Eugene Volokh's Blog, page 200

[Eugene Volokh] Defendant "Admitted to Wearing the White Hood and Saying the Racial Slur," but Claimed "He Had Worn the White Hood Because It Was Cold Outside"

From Whitaker-Blakey v. State, decided two weeks ago by Indiana Court of Appeals Judge Rudolph Pyle III, joined by Judges Leanna Weissmann and Paul Felix:

In January 2024, … [police] Officer Phillips …, who is a black woman, parked her unmarked police car in the Muncie City Hall parking lot. Officer Phillips was dressed "business casual" with her "gun and badge on" over her blouse. Officer Phillips exited her car and began walking around the rear of it. Suddenly, a man "popped up" from behind a parked, marked police car in the parking lot about ten feet away from Officer Phillips.

The man was wearing a "white hood" with the "eyes cut out" and had a backpack. While Officer Phillips was looking in the man's direction, the man stepped closer to her and said the word "nigger[.]" The man did not say anything else to Officer Phillips and did not make any gestures or hand movements towards Officer Phillips. Officer Phillips was the only person in the parking lot with the man.

Officer Phillips "tried to keep an eye on" the man while walking "briskly" into the building. The man started walking away and removed the white hood….

When the man was later found and arrested,

Officers found in Whitaker-Blakey's possession a white pillowcase with holes cut out for the eyes. During the interview, Whitaker-Blakey admitted to wearing the white hood and saying the racial slur. However, Whitaker-Blakey told Sergeant Winningham that he had worn the white hood because it was cold outside.

Whitaker-Blakey also told Sergeant Winningham that he had not directed the racial slur at Officer Phillips, but instead, had directed the racial slur to other white men across the street. Whitaker-Blakey told Sergeant Winningham that he believed that Officer Phillips possibly was a "CIA operative – FBI – or a detective." Whitaker-Blakey also told Sergeant Winningham that he had gone to a "meeting" of a white supremacist group and "had more knowledge than [Sergeant Winningham] had of these groups." Whitaker-Blakey told Sergeant Winningham that he was not a member of a white supremacist group….

Whitaker-Blakey was prosecuted for making a threat to "unlawfully injure the person threatened," and was convicted in a bench trial (at which "Officer Phillips testified that she had been the only person nearby and definitely the only person of color in the parking lot when Whitaker-Blakey had said the racial slur"). The trial court stated, among other things,

Mr. Whitaker-Blakey, you were [ ]dressed as a person who is typically identified as a Ku Klux member. When I look at these exhibits – that's immediately what comes to mind.

* * * * *

[W]hat I take [from] the circumstances surrounding you being crouched down behind a vehicle – wearing a hood – popping up – stepping towards Officer Phillips and saying nigger – is that you want her to feel like you're going to commit a crime against her – injure her – make her fight – make her do something against her will which is defend herself. That's why it was a threat. If you'd stated that to not just a black female, but to any[ ] black person in the manner in which you did – that is a threat, and I believe it was your intention to cause that threat because of the way you conducted yourself.

The trial court also "found that it did not consider Whitaker-Blakey's justification for wearing the white hood – due to the cold weather – to be credible."

The court affirmed:

Before assessing the merits of this case, we note that it is undeniable that the word "nigger used conventionally – namely as an insult – continues to be an oft-heard feature of the soundtrack of American racism at its most base and violent. Any serious discussion of the N-word and proper ways to respond to its various uses must include an appreciation of the persistent weaponization of nigger by racists." Randall Kennedy, Nigger: The Strange Career Of A Troublesome Word x (Pantheon Books rev. ed. 2022). The use of such a racial slur "flows from the fountain of purpose to injure."

Additionally, it is historically settled that the Ku Klux Klan is a violent white supremacist organization with a history of terrorizing people of color, black people in particular. Since the Ku Klux Klan's inception in 1866, it has "employed tactics such as whipping, threatening to burn people at the stake, and murder." The symbols associated with the Ku Klux Klan are also well known and include the burning cross, white hood, and mask….

Turning back to the case at hand, our review of the record reveals that Whitaker-Blakey crouched behind a parked police car while wearing a white hood with holes cut out for his eyes. When Officer Phillips parked nearby and walked around her unmarked police car, Whitaker-Blakey stood up, approached Officer Phillips, and said the word nigger. Officer Phillips briskly walked into Muncie City Hall because she feared for her safety. Whitaker-Blakey walked away and removed the white hood.

