable to him, we conclude Carter presented sufficient evidence that, if believed, would sustain a favorable verdict. Carter claimed that the Schumans fabricated Melissa's sexual assault allegations and that they, alongside Ruth and his brother Aaron Carter, conspired to defame and extort him. He conceded that he had sexual intercourse with Melissa but asserted that the sex was consensual.

In support, Carter provided 92 exhibits, affidavits, and declarations directly contradicting or undermining Melissa's allegations. For example, Carter provided a declaration from a witness present in the room on the night of the alleged rape that stated the witness saw Melissa and Carter flirting and playing with one another and that at no point did he witness Melissa upset or fearful, nor did he witness Carter act inappropriately toward her.

Carter also provided ample evidence suggesting Melissa changed her version of the events over the years, with pertinent details changing—such as whether she informed anyone in the days following the encounter or waited years, and whether she stopped working alongside Carter. All of this evidence, when viewed in the light most favorable to Carter arguably demonstrate that the sexual interactions between him and Melissa were consensual, that Melissa knew she was not sexually assaulted, and that the Schumans, Ruth, and Aaron conspired to defame Carter.

The Schumans point to their own declarations in arguing that Carter could not demonstrate actual malice. Melissa provided a declaration detailing the alleged sexual assault, her belief that Ruth was being truthful regarding her own alleged assault by Carter, and that she did not "prey on" Aaron or Ruth or coach them with what to say. Jerome provided a declaration averring that he believed to be true Melissa's recounting of the encounter and Ruth's allegations of assault, and that he did not conspire with Melissa and Ruth to extort Carter.

While these declarations demonstrate that there may be genuine disputes of material facts in this case, this court cannot weigh the evidence but rather must consider the evidence in the light most favorable to Carter. Upon doing so, we conclude that Carter provided sufficient evidence that, if believed, shows that the Schumans published defamatory statements with knowledge that they were false or with reckless disregard for their veracity….

The post Another Nevada S. Ct. Decision as to #TheyLied Sexual Assault Defamation Claim Brought by Nickolas Carter (Backstreet Boys) appeared first on Reason.com.

[Eugene Volokh] Notre Dame Pro-Abortion-Rights Professor Loses Libel Lawsuit Against Student Newspaper

An excerpt from the long opinion in Kay v. Irish Rover Inc., decided yesterday by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:

Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.

The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …

After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….

Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:

Here, we agree with the trial court that the undisputed facts established that The Irish Rover's two articles were written in good faith and that the alleged defamatory statements were not false. The October 12, 2022, article is titled "Keough School Professor Offers Abortion Access to Students." The article discusses a panel Dr. Kay participated in and her opinions on the ineffectiveness and immorality of abortion bans. The newspaper quoted Dr. Kay as stating that her "view runs afoul of Church teaching, but in other areas, [her] positions are perfectly aligned [with the Church.]"

The article included a photograph of the sign on Dr. Kay's office door, which stated, "This is a SAFE SPACE to get help and information on ALL Healthcare issues and access – confidentially with care and compassion[.]" The sign also included the letter "J" in a circle, which the article recognized to "denote Notre Dame professors who are willing to help students access abortion." In support of that statement, the article cited to a social media post where Dr. Kay stated, "'[w]e are here (as private citizens, not representatives of ND) to help you access healthcare when you need it, and we are prepared in every way. Look for the 'J'[,] Spread the word to students!'"

The article also discussed the legality and availability of Plan B and Plan C abortion pills. In particular, the article stated that, "in reference to these pills," Dr. Kay had tweeted, "'Will help as a private citizen if you have issues w access or cost. DM me [sic].'" The article described Dr. Kay's retweets of posts from groups concerning reimbursement of costs of obtaining an abortion out of state or getting Plan C pills by mail. The article stated that the sign on her office door was later removed and her tweets referencing abortions for students were later deleted. The article reported that, during the panel event, Dr. Kay was asked if her statements promoting abortion were aligned with "Church teaching and Notre Dame policy," and Dr. Kay responded that she was not actively promoting abortion, but then later clarified, "[o]h, I am doing that as a private citizen …."

{In her complaint, Dr. Kay did not specifically allege that any of the statements in the October article were untrue or defamatory…. As most of the article contains quotes from Dr. Kay's social media or the sign on her office door, she could not reasonably question the veracity of the statements in the article. It appears that her claim of defamation regarding the October article is based solely on the title of the article.}

The Irish Rover published its second article on March 22, 2023, which was titled, "Tamara Kay Explains Herself to Notre Dame Democrats." The College Democrats had invited Dr. Kay to speak about her career and research and how her work has impacted "'her activism around abortion rights post-Dobbs[.]'" In her complaint, Dr. Kay challenged the following specific statements from the article as false and defamatory: 1) that Dr. Kay was "posting offers to procure abortion pills on her office door"; 2) that Dr. Kay said to the audience, "if you have that academic freedom, you should use it"; and 3) that Dr. Kay acknowledged that the students in the crowd could not be as forward in their pro-abortion activities as she is and stated, "I can't impose that on you … but I'm doing me, and you should do you."

{During the panel discussion [before the College Democrats], an audience member asked Dr. Kay how students should have conversations about abortion "during this time" and referenced the University's statement that the students have academic freedom. Dr. Kay responded, "you have to really be fully committed to activism to be able to stick your neck out like I am right? [B]ecause I can't impose that or say you should do it. You know, you have to do what you have to do. And I think what I've come to is I'm doing me, and other folks can do them." Dr. Kay also stated, "if you don't have academic freedom, you don't have a university. You can't call it a university."}

The article also included Dr. Kay's faculty photo, which she did not give the paper permission to use. [The court doesn't analyze this photograph point separately, but generally a photographed person doesn't need to give permission for a newspaper to use the photograph; and any copyright claim would have had to be asserted in federal court by the copyright owner, which was likely the University rather than the professor. -EV]

The Irish Rover's statements in their articles concerning Dr. Kay were quotes from Dr. Kay's social media, statements paraphrasing Dr. Kay's statements at the panel event, or statements discussing Dr. Kay's prior publications. Included in its designated evidence, The Irish Rover submitted copies of the tweets referenced or quoted in the October article and a transcript from the March panel event. The newspaper also submitted articles published in 2022 and 2023 by (or co-authored by) Dr. Kay addressing access to abortion, and the burdens and negative effects of abortion bans.

Dr. Kay never explicitly stated that she would assist a student by procuring abortion pills for that student. But The Irish Rover made a reasonable inference from Dr. Kay's own statements that she would do so. It was reasonable for The Irish Rover reporters to conclude that assistance or help would include providing information to a student on how abortion medication could be obtained…. [T]he articles were not fabricated and were not based on unverified anonymous sources or sources wholly lacking in credibility. Therefore, The Irish Rover presented a prima facie case that the articles had a "reasonable basis in fact."

Dr. Kay was therefore required to designate evidence to establish that the statements lacked a "reasonable basis in fact." In response to The Irish Rover's motion to dismiss, Dr. Kay designated her own affidavit and described her only interaction with a student staff member of The Irish Rover. In particular, she stated that Joseph DeReuil had spoken with her after the September 2022 panel event but did not ask to interview her or disclose the fact that he was recording their conversation. Dr. Kay stated that DeReuil did not ask her about the sign on her office door, what she meant by "healthcare" or what the "J" symbolized. Dr. Kay averred that the "J" stood for "'Jane Doe,' which is how victims of sexual assault are typically referred to" and that she had used the "J" to express that she is "an ally for victims of sexual assault."

Dr. Kay's affidavit also quoted an email she had received from DeReuil asking for a meeting to continue their discussion about Dr. Kay's abortion position and an email received within hours of DeReuil's email from a Holy Cross student asking for Dr. Kay's assistance in procuring Plan C. Dr. Kay did not respond to either email because she assumed that "the close proximity in time" of receipt "was not a coincidence …."

Dr. Kay averred that the sign on her office door "pertained to student sexual assaults" and "did not pertain to abortion." And she claimed that a statement in the October article that she used the "panel as a platform to explain why she thought abortion bans are ineffective and immoral, complementing her work to bring abortion to Notre Dame students" was false and defamatory. Likewise, Dr. Kay claimed that The Irish Rover's statements that she offered help to obtain abortion medications and abortion services were false and defamatory. {However, as we noted above, Dr. Kay did not specifically claim that any of these statements were false and defamatory in her complaint.}

None of Dr. Kay's public statements discussed in The Irish Rover's articles referenced her specific concerns for victims of sexual assault. She expressed those concerns in private emails between herself and other University faculty members. However, her public statements, her social media posts, and her writings concerned access to abortion services or reproductive healthcare.

We therefore conclude that Dr. Kay's designated evidence does not create a genuine issue of material fact concerning whether The Irish Rover had a reasonable basis in fact to publish the statements in the two articles. The Irish Rover's reporters reasonably concluded that Dr. Kay was generally addressing access to abortion and assistance to students who needed information about procuring an abortion.

Even if Dr. Kay would be able to prove that she intended only to assist sexual assault victims who wanted an abortion, Dr. Kay would also have to prove that The Irish Rover acted with actual malice at trial….

The Irish Rover designated evidence via deposition testimony from the authors of the articles that they believed that the inferences that they made from Dr. Kay's own statements, publications, and social media posts, which they published in the articles, were true. While it is true that DeReuil could have specifically asked Dr. Kay what the "J" on her office door stood for and what she specifically meant by her statements about helping individuals who needed access to healthcare, DeReuil's failure to do so is not evidence of actual malice, particularly in light of the undisputed fact that he asked to meet with Dr. Kay before the article was published but she did not respond to the request. {The Irish Rover designated evidence that the "J" could have been a reference to the Jane Collective, a pro-choice group that offered to assist women to obtain abortions by transporting them across state lines.} …

The designated evidence thus established that The Irish Rover reporters believed that the statements in their articles were true, and, therefore, Dr. Kay would not be able to prove her claim of defamation…. For the same reasons, The Irish Rover also presented a prima facie case that its publications were made in good faith….

Jim Bopp and Taylor C. Shetina (The Bopp Law Firm, PC) represent the Irish Rover.

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