Eugene Volokh's Blog, page 206

[Eugene Volokh] $25K Damages for Statements Alleging Woman's Fiancé Said Her "Vagina Stinks"

From Ihim v. Magambo, decided Friday by the Appellate Court of Maryland (opinion by Judge Dan Friedman, joined by Judges Stephen Kehoe and J. Frederick Sharer:

In May 2021, an anonymous user on Instagram sent a direct message to Achilihu suggesting that her fiancé, Magambo, had commented on her body odor. Several days later, … Chukwurah, a friend of both Achilihu and Ihim, told Achilihu that Ihim had made two remarks about Achilihu's body odor—that (1) "… Achilihu's vagina stinks" and that (2) "… Magambo told me that … Achilihu's vagina stinks." … Achilihu shared these statements with Magambo.

Chukwurah sent another message to Achilihu in June. This time, Chukwurah said she was told by Ihim that Ihim had screenshots confirming that Magambo made the second statement about Achilihu's body odor. Achilihu and Magambo discovered one final anonymous online post about a year later. The user, this time posting on the gossip website Lipstick Alley, also alleged that Magambo had criticized Achilihu's body odor.

Magambo and Achilihu sued Ihim for, in relevant part, defamation and intrusion upon seclusion; a judge awarded Achilihu $10K actual damages + $5K punitives, and Magambo received $5K actual damages + $5 punitives. The appellate court concluded that the statements tended to expose someone to sufficient opprobrium, a necessary element of a defamation claim:

Ihim alleges there is insufficient evidence to show the two statements exposed Magambo and Achilihu to any reputational damage. To satisfy the first element of defamation, however, Magambo and Achilihu are not required to show actual reputational damage. A defamatory statement need only be of the type that "tend[s]" to expose a person to scorn, hatred, and the like. The test is simply "whether the words, taken in their common and ordinary meaning … are capable of defamatory construction."

That test is satisfied here. The statement "… Achilihu's vagina stinks" tends to expose Achilihu to contempt or ridicule regarding both her health and her hygiene. The statement "… Magambo told me that … Achilihu's vagina stinks," coupled with the extrinsic fact that the two are engaged, tends to expose Magambo to contempt or ridicule by communicating a breakdown in the relationship between the couple or a lack of discretion on the part of Magambo. Each statement discourages others from having a good opinion of both parties and satisfies the first element of defamation….

The court also upheld the actual damages award:

A court may award actual damages based on anxiety and other mental and emotional harms. There was evidence that these defamatory statements frayed the relationship between Magambo and Achilihu to such a point that they paused their wedding planning. Testimony revealed that Achilihu experienced severe stress from the statements, which was compounded by her studying for the bar exam at the same time. For his part, Magambo stated he suffered from depression and panic attacks. Each also attended therapy at least in part because of the defamatory statements. Based on this evidence, the circuit court did not clearly err in awarding Achilihu and Magambo actual damages based on "humiliation, embarrassment, [and] stress."

And the court upheld the punitive damages award:

To be awarded punitive damages, a plaintiff must prove actual malice by clear and convincing evidence. Actual malice is "a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement." {Maryland's highest court [has] held that actual knowledge of falsity, and not merely reckless disregard of truth, is required to prove actual malice in the context of recovering punitive damages in defamation actions.} Actual malice can be inferred from circumstantial evidence.

Ihim knew by clear and convincing evidence that the defamatory statements were false and attempted to deceive others about its falsity. First, the circuit court found that Ihim fabricated the screenshot that allegedly captured Magambo messaging Ihim about Achilihu's body odor. This screenshot was never introduced, and every witness—including Ihim—denied ever seeing the screenshot.

Second, testimony supported, and the circuit court found, that Ihim attempted to influence the deposition of Chukwurah by texting her—as the deposition was happening—to answer questions vaguely and to deny that Ihim communicated the defamatory statements to her. These findings are sufficient to infer that Ihim knew and attempted to deceive others about the falsity of the defamatory statements because they display Ihim's attempts to conceal her involvement in and insulate herself from the defamatory statements. As a result, the circuit court did not err in awarding punitive damages to Magambo and Achilihu.

