Eugene Volokh's Blog, page 205

[Eugene Volokh] After Plaintiff "Criticized the City Manager …, the Manager Complained About Him to the Police."

From yesterday's decision in Blackwell v. Nocerini, written by Sixth Circuit Judge Eric Murphy and joined by Chief Judge Jeffrey Sutton and Judge John Bush:

After Mark Blackwell criticized the city manager of a small Michigan city, the manager complained about him to the police. Two officers convinced a prosecutor to charge Blackwell with stalking. But a judge acquitted him.

Blackwell then sued the manager and officers for violating the First Amendment by inducing this prosecution in retaliation for his political speech. The district court held that his complaint alleged enough facts to rebut the city officials' qualified-immunity defense at the pleading stage. The officials now appeal. We agree that Blackwell plausibly pleaded that the officials sought to prosecute him in retaliation for his speech and without probable cause that he had committed a crime….

Because this case reaches us at the pleading stage, we must accept the allegations in Blackwell's complaint as true. We summarize the facts relying solely on those allegations, keeping in mind that the evidence developed in discovery may refute them down the road.

In 2018, many people complained about the "divisive and hostile" work environment for public employees in the City of Wayne, Michigan. Because the poor environment had led to low morale and high turnover, the City hired a human-resources expert to investigate the complaints. This expert allegedly confirmed much of the concerns. His findings pointed the fault at Wayne's City Manager: Lisa Nocerini. She allegedly showed favoritism toward some employees and a lack of respect toward others.

Blackwell, a Wayne resident, obtained the expert's report. He began to call for Nocerini's termination during the public-comment period of City Council meetings. Unhappy with this criticism, Nocerini allegedly tried to convince Wayne's then-existing police chief to charge Blackwell with a crime. This police chief refused.

In December 2018, however, the chief resigned. Nocerini convinced the City Council to appoint Ryan Strong as the interim chief.

At a City Council meeting in January 2019, Blackwell reiterated that many city employees had resigned due to morale issues and again called for the City Council to fire Nocerini. Nocerini responded by renewing her efforts to get the police to charge Blackwell. She told Chief Strong about two alleged incidents from 2016. During the first, Blackwell watched Nocerini and "may have taken photos" of her while she publicly campaigned for a tax increase to support the police and fire departments. During the second, Blackwell followed Nocerini's car for a few blocks as she drove to city hall. Apart from these two incidents, Nocerini also told Strong that Blackwell often loitered with others in the city hall's parking lot after City Council meetings. Nocerini allegedly never reported these things to the police until after the January 2019 meeting at which Blackwell criticized her.

Because Strong sought Nocerini's support to become the permanent police chief, he asked Lieutenant Finley Carter to investigate Blackwell. Carter discussed Nocerini's claims with other city personnel but could find no additional evidence of wrongdoing. Carter decided to recommend charges anyway. At the urging of Nocerini and Strong, he asked the Wayne County Prosecutor's Office to file a criminal complaint against Blackwell.

In March 2019, prosecutors charged Blackwell with disturbing a lawful meeting and with stalking. Yet the prosecution dismissed the disturbing-a-meeting charge before trial. And a state court found Blackwell not guilty of the stalking charge after a bench trial. The court concluded that Blackwell had not done "anything out of the norm" or "outside city property" and that Nocerini could not reasonably have felt "emotionally distressed" from his conduct….

The court concluded that Blackwell's case could proceed because he "pleaded allegations plausibly suggesting the 'absence of probable cause' for the charges brought against him":

The City Officials … argue that the complaint pleads facts suggesting that they had probable cause to charge Blackwell with a misdemeanor stalking offense. The Michigan legislature has defined stalking as "a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to" have such feelings. For an action to qualify as "harassment," a defendant must direct the action "toward a victim[.]"Such harassing actions can include "repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer" this distress. But "constitutionally protected activity" cannot count as harassment. A defendant must also engage in a "course of conduct" of prohibited harassment, which means that the defendant must have undertaken "a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose."

Under the complaint's version of events, no "'reasonable and prudent' person" would believe that any of Blackwell's three alleged actions qualified as harassment. Two of those actions occurred in 2016—years before the City Officials pursued the stalking charge. These actions could not reasonably have caused Blackwell [presumably meaning Nocerini -EV] to "suffer emotional distress[.]"

As for the first, Nocerini once spotted Blackwell driving two cars behind her as she went to work. But city hall sits on "a main access road," so many people drive on this road. And Nocerini noticed Blackwell behind her only once.

As for the second, Blackwell allegedly once watched Nocerini campaign in public and "may have taken photos" of her. But it is not unusual for citizens to watch public officials campaign in public spaces. And again, this activity happened only once. Further, the long gap between these 2016 actions and the more recent actions undercuts the claim that Blackwell engaged in a "pattern of conduct" revealing a "continuity of purpose" to harass Nocerini.

This conclusion leaves Nocerini's concerns that Blackwell more recently gathered "in the parking lot of city hall with other individuals after City Council meetings or while city hall was open for business." Yet Blackwell's lawful presence on public property—by itself—is not conduct "directed toward" Nocerini that could qualify as "harassment" under Michigan law. And no reasonable person would "suffer emotional distress" from Blackwell's mere presence in a public place. In sum, once we accept the complaint's allegations as true, we can understand why the state court allegedly found that Blackwell had not done "anything out of the norm" and that Nocerini could not reasonably "feel emotionally distressed" from his conduct….

[Blackwell] suggests that much of this conduct—for example, taking pictures of a public official or loitering at city hall—qualified as protected First Amendment activity independent of his criticism of Nocerini. If true, the First Amendment and Michigan law would both insulate that conduct from criminal sanction. Yet we can save these First Amendment questions for later. Blackwell's alleged "stalking" conduct would not fall within the state law's definition of "harassment" whether or not the First Amendment protected it. So no reasonable officer could believe that there was a "substantial chance" that Blackwell had engaged in the stalking of Nocerini.

And the court concluded that the facts as alleged by Blackwell would have constituted a violation of clearly established First Amendment law, and (if accepted) would thus defeat the qualified immunity defense:

It would have been "obvious" to any reasonable officer that the three incidents that allegedly led the City Officials to pursue charges against Blackwell did not establish probable cause that he had engaged in stalking.

Timothy E. Galligan represents Blackwell.

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[Josh Blackman] Today in Supreme Court History: December 17, 1910

12/17/1910: Justice Joseph Rucker Lamar nominated to the Supreme Court.

Justice Joseph Rucker Lamar

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[Josh Blackman] What Is The Remedy For Judge Wynn's "Brazenly Partisan" Withdrawal of Senior Status?

The Article III project filed a judicial misconduct complaint against Judge Wynn of the Fourth Circuit. Yesterday, I wrote about Wynn's "brazenly partisan" withdrawal of his intent to take senior status because Trump prevailed. But the facts are even worse than I knew. The complaint recites:

In January 2024, Judge Wynn announced his intention to assume senior status upon the confirmation of his successor.1 In March 2024, he attended a "retirement celebration" held in his honor, where prepared remarks from President Obama, who had nominated Judge Wynn, were read to the crowd.

Is it common for the President who appointed a judge to provide remarks when the judge retires? When Judge Kim Gibson, for whom I clerked, took senior status, there was a statement read from Circuit Justice Alito (who attended the same High School as Judge Gibson). I thought that was quite appropriate. But from the former President? From nomination to retirement, Judge Wynn was an Obama judge.

As we know now, he did not retire. The complaint states the obvious:

Given the timing of his announcement, the fact that he celebrated his retirement nine months earlier, and the lack of any other provided explanation combine to make clear that Judge Wynn's decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election. Indeed, the media is already reporting that Judge Wynn apparently changed his mind as a result of the election.5 Even worse, the timing of Park's needless withdrawal followed immediately by Judge Wynn's letter gives the appearance that there was coordination between Park, Judge Wynn, and the White House to give the misimpression that Park's pointless withdrawal—and not the 2024 election results—was what prompted Judge Wynn to change his mind.

Certainly the judiciary has the power to determine what communications arose between Wynn, the Senate, and the White house. If Judge Newman can be forced to sit for a medical exam, Judge Wynn can turn over his email and call logs.

Let's assume the facts are as stated. What is the remedy? I suppose Judge Wynn could be forced to actually take senior status, to avoid any appearance of impropriety. Or maybe he could be forced to recuse from any case involving the Trump-administration. After Justice Ginsburg called President Trump a "faker" and worse, she apologized, but declined to recuse. But as we are often reminded, the lower courts are subject to an enforceable ethics code.

Professor Rob Leider suggested that Trump should go ahead an nominate somone, and let the Senate confirm them:

This is a major separation of powers problem, and it's likely unconstitutional. Presidents choose judges. Judges don't nominate their successors.

President Trump should nominate someone for his seat, and the Senate should confirm. https://t.co/xuw9P9Dgm8

— Robert Leider (@LeiderRob) December 15, 2024

Another colleague wrote that Congress should pass an appropriations riders saying notwithstanding any other statutory provision, no funds may be spent on staff or chambers of judges who withdraw their senior status request. Going forward, bilateral judicial reform can solve this problem.

Of course, lurking in the background is Judge Stranch of the Sixth Circuit. Were she to withdraw her request for senior status, especially after what happened with Judge Wynn, the appearance of playing politics will be just that much worse.

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[Josh Blackman] How To Think About Justice Jackson "& Juliet"

Being a Supreme Court Justice is a cushy gig. In addition to having immense power, you gain access to opportunities that would have been unthinkable for an inferior court judge. This weekend, Justice Jackson acted out a role in the Broadway Musical & Juliet. To be precise, a speaking role was specifically written for her. Jackson had this to say:

"I think that it means that anything is possible. Five years ago, I was a district court justice; nobody knew who I was. To have both of the pieces of my fondest dreams come true in this little bit of time has been extraordinary for me."

"I'm overwhelmed with the joy of this experience. I'm so grateful to the staff and crew of '& Juliet' for helping my dream come true. It was phenomenal."

On one level, I'm happy for Justice Jackson. It is always rewarding for people to have their dreams come true. If you sense a but is coming, you're right. But I am somewhat uneasy about this unique opportunity.

To be sure, Justices have been invited for distinct honors. Several Justices have thrown out first pitches at baseball games, including Justices Stevens, Alito, and Sotomayor. Justices Scalia and Ginsburg had non-speaking roles in an opera. Justice O'Connor served as the grand marshal of the Rose Bowl parade. The Justices also routinely preside over classical moot courts, that often involve works of Shakespeare. They give commencement addresses. I'm sure there are other examples you can think of. But in each case, the Justices were offered an honorific that was available for other distinguished individuals. None of these roles were one-offs, created just for the Justice.

By contrast, in Justice Jackson's case, the show created a special role just for her, and wrote lines just for her. This was an experience that was not available to anyone else. And I've seen no suggestion that the producers of & Juliet had some sort of pre-existing friendship with Justice Jackson. It is true that Jackson was performing some work, but the show was clearly giving the Junior Justice something of value--indeed something that has no price tag. And this isn't the first time Justice Jackson has received priceless gifts. While concert tickets from Beyonce have a face value, receiving them directly from the artist, and being able to fraternize with celebrities in the Knowles suite, was priceless. And while the clothes provided from Vogue magazine have a price tag, being photographed by Annie Leibovitz is a once-in-a-lifetime experience.

Justice Jackson will surely be able to disclose these gifts, but whatever dollar amount she lists will not even come close to signifying the true value. How do you quantify a "dream come true"? And why are these strangers to Justice Jackson feting her with these gifts? Because she will rule on cases the right way. Make no mistake about that. Justice Jackson is celebrated as a cultural icon. And Justice Thomas barely gets a mention at the Smithsonian African-American Museum. If Justice Jackson pulled a reverse-Souter tomorrow, and became an arch-conservative, these opportunities would dry up quickly.

Speaking of Justice Thomas, by now, some detractors are screaming, What about Harlan Crow? Sure, let's play that game. Justice Thomas accepted certain travel from his actual friends, and did so when those trips were permitted by the rules. Those rules have since changed, and Thomas will now abide by those rules. Pro Publica and other outlets spent untold resources to track every destination Justice Thomas visited. And the Justice's good name has been dragged through the mud. What about Justice Jackson? She gets a standing ovation and yet another puff piece on CBS News. And silence from the so-called "watch dogs."

WHAT? Supreme Court Justice Kentanji Brown Jackson heads to Broadway to star in a queer 'Romeo and Juliet' play.pic.twitter.com/bNqG0fuBKF

— Eric Daugherty (@EricLDaugh) December 16, 2024

One final note. During Justice Jackson's confirmation hearing, Senator Blackburn asked her to define the word "woman." Justice Jackson feigned confusion, and said she was not a biologist. We all knew the point of the question, and Jackson had no interest in engaging in it. Two years later, Justice Jackson showed some expertise about gender identity issues during oral argument in Skrmetti. Go figure!

For those who haven't seen & Juliet, the show created a dustup. The New York Times reported in 2023:

A principal performer in the new Broadway musical "& Juliet" has withdrawn from consideration for the Tony Awards rather than compete in a gendered category, shining a renewed spotlight on the question of whether major awards should continue to have separate categories for men and women.

The performer, Justin David Sullivan, is trans nonbinary and uses the pronouns he, she and they. In the pop-song-fueled musical, which imagines an alternative to "Romeo and Juliet" in which Juliet does not die, Sullivan plays May, one of Juliet's best friends. May — an adolescent, like Juliet — is still figuring things out.

Does Justice Jackson's participation in & Juliet, of all plays, cast any doubt on her participation in Skrmetti? Readers may recall that before Obergefell was decided, Justice Ginsburg officiated over John Roberts's same-sex marriage. (Yes, that was actually one of the groom's names.) Did anyone think that Justice Ginsburg's vote in Obergefell was not pre-ordained?

Justice Jackson should be grateful the Supreme Court lacks an enforceable ethics code.

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[Eugene Volokh] Monday Open Thread

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[Ilya Somin] Is the YIMBY Movement Hopelessly Divided?

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In a helpful recent Vox article, Rachel Cohen suggests the "YIMBY" ("yes in my backyard") housing deregulation movement may be "divided against itself":

These days, it seems as though everyone is something of a YIMBY: a "Yes in My Backyard" activist advocating for more housing and fewer barriers to making that happen…

Yet as three recently published books reveal, this YIMBY-ish agreement across the political spectrum can mask deeper divides, including about property rights, community development, and the very meaning of democracy in housing policy. Escaping the Housing Trap by urbanists Charles Marohn and Daniel Herriges of Strong Towns advocates for a slower-paced, locally driven form of development that they believe will be more sustainable over the long term. On the Housing Crisis by journalist Jerusalem Demsas challenges this kind of incrementalism, arguing the severity of today's housing shortage demands bolder intervention. And in Nowhere to Live, James Burling, a lawyer with the libertarian Pacific Legal Foundation, frames the housing shortage as the result of diminished respect for private property, something he argues will have to be reversed for any real change.

Read together, these new books tell us that while it has become mainstream to say that America needs more homes — and even to acknowledge that zoning rules and self-interested homeowners play a role in blocking new housing — there's not a clear consensus about what kinds of homes we should build, how we should build them, and who should decide where they go. While it's tempting to think a pro-housing consensus at least forecasts positive changes, the authors say a close read of history should leave us unconvinced that policymakers will ultimately take the necessary steps for reform. There's an opportunity, but we should be clear-eyed about the obstacles.

I agree there are various tensions within the YIMBY movement. But they are not as great as Cohen suggests. Legislation and constitutional litigation are not mutually exclusive paths to curbing exclusionary zoning. To the contrary, the history of previous reform movements shows they are mutually reinforcing. Each can help advance the other. Josh Braver and I discuss this in  our recent Texas Law Review article, which  explains why exclusionary zoning violates the Takings Clause of the Fifth Amendment, and also describes synergies between litigation and political reform efforts. For a shorter version of our argument, see our June article in the Atlantic.

Some progressive YIMBYs may object to supporting judicial review of "economic" policies like zoning. But, as Braver (himself a progressive constitutional theorist), and I explain, judicial invalidation of much exclusionary zoning is well-supported by a variety of progressive "living constitution" theories, as well as by originalist ones.

Local and state-wide reform efforts also aren't mutually exclusive, though - like Cohen - I am skeptical that the former are likely to be highly effective, given the disproportionate power of "NIMBY" forces at the local level. I also agree with Demsas and Burling that we need more sweeping reforms than most localities are likely to be willing to enact on their own. That said, YIMBYism is actually the ultimate "localism," in so far as it lets each property owner decide how to use his or her own property. That's a greater degree of decentralization and local control than letting zoning boards and other munincipal government agencies decide.

There are unavoidable internal tensions in a YIMBY movement that draws on people with widely divergent interests and ideologies. But those disagreements need not be as severe as they sometimes seem. Reform should be pursued on multiple tracks, not just one.

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[Ilya Somin] How Exclusionary Zoning Increases Homelessness

Homeless encampment (Oakland, CA). (Blackkango | Dreamstime.com)

 

Homelessness has been in the news a great deal lately, and become a major focus of public debate. I've written previously about how homelessness is greatly exacerbated by exclusionary zoning rules and other restrictions that make it difficult or impossible to build new housing in response to demand. Much evidence indicates that the expansion of homelessness in recent years is primarily a problem of housing availability, rather than increasing incidence of social problems like mental illness, alcoholism, or drug abuse.

A new draft paper by Mercatus Center housing expert Salim Furth has a helpful discussion of how exclusionary zoning exacerbates homelessness. It does so by making it difficult for marginally homeless people to find housing with friends and relatives, which many could otherwise do even if they could not afford housing on their own:

In the United States, the primary definition of homelessness includes those who sleep outdoors or in a tent, car, or recreational vehicle, or who are in a homeless shelter or transitional housing provided by a homeless services agency. This often differs from the colloquial use of the phrase, which connotes a vivid human portrait: a person who has lived on the street or in shelters for a long time, who spends his days begging or loafing, who likely suffers indignities, abuses, ill health, and toilet insecurity, and likely has mental illness, a drug addiction, or both.

In truth, many of the people who a passerby might call homeless aren't homeless at all – they spend their nights in a home (perhaps an imperfect one) while spending their days in public. And many of the homeless are undetectable as such in daily life.

The American cities with the highest housing prices have the worst homelessness problems. YIMBY (Yes in My Backyard) advocates highlight this correlation to argue for policies that increase housing supply. But, when you think about it a bit, it's not clear exactly how high rent contributes to homelessness. It's not like $800 per month apartments are any more affordable to most homeless people than $1,000 per month apartments. And homelessness is frequently associated with mental health or drug abuse problems. This is why non-YIMBY progressives insist that only more generous vouchers or subsidies can help and non-YIMBY conservatives argue that only behavioral change can help by tackling alcoholism, drug abuse, and mental health problems.

The stories and data in this essay show the missing link between homelessness and housing costs: people without money who avoid becoming homeless do so mostly by staying with others, usually their own parents. This happens outside the formal housing market. But parents' and others' ability to offer space is limited by what they can afford in the market. Where housing costs are moderate, friends and family have bigger homes. When they are higher, friends and family don't have space to share, and this is often what puts a vulnerable person onto the streets.

Furth presents extensive evidence that a large proportion of the homeless are in this position. They are generally sane and able-bodied people who could find housing with friends or relatives, if housing were cheaper. Some could potentially live with roommates. "YIMBY" policies that make it easier to build new housing in response to demand could alleviate this problem.

The causal mechanism Furth highlights is highly intuitive. Unless you've been wealthy all your life, you probably have taken advantage of free housing with friends and relatives yourself, or know people who have done so. If, during that period in your life, you instead had to live in the streets, you would likely have been far worse off. Exclusionary zoning closes off this type of lifeline for a substantial population of relatively poor people, pushing them into homelessness.

Getting housing could also make it easier for these people to look for and find jobs, and - where necessary - improve job skills. Job-hunting and education are easier to do if you're not sleeping on the street! That, in turn, can make it easier for marginally homeless people to increase their incomes, thereby benefiting both themselves and the broader society.

In our recent Texas Law Review article, Josh Braver and I explain why exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" when it takes private property. There, and in an Atlantic article, we explain how litigation should be combined with political action to break down zoning restrictions on housing construction.

As Furth and I both recognize, increasing the availability of housing may not do much for homeless people who have severe physical or mental disabilities, or who engage in serious alcohol or drug abuse. But reducing the overall homeless problem could still help these people indirectly, by freeing up resources such as shelter space for them.  And helping the able-bodied homeless is a great good in itself, even if it doesn't fully solve all homelessness issues.

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[Eugene Volokh] Does Your Law Review's Cite-Checking Process Include Retraction Checking for Cited Scientific Articles?

The UCLA Law Library has a new guide by librarian Lynn McClelland with recommendations on that, Understanding Scholarly Metrics and Retractions for Law Students. Let me know, please, what law reviews that you've worked with have done along these lines.

Likewise, if your law firm often cites scientific articles (social, physical, medical, or otherwise), please let me know if you have a procedure for checking whether there the cited articles have been retracted.

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[Josh Blackman] When SCOTUS Amends The Question Presented

On Friday, December 14, the Supreme Court in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. That petition raised two questions:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

Today, the Court issued a subsequent order that amended the grant:

The order granting the petition for a writ of certiorari is amended as follows: The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

This sort of amendment is not common, but it does happen. My quick research found several such orders in recent years. And in each case, the Court limited the questions presented, or rewrote the QP altogether:

Upon consideration of the motion to modify or amend the question presented, the question presented in these cases is amended as follows: Whether the State of Alabama's 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Merrill v. Caster, 142 S. Ct. 1357 (2022). The order granting the petition for writ of certiorari is amended as follows: Petition for writ of certiorari is granted limited to Question 1 presented by the petition. Thacker v. Tennessee Valley Auth., 585 U.S. 1058 (2018). The order noting probable jurisdiction is amended as follows: In this case probable jurisdiction is noted limited to Questions 1 and 2 presented by the statement as to jurisdiction. Harris v. Arizona Indep. Redistricting Comm'n, 576 U.S. 1083 (2015). The order entered September 25, 2001, is amended as follows: "Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted limited to the following question: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" Atkins v. Virginia, 534 U.S. 809 (2001). The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062(1998). The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062, 119 S. Ct. 633, 142 L. Ed. 2d 571 (1998). The order granting the petition for writ of certiorari is amended as follows: The petition for writ of certiorari is granted limited to the following question:
Is interest earned on client trust funds held by lawyers in IOLTA accounts a property interest of the client or lawyer, cognizable under the Fifth Amendment of the United States Constitution, despite the fundamental precept of IOLTA that such funds, absent the IOLTA program, could earn interest for the client of lawyer Phillips v. Washington Legal Found., 521 U.S. 1117 (1997).

I found one order in which Justices Blackmun and Stevens dissented from amending the QP:

The order of December 16, 1991, granting the petition for a writ of certiorari, is amended as follows: The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following question: In determining whether to grant a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, should a federal court give deference to the state court's application of law to the specific facts of the petitioner's case or should it review the state court's determination de novo ? Justice BLACKMUN and Justice STEVENS dissent. Wright v. West, 502 U.S. 1021 (1991).

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[Eugene Volokh] Rape Allegations in #TheyLied Defamation Lawsuit Aren't on a Matter of "Public Interest," Says N.Y. Judge

[1.] The First Amendment generally protects remarks on a wide range of matters, not just on politics, science, or other big subjects. As the Court held in U.S. v. Stevens (2010), "[m]ost of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' …, but it is still sheltered from Government regulation." Or, to quote another case, Connick v. Myers (1983),

[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political… We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.

[2.] Nonetheless, the Court has at times held that speech on matters of purely private concern is less protected by the First Amendment, in certain contexts, than speech on matters of public concern. The Court so held in Connick (despite the quote above) as to government employee speech cases: Government employees have some First Amendment protection from being fired for speech on matters of public concern, but "when a public employee speaks … upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

Then, in Dun & Bradstreet v. Greenmoss Builders (1985), the Court held that false statements on matters of private concern may lead to defamation liability without the various First Amendment protections available for public-concern statements (such as the requirement that presumed and punitive damages, even in suits brought by private figures, could be recovered only with a showing of knowing or reckless falsehood). In Bartnicki v. Vopper (2001), the Court held that recipients of an illegally recorded conversation on "a matter of public concern" could broadcast it without being punished under a law that forbade such use of illegal conversations; but the opinion suggested that if the conversation was on just on private matters, no such immunity would be present. In Snyder v. Phelps (2011), the Court held that the First Amendment blocks the application of the "intentional infliction of emotional distress" tort to speech on matters of public concern, but suggested that this might not be so as to speech on matters of "private concern." Likewise, the disclosure of private facts tort (which the Court has never either validated or rejected) would allow tort liability for accurate factual disclosures on highly private matters that are "not newsworthy," which is to say are seen as being on a matter of merely private concern.

Some lower courts have taken this still further, in allowing "harassment" or "stalking" injunctions against otherwise protected speech about people—such as harsh opinions—when the defendant's speech appears to be on matters of "private concern." To be sure, some other courts have rejected that approach, I think correctly; consider, for instance, Bey v. Rasawehr (Ohio 2020) (disclosure: I argued before the court on behalf of amici in support of the speaker):

[O]ur role here is not to pass judgment on the … First Amendment value of Rasawehr's allegations. To the extent his statements involve matters of both private and public concern, we cannot discount the First Amendment protection afforded to that expression [referring to the expression on private concern -EV]. We most assuredly have no license to recognize some new category of unprotected speech based on its supposed value. Rejecting such a "free–floating test for First Amendment coverage," the United States Supreme Court declared in Stevens that the First Amendment's guarantee of free speech "does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." "Our decisions … cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

I have generally criticized attempts to draw this public concern/private concern distinction, especially when it's applied to criminal or civil liability for accurate statements or opinions. But courts have indeed drawn it, in at least some areas.

[3.] There is, however, one other area in which this distinction has become especially important, and that is anti-SLAPP statutes. Those statutes provide additional protection for speech beyond what the First Amendment requires, generally by letting defendants in speech tort cases (such as libel or invasion of privacy cases) get legally insufficient cases dismissed promptly; by letting them immediately appeal trial court decisions that refuse to dismiss a case; and by letting prevailing defendants get their attorney fees paid by plaintiffs. But, generally speaking (to oversimplify slightly), those special benefits are expressly limited to speech on a "public issue" or in connection with a "public matter," which are generally seen as alternative ways of saying "a matter of public concern."

Courts are thus required, by the terms of those statutes, to decide what is speech on matters of "public concern" and what is speech on matters of purely "private concern." And, since law operates by analogy, such statutory "public concern" decisions about whether speakers are entitled to a statutory extra remedy may end up affecting constitutional "public concern" decisions about whether speakers have First Amendment protection in the first place (in the situations discussed in item 2 above). Of course, the constitutional "public concern" decisions from those item 2 situations will affect the statutory decisions as well.

[4.] And one thing that is becoming evident in both the statutory and the constitutional cases is just how radically uncertain the public/private concern line is, not just in unusual situations but in ones that arise all the time. Consider, for instance, accusations of sexual assault and domestic violence. The New Jersey Supreme Court held in W.J.A. v. D.A. (2012) that a person's online allegation that his uncle had molested him when the person was a child was a matter of purely "private concern" for libel law purposes. The New York intermediate appellate court held the same in Nelson v. Ardrey (N.Y. App. Div. 2024). The Indiana Court of Appeals held in Campbell v. Campbell (Ind. Ct. App. 2024) that a person's claim in a self-published book that his father had abused his mother when the person was a child was likewise a matter of purely "private concern."

On the other hand, the California Court of Appeal held in Carney v. Santa Cruz Women Against Rape (Ct. App. 1990), that the claim, in a leaflet posted around town listing alleged sexual attackers, that a particular man had attempted to rape a woman was a matter of "public concern." The Minnesota Supreme Court likewise held in Johnson v. Freborg—though just by a 4-3 vote—that a woman's social media allegation that her dance instructor had sexually assaulted or coerced her was on a matter of public concern. And even as to lesser crimes (there, tax fraud), courts have held (including as to speech by individual bloggers, with no media credentials) that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern." Obsidian Fin. Grp., LLC v. Cox (9th Cir. 2014) (and other cases citing it); see also Boule v. Hutton (2d Cir. 2003) (holding that allegations of "fraud in the art market" involve "a matter of public concern").

To be sure, each case is different, so it's not always clear whether courts just have different views about where the line should be drawn, or whether courts are reacting to particular facts in the case. For instance, W.J.A., Nelson, and Campbell all involved long past acts (though, as we'll see, a recent case finding accusations to be of "private concern" did not). Some of the cases appear to be sensitive to what the judges infer to be the speaker's motivation: Are the speakers just angry about what happened to them or interested in condemning sexual assault or misogyny writ large, or at least protecting future victims? But of course people's motivations are often contested and often mixed: People who say they have been victimized naturally often claim to both be angry at their alleged victimizer and be eager to protect others from being victimized the same way.

[5.] And this brings us to the latest example, M.V. v. J.T. (appeal pending), which was decided Oct. 8 by Nassau County (N.Y.) trial judge Sarika Kapoor, but which just popped up on a Westlaw query for me; the question is whether defendant (J.T.) is entitled to get the case evaluated promptly under the New York anti-SLAPP statute, and the court says no:

Since the enactment of the 2020 amendments to the anti-SLAPP statute, a number of courts have found that statements accusing an individual of sexual assault were subject to the anti-SLAPP statute (see e.g. LeMos v Uhlir [Sup Ct, Westchester County 2024] [holding that social media posts accusing the plaintiff of sexual assault and abuse were matters of public interest where the plaintiff was "a person who is heavily involved in the electronic music industry and nightlife community, who interacts with many other prominent people and organizations, performs in front of crowds, and has influence and connections"]; Coleman v. Grand [E.D.N.Y. 2021] [an email regarding the sexual impropriety of the plaintiff, "a prominent musician of interest to the jazz community," and the power dynamics in the music industry "amid the rising tide of public concern over workplace sexual harassment known as the #MeToo movement," were matters of public interest for purposes of New York's anti-SLAPP statute]).

On August 7, 2024, the Second Department held in Nelson v. Ardrey (2d Dept. 2024) that social media posts accusing the plaintiff of sexual assault did not fall within the ambit of the anti-SLAPP statute. In Nelson, the defendants, Tyshawn Ardrey and Iriana Ardrey, posted a series of responses to a post on the personal Facebook page of the plaintiff, Glennis M. Nelson, alleging that the plaintiff had sexually abused Iriana Ardrey approximately 17 years prior when she was 4 years old. The Second Department held that the action, which was to recover damages for defamation per se, was "not subject to the anti-SLAPP statute because the defendants' statements published on the plaintiff's Facebook page concerned 'a purely private matter' and were 'directed only to a limited, private audience.'"

Like the defendants in Nelson, although J.T. "made generic reference to issues of broad public interest, [her] primary focus was not an issue of broad public interest." Moreover, like the situation in Nelson, the social media posts at issue here are "private allegations of the plaintiff's alleged crimes." Under these circumstances, and guided by Nelson, it is this Court's determination that J.T.'s social media posts are "not within the sphere of public interest." …

And here is the fact pattern as alleged by plaintiff; it's long, but I think you can get a flavor from the first few paragraphs:

The plaintiff, M.V., commenced this action against the defendant, J.T., alleging that this action arises out of a personal vendetta and jealous revenge plot by J.T. to destroy his life and reputation. M.V. asserts that, intent on causing him maximum damage after he finally ended their casual, on-and-off sexual relationship that spanned years including through their time together in college, J.T. knowingly published numerous false and defamatory statements to the social media application YikYak, falsely accusing M.V. of rape and being a pathological liar. M.V. alleges that J.T. also verbally shared these same false accusations with numerous individuals.

According to the complaint, J.T.'s emotional attachment to M.V. became clear through her relentless posts to the social media application TikTok, which displayed her state of mind and how she viewed M.V., including that she sought revenge and embraced her manipulator. M.V. asserts that, in response to J.T.'s defamatory statements, he felt threatened and sought protective measures from Binghamton University (hereinafter the University), which they both attended. M.V. alleges that J.T. went so far as to file a formal complaint against him with the University and, after hearing with live testimony and cross examination, the University exonerated M.V. by finding him not responsible of all allegations. M.V. further alleges that J.T. continues to perpetuate her vendetta against him via social media posts.

M.V. alleges that, as a result of J.T.'s false allegations and defamatory statements, he has suffered, and continues to suffer, severe emotional distress, including loss of appetite, insomnia, and lack of concentration in his daily life, as well as damage to his reputation despite full exoneration, a delayed entry into the work force in his chosen field, and delayed receipt of his degree. M.V. alleges that J.T.'s actions will continue to impact him if they are not stopped.

The complaint and M.V.'s affidavit allege that, in the spring of 2019, M.V., then a senior in high school, and J.T., a year behind him in school, began dating after meeting on Instagram. M.V. made it clear to J.T. that he was not interested in a serious relationship because he would be departing for the University in the fall. The two went their separate ways in July 2019. When M.V. went to college that fall, he and J.T. lost touch, but during Thanksgiving break, the two consensually kissed. M.V. learned that J.T. also planned to attend the University that upcoming fall. J.T. contacted a woman who M.V. was dating at that time, and told the woman that she would be attending the University the next fall and would "make [M.V.]" hers.

Upon return to the University for his sophomore year in the fall of 2020, M.V. knew that J.T. would be attending the same University, as a freshman. M.V. and J.T. reconnected and began to engage in a sexual dating relationship, seeing each other nearly every day, and engaging in sexual activity often. During this time, J.T. asked M.V. whether he would be willing to engage in a type of sexual role play that she saw popularized on social media. Before the parties ever engaged in this role play, they engaged in many discussions on the topic, and established boundaries, general ground rules, and a "safe word." The parties always established consent prior to engaging in the role play and it would often arise when the two were already engaged in sexual activity. J.T. often initiated role play sex, and even clearly indicated a desire to so in text message exchanges.

Upon return to the University for the spring 2021 semester, M.V. found himself spending less time with J.T. and began meeting with a therapist to aid with his mental health. J.T. ended the relationship with M.V. in late January or early February 2021. M.V. wished her well when they parted. Sometime in or around May 2021, J.T. reached out to M.V., and the two engaged in a casual dating relationship, and resumed their sexual relationship, which continued until July 2021. During this time, J.T. did not express that their role play agreement only applied to when they were in a formal relationship but did express that she thought she was M.V.'s future wife.

The parties resumed their consensual sexual relationship in the fall and winter of 2021, but only after M.V. first declined J.T.'s request to engage in sexual activity. Throughout November and early December 2021, the parties engaged in consensual sexual activity, including role play sex. Each time, they consensually engaged with each other, in both regular sexual activity and role play sexual activity.

In his affirmation, M.V. asserts that, by way of example and not limitation, the sexual encounters between M.V. and J.T. during this time included: (a) on or around November 4, 2021, M.V. asked whether he could complete inside of J.T. that day, and she responded with a clear "yes"—indicating full consent, and then spent the night with M.V.; (b) on November 21, 2021, J.T. asked M.V. to have sex and stated that she would look elsewhere to "get[ ] laid" if it was not with him; however, M.V. and J.T. ultimately did engage in sexual intercourse that evening, with J.T. sleeping over M.V.'s apartment; (c) after J.T. contacted M.V. on November 28, 2021, to engage in sex, they did so; and, (d) both regular sex and role play sex on or around November or December 2021.

On or around December 11, 2021, M.V. stopped contacting J.T. because he wanted something more meaningful. A few days later, he noticed his car was vandalized when he went to take a final exam.

M.V. returned home for his winter break of 2021-2022, but that did not stop J.T. from attempting contact, as she penned an anonymous letter to M.V., which M.V. recognized as her handwriting, sharing that he was loved and if he ever needed anything he could reach out. J.T. also sent a series of text messages to M.V., stating that she wished they were engaged in role play sex and wishing him a happy new year.

M.V. and J.T. briefly again reconnected in the spring of 2022. They began talking to each other through text message and then moved their conversation in person. Eventually, they engaged in a casual dating relationship, with regular sexual encounters. It was during this time that M.V. gave J.T. the code to his apartment. The two went their separate ways once again and M.V. began dating another woman.

In the fall of 2022, M.V.'s apartment was broken into by a person in a red hoodie, which M.V. thought was an old sweatshirt of his that J.T. had in her possession. Additionally, although M.V.'s apartment had multiple bedrooms, and only his bedroom had items missing. All items missing from M.V.'s bedroom were of a sentimental nature, except for some cash; the sentimental items included his cat's first collar and a coin from the Smithsonian that he obtained during a trip with his father.

The parties once again reconnected in November 2022, when J.T. shared that she was dissatisfied with her boyfriend at that time. At that same time, M.V., along with the person whom he was dating, mutually decided to go on a break. On December 5, 2022, however, the person whom M.V. had been dating experienced roommate problems, so M.V. offered her a safe place to stay that evening. On the night of December 5, 2022, M.V. and this person did not engage in sexual intercourse. The next day, M.V. and J.T. engaged in consensual sex for the last time. Later that same day, December 6, 2022, the person who needed a safe space to stay while experiencing roommate issues again went to M.V.'s apartment to spend the night, where nothing sexual occurred. J.T. reached out to express her discontent over this via text message and expressly stated that she did not want M.V. spending any time with the other person, at all.

On or around January 8, 2023, J.T. posted a video to TikTok that shared the text "embrace the male manipulator in you."

On or around February 11, 2023, M.V. claims that J.T. defamed him while he was out of the country attending a family funeral. M.V. claims, "upon information and belief," that J.T. publicly stated to numerous individuals—including his fraternity brothers and friends—that M.V. allegedly raped her. M.V. adds that, "upon further information and belief," that J.T. posted to YikYak, a social media application, that M.V. allegedly raped her with the words "[M.V.] is a r*pist" among other posts and follow up posts, which J.T. later admitted in her own affirmation.

In March 2023, J.T. filed a complaint against M.V. at the University alleging non-consensual sexual contact and "domestic violence or dating violence," which M.V. learned of for the first time in a meeting with the University. On May 23, 2023, M.V., along with his advisor, J.T., and J.T.'s advisor appeared for a University hearing (the "hearing") before a hearing panel.

At the hearing, M.V. set forth his innocence of the allegations, including but not limited to the following: (a) M.V. never once stated to J.T. that she allegedly liked being raped by me; (b) M.V. never once called her a bum; (c) M.V. never touched J.T. without her consent while she slept, ever; (d) M.V. never gave J.T. hickeys without her consent; (e) the occasion that J.T. mentioned wherein M.V. allegedly gave her a hickey due to her having a date with another guy never happened; and (f) J.T.'s allegations that M.V. pulled her pants down and covered her mouth were completely false. At the hearing, M.V. set forth instances of how J.T. gave consent, including but not limited to her frequently wrapping her legs around him and pulling him closer. At the hearing, M.V. acted respectfully and cordially towards all participants.

J.T., on the other hand, rolled her eyes, openly scoffed, laughed, and shook her head while M.V. spoke at multiple points in the proceeding including his opening and closing statements, and during important periods of question and answer. The hearing chairperson verbally asked J.T. to stop engaging in such behavior; however, she did not.

Additionally, M.V. maintains that, notably, J.T. displayed her lack of credibility at the hearing by contradicting herself several times. For instance: (a) J.T. asserted at the hearing and in her affirmation that role play sex only occurred while "dating." At the hearing, however, she admitted to asking for, and engaging in, role play sex after she and M.V. "dated," which prompted a discussion amongst the parties to establish the comfort and consensual nature of the role play sex; (b) J.T. also admitted that she did not tell her "witness" S.N. about the "specifics" of the role play sex or their sexual encounters in general; (c) J.T. admitted to utilizing sex in an attempt to manipulate M.V.; and, (d) J.T. stated that she would have "loved to be [in a relationship] with [him]."

Ultimately, the University found M.V. not responsible for any of the allegations against him. J.T.'s claims were determined not to rise to the level of a policy violation under the University policy, which utilizes a preponderance of the evidence standard. With this finding in hand, M.V. sought to move on with his life and ultimately, in October of 2023, through counsel, both parties agreed to vacate orders of protection. Since that time, the parties have not contacted each other….

M.V. alleges that J.T. libeled and defamed him in her YikYak post on or around February 11, 2023, where she, upon information and belief, wrote "[M.V.] is a r*pist." M.V. further alleges that J.T. libeled and defamed him in her YikYak posts on or around February 13, 2023, where she, upon information and belief, wrote "[M.V.] in asig is a r*pist"; "we used to have a complicated relationship and he manipulated me to the point where i didn't realize he was r*ping me regularly"; "not just talking coercion, he physically pinned me down, pushed my underwear to the side, & shoved his dick in me as fast as he could while i was pushing away & repeatedly saying no. this was often"; "he's also a pathological liar. people need to know about this." M.V. contends that, when J.T. admitted to making these posts, she stated, upon information and belief, that she wanted to alert others as to what happened and "make sure" they were "safe." M.V. contended that these statements were false and that J.T. knew they were false….

M.V. [also] alleges that J.T. slandered and defamed him by spreading false allegations of rape, sexual assault, and of him being a pathological liar to numerous individuals in February 2023 and throughout the investigation….

Andrew T. Miltenberg, Stuart Bernstein & Regina M. Federico of Nesenoff & Miltenberg LLP represent M.V.

The post Rape Allegations in #TheyLied Defamation Lawsuit Aren't on a Matter of "Public Interest," Says N.Y. Judge appeared first on Reason.com.