Eugene Volokh's Blog, page 216

[Eugene Volokh] No Sealing of Dupont Documents in Toxic Tort Case

From Wednesday's decision by Judge Robert Numbers (E.D.N.C.) in Dew v. E.I. Dupont de Nemours & Co.:

Plaintiffs, current and former residents of southeastern North Carolina, claim that Defendants contaminated the Cape Fear River with toxic chemicals. After conducting discovery, Defendants asked the court to grant summary judgment in their favor. A part of summary judgment briefing, the parties filed a wealth of documents and information, some of which Defendants claim contained sensitive business information.

Defendants … sought to keep 36 documents under seal. Defendants said, in conclusory fashion, that each document should be kept under seal because they contained some combination of confidential, sensitive, and non-public business information. They also noted that each of the documents had been designated as Confidential or Highly Confidential under the protective order entered by the court. But beyond that, Defendants provided neither substantive argument, nor evidence in support of their motion….

As with all aspects of the federal government, the federal courts belong to the People of the United States. As a result, the public has "a general right to inspect and copy … judicial records and documents." Allowing public access to judicial records advances the public's "interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves."

But the public's "right to inspect and copy judicial records is not absolute." "Every court has supervisory power over its own records and files," and can deny the public access to those records and files when they may be used "for improper purposes." …

The documents Defendants wish to keep under seal were filed in connection with a summary judgment motion. Thus, the public's right of access arises out of the First Amendment. To overcome the public's First Amendment right of access, the moving party must show that the denial of access is "necessitated by a compelling government interest and narrowly tailored to serve that interest." "The burden to overcome a First Amendment right of access rests on the party seeking to restrict access, and that party must present specific reasons in support of its position."

Defendants claim that the court should grant their motion because the documents they wish to keep under seal contain "confidential and sensitive business information … that is not generally available to the public[.]" They assert that "[i]f the information were to become public, it would irreparably harm Defendants' competitive standing."

Courts have found that a party's interest in protecting confidential business information or trade secrets can overcome the public's First Amendment right to access those documents. See Doe v. Pub. Citizen (4th Cir. 2014) ("A corporation may possess a strong interest in preserving the confidentiality of its proprietary and trade-secret information, which in turn may justify partial sealing of court records."); Clemmons Farming, Inc. v. Silveus Se., LLC (E.D.N.C. 2024) (granting motion to seal business information for internal consumption only and internal evaluations of defendant's personnel); Dynatemp Int'l, Inc. v. R421A, LLC (E.D.N.C. 2021) (granting motion to seal sales results, revenues, customer preferences and behaviors).

But to be entitled to have documents kept under seal, a party must do more than just assert that those documents contain sensitive business information—they must prove it…. [T]he moving party must "make a particular and specific demonstration of fact showing that disclosure would result in an injury sufficiently serious to warrant protection; broad allegations of harm unsubstantiated by specific examples or articulated reasoning fail to satisfy the test.

Defendants have not met this standard. They repeatedly state, in conclusory fashion, that the documents they want to place under seal include non-public, confidential, and sensitive business information. But they never provide any evidence supporting that claim. Nor do they show how they would be harmed by public disclosure of this information. Courts require more than conclusory assertions before granting a motion to seal.

Defendants point out that they designated the documents as Confidential or Highly Confidential under a protective order entered by the court. But this designation has little to no bearing on whether it is appropriate to limit the public's access to that document once it has been submitted to the court in connection with a motion. The protective order says as much[:] … "The filing of the materials under seal shall not be binding on the Court, however." …

The standard a party must satisfy before being granted a protective order differs by an order of magnitude from the standard a party must satisfy to keep judicial documents out of the public eye…. "[D]iscovery, which is ordinarily conducted in private, stands on a wholly different footing than does a motion filed by a party seeking action by the court." … The former standard is satisfied by a showing of good cause. While the latter category requires a showing of either that "countervailing interests heavily outweigh the public interests in access" or a compelling governmental interest and narrow tailoring, depending on the source of the public's right to access. And the "reasons for granting a protective order to facilitate pre-trial discovery may or may not be sufficient to justify proscribing" public access to judicial documents. So whatever weight a unilateral decision to designate a document as confidential carries, it is not enough, by itself, to justify permanently sealing that document….