{Ihim also argues that the statement "… Achilihu's vagina stinks" is merely an opinion and thus cannot be proven true or false for purposes of establishing the second element of defamation. A statement is false if it is "not substantially correct." Whether an opinion is defamatory depends on whether the factual basis for the opinion is either disclosed or undisclosed and either true or false. Regardless, we need not determine if this is an opinion because the argument was neither raised at trial nor decided by the circuit court.}

Ihim didn't substantively challenge liability for intrusion upon seclusion claim, though she did raise an evidentiary objection that I didn't excerpt. Eric Kirk (Kirk Law Firm) and Steven Michael Klepper (Kramon & Graham, P.A.) represent plaintiffs.

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[Josh Blackman] Today in Supreme Court History: December 16, 1936

12/16/1936: West Coast Hotel v. Parrish argued.

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[Josh Blackman] Judicial Misconduct Complaint Against Judge Vaden For Columbia Boycott Referred to Seventh Circuit's Judicial Council

It is all to common for critics to demand an "enforceable" ethics code against the Supreme Court justices. These charges, however, fail to recognize how the complaint system could be weaponized. For evidence of this risk, I would point to ongoing proceedings concerning Judge Stephen Vaden of the Court of International Trade.

Judge Vaden was one of thirteen judges who joined the boycott of Columbia Law School. (I interviewed Judge Matt Solomson of the Court of Federal Claims about the boycott.) Shortly after the boycott was announced, a judicial misconduct complaint was filed against Judge Vaden.

Judge Vaden was not alone. Similar complaints were filed against Judges in the Fifth Circuit, the Eleventh Circuit, and in the Court of Federal Claims. As best as I can tell, each of those complaints was dismissed within the circuit. On June 18, 2024, Chief Judge William Pryor of the Eleventh Circuit dismissed the complaint, and the Judicial Council of the Eleventh Judicial Circuit affirmed. On June 24, Chief Judge Priscilla Richman of the Fifth Circuit dismissed the complaint, and the Appellate Review Panel of the Judicial Council for the Fifth Circuit affirmed. And on October 1, 2024, Chief Judge Elaine D. Kaplan of the Court of Federal Claims dismissed the complaint.

Each of these complaints was dismissed, with detailed opinions explaining why. Yet the complaint against Judge Vaden continues. Why?

Let me take a step back and tell you what is public information, and what is not public record. The judicial misconduct process is byzantine. Generally, the proceedings are entirely confidential. Moreover, even if the subject of the complaint waives confidentiality, the proceedings will still remain confidential.

These requirements are spelled out in 28 U.S.C. § 360(a):

(a)Confidentiality of Proceedings.—Except as provided in section 355, all papers, documents, and records of proceedings related to investigations conducted under this chapter shall be confidential and shall not be disclosed by any person in any proceeding except to the extent that—
(1)the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;
(2)the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or
(3)such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331.

This rule is spelled out with more specificity in Rule 23(b)(7) of the Rules for Judicial Conduct and Judicial Disability Proceedings:

Subject Judge's Consent. If both the subject judge and the chief judge consent in writing, any materials from the files may be disclosed to any person. In any such disclosure, the chief judge may require that the identity of the complainant, or of witnesses in an investigation conducted under these Rules, not be revealed.

In short, information about the complaint can only be made public if both the subject of the complaint, and the reviewing court approves it. How many people clamoring for an "enforceable" ethics code against the Supreme Court were even aware of these statutes?

With that background, I can point you to a statement posted on the First Liberty web site (for purposes of full disclosure, I've worked with First Liberty on many cases and projects over the years):

Judge Stephen Vaden is a judge on the US Court of International Trade. He was appointed to the bench in 2020 by President Donald Trump.

On May 6, 2024, thirteen federal judges, including Judge Vaden, sent a letter to Columbia University condemning the repeated instances of antisemitism on the campus after Hamas' October 7 attack on Israel.

An inmate convicted of terrorism and vandalism offenses filed a judicial misconduct complaint against Judge Vaden for signing the letter. The misconduct complaint is currently pending before the Seventh Circuit's Judicial Council.

The Chief Judges of the Court of Federal Claims, and United States Courts of Appeals for the Fifth and Eleventh Circuits, dismissed similar complaints about the letter. Those dismissals have all been affirmed by the relevant Judicial Councils.

The inmate has no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden.

First Liberty, along with Lisa Blatt from Williams & Connolly LLP, represent Judge Vaden.

Again, rules of confidentiality constrain what I can write here. So let's play connect the dots. How can a complaint get from the Court of International Trade to the Seventh Circuit Judicial Council? Rule 26 lays out the process:

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

So two things had to happen here. First, the Chief Judge of the Court of International Trade, Mark Barnett, determined there were "exceptional circumstances" to ask Chief Justice John Roberts to transfer the complaint to another circuit. And second, Chief Justice Roberts had to agree that such a transfer was warranted.