Whitaker-Blakey's statement was directed towards Officer Phillips. The context of Whitaker-Blakey's statement was one in which Whitaker-Blakey popped up from behind a parked car and approached a black, female officer, who was alone in a parking lot, while wearing a white hood with eye holes cut out of it. Whitaker-Blakey told Sergeant Winningham that he had gone to a "meeting" of a white supremacist group and "had more knowledge than [Sergeant Winningham] had of these groups." Further, Officer Phillips reacted with fear due to Whitaker-Blakey's act. Officer Phillips specifically testified that she had feared for her safety and associated the white sheet with the Ku Klux Klan, lynchings, murders, and rapes of black women. As a result, we hold that Whitaker-Blakey's use of the word nigger while wearing a white sheet on his head demonstrates a clear intent to communicate a threat to Officer Phillips, who was a law enforcement officer.

Whitaker-Blakey attempts to argue that he had not directed the word nigger at Officer Phillips and that he had only worn the white sheet on his head to "stay warm" during a "cold January morning[.]"But, Whitaker-Blakey made these same arguments at his bench trial, and the trier of fact did not find these arguments to be credible….

Whitaker-Blakey also argues that there is insufficient evidence that he intended that Officer Phillips be "placed in fear that the threat w[ould] be carried out." In support of his contention, Whitaker-Blakey notes that aside from Officer Phillips' testimony regarding her fear of physical harm, "no one at the trial actually attempted to specifically articulate what Whitaker-Blakey's threat actually entailed." However, the trial court inferred through Whitaker-Blakey's actions – crouching behind a car, popping up wearing a white hood, stepping towards Officer Phillips, and calling her a nigger – that Whitaker-Blakey expressed an intention to unlawfully injure Officer Phillips. Based on our review of the record and historical context of his actions and the word that was uttered, we are led to the same reasonable inference made by the trial court. Accordingly, we affirm the trial court's judgment.

Megan Smith (Deputy Attorney General) represents the state.

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[Eugene Volokh] Court Orders Unsealing of Part of Declaration by Giuliani's Ex-Lawyers in Georgia Election Workers' Defamation Case

Some excerpts from Freeman v. Giuliani, decided Monday by Judge Lewis Liman (S.D.N.Y.) (read the whole opinion for more details):

[Earlier,] the Court permitted the filing under seal of certain paragraphs of the declarations of Kenneth A. Caruso and David Labkowski (collectively, "Prior Counsel") to withdraw as counsel for Defendant Rudolph W. Giuliani ("Defendant") in this case. The Court recognized that there was a common law and First Amendment right of access to documents filed in public court, but held that there were countervailing factors that supported sealing of those paragraphs that contained privileged information, specifically paragraphs 4 to 7 in Mr. Caruso's declaration.

In particular, certain of those paragraphs discussed fundamental disagreements that had arisen between Defendant and Messrs. Caruso and Labkowski regarding document production in this case. The Court now considers whether it is appropriate to unseal portions of those declarations, as Defendant has put privileged communications "at issue" in his representations to the Court. For the reasons discussed below, there no longer exist countervailing factors justifying continued sealing of certain portions of the declarations, and unsealing those portions is appropriate and necessary in the interests of fairness and to protect the integrity of the court….

Plaintiffs Ruby Freeman and Wandrea' Moss filed a motion … for an order holding Defendant in civil contempt and imposing sanctions [for violating discovery orders]…. In response to that motion and in opposition to the request for civil contempt sanctions, Defendant has submitted a declaration in which he pins the blame for his discovery failures on Messrs. Caruso and Labkowski. In particular, Defendant asserts that he did not "intentionally or willfully disobe[y] any of this Court's orders or Plaintiffs' discovery demands." He swears:

I relied upon my prior counsels, Kenneth Caruso, Esq. and David Labkowski, Esq. to timely respond to the Plaintiffs' discovery demands with my input as they needed, and to avoid disobeying any of this Court's orders or discovery demands.

He also swears:

I relied upon my attorneys, Kenneth Caruso, Esq. and David Labkowski, Esq. to provide timely responses, objections and production of responsive materials to the Plaintiffs' counsel by required deadlines. I did not intentionally or willfully disobey or violate any orders or demands.

And further, he swears:

Ultimately, I believe that all discovery was provided to the Plaintiffs, once I retained Joseph Cammarata, Esq., and Kenneth Caruso, Esq. and David Labkowski, Esq. were relieved as counsel on November 26, 2024. The time frame for the production of documents was very short and while my prior counsels did not timely respond, Joseph Cammarata, Esq. made his best efforts to respond as soon as practically possible with my input and responding.

He also makes similar, repeated, arguments in his memorandum of law in opposition to the motion for sanctions.

Defendant's statements in his declaration and in his memorandum of law are contradicted by the declarations of Messrs. Caruso and Labkowski. On November 13, 2024, Messrs. Caruso and Labkowski filed ex parte motions to withdraw as counsel. The basis for those motions was not the volume of requests made by Plaintiffs, as Defendant now asserts. Defendant knows that assertion to be untrue. The grounds asserted were irreconcilable differences, the insistence of the Defendant upon presenting a claim or defense not warranted by existing law and not supportable by a good faith argument for an extension, modification, or reversal of existing law, and the failure to cooperate.

The motions were supported by declarations from Messrs. Caruso and Labkowski. The declarations, if credited, undermine any notion that Defendant relied upon Prior Counsel in connection with discovery. The two state that Defendant informed them that he would not participate in discovery in this action and that he would not identify or provide access to his electronic devices for purposes of discovery. He did so against the advice of counsel. The Court permitted counsel to withdraw on November 26, 2024….

The Court directs the unsealing of portions of the declarations. By making the arguments he puts forth in his declaration and in his memorandum of law, Defendant has put directly at issue his reliance on advice of counsel. It is settled law that "the attorney-client privilege cannot at once be used as a shield and a sword." Accordingly, "a waiver [of the privilege] may be implied in circumstances where it is called for in the interests of fairness."

The quintessential example of such a waiver arises when a defendant "asserts an advice-of-counsel defense and is thereby deemed to have waived his attorney-client privilege with respect to the advice that he received." … "It has been established law for a hundred years that when the client waives the privilege by testifying about what transpired between her and her attorney, she cannot thereafter insist that the mouth of the attorney be shut." … An implied waiver also occurs when "a party uses an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion," including where a party "makes factual assertions, the truthfulness of which may be assessed only by an examination of the privileged communications or documents." Once waiver is found, "[t]he widely applied standard for determining the scope of a waiver is that the waiver applies to all other communications relating to the same subject matter."

In fairness, the Court cannot allow Defendant to convey a story to the Court and to the public that Prior Counsel is responsible for his discovery violations while shielding the evidence that—if true—would expose that story as a fabrication. Defendant has waived the privilege with respect to his communications with Prior Counsel regarding document production, information requests, interrogatories or the deposition requests….

The unsealing is not only necessary so that the public can understand the basis of the Court's decisions, although it is relevant to that purpose. It is necessary to protect the integrity of the court and its orders…. "The Court … has an independent interest in assuring that it is not being used as an instrument of fraud." … To permit Defendant to claim that he had instructed his lawyers to comply with all court orders including those requiring electronic production and that it was Prior Counsel who were responsible for the misdeeds that have plagued this case, while sitting on declarations in the court file that belie those claims, would permit him to make a "mockery" of the court and its proceedings.

The Court has a motion for contempt before it and two diametrically opposed sets of declarations. One declaration proffers what purports to be an innocent explanation for the discovery failures in this case, at least up until the time the motion to withdraw was granted. The second set of declarations can be read to suggest that that explanation is false; that the Defendant has knowingly, willfully, and contrary to advice of Prior Counsel, violated the Court's orders; and that his current declaration and submission continue to be untrue.

The Court has not reached a judgment as to which version of the facts to accept, or whether there is yet another version that is true. The Court has reached no judgment as to whether Defendant is in contempt or, if so, what contempt sanctions to reach. Those questions await another day.

But it cannot under the law ignore the declarations of Prior Counsel and pretend that they did not exist. And it cannot consider those declarations without making them available to opposing counsel and to the public who have a right to know how the Court reaches its decisions. Because there is no longer any basis in the law of privilege to keep that information private, there also is no basis to withhold from the public the documents that go centrally to the issue of whether Defendant has acted in contempt of Court.

The Court accordingly directs the Clerk of Court to unseal the first four sentences of Paragraph 4 of the Caruso declaration at 24-cv-06563, Dkt. No. 76; 24-mc-00353, Dkt. No. 104.

As I read the filing accompanying the order, the unsealed sentences are (as the order itself suggests):

Defendant has informed us that he will not participate in electronic discovery in the Homestead Action. Specifically, he has informed us that he will not identify or provide access to his electronic device(s) for imaging by an electronics-discovery vendor, which we have identified. We have a fundamental disagreement with that position. Defendant's position also constitutes a failure to cooperate with us in the representation and renders it unreasonably difficult for us to carry out our employment effectively.

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[Eugene Volokh] Cryptocurrency Trader's Defamation Lawsuit Against Wall Street Journal Can Go Forward

From Monday's decision in Harborne v. Dow Jones & Co., by Judge Kathleen Miller (Del. Super. Ct.); the opinion is over 9000 words long, so here are just a few excerpts:

Christopher Harborne ("Harborne") is an international businessman, owning and investing in several successful businesses. He was an early investor in cryptocurrency, and became an active trader on the Bitfinex cryptocurrency exchange. While Harborne owned 12% of Bitfinex and its sister company Tether, he was not involved with either company, except as a minority stakeholder.

The Wall Street Journal ("Journal") published an article in 2023 about Bitfinex's and Tether's difficulties maintaining access to the global banking system in light of fraud and money laundering allegations. The article detailed how these companies used falsified documents, "shadowy intermediaries," and shell companies to open bank accounts around the world, including at Signature Bank. Signature Bank ultimately closed the accounts and later attempts by Tether and Bitfinex to open new accounts were rejected, due to the allegations against them.

The article then turned to Harborne, reporting that after Tether and Bitfinex were turned down by Signature Bank, the bank was "then introduced" to Harborne and his company AML Global. The article stated that Harborne opened an account for his company at Signature Bank, but the application did not say that he owned 12% of each of Bitfinex and Tether under the name Chakrit Sakunkrit. {[According to the Complaint, Harborne] holds dual citizenship in Great [Britain] and Thailand, where he has lived and worked for over 20 years. When he became a naturalized Thai citizen, Harborne was required to adopt a Thai name. He chose Chakrit Sakunkrit. He uses his Thai name for legal purposes in Thailand and uses his birth-name outside Thailand.}

The article also stated that the Sakunkrit name appeared on Signature Bank's list of those the bank felt "were trying to evade anti-money laundering controls." The article described Signature Bank executives questioning the source of funds into AML Global's account. The bank then "soon closed" the account.

Harborne and his companies sued for defamation, and the court concluded that Harborne had adequately alleged the article falsely accused him of financial improprieties:

The title of the March Article previews its theme: Companies Connected to Tether Used False Documents and Shell Companies to Obtain Bank Accounts. The article referred to "shell companies" and "shadowy intermediaries" that were used to fraudulently open the accounts. It also discussed investigations into Tether and Bitfinex transactions and other fraud in the cryptocurrency market (referencing Sam Bankman-Fried being charged with fraud). After recounting that Tether's and Bitfinex's accounts were closed and their later efforts to open an account at Signature Bank were "rejected," the article stated that the bankers "were then introduced to" AML about opening an account.

Reading the March Article as a whole, as the Court must, the "gist" is that Harborne and his company were part of this larger scheme to defraud banks. The article insinuates that Harborne intentionally hid from the bank his Thai name and his ownership interest in Tether and Bitfinex….

The complaint alleges that Harborne followed Standard Bank's application process, provided the bank with all the information requested, including voluntarily disclosing his Thai name, and offered to provide more information if needed. Further, the Signature Bank account was used only for the stated purpose—to trade Kraken. And, the bank did not act in a manner consistent with a concern about bank fraud; it opened the account and allowed Harborne to continue to use it for a month after issuing the account closure notice. Accepting Dow Jones' argument (that Signature Bank closing the account without explanation only a few months after it was opened shows it was concerned about fraud), would require construing the allegations in Dow Jones' favor, which the Court cannot do on a motion to dismiss….

Plaintiffs also alleges facts that AML was not a shell and that Harborne was not an executive of Bitfinex or Tether.

Finally, Dow Jones' assertion that the gist of the statement that Harborne's Thai name was put on the bank's list was simply due to Harborne's connections to Bitfinex (and not because of any alleged wrongdoing), is not a reasonable reading of the March Article. The article expressly said that the Sakunkrit name was put on the list due to concerns over money-laundering.

The Court finds that the effect of the March Article on the ordinary reader would be that Harborne and his companies were involved in the fraudulent schemes. The complaint alleges facts sufficient to plead that the article was false.

And the court concludes that the complaint adequately alleges "actual malice," i.e., that defendants knew the statement was false or at least likely false:

Direct evidence: Plaintiffs allege that the March Article insinuated that Harborne hid his Thai name from Signature Bank, but the Journal possessed Signature Bank documents that showed that the Thai name was disclosed. Also, the Journal knew from previous reporting that AML was a jet fuel company with significant contracts, not a shell. Dow Jones responds that the March Article never called AML a "shell" company. But a fair reading at this stage is that the article suggested that AML was a shell.

Preconceived narrative: The throughline of the March Article was Bitfinex's and Tether's scheme to defraud banks. The Journal sought to further that narrative by implicating Harborne. The reporters contacted Bennett, but did not follow through after Bennett indicated that his information would not be helpful to the story the Journal wanted to tell.

Despite no Bitfinex transactions in AML Global Payment's Signature Bank account, the March Article included a quote from "[c]ompliance executives" suggesting that Bitfinex transactions had been flowing through the account.

To "fit" Harborne into Bitfinex's scheme, the article stated that "Harborne is one of Bitfinex's largest shareholders," despite the fact that he had no control over the company and never held any positions with the company.

Refusal to retract: While the Journal removed the Last Five Paragraphs of the article from its online version, its other sites still carry the full article.

Departure from Journalistic standards: The Journal admitted that the March Article was not up to its editorial standards….

Again, recall that at this stage the question is just whether plaintiff had adequately alleged falsity and "actual malice"; plaintiff has not yet had an opportunity to prove that the statements were indeed false (and knowingly or recklessly false).

Libby Locke (Clare Locke LLP) argued on behalf of plaintiff, who is also represented by Jered Ede (Clare Locke LLP) and Brian Farnan and Michael Farnan (Farnan LLP).

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[Josh Blackman] Today in Supreme Court History: December 26, 1907

12/26/1907: Lonzo Bailey entered into written labor contract with the Riverside Corporation. This contract gave rise to Bailey v. Alabama (1911).

The White Court (1911)

 

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[Josh Blackman] Today in Supreme Court History: December 25, 2009

12/25/2009: Justice Elena Kagan "was probably at a Chinese restaurant."

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[Ilya Somin] Crime and Terrorism are Poor Rationales for Immigration Restrictions

(NA)

Dramatic recent incidents have heightened calls to impose severe restrictions on immigration in order to curb crime and terrorism. By all means we should punish violent criminals and terrorists, whatever their background. But crime and terrorism risk are bad rationales for immigration restrictions. I covered the terrorism angle in some detail in a 2022 article for the Verfassungsblog website. Virtually everything I said then still applies. To briefly summarize: 1) the risk is low, 2) restricting liberty of large numbers of people because of the wrongdoing of a small minority is deeply unjust, 3) migration restrictions cause great harm, and 4) there much better ways to reduce the risk of violence.

Here's an excerpt:

In both Europe and the United States, fears of terrorism and violence have been exploited by anti-immigrant nationalist political movements….

The risks of terrorism by migrants are low and can potentially be mitigated further by "keyhole" solutions that address the problem by means less draconian than the complete exclusion of migrants.

The risk that an American will be killed by an immigrant terrorist in a given year is so infinitesimal that it is actually several times lower than the risk that he or she will be killed by a lightning strike during the same timeframe.1) Over a 40 year period, the number of Americans killed by terrorist entrants from any of the five majority-Muslim countries covered by Donald Trump's 2017 "travel ban" order was zero. The risk in European countries was comparably low,2) also in the same general ballpark as common everyday dangers. Even if these risks were to increase several-fold as a result of expanded immigration, they would still be extremely small…

There are some ways in which migration restrictions can actually increase terrorism risks and undermine efforts to combat terrorist organizations. First, they may feed into the propaganda of terrorist groups, claiming that the West is hostile to Muslims, Arabs, or other groups targeted for migration restrictions. Second, allowing migrants from areas controlled by terrorist groups or hostile anti-Western regimes to come to the West reduces the amount of people and resources under those entities' control, thereby weakening them….

Even if migration increases terrorism risks only slightly, it might be argued that is still enough to justify restricting it, at least in the case of migrants from nations that may seem to pose relatively higher risks. After all, even one terrorist attack is one too many. But this analysis implicitly assumes that migration restrictions have few or no costs….

In reality, barring migration has enormous costs, for both migrants and destination countries. The cost to the former is obvious. Barring or severely restricting migration from nations with repressive governments and powerful terrorist movements inevitably consigns hundreds of thousands of people to lives of oppression and poverty, and sometimes even to death.

There are also large costs to destination countries. Among other things, immigrants – including those from poor and oppressed nations – make disproportionate contributions to scientific innovation, and are also disproportionately likely to become entrepreneurs….

Restricting migration to prevent small increases in terrorism is also unjust for reasons that go beyond consequentialist considerations. Imagine that migrants from Nation A have higher terrorism rates than natives Nation B, but the vast majority of residents of both are not terrorists. Perhaps 1 in 100,000 migrants from A is a terrorist, which is true of only 1 in 1 million residents of B…. Still, barring all or most migration from A into B means imposing severe restrictions on the liberty of many thousands of people merely because they happened to be born to the wrong parents, in the wrong place.

We readily see the injustice of such measures in the domestic context. I live in the state of Virginia, which borders on West Virginia, a significantly poorer state with a much higher crime rate than our own. But virtually everyone agrees that it would be unjust to bar migration from West Virginia to Virginia, merely because migrants from the former may be more likely to commit violent crimes than native-born residents of the latter.

Similarly, in the US, young black males, on average, have higher crime rates than members of many other ethnic groups. White males, in turn, are disproportionately likely to become domestic terrorists…. It does not follow, however, that we would be justified in imposing severe restrictions on the freedom of movement of either black males or white males as a group. In both cases, it would be deeply unjust to restrict the freedom of large numbers of people merely because they happen to be members of the same racial or ethnic group as others who have committed various crimes and misdeeds. The same point applies to potential immigrant groups singled out for exclusion merely because others born in the same place have a disproportionate propensity to commit acts of terrorism…..

What is true of terrorism is also true of crime. In the US, migrants - including illegal ones - actually have much lower crime rates than native-born citizens. Moreover, as noted in my Verfassungbslog article, there are much better ways to reduce the risk of terrorism and violent crime, generally:

The case for terrorism-based immigration restrictions is further weakened by the availability of alternative ways to reduce the danger. Because terrorism risks from migration are already so low, it may be very difficult to reduce them still further. However, tapping the vast new wealth created by immigration can potentially pay for extensive new security and counterterrorism operations, if necessary. In Chapter 6 of Free to Move, I describe how shifting the resources currently devoted to enforcing American immigration restrictions could easily pay for many thousands of additional police officers. Social science research indicates that increasing the number of cops on the streets can significantly reduce violent and property crime, whether perpetrated by immigrants or natives, thereby greatly improving public safety…. If necessary, we can also use some of the funds saved on immigration enforcement and wealth generated by increased migration to finance additional counter-terrorism operations.

In the Verfassungblog article, and elsewhere, I have also noted ways in which migration restrictions actually increase crime and terrorism, such as by creating a black market that organized crime will almost inevitably exploit.

I also noted, in the article, there is some evidence that migration sometimes leads to acts of terrorism by anti-immigrant right-wingers. The recent awful attack in Magdeburg, Germay may have been example of this phenomenon, as the perpetrator - though himself a migrant from Saudi Arabia - was anti-Muslim activist and a supporter of the neo-fascist anti-immigrant AFD party. When such things happen, the right approach is to crack down on terrorists, not give in to them. As in the case of hostage deals, yielding to terrorists incentivizes more terrorism. Governments can target terrorists - whether their ideology be right, left, or radical Islamist - without in the process punishing innocent people whose only sin is fleeing poverty and oppression.

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[Eugene Volokh] Prof. Andrew Koppelman on "The Cultural Contradictions of Wokeness—and Anti-Wokeness"

My sense of Koppelman is that he's very much a man of the center-left, but I've found his work to be insightful. Here's an excerpt of his latest column in The Hill, which builds on Musa al-Gharbi's We Have Never Been Woke: The Cultural Contradictions of a New Elite:

American elites need to do a better job of making themselves useful…. The cluster of political positions and communicative moves called "wokeness" is often alien to the people it claims to represent—most black Americans don't want to defund the police, and almost no Hispanics identify themselves as "Latinx." …

[I]nequality is inevitable in a capitalist economy. The interesting question is under what circumstances it can be justified. Here the philosopher John Rawls offers a crucial insight: inequalities are justified to everyone in society if they operate to the benefit of the least advantaged. This is one important justification for capitalism, which has nearly eradicated world poverty…. The medical profession is [another] example: it is a path to wealth, but it has also prolonged everyone's life, including the poorest people in the poorest countries….

[Symbolic capitalist professional elites are worth what they are paid]—but only if they do their jobs. Here is the real problem with wokeness: It is impairing the capacity of professional class institutions to do what they are paid to do….

[W]okeness is not about results—it is a collection of performative gestures, and the gestures are blunting the useful skills. Universities have become left-wing monocultures. Mainstream journalists are more inclined to spin the news in a way that conforms to progressive priors. Even science and medicine are now self-censoring to prevent the dissemination of facts inconsistent with dominant left narratives. One leading publisher of scientific journals has announced that its publication decisions would be based on whether the editors think the research would cause harm to disadvantaged populations.

The performative virtue-signaling al-Gharbi identifies is not exclusively a phenomenon of the left—the right has its own varieties of destructive symbolism…. [T]oday's right has propositions that the tribe demands that you publicly endorse, and even persuade yourself of, even though any competent analysis shows them to be nonsense …. [T]he Republicans will blow their chance if all they offer is their own variety of performativity….

The whole thing is much worth reading.

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[Jonathan H. Adler] A Final(?) Attempt to Resurrect the Kids Climate Case

The plaintiffs in Juliana v. United States--aka the "kids climate case"--are back at the Supreme Court asking the justices to bring their case back from the dead.

The lawsuit (which I have covered repeatedly) claims there is a federal constitutional right to a stable environment enforceable in federal court. While one district court judge accepted these arguments, the Ninth Circuit has repeatedly concluded the plaintiffs lack standing to press their audacious claims.

Back in May, the U.S. Court of Appeals for the Ninth Circuit granted the federal governments writ of mandamus to end the district court's proceedings and ordered the case dismissed. Since then, the plaintiffs sought a writ of mandamus from the justices to vacate the Ninth Circuit's judgment and bring the case back, but the justices were not having any of it.

Now the plaintiffs have filed a petition for certiorari, challenging the Ninth Circuit's conclusion that they lack standing and approach to mandamus. Cleverly, the plaintiffs have sought to tie their standing argument to issues being considered in another case on the docket later this term (Gutierrez v. Saenz). But it is unlikely to be enough.

This cert petition is unlikely to attract much interest from the Court. The real question is whether it will influence how the justices evaluate other pending petitions for certiorari, such as those seeking high court review of state tort law claims against fossil fuel companies. Insofar as the Juliana petition (combined with the Montana Supreme Court's recent Held decision) raise the salience of climate litigation, they could feed the impression that climate litigation is out of control and needs a corrective. In this sense, the filing could make it more likely that the Court grants certiorari in the Honolulu case and issues a ruling cutting back climate litigation across the board. In the alternative, the justices may recognize it as a fringe filing and deny it without a second thought.

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[Jonathan H. Adler] White House Vetoes Bipartisan Bill to Create Needed Judgeships

Yesterday the White House issued a statement by President Biden indicating he is vetoing the JUDGES Act, bipartisan legislation to create additional district court judgeships.

The Senate passed the bill unanimously in August, and a bipartisan House majority followed suit shortly after the election. It would have created 66 new district court seats over the next decade. The bill is based upon the recommendations of the Judicial Conference and was endorsed by the Federal Bar Association and Federal Judges Association. Even Fix the Court liked it, calling the veto threat "weird."

The veto statement reads as follows:

I am returning herewith without my approval S. 4199, the "Judicial Understaffing Delays Getting Emergencies Solved Act of 2024" or the "JUDGES Act of 2024."

S. 4199 seeks to hastily add judgeships with just a few weeks left in the 118th Congress.  The House of Representative's hurried action fails to resolve key questions in the legislation, especially regarding how the new judgeships are allocated, and neither the House of Representatives nor the Senate explored fully how the work of senior status judges and magistrate judges affects the need for new judgeships.  The efficient and effective administration of justice requires that these questions about need and allocation be further studied and answered before we create permanent judgeships for life-tenured judges.

S. 4199 would create new judgeships in States where Senators have sought to hold open existing judicial vacancies.  Those efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of this bill now.

Therefore, I am vetoing this bill.

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[Eugene Volokh] Court Dismisses Defamation Suit Filed by Jussie Smollett's Hoax Attackers

From Osundairo v. Glandian, decided Friday by Judge Mary Rowland (N.D. Ill.):

Plaintiffs Olabinjo and Abimbola Osundairo … attacked actor Jussie Smollett in Chicago on January 29, 2019. Plaintiffs describe the attack as being "fake," "staged," and a "social media hoax" that was orchestrated my Mr. Smollett to create public attention. To that end, the Osundairo brothers claim Smollett directed that the attack occur in the view of a surveillance camera and that the brothers dressed and acted like "white supremacists" and "MAGA Trump supporters."

Plaintiff Abimbola attempted to look like a "southern country white person" during the attack. Immediately before the attack, Plaintiffs shouted racist and homophobic slurs at Smollett, who is black and openly gay. Abimbola struck Smollett during the attack and tried to bruise him, although Plaintiffs contend that the punches were "pulled" so as to not harm Mr. Smollett.

The attack generated significant public interest, and the Osundairo brothers enlisted a public relations agency to handle the volume of media inquiries that they received. Within a month of the attack, Plaintiffs and their representatives began negotiating their participation in a documentary in which the brothers planned to tell their story. Since the attack, the Osundairo brothers starred in both a documentary and in a series of podcasts related to the attack, and the brothers have made several other related media appearances. At the time of briefing, Plaintiffs were working with a publisher on a book related to their involvement.

Smollett was charged with filing a false police report related to the attack, although those charges were dropped. Defendant [Tina] Glandian represented Smollett in those proceedings. Glandian appeared on the Today Show on March 27, 2019, to discuss the charges. The Today Show interviewer, Savannah Guthrie, … stated that Smollett had reported to the police that his attackers were white, and, noting that the Osundairo brothers are black, asked Glandian if Smollett was lying. Glandian replied:

Ms. Guthrie: But the Osundairo brothers, what are the chances that that's the case, that he saw someone with light skin?

Ms. Glandian: Well, you know, I mean, I think there's—obviously, you can disguise that. You could put makeup on. There is, actually, interestingly enough, a video…It took me all of five minutes to Google—you know, I was looking up the brothers, and one of the first videos that showed up, actually, was one of the brothers in white face doing a Joker monologue with white makeup on. And so it's not—it's not implausible.

This exchange (the "Whiteface Statement") is the only allegedly defamatory statement at issue in this litigation.

At the time of the Today Show interview, Glandian. Glandian did not intend to accuse Plaintiffs of committing a crime, and she did not view her statements as an accusation of committing a crime.

The court concluded that the Osundairo brothers were limited purpose public figures, and that Glandian "was not aware of any information that would have led her to believe that her statements regarding the white makeup were false or were likely to be false" (and thus lacked "actual malice"). And the court that "Glandian is entitled to summary judgment for another reason—the Whiteface Statement is substantially true."

A plaintiff cannot recover in a defamation action "where the statements are substantially true." … "To establish the defense of substantial truth, the defendant need only show the truth of the 'gist' or 'sting' of the defamatory material." An "error in detail" is not actionable. Determining whether a statement is substantially true is normally a question for the jury, but it can be decided on summary judgment "where no reasonable jury could find that substantial truth had not been established."

The Osundairo brothers contest the "substantial truth" of the Whiteface Statement by arguing that the "gist" or "sting" of the Whiteface Statement is that it accused the brothers of committing a hate crime…. The Court previously denied Glandian's motion to dismiss Plaintiffs' claims based on [the Whiteface S]tatement because it could plausibly be interpreted to mean "the Osundairos attacked Smollett," and it "implies that the attack was a hate crime." The Court denied a second motion to dismiss because, "taken in context, Glandian was asserting [in the Whiteface Statement] Plaintiffs' involvement in a racially motivated attack."

With the benefit of discovery, it is clear to the Court that regardless of what Glandian meant to assert, Plaintiffs were involved in a racially motivated attack. Plaintiffs admit that … they attacked Smollett, that they dressed and acted like white supremacists during the attack, and that they shouted racist and homophobic slurs. Plaintiff Abimbola testified that he and his brother committed this attack, and did so for the purpose of getting media attention:

[A.] My understanding was that [Smollett] wanted us or wanted me to fake beat him up and call him racial slurs, racial, homophobic, and, yeah, and then say MAGA Country. [Court reporter interruption].

[Q.] You understood that [Smollett] was going to—that this was for his social media; is that right?

[A.] No. What I thought it to be, because we didn't really discuss it, was that was going to be for media. He was going to put it—get it out there somehow to the media.

[Q.] I'll put it another way. Your understanding was that this was going to be publicized?

[A.] Yes, sir.

Plaintiffs are essentially attempting to hold Glandian liable for discussing their own admitted conduct. These accusations cannot withstand summary judgment.

To the extent that the Osundairos believe that the specific suggestion they may have used white makeup was defamatory, this also fails for two reasons. First, Abimbola specifically testified that during the attack, he tried to look like a white person. Regardless of the precise mechanism through which the brothers attempted to appear white, Glandian's statement that the brothers "could [have] put makeup on" captured the gist of the truth and contains, at most, an unactionable error in detail.

Second, Plaintiffs specifically concede in their briefing that whether the brothers wore white makeup is a "secondary detail." This kind of "error in detail" is not actionable.

Brendan J. Healey, Natalie Anne Harris, and Sharon Renae Albrecht (Baron Harris Healey) represent Glandian.

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