Were the court to grant a contested motion to seal on a record this sparse, it would be reducing the First Amendment's protection of the public's right of access to little more than a parchment barrier. The court declines to do so and thus denies Defendants' motion to seal….

The materials at issue, however, will remain under seal for 14 days from entry of this order to allow either party to seek review of this order by a United States District Judge. If either party seeks review, the materials will remain under seal until it is resolved. If neither party seeks review within the time allowed, the Clerk of Court shall unseal those documents without further order from the court.

Brett Land, Cary McDougal, Stephen Johnston & Cristina Sanchez (Baron & Budd, P.C.) and J. Harold Seagle represent plaintiffs.

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[Josh Blackman] A Proposal To Create A New Article III Court of Immigration Review

I pass along this proposal from an attorney who recently clerked on the Ninth Circuit. I think this proposal has some merit, and could potentially garner sixty votes in the Senate:

The American people have spoken: migration must be controlled. President Trump won not only the electoral and popular vote, but also Congressional majorities. Surveys show that most Americans approve of "mass deportations." Concern about the border is also bipartisan, with the Biden Administration having moved to restrict asylum claims over the last year.

But while President Trump's Administration may try crack down on immigration, he likely will not be able to achieve the goals of the American people unless Congress is also willing to change how the federal judiciary reviews deportation orders and challenges to immigration policy. To solve this problem, Congress should create a new Article III court with exclusive jurisdiction over all immigration cases—call it the Court of Immigration Review (COIR).

The basic contours of America's mass-migration problem are well understood. Economic migrants travel from distant places—sometimes flying from Asia and Africa—to South America, walk or ride to the U.S. border, and file a claim for asylum (along with other, arguably redundant claims). Most of these claims are meritless. But simply by articulating a fear of persecution, most migrants will be issued a notice to appear and released to await a hearing before an immigration judge (IJ). This process is so backlogged that even scheduling the hearing can take years, leading to what DHS agents call "catch and release."

Even after an IJ rules, the process does not end: roughly 1.4 million migrants are subject to a deportation order but remain in the country. When the an IJ rejects an asylum claim and orders a migrant deported, that migrant can appeal to an executive agency called the Board of Immigration Appeals (BIA). If the BIA affirms the IJ's order, the migrant may appeal (again) to a federal circuit court. The appropriate circuit court to hear the appeal is determined by geography. In Texas, appeals go to the Fifth Circuit Court of Appeals. In the American West, they land in front of the Ninth Circuit.

I cannot speak for the Fifth Circuit, but during my time as a Ninth Circuit clerk, immigration appeals made up as many as 30% of cases heard in each sitting. Some languished for years before the court ruled. Most ended with a memorandum disposition summarily affirming the BIA. But reversals happen: for instance, the court recently ruled that a migrant could not be deported because a corrupt police officer in Mexico threatened him after an altercation in 1992. Even when deportation orders are affirmed, the years of delay are a de facto win for migrants. Immigration appeals also contribute to the backlog in the rest of the civil justice system, which is now so severe that the judiciary itself is lobbying for the creation of new Article III judgeships.

The Ninth Circuit is also a favored venue for partisan challenges to federal immigration policy. During Trump's first term, progressive groups repeatedly obtained preliminary injunctions from friendly California district courts subject to review by the Ninth Circuit. During the Biden Administration, conservative states responded by filing challenges to the administration's immigration policy in Texas district courts overseen by the Fifth Circuit. Whatever immigration policy one prefers, the effect of this gamesmanship is to undermine any uniform federal immigration policy.

Enter my proposed Court of Immigration Review. In most respects, the COIR would function like any other court of appeals. It would have eleven Article III judges, it would hear cases in three-judge panels, and its decisions would be subject to review by the Supreme Court. But unlike other courts of appeal, the COIR would have exclusive and original jurisdiction over all appeals from the BIA and all challenges to immigration regulations and statutes. Other federal courts – including district courts – would be stripped of jurisdiction to hear these cases. An exception would be prosecutions for criminal violations of immigration law, which should remain with federal district courts that have experience with criminal trials and procedure.

Beyond clearing the dockets of other federal courts and allowing for a quick resolution to the massive backlog of non-meritorious immigration appeals, creation of the COIR would also ensure a "uniform rule" of naturalization and as commanded by Article I of the U.S. Constitution. Of course, if the COIR's interpretation of immigration law was erroneous, the Supreme Court could step in. But the nation would no longer be dependent on the Supreme Court's intervention to ensure the existence of a uniform immigration policy. Nor would the Court need to repeatedly stay erroneous injunctions issued by single-judge district courts.

While pro-migration partisans may oppose this idea, that is because the current legal chaos contributes to a de facto system of open borders. Democrats may also complain (rather richly, in light of recent proposals to pack the Supreme Court) that Trump should not get to appoint eleven new Article III judges. But COIR judges would be specialists with jurisdiction over immigration matters and have no say over other hot-button judicial issues like abortion. If allegations of court packing are of serious concern, COIR judges could be appointed on a staggered basis, with Chief Justice Roberts temporarily appointing judges from other courts to serve on COIR in the interim.

Finally, the COIR's creation would not break any "norms." The Federal Circuit already has exclusive jurisdiction over patent appeals and the Court of Appeals for the Armed Forces hears appeals involving military justice issues. Congress created Emergency Courts of Appeal to hear challenges to critical national economic policies in the 1940s and the 1970s. And Congress often uses jurisdiction stripping to ensure national priorities are not bogged down in court. During the Biden Administration, Congress stripped the Fourth Circuit of jurisdiction over appeals involving a critical pipeline, and gave the D.C. Circuit exclusive jurisdiction over any challenge to the recently enacted TikTok ban. Fixing the immigration system is no less important.

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[Eugene Volokh] Court Upholds N.J. Law That Lets "Certain Public Officials" Demand That Private Entities Stop Disclosing Their Home Addresses

From Tuesday's decision by Judge Harvey Bartle (E.D. Pa.) in Atlas Data Privacy Corp. v. We Inform, LLC (D.N.J.):

Daniel's Law [a New Jersey civil and criminal statute] provides that judges, prosecutors and other law enforcement officers as well as their immediate family members ("covered persons") may request in writing that any person, business, or association not disclose or make available their home addresses and unpublished telephone numbers….

In July 2020, a disgruntled lawyer who had litigated before United States District Judge Esther Salas sought to assassinate her at her home in New Jersey. After finding her home address on the Internet, the lawyer showed up on a Sunday evening armed and dressed as a delivery driver. Daniel Anderl, Judge Salas's twenty-year-old son, answered the door and was fatally shot by the lawyer. Her husband and Daniel's father was severely wounded. The lawyer then fled. In response to these crimes, the New Jersey Legislature passed Daniel's Law in November 2020 and has amended it thereafter.

Daniel's Law, as declared by the New Jersey Legislature, was enacted to serve the following goals:

This act shall be liberally construed in order to accomplish its purpose and the public policy of this State, which is to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators[,] … and prosecutors, who serve or have served the people of New Jersey, and the immediate family members of these individuals, to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions.

The law prohibits any entity when requested from thereafter disclosing the home address and unpublished telephone number of a covered person …. A "covered person" is defined as "an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator …, or prosecutor and any immediate family member residing in the same household as such [individual]." … The entity must comply with the request no later than 10 business days after receipt.

The court concludes that the law is a content-based speech restriction that extends beyond mere "commercial speech," but nonetheless upholds the law against a facial challenge (leaving possible room for occasional as-applied challenges when the home address is sufficiently "newsworthy"):

The words "strict scrutiny" and the strict scrutiny standard of review … do not appear in the … Supreme Court decisions involving the right to privacy. Instead, the Supreme Court has outlined three specific factors that a court must consider in balancing the right of privacy against the right of free speech. In The Florida Star v. B.J.F. (1989), which involved a civil statute imposing damages for the publication of the name of a rape victim, the Court established that the first inquiry is whether the information is lawfully obtained and is of public significance. A court must then determine whether the law in question serves "a need to further a state interest of the highest order." Finally, the court must decide whether the statute serves "the significant interests" which the state purports to advance and is not underinclusive….

First, the court concludes that the home addresses and unpublished phone numbers are not matters of public significance. The narrow limitation under Daniel's Law constitutes but a tiny part of the life story of covered persons and is not information that is necessary or pertinent for public oversight. Daniel's Law does not inhibit in any meaningful way the public's knowledge of public officials or its ability to hold them accountable for their performance and behavior….

The defendants raise the specter of a number of hypotheticals where the home address or the unlisted phone number of a covered person may be newsworthy and thus of public significance. If any of these hypotheticals ever comes to pass, the defendants' remedy is to challenge Daniel's law as unconstitutional as applied.

Second, … Daniel's Law serves a need to further a state interest of the highest order…. The court need not tarry by reciting in detail the support for the well-known fact, amply documented by the record here, that in recent years judges, prosecutors, police, correctional officers, and others in law enforcement have been the subject of an ever increasing number of threats and even assassinations. Some of these threats and assassinations [including the attack that prompted Daniel's Law] … have been facilitated by malefactors obtaining the home address or unlisted phone number of their targets….

Finally, the defendants assert that Daniel's Law fails because it is underinclusive. By invoking underinclusiveness, they mean that New Jersey is not really pursuing or the law is not advancing its compelling state interest in protecting judges, prosecutors, and other law enforcement officers from threats and assassinations.

Defendants reference that Daniel's Law has a number of exemptions allowing for disclosure of home addresses. The law, for example, does not block access to home addresses which appear on property records or on voter registration lists. The short answer is that this type of information is generally more difficult to extract from public records than information found on the Internet…. [T]here is "a vast difference between public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." …

The defendants also fault the law because it treats private and business entities more strictly than public agencies. The law does not limit the use of information by governmental agencies in the same way it does private entities. In some instances, the availability of home addresses and even phone numbers is necessary for the government and society to function. It also allows the State more time to remove information from public access. This is understandable considering the numerous state agencies, counties, and municipalities which may hold such information….

The distinctions made in Daniel's Law are sound—not arbitrary or discriminatory. All non-governmental entities are treated the same. The New Jersey Legislature has had to grapple with a very complex and important issue in trying to protect covered persons who seek to uphold the rule of law and who by the very nature of their jobs are in the public eye….

The defendants challenge other aspects of Daniel's Law. They criticize the law's sweep in not limiting notice of non-disclosure to situations where there are "true threats." By then, any notice not to disclose a home address and unlisted telephone number is probably too late. That would be analogous to closing the barn door after the horse has left. The Legislature was not unreasonable in determining that the law to be effective must allow covered persons to request non-disclosure preemptively. Defendants also argue that the definition of "disclose" is too broad. The law reads as it does to advance the state's significant interest in protecting the lives and well-being of covered persons. This argument is not persuasive.

Defendants further suggest that a protective order would be a sufficient remedy. It is questionable that the entry of a protective order would be effective after the information is released. The court disagrees that this legislative scheme is invalid….

Plaintiffs are represented by Rajiv D. Parikh of Pem Law LLP.

UPDATE 12/2/2024, 12:34 pm: The district court has certified the matter for interlocutory appeal, which means that the case may well go up on appeal to the Third Circuit now, without having to wait for final judgment.

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[Josh Blackman] Today in Supreme Court History: December 2, 1907

12/2/1907: Ex Parte Young argued.

The Fuller Court (1907)

 

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[Josh Blackman] Comparing Trump's Pardon of Arpaio and Biden's Pardon of Biden

Today, President Biden issued a pardon to his son, Hunter Biden. In many regards, President Biden's pardon of his son resembles President Trump's pardon of Sheriff Joe Arpaio. The headline from the New York Times says it all: "In Pardoning His Son, Biden Echoes Some of Trump's Complaints."

First, President Biden issued this pardon after Hunter was convicted, but before he was sentenced. Biden has short-circuited the judicial process, taken the case out of the hand of the district court judge, and foreclosed any opportunity for appellate review. It is worth noting that both Roger Clinton and Charles Kushner were pardoned long after they had served their sentences. Back in August 2017, President Trump pardoned Joe Arpaio after he was convicted before he was sentenced. At the time, I wrote that the pardon was "premature," as the "preemptive pardon short-circuited the judicial process." There was outrage at the time to Trump's actions. It is enough to copy a paragraph from the Wikipedia page on the pardon:

In response to the pardon, The Washington Post said it was "a controversial decision, one