Now remember, similar complaints were already dismissed by three other chief judges, who saw no need to refer the case to other circuits. Why did Judge Barnett decide to transfer the case? I can't tell you. That information is confidential. And I think it is safe to say that Judge Vaden has not withheld confidentiality. The fact that he authorized his counsel to make the case public should support that conclusion. So it is the Chief Judge of the Seventh Circuit and/or Chief Justice Roberts, who is keeping this case on the down-low.

Some more information may be helpful. The Court of International Trade is an Article III court. Judges are nominated by the President, are confirmed by the Senate, and serve during "good behavior." But 28 U.S.C. § 251 mandates the political affiliation of federal judges:

The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States.

In general, there may not be Obama or Trump judges. But Judge Mark Barnett, by statute, was an Obama judge. And Judge Stephen Vaden, by statute, was a Trump judge. (I tend to think this statute is an unconstitutional constraint on the President's appointing power--the Senate can just withhold consent for a judge of the wrong party--but that is a matter for another day.) Chief Justice Roberts was certainly aware of this fact. And he was aware of prior dismissal orders by the Fifth and Eleventh Circuits. And, Chief Justice Roberts was under no obligation to transfer the complaint. You may recall that Roberts's rejected the transfer request from Chief Judge Srinivasan regarding Judge Griffith. Yet, Roberts let this case go forward here. Roberts could have transferred the case to the Fifth or Eleventh Circuits, which already resolved these issues. But he picked the Seventh Circuit.

What exactly are the proceedings before the Seventh Circuit? Confidential. I hope Judge Vaden is relieved of this complaint as soon as practicable. And Chief Judge Barnett of the Court of International Trade, and Chief Justice Roberts, should think very carefully of why this case is any different than the prior cases from Texas and Georgia.

You may not care very much about this dispute, or the Court of International Trade. But this Court will have jurisdiction over Trump trade-related cases, including tariffs and customs. (See 28 U.S.C. § 1581). No other court in the country can hear challenges to virtually any tariff decision that Trump will make. This court will be very significant.

Plus, the Court of International Trade does not use random assignments. Instead the Chief Judge assigns specific judges to specific panels. 28 U.S.C. § 253 provides:

The chief judge, under rules of the court, may designate any judge or judges of the court to try any case and, when the circumstances so warrant, reassign the case to another judge or judges.

And Rule 77(e) of the Court's rules provide, in part:

(e) Assignment and Reassignment of Cases.

(1) Assignment to Single Judge. All cases will be assigned by the chief judge to a single judge, except as prescribed in paragraph (2) of this subdivision (e).

(2) Assignment to Three-Judge Panel. A case may be assigned by the chief judge to a three-judge panel either on motion, or on the chief judge's own initiative, when the chief judge finds that the case raises an issue of the constitutionality of a federal statute, a proclamation of the President, or an Executive order; or has broad or significant implications in the administration or interpretation of the law.

(3) Time of Assignment. Cases are assigned by the chief judge at any time on the chief judge's own initiative or on motion for good cause shown.

This assignment makes Amarillo and Fort Worth seem like no problem at all.

It would be worth studying how members on the evenly-divided court are assigned to high-profile cases. We will be hearing a lot more about Judge Barnett over the next four years. For all the complaint about single judge divisions, more attention should be focused on the Court of International Trade.

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[Josh Blackman] "Brazenly Partisan" Judge Wynn Withdraws Senior Status Because Trump

During the last four years, much attention has focused on the Fifth Circuit. But during the first Trump Administration, the Fourth Circuit was the locus of the legal resistance. This court issued landmark rulings against Trump on the Emoluments Clauses, the Travel Ban, and many other policies. During that time, one judge in particular caught my attention time and again: Judge James A. Wynn, an Obama nominee in North Carolina. Consistently, and reliably, he ruled against Trump and other conservative litigants. Yet, as an Article III judge, he had least had the patina of neutrality--that he wasn't on one team or the other, but merely called each case as he saw them. Balls and strikes, as they say.

My colleague Seth Barrett Tillman highlighted a passage from Judge Wynn's concurrence in the Emoluments Clauses en banc decision:

Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.

But to the contrary, our dissenting colleague insinuates that "something other than law [is] afoot" here. First dissent at 308–09 (Wilkinson, J.).

With Judge Wynn, was something "other than law afoot"?

In December 2017, I wrote a post about Wynn's questions during the travel ban en banc oral argument:

During the en banc proceeding in Richmond on Friday, which I attended, Judge James A. Wynn Jr. asked Department of Justice lawyer Hashim Mooppan about the relevance of the president's inflammatory tweets to the Establishment Clause analysis. (The exchange begins at 24:20.) "What do we do with that," he asked referring to the tweets. "Do we just ignore reality and look at the legality to determine how to handle this case?" Though the framing of his question was somewhat unclear, the premise was pellucid: What should a judge do if the law cuts one way, but reality cuts the other?

With Judge Wynn, what happens if the law cuts one way but reality cuts another? Which path does he follow?

I think that final sentence is a perfect segue to the news of the day. In January 2024, Judge Wynn announced that he would take senior status upon the confirmation of his successor. President Biden nominated Ryan Park, the North Carolina Solicitor General. I flagged that pick at the time, noting that Park was apparently rewarded for losing SFFA v. UNC with a circuit court nomination. I had written about Park way back in 2015. He consistently tells people he clerked for Justices Ginsburg and Souter. But the reality is he was hired by Justice Souter, and was detailed to RBG. It is such bad form to trivialize the hiring Justice.

Well, Park would never receive a floor vote. And he was not part of the "Deal" in which the Republicans allowed votes on several District Court nominees if pending Circuit Court nominees from Tennessee and North Carolina would remain unfilled. Of course, the rub of that deal is that the judges in those two states--Judge James Wynn and Judge Jane Stranch--may withdraw their senior status. These two judges were extra bargaining chips that Senator Schumer kept in his back pocket.

On December 13, like clockwork, Judge Wynn wrote to President Biden:

I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused.

Did Judge Wynn avoid the appearance of partiality? No, he did the exact opposite. Was something other than law afoot? Absolutely. Here, it is fairly clear that the law cuts one way (a judge can rescind senior status) but reality cuts the other (only a partisan would do so after his preferred candidate loses the election).

Senator Tom Tillis of North Carolina states the issue plainly:

"Judge Wynn's brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes," Tillis said in a news release Saturday. "Judge Wynn clearly takes issue with the fact that Donald Trump was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January.

For all the faux outrage about judicial ethics with Justices Alito and Thomas, there will only be crickets on the left about Judge Wynn. Which proves that the outrage is merely performative--except judges still get death threats.

Chief Justice Roberts was copied on this letter. Does the Chief think that Judge Wynn is an "Obama judge"? How else to explain it? Seth observed:

I don't doubt Judge Wynn's fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn's colleagues or the wider public will see his stating such views in quite the same light. If his taking senior status was "doing [his] job," then why did he rescind? Should not his colleagues and the public see "partisan motives" on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?

The other shoe waiting to drop, of course, is Judge Jane Stranch. Back in May, I observed that the replacement for Stranch was her first law clerk, and a partner at her family's law firm. It is a total family affair. If Judge Stranch withdraws her senior status request, she will look as nakedly partisan as does Judge Wynn, and reaffirm the worst type of nepootism. Now Judge Stranch probably does not read this blog, or care for much of what I write. But Judge Stranch will still have to hold her head up high in front of her colleagues on the Sixth Circuit. And what will they think of her?

In the past, I've proposed what I call "Bilateral Judicial Reform." These proposals will help and hurt both sides, equally. Maybe another proposal is in order: a Judge has one, and only one chance to request senior status. If that request is withdrawn, the judge will never again be able to request senior status.

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[Josh Blackman] Today in Supreme Court History: December 15, 1791

12/15/1791: First Ten Amendments ratified.

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[Steven Calabresi] Sheldon Gilbert: The New President of the Federalist Society

Many readers of this Blog may be interested in knowing more about Sheldon Gilbert, the new President of the Federalist Society who will take over from Eugene Meyer on January 2, 2025. Sheldon is a brilliant libertarian conservative who is 44 years old, has four children, and has held leading positions at the Chamber of Commerce litigation team, the Institute for Justice litigation team, the National Constitution Center headed up by Jeff Rosen, and as a senior counsel at Walmart, which recently decided to end its DEI policy. Sheldon is a member of the Church of Jesus Christ of Latter Day Saints.

Sheldon is highly respected by the rising generation of Federalist Society lawyers in their thirties and forties. He is known for being friendly and kind to everyone, and he has a huge number of friends. Sheldon is an originalist who is committed to the rule of law, to the idea of the separation of powers, and to the principle that it is emphatically the province and duty of the judiciary to say what the law is and not what it should be. He has shown courage and wisdom in his sixteen years of practicing law in the private sector. While in law school, Sheldon created a national religious liberties moot court.

In getting to know Sheldon, I was very impressed by the depth of his commitment to the rule of law, by his brilliance, by his entrepreneurial spirit, by his ability to work well with a wide array of other people of differing viewpoints, and by his willingness to work very hard. Sheldon will work to convert people to join the Federalist Society, which he will also work to build. One of his many strong supporters on the Board of Directors, after his interview with the Board, was 93-year-old former Attorney General Ed Meese who served on the Search Committee that found Sheldon Gilbert.

I am confident that the legal giants who launched the Federalist Society 42 years ago, Judge Robert H. Bork and Justice Antonin Scalia, would have been thrilled with this appointment, as will be Professor Richard Epstein who also helped to launch the Federalist Society in 1982. The co-founders and members of the Board of Directors of the Federalist Society look forward to working together with Sheldon Gilbert in the years ahead.

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[Eugene Volokh] The Trump v. ABC Defamation Decision That Led to the $15M Settlement

From the July 24 opinion by Chief Judge Cecilia Altonaga (S.D. Fla.) that led to ABC's $15M (plus $1M in attorney fees plus an editor's note) settlement filed today:

On March 10, 2024, Stephanopoulos interviewed United States Representative Nancy Mace; ABC and ABC News broadcast the interview as part of the show This Week with George Stephanopoulos. In the interview, Stephanopoulos asked Mace about her endorsement of Plaintiff despite the fact he was "found liable for rape" [in E. Jean Carroll's case against him]. He repeated the phrase ten times during the interview, at one point stating "[j]udges and two separate juries have found him liable for rape," and "[t]he Judge affirmed that it was, in fact, rape." A screenshot of a newspaper headline stating that "Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll[,]" was shown near the end of the broadcast….

Trump sued, arguing that the jury had found him not guilty of rape but only guilty of sexual abuse; ABC argued that, in context, the jury in Carroll v. Trump must have found him guilty of digital penetration, which is a form of rape or in any event tantamount to rape. But Chief Judge Altonaga disagreed:

"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true." …

[In resolving this question], the Court is mindful of the specific setting in which the statements were made. Here, Stephanopoulos was not describing Plaintiff's actions or Carroll's testimony against him; he was describing the jury's verdict.

This distinguishes several of the cases Defendants cite. In those cases, courts concluded it is substantially true for publications to describe forced sexual contact as rape when reporting on the events themselves. See, e.g., Moore v. Lowe (N.D. Ala. 2022) (concluding that it was substantially true to report that the plaintiff was accused of attempted rape, even if the statement would lead readers to believe he was accused of "forced vaginal sex rather than forced oral sex"); Nanji v. Nat'l Geographic Soc. (D. Md. 2005) (concluding it was not inaccurate to "use [] the term 'rape' as shorthand for sexual misconduct" when recounting "the abundance of sexual misconduct evidence in the public records").

More to the point, Defendants also cite cases finding substantial truth can arise when describing charges of forced sexual contact as charges for rape. Yet, these cases all involved underlying law that seemingly did not distinguish between rape and other forced sex crimes. See, e.g., Simonson v. United Press Int'l, Inc. (7th Cir. 1981) (noting "that 'rape' as defined by common usage is incorporated into second-degree sexual assault under Wisconsin law"); Hovey v. Iowa State Daily Pub. Bd., Inc. (Iowa 1985) (citing Simonson and noting that "[t]he definition of the crime of rape provided by the criminal law of Iowa was subsumed into the crime of sexual abuse with the adoption of the new Iowa Criminal Code"); Moore (noting, without addressing, the defendant's argument that forced oral sex constituted rape under Alabama law).

Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos's statements dealt not with the public's usage of that term, but the jury's consideration of it during a formal legal proceeding. Thus, while Defendants' cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury's verdict expressly finding he was not liable for rape under New York Penal Law.

To the contrary, one of Defendants' cited cases suggests Florida courts do not consider legal definitions to be mere formalities in this context. See Clark (determining that use of the term "rape" to describe an arrest for sexual battery "in the absence of formal legal charges is [ ] not defamatory"). The Court thus cannot definitively say it was substantially true to report on the (single) jury's verdict in Carroll II—which did not find Plaintiff liable for rape as that term is defined under New York law—as finding Plaintiff liable for rape.

Certainly, Defendants' theory has one credible supporter: Judge Kaplan, who repeatedly determined that the jury's verdict—regardless of its finding that no rape as defined by New York's Penal Law had occurred—amounted to a finding of liability for rape as rape is commonly understood. As explained, however, Judge Kaplan's findings do not have preclusive effect here. The Court is thus only persuaded that substantial truth would arise if the jury's verdict of "No" was presented in combination with Judge Kaplan's additional findings. The Court considers that aspect of Defendants' arguments now, considering the allegedly defamatory segment in its entirety and in context, from the perspective of a reasonable viewer.

Under that standard, a reasonable jury could interpret Stephanopoulos's statements as defamatory. Stephanopoulos's exchange with Mace lasted about ten minutes, during which Stephanopoulos stated ten times that a jury—or juries—had found Plaintiff liable for rape. In fact, of course, the Carroll II jury did not find Plaintiff liable for rape under New York Penal Law; it was Judge Kaplan who determined that the jury's verdict amounted to liability for rape. Yet, none of these particularities make it into the segment such that a reasonable viewer would have indisputably understood what Defendants now brief in detail.

Instead, at one point, Stephanopoulos asked to display a screenshot of a newspaper article about Judge Kaplan's findings and stated that "the Judge affirmed that it was, in fact, rape." This ostensible "clarification" occurred late in the segment and did not include any further explanation; viewers were simply treated to a ten-second glimpse of a headline and partially blurred text, with no mention of Judge Kaplan by name or any description of why his description of the verdict differed from the jury's actual verdict as recounted by Mace. On this record, the Court finds that the segment is, at least, "confusing or ambiguous" and susceptible to defamatory interpretation.

Once again, the Court does not find that a reasonable jury must—or even is likely to—conclude Stephanopoulos's statements were defamatory. A jury may, upon viewing the segment, find there was sufficient context. A jury may also conclude Plaintiff fails to establish other elements of his claim. See Readon v. WPLG, LLC (Fla. 3d DCA 2021) ("The First Amendment safeguards publishers from defamation suits brought by public figures unless the publisher acts with actual malice." (citations omitted)). But a reasonable jury could conclude Plaintiff was defamed and, as a result, dismissal is inappropriate.

For much the same reason, Chief Judge Altonaga also rejected defendants' fair report privilege arguments, which applies only to substantially accurate reports of court proceedings.

True, the fair report privilege absolves the media of the burden to be "technically precise" in their descriptions of legal proceedings. But the privilege does not protect media where the omission of important context renders a report misleading. See Dershowitz v. Cable News Network, Inc. (S.D. Fla. 2021) (rejecting the application of the fair report privilege, where playing a partial video clip, as opposed to the full video, "presented an official proceeding in a misleading manner"). Here, a reasonable viewer—especially one who was aware that Plaintiff had been charged with rape under New York Penal Law—could have been misled by Stephanopoulos's statements, which did not include the jury's original findings and only fleetingly referenced the interpretation Judge Kaplan later offered.

There's a lot more in the opinion, including a juicy (is there any other kind?) collateral estoppel issue. The settlement also obligates ABC to add an editor's note saying that "ABC News and George Stephanopoulos regret" the statements about Trump. Alejandro Brito (Brito LLC) represents Trump.

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[Jonathan H. Adler] Sheldon Gilbert to Lead Federalist Society

Today the Federalist Society for Law and Public Policy Studies announced that attorney Sheldon Gilbert will succeed Eugene Meyer as President of the Federalist Society. This is an excellent choice (though not one that had been foreshadowed in prior news reports). Text of the announcement is below.

The Federalist Society's Board of Directors is delighted to announce that Sheldon Gilbert will become its second president on January 2, 2025. Gilbert, currently Walmart's Senior Lead Counsel for Strategic Initiatives, will succeed Eugene B. Meyer, who has served as Executive Director, CEO, and/or President of the organization for  more than 40 years.

"Sheldon is a superb choice to take over as President of the Federalist Society," said co-chairman of the Board of Directors Steven Calabresi. "His boundless energy and enthusiasm and deep engagement with all segments of the legal community, including different strands of the conservative and libertarian legal movement, make him the right person to lead the Federalist Society at this time."

"Sheldon is both a thinker and a doer," said co-chairman of the Board Leonard Leo. "His unmatched strategic sense, entrepreneurial mindset, leadership qualities, and vision make him uniquely qualified for leading the generational change the Society is poised to begin while preserving the Society's core assets and commitments."

"We are delighted to welcome Sheldon, who is joining the organization at a pivotal moment," said outgoing President Eugene Meyer. "He shares a deep commitment to our mission and purpose, to provide a forum for fair, serious, and open debate about the role of the courts in saying what the law is rather than what they wish it to be, and to the centrality of the rule of law in protecting individual freedom and traditional values. It's been an honor to have served over many decades. I am grateful to my colleagues, our members and those who have supported this mission over the years."

"The Federalist Society's strength comes from our members, and I'm proud to work alongside them to promote the Society's founding principles and provide a thoughtful forum for discussion and debate," said Gilbert. "It's an honor to serve our members—including law school students and faculty, public servants in every branch of government, and private sector and non-profit lawyers— who tirelessly and fearlessly work to defend the Constitution, preserve freedom, and promote the rule of law."

Before joining Walmart, Gilbert served as Vice President for Content and Development and Senior Fellow for Constitutional Studies at the National Constitution Center, as Director for the Institute for Justice's Center for Judicial Engagement, and as Associate Chief Counsel for Litigation at the U.S. Chamber of Commerce's Litigation Center. He is a graduate of the George Washington University Law School and the University of Utah.

Gilbert is married with four children, and is himself a child of the Mountain West, where he was born in a coal mining town in Utah and raised in Idaho near the Grand Tetons. Before going to law school, Sheldon's diverse interests led him to work in a wide range of roles, from software development project management for a nonprofit, to working in his University's radiobiology research lab, to volunteer service in Rio de Janeiro, Brazil for his church. Gilbert was selected following a nationwide search by the Board's Presidential Search Committee, with key support from Andrea McDaniel Smith, a partner at CarterBaldwin Executive Search.

Founded by law students from around the country in 1982, the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. Under Eugene Meyer's leadership, the organization has grown from a small group of law students to a community of 90,000 lawyers, law students, academics, judges, and others interested in the rule of law.

For my own views of the Federalist Society, see this post, which I wrote during the Gorsuch nomination fight in 2017.

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[Josh Blackman] Today in Supreme Court History: December 14, 1964

12/14/1964: Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung are decided.

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[Eugene Volokh] D.C. Circuit Panel Denies TikTok's Request for Stay of the TikTok Divestment Law

From today's order:

At the request of the parties, this court expedited its consideration of the case "to ensure that there is adequate time before the Act's prohibitions take effect to request emergency relief from the Supreme Court." Consistent with the schedule proposed by the parties, on December 6, 2024 this court unanimously upheld the constitutionality of the Act with respect to each claim presented by the petitioners and denied as moot the petitioners' alternative requests for a temporary injunction and to appoint a special master.

The petitioners now seek a "temporary pause" in order "to create time for further deliberation." They argue the injunction will "permit the Supreme Court to consider this case in a more orderly fashion" and "give the incoming Administration time to determine its position on this exceptionally important matter."

The petitioners are not, however, "merely seeking a stay of [this] court's order, but an injunction against the enforcement of a presumptively valid Act of Congress." Such a "temporary injunction against enforcement is in reality a suspension of an act, delaying the date selected by Congress to put its chosen policies into effect." That is particularly true here because the Act reflects a deliberate choice on the part of the Congress and the President to set a firm 270-day clock — subject to one (and only one) extension of up to 90 days granted by the President if certain conditions are satisfied — after which the prohibitions of the Act take effect with respect to TikTok.

The petitioners have not identified any case in which a court, after rejecting a constitutional challenge to an Act of Congress, has enjoined the Act from going into effect while review is sought in the Supreme Court. The petitioners rely upon their claims under the First Amendment to justify preliminarily enjoining the Act. As to those claims, this court has already unanimously concluded the Act satisfies the requirements of the First Amendment under heightened scrutiny.

In light of that decision, the time available to the petitioners to seek further review in the Supreme Court, and the interest in preserving the Supreme Court's discretion to determine whether and to what extent to grant any interim injunctive relief while that Court considers a petition for a writ of certiorari, a temporary injunction of the Act from this court is unwarranted.

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