Eugene Volokh's Blog, page 177

[Jonathan H. Adler] Was It Legal for Trump to Fire Seventeen Inspectors General Without Notice?

At the tail end of last week, President Trump fired seventeen inspectors general across a number of agencies (including some IGs that he himself had appointed during his first term). Of note, Trump did not provide Congress with the thirty-days notice that is required by federal law.

Some, such as the Washington Post's Ruth Marcus, believe this act was "blatantly illegal." Others, such as Harvard Law's Jack Goldsmith, are not so sure. Goldsmith offered a nuanced analysis for the Lawfare Blog that begins:

On Friday night, President Trump removed at least 17 inspectors general, the executive branch watchdogs who conduct audits and investigations of executive branch actions. The removals are probably lawful even though Trump defied a 2022 law that required congressional notice of the terminations, which Trump did not give. Trump probably acted lawfully, I think, because the notice requirement is probably unconstitutional.

The real bite in the 2022 law, however, comes in the limitations it places on Trump's power to replace the terminated IGs—limitations that I believe are constitutional. This aspect of the law will make it hard, but not impossible, for Trump to put loyalists atop the dozens of vacant IG offices around the executive branch. The ultimate fate of IG independence during Trump 2.0, however, depends less on legal protections than on whether Congress, which traditionally protects IGs, stands up for them now. Don't hold your breath.

That sounds about right to me. Here, as in many areas, the real question is whether Congress will defend its own prerogatives and power as a coordinate branch--and there is ample reason to doubt whether (m)any congressional Republicans have such fortitude.

In any event, Goldsmith's entire analysis is worth a read for those interested in the subject.

 

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[Jonathan H. Adler] Justice Thomas Is Not Happy with the Sixth Circuit (Again)

It may have been easy to overlook with all that's going on this week, but on Monday Justice Thomas (joined by Justice Alito) dissented from the denial of certiorari in Davis v. Smith, a case from the U.S. Court of Appeals for the Sixth Circuit in which a divided panel granted a petition for a writ of habeas corpus in an unpublished opinion.

As I have noted many times before, the Sixth Circuit has had something of a tradition of being more generous in granting habeas petitions than the Supreme Court would like. This seems to happen less than it used to, largely due a change in the court's composition, but still happens occasionally when there is an unrepresentative panel, and that appears to have been the case here.

Justice Thomas, for his part, thinks the Sixth Circuit should corral outlier habeas decisions through rehearing en banc. Short of that, he would like the Supreme Court to act. His dissent begins:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sharply limits the power of federal habeas courts to review state criminal convictions. The statute permits relief only when there is "no possibility fair-minded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 562 U. S. 86, 102 (2011). Unfortunately, some Sixth Circuit judges have "acquired a taste for disregarding AEDPA" and our cases on how to apply it. Rapelje v. Blackston, 577 U. S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari). The decision below is the latest example of this practice. Because I would not overlook the Sixth Circuit's blatant and repeated disrespect for the rule of law, I respectfully dissent.

After detailing the facts of the case and explaining why he believes Judge Thapar's dissent was correct, Justice Thomas concludes:

The decision below is the latest in a long line of Sixth Circuit AEDPA errors. This Court has reversed the Sixth Circuit at least two dozen times for misapplying AEDPA. See Shoop v. Twyford, 596 U. S. 811 (2022); Brown v. Davenport, 596 U. S. 118 (2022); Cassano v. Shoop, 10 F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 earlier cases in which this Court reversed the Sixth Circuit "for not applying the deference to state-court decisions mandated by AEDPA"). And, these reversals only scratch the surface of the Sixth Circuit's defiance. See, e.g., Shoop v. Cunningham, 598 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Shoop v. Cassano, 596 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Blackston, 577 U. S. 1019 (opinion of Scalia, J.). "That court's record of 'plain and repetitive' AEDPA error is an insult to Congress and a disservice to the people of Michigan, Ohio, Kentucky, and Tennessee." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13) (citation omitted). The Sixth Circuit can and must do more to correct its own errors. See ibid.

Some "reluctance in deploying en banc review is understandable," but "only to a point." Id., at ___ (slip op., at 14). "The Sixth Circuit's habeas problems are well past that point—as evidenced by the depressing regularity with which petitions like this one reach us." Ibid. When wayward panels refuse to apply AEDPA, hopefully, the Sixth Circuit will correct its errors by rehearing the case en banc. See 28 U. S. C. §46(c); Fed. Rule App. Proc. 40(c).

This Court also has a job to do. While "primary responsibility for the Sixth Circuit's errors rests with the Sixth Circuit," we too must "correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13). I would have summarily reversed the judgment below to ensure that federal courts do not exceed their very limited role in collateral review of state criminal convictions. I respectfully dissent from the denial of certiorari.

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[Jonathan H. Adler] D.C. Circuit Website Update

Last fall, and again earlier this year, I complained about how the U.S. Court of Appeals for the D.C. Circuit's website upgrade actually downgraded the site's usability. In particular, I raised concerns about the elimination of opinion search capacity.

Since then, the website has been modified. There is now a basic Google search function on the website's opinion locator. This is still inferior to what the site had before, and far inferior to the search capacity on some other circuit court websites (such as that of the Sixth Circuit), but it is an improvement and does enhance public access to the work of this important appellate court.

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[Josh Blackman] Today in Supreme Court History: January 29, 1923

1/29/1923: Justice Edward Sanford takes oath.

Justice Edward Sanford

 

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[Ilya Somin] Trump's Attempt to Usurp Congress's Spending Power

(Photo 181642336 © Zimmytws | Dreamstime.com)

The Trump Administration is undertaking what amounts to a wide-ranging assault on Congress's power of the purse, seeking instead to usurp authority over federal spending. Today, the Office of Management and Budget issued a memo mandating a "temporary pause" on the disbursement of nearly all federal grants allocated by Congress, with the important exception of those going "directly to individuals" (as opposed to organizations and state and local governments). As in his first term, Trump is again planning to deny federal funds to sanctuary jurisdictions unless they accept his dictates on immigration policy. Earlier, he suspended nearly all foreign aid programs, except those for Israel and Egypt. Trump also recently threatened to withhold disaster relief funds from California, unless they adopt his preferred changes to state election law. More generally, he and his underlings have far-reaching plans to "impound" federal spending they disapprove of.

In combination, this is a massive assault on Congress' power over federal spending. The Spending Clause of the Constitution is clear in giving Congress, not the president, the power to allocate federal spending. When it comes to conditions imposed on grants to state and local governments, the Supreme Court has long made clear that they too must be imposed by Congress, and meet a number of other requirements, as well. Such conditions must, among other things, 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g. - grants for health care or education cannot be conditioned on immigration enforcement), and 3) not be "coercive." Thus, for example, even Congress could not condition disaster aid on changes in state election law, because the two issues are not related.

Some might argue that many of the Administration's actions on spending are no big deal because they are only "temporary." But if the White House can "temporarily" withhold congressionally allocated funds for a month, why not for two months, or for two years? There is no logical stopping point here. And, indeed, Russell Vought, Trump's nominee to head the Office of Management and Budget, has argued that the president has a general power to "impound" congressionally authorized spending for as long as he wants.

Trump isn't the first president to impinge on Congress's spending power. Joe Biden, for example, did so by trying to forgive hundreds of billions of dollars in federal student loans, without proper congressional authorization. I condemned his action, and supported the Supreme Court's decision invalidating it. But Trump's assault on congressional spending authority is distinctive in its sweeping, all-encompassing nature. Previous presidents, at least since Richard Nixon, didn't claim any such limitless power to impound any and all federal funds.

In some cases, of course, Congress delegates some discretion to the president, on how to allocate particular types of funds. There is a longstanding debate about how broad such delegations can be before they start to violate constitutional nondelegation constraints. But that is distinct from claiming a sweeping power to withhold - even temporarily - any and all federal funds.

I believe there is way too much federal spending, and have long argued it would be good to make both states and many private organizations less dependent on various federal grants. But that goal cannot and should not be accomplished by the unconstitutional means of giving the president unilateral control over federal spending. It is dangerous to give such vast power to any single man.

Moreover, in many cases, the Trump Administration's objective is not to save money, but to use the threat of withholding pressure grant recipients into obeying the White House's dictates - as in the case of sanctuary cities and California. The goal is to further centralize power over many areas of public policy, not to put the federal government's fiscal house in order. A broad impoundment power would give the president enormous potential leverage over state and local governments, and many private organizations. In this way, Trump's impoundment and withholding plans are a threat to federalism, as well as separation of powers.

Legal scholar Zachary Price has published an excellent critique of the (weak) case for the constitutionality of impoundment. Georgetown law Prof. Steve Vladeck has a more thorough analysis and critique of the "temporary" grant funding freeze. As he notes, the measure violates the Impoundment Control Act of 1974, as well as the Constitution:

The question of whether a President can refuse to spend—to "impound"—funds Congress has appropriated for a designated purpose is one that has come up every so often in American history, albeit not on this scale. Sometimes, Congress passes statutes that give at least some spending discretion to the President. But absent such authorization, the prevailing consensus has long been that Congress's power of the purse (the Spending Clause is the very first enumerated regulatory power that the Constitution confers upon the legislature) brings with it broad power to specify the purposes for which appropriated funds are to be spent—and that a broad presidential impoundment power would be inconsistent with that constitutional authority….

Even the Justice Department's Office of Legal Counsel, which tends to err on the side of the President in these kinds of separation-of-powers disputes, concluded in 1988 [under Ronald Reagan] that the overwhelming weight of authority "is against such a broad power in the face of an express congressional directive to spend…"

Thus, even without the Impoundment Control Act, the kind of across-the-board impoundment the OMB memo is effectuating, even temporarily, should pretty plainly be unconstitutional.

But the Impoundment Control Act appears to resolve the illegality of this move beyond dispute. Enacted in response to an unprecedented volume of impoundment efforts by President Nixon, the Act creates a procedural framework within which the President can attempt to impound certain appropriated funds. Specifically, the ICA creates a fast-track procedure for Congress to consider a President's request (a "special message") to rescind funds he identifies for reasons he specifies.

Under the statute, the President may defer spending those funds for up to 45 days following such a request (which, it should be noted, he hasn't made yet). But if Congress does not approve the President's rescission request within 45 days of receiving it, then the funds must be spent….

Vladeck goes on to explain why the ICA is constitutional and why the Supreme Court should (and in his view likely will) rule against the administration if this issue comes before them.

UPDATE: A federal court has temporarily blocked Trump's grant spending freeze. This is just an "administrative" stay, so does not - so far, at least - signal the judge's position on the merits.

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[Eugene Volokh] Mother Convicted of "Unlawful Posting of a Message" for Website Sharply Criticizing Woman Who Accused Mother's Son of Rape

From People v. Dingee, decided Friday by Michigan Court of Appeals Chief Justice Michael Gadola and Justices Kirsten Frank Kelly and Robert Redford:

This case has its origins with two young adults—SK [defendant's son] and the victim—who were close friends in high school and for a time after high school…. In June 2020, the victim confronted SK at [a] party and loudly and repeatedly yelled that he had raped her [at an earlier party]. According to SK, a crowd of people chased him back to his friend's car, and his friend drove him away. Approximately two months later, a former girlfriend contacted SK and arranged to meet with him at night in a secluded park. The former girlfriend allegedly lured SK to the park so that a group could ambush him. At this arranged meeting, SK was attacked. Defendant blamed the victim for the attack on her son, even though there was no evidence that the victim planned, encouraged, or participated in it.

Defendant created a website, titled "[Redacted by court]Lies.com," through which she accused the victim of lying. On that website, defendant attacked the victim's reputation and posted images of the victim that included details that would allow others to identify the victim's social media accounts.

Defendant also posted what she deemed to be evidence that the victim fabricated her claim against SK. Defendant asserted that the victim was responsible for the attack on her son and posted images of his injuries. In addition to the website, defendant posted numerous messages and comments on Facebook targeting the victim and referring people to the website she had created. She also eventually made TikTok videos about the victim.

After the victim began receiving numerous threats and comments from third parties on her social media accounts, the victim was forced to close the accounts. She testified that she also quit school and work, and she moved back home for her own safety.

Dingee was convicted for violating the "unlawful posting" statute, MCL 750.411s, which reads, in relevant part:

(1) A person shall not post a message through the use of any medium of communication … without the victim's consent, if all of the following apply:

(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact [by third parties] with the victim.

(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested….

The court upheld the conviction, reasoning that such speech was punishable as "speech integral to criminal conduct." The court acknowledged that, under People v. Burkman (Mich. 2024),

[T]he speech-integral-to-criminal-conduct exception cannot be triggered just by speech itself being a violation of a law, even a law that bans conduct as well as speech. Instead, for the exception to apply, the speech must be integral to some conduct or scheme that is illegal in nature and independent of the speech that might be used to facilitate or accomplish the conduct or scheme.

Yet despite that, the court concluded that this exception justifies punishing the speech when it's about a private figure and deals with what the court views as a matter of private concern (or a "private vendetta"):

The speech-integral-to-criminal-conduct exception generally applies to stalking and cyberstalking statutes, and, on that basis, this Court has rejected First Amendment challenges to those statutes, stating that "posting a message in violation of MCL 750.411s would not constitute protected speech because the message is integral to the harassment of the victim insofar as it leads to, and is intended to cause, unconsented contacts that terrorize, frighten, intimidate, threaten, harass, or molest the victim." Buchanan v. Crisler (Mich. App. 2018).

Although the speech-integral-to-criminal-conduct exception may properly apply to the messages prohibited under MCL 750.411s, this Court has nevertheless limited the application of that exception, which must be examined on a case-by-case basis. The exception does not apply if the person posted his or her message about a public figure and on a matter of public concern, because the First Amendment affords the highest protection for speech about public figures on matters of public concern. Buchanan. [Later in the opinion, the court phrases this rule as being that "MCL 750.411s(1) cannot be used to criminalize a message that targets a public figure or addresses a matter of public concern" (emphasis added), which Buchanan also at times mentions as the rule. -EV]

The trial court correctly determined that defendant's posts about the victim, which she posted on Facebook and her website, did not involve protected speech. Although there was evidence that defendant was angry about the handling of her son's assault case by the prosecutor and the police department, she did not create the website about the prosecutor or the police department—she created a website about the victim. The images and commentary posted on that website demonstrate that the purpose of the website was to demean and disparage the victim. There was nothing on the website that suggested that the goal of the website was to discuss, or bring to light, deficiencies in the police department or with the prosecutor's office, which only tangentially involved the victim. To the extent that defendant mentioned the prosecutor and police departments, she did so in the context of attempting to solicit aid in holding the victim to account for a purportedly false accusation against SK.

Defendant suggests that merely mentioning the prosecutor's office, the police department, or other persons who allegedly participated in the attack on her son in some social media posts was sufficient to invoke the protections of the First Amendment for all her comments and posts. We disagree. The context amply demonstrated that defendant focused her comments and posts on the victim as a private person over a private dispute, and any mention of public issues, public figures, or public entities within the posts directed at the victim was—at best—a "thinly veiled attempt to immunize a private harassment campaign as a matter of public concern." …

The victim was plainly not a public figure for purposes of the First Amendment and the evidence showed that defendant's comments were all about the victim or directed at the victim as a private person. To the extent that defendant made any comments about public figures—such as police officers or the prosecutor—the comments were tangential to her campaign to dehumanize and bully the victim, and the posts that defendant made about the victim did not relate to any "matter of political, social, or other concern to the community" and were not "a subject of legitimate news interest." Rather, defendant's posts were directed at the victim as a private person and as part of a private vendetta that defendant brought into public for personal reasons. Consequently, the trial court did not err when it determined that defendant was not entitled to an instruction concerning commentary on public figures or matters of public concern because the facts did not support such an instruction….

The evidence showed that defendant began her campaign by creating a website, through which she accused the victim of lying, and used her Facebook platform to direct followers and viewers to that website. On the website, defendant informed the viewer that she created the website because the victim refused to tell the truth about her "'rape,' about pretty much everything." Although defendant claimed that the website was not limited to discussing the victim, she made it clear that she was "done with pretty little liars making false allegations and ruining lives for sport." In the body of the website, defendant asserted that the victim's claims against SK were provably false, and she further claimed that the victim set in motion the vicious attack on SK that nearly caused his death. The content on the website demonstrates that defendant was focused on the victim and that her goal was to destroy the victim's credibility and to convince visitors to the site that the victim was responsible for the attack on SK.

A jury considering the evidence at trial could readily infer that defendant's goal was to get others to act to accost or harm the victim. Specifically, she wanted the victim's life to change "in a way that the darkness becomes scary in a very real way." Defendant makes much of the post in which she purportedly disclaimed the notion that she wanted to harm the victim; however, to the extent that defendant encouraged her followers not to threaten the victim, she nevertheless made it clear that she had no sympathy for anyone harmed by her posts….

In order to prove the charge at issue, the prosecutor had to prove that "[c]onduct arising from posting the message" both would cause a reasonable person "to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested" and did in fact cause the victim to feel those things. Viewing the evidence in the light most favorable to the prosecutor, there was substantial evidence to support the causal relationship. The victim read several messages that she received into the record at trial. One was from a student at a different high school, who confronted the victim in a post about "ruin[ing] that kid's life." Another messenger told the victim: "'You're what's wrong with society. They should have thrown you into the river and let you drown, whore.'" Examining these messages in the light most favorable to the prosecutor, a reasonable juror could infer from it that the sender had visited defendant's website and adopted her view that the victim was primarily responsible for what happened to SK….

For decisions holding that the "speech integral to criminal conduct" exception doesn't apply to such statutes (without regard to whether the speech was on matters of private concern or about private figures), see People v. Relerford (Ill. 2017), Matter of Welfare of A.J.B. (Minn. 2019), State v. Doyal (Tex. Crim. App. 2019), and State v. Shackelford (N.C. App. 2019). To quote A.J.B.,

The State argues that Minn. Stat. § 609.795, subd. 1(3), reaches only speech integral to criminal conduct because repeatedly delivering messages to the victim that the actor intends to cause the victim to feel abused, disturbed, or distressed is illegal in Minnesota. This argument, as noted above, is circular—the speech covered by the statute is integral to criminal conduct because the statute itself makes the conduct illegal. That is not the test for speech integral to criminal conduct.

For a decision rejecting the view that speech on matters of private concern can be restricted as "harassment," "stalking," and the like, see Bey v. Rasawehr (Ohio 2020), and State v. Tracy (Vt. 2015). I have written in more detail about these matters in Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases) and One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking".

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[Ilya Somin] My New Just Security Article On Trump's "Invasion" Executive and its Dangerous Implications

Today, Just Security published my article on "The 'Invasion' Executive Order and its Dangerous Implications." Here is a brief excerpt:

A number of crucial issues in immigration law and policy now turn on the meaning of a previously little-noticed term in the Constitution: "invasion." The Trump administration and some red state governments claim that illegal migration and drug smuggling across the southern border qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798. If this ill-founded argument is not rejected by the courts, it would have dangerous and far-reaching implications. Among other things, it would empower the federal government to detain people without charge or trial, and open the door for states to engage in war with neighboring foreign nations without congressional authorization.

The rest of the article explains in detail why the theory that illegal migration and drug smuggling qualify as "invasion" is wrong, why allowing it to stand would have a variety of dangerous implications, and why courts should not punt the issue by ruling that the definition of "invasion" is a "political question." See also my March 2024 Lawfare article and Fifth Circuit amicus brief on related issues.

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[Eugene Volokh] Devin Nunes Loses Defamation Appeal Against Ryan Lizza and Esquire

From Nunes v. Lizza, decided yesterday by Eighth Circuit Chief Judge Steven Colloton, joined by Judge James Loken and Bobby Shepherd:

Devin Nunes, a former Member of Congress from California, sued journalist Ryan Lizza and Hearst Magazine Media, Inc., for defamation…. On September 30, 2018, Esquire (then owned by Hearst) published an online article, written by Lizza, entitled "Devin Nunes's Family Farm Is Hiding a Politically Explosive Secret." Viewed in the light most favorable to the plaintiffs, the article implicitly accused Nunes and his family of conspiring to hide the fact that NuStar Farms employed undocumented labor. The article was republished in the November 2018 print edition of Esquire magazine, this time entitled "Milking the System."

The article included statements about Nunes and his family hiding that the family farm moved from California to Iowa over a decade earlier. The article suggested that the family concealed the move in part because "Midwestern dairies tend to run on undocumented labor."

The article quoted two sources asserting firsthand knowledge that NuStar farms hired undocumented labor. One source personally sent undocumented workers to the farm. The other source, an undocumented immigrant, claimed to have worked at NuStar. Viewed in the light most favorable to the plaintiffs, the article left the reader with the impression that Nunes and his family were conspiring to hide a "politically explosive secret" that the farm had moved to Iowa and employed undocumented labor….

Nunes sued Lizza and Hearst … alleg[ing] express defamation based on eleven assertedly false statements in the article. The lawsuit also claimed defamation by implication, alleging that the article falsely implies that Nunes "conspired or colluded with his family and with others to hide or cover-up" that NuStar Farms "employs undocumented labor." … {This court [in 2021] affirmed the district court's dismissal of the express defamation claim but reversed and remanded for further proceedings on the claim for defamation by implication. [See this post. -EV]}

[As to the implied defamation claim,] Nunes presented insufficient evidence that he is entitled to damages, so we need not address other elements of his claim.

A defamation claim under California law [which applies to Nunes's claims -EV] requires a plaintiff to prove (1) a publication that is (2) false, (3) defamatory, (4) and unprivileged, and (5) that causes special damage. California Civil Code § 48a governs the types of damages a plaintiff may recover in a defamation action: special, general, and exemplary damages. Special damages are "all damages" to the plaintiff's "property, business, trade, profession, or occupation." General damages, on the other hand, are "loss of reputation, shame, mortification, and hurt feelings." Exemplary damages are additional damages recovered "for the sake of example and by way of punishing a defendant."

To recover "general damages" and "exemplary damages," the plaintiff must serve the publisher with a "written notice specifying the statements claimed to be libelous and demanding that those statements be corrected." The notice and demand must be served within twenty days after the plaintiff discovers the publication of the defamatory statements. If a plaintiff does not follow this process, then he may recover only "special damages."

The district court correctly concluded that Nunes is eligible, at most, to recover only special damages. Nunes failed to follow California's notice and demand statute for the recovery of general and exemplary damages. The article was published on September 30, 2018. Nunes sent a demand to Lizza and Hearst almost a year later, and there is no showing that he first discovered the article within twenty days before the demand. Therefore, Nunes may not recover general or exemplary damages, and the case turns on whether he suffered special damages.

Special damages "encompass only economic loss" and "must be pled and proved precisely." The plaintiff must provide evidence of "the nature and extent of the loss" to recover. "A general allegation of the loss of a prospective employment, sale, or profit will not suffice." Nunes claims that he suffered special damages because the article impaired his future career opportunities, impacted his ability to raise funds, and damaged his election campaign for Congress in 2018.

Nunes prevailed in his re-election campaign of 2018 and thus has not shown damage to his ability to secure re-election. He also has not presented sufficient evidence that his ability to raise funds was diminished as a result of the article. While he claims that two to three dozen companies declined to give money to his campaign, he produced no evidence to support this assertion—not even the names of the alleged companies. Instead, the evidence showed that Nunes's campaign funding steadily increased each election cycle. From 2014 to 2016, Nunes received over $2 million in funding. From 2016 to 2018, he accumulated nearly $13 million. And from 2018 to 2020, he collected over $26 million. Nunes therefore did not produce evidence of his diminished ability to raise campaign funds.

Nunes also failed to present sufficient evidence that the article impaired his prospects for employment. He states that he should have enjoyed more employment opportunities as a former Member of Congress with attendant experience. But general allegations of loss of prospective employment are insufficient to prove special damages. Nunes did not produce evidence that he sought any particular position or present evidence of employment opportunities that were available to other former Members of Congress who were similarly situated. The only evidence regarding Nunes's employment shows that after he retired from Congress, he became the chief executive officer of Trump Media & Technology Group, Corp., with a starting salary of $750,000. The job, Nunes admits, was secured "based on the strength of Congressman Nunes's reputation." Nunes thus did not produce evidence to support his allegation that he suffered economic loss as a result of the article….

[As to the NuStar plaintiffs' defamation claim,] there is insufficient evidence to create a genuine dispute of material fact on the issue of injury and affirm the district court's judgment on that basis.

To succeed in an action against a media defendant under Iowa law [which is applicable to the NuStar claims -EV], a plaintiff who is a private figure must prove "(1) publication (2) of a defamatory statement (3) concerning the plaintiff (4) in negligent breach of the professional standard of care (5) that resulted in demonstrable injury" to the plaintiff. A plaintiff must show "actual reputational harm when suing a media defendant, and not merely emotional distress or humiliation, before he or she may recover for any parasitic damages such as personal humiliation or mental anguish."

The NuStar plaintiffs argue that their business suffered economic harm after the article was published. They claim that one person stopped doing business with NuStar Farms as a result of the article. But the NuStar plaintiffs failed to produce evidence that the suggested business relationship existed, let alone that the other party discontinued the association. This bare assertion of lost business is insufficient to establish a cognizable injury.

To counter the claim of injury, Lizza and Hearst produced evidence that NuStar's revenues and profits increased after the article's publication. Lizza and Hearst also produced an expert who determined that the NuStar plaintiffs did not suffer lost profits or diminution of business value. The NuStar plaintiffs respond that other factors contributed to the increases in revenues and profits. Once Lizza and Hearst produced evidence to support their motion, however, the NuStar plaintiffs were required to set forth specific facts to establish a genuine dispute for trial. They failed to do so, and the record is insufficient to support a finding that the NuStar plaintiffs suffered economic harm.

The NuStar plaintiffs also argue that they suffered reputational harm. They point to evidence that the farm started to receive threatening phone calls after the article was published. The plaintiffs also produced evidence of negative comments and reviews about NuStar from users of social media.

To prove injury to reputation [under Iowa law], however, a plaintiff must show that the plaintiff had a particular reputation before the article and that people thought worse of the plaintiff after reading the article…. [T]he NuStar plaintiffs did not produce evidence of a good reputation before the article was published…..

Jonathan R. Donnellan, Ravi V. Sitwala, Nathaniel S. Boyer, Sarah S. Park, Nina N. Shah, and Kristen L. Hauser represent defendants.

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[Josh Blackman] An Introduction To Constitutional Law Video Series on YouTube

With the new semester afoot, I wanted to remind everyone that the Foundation for the Constitution has posted the entire video library for An Introduction To Constitutional Law. This series will cover more than 100 Supreme Court cases everyone should know. I will include the playlists here.

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[Josh Blackman] Today in Supreme Court History: January 28, 1916

1/28/1916: President Wilson nominates Louis Brandeis to the Supreme Court. He would be confirmed on June 1, 1916.

Justice Louis Brandeis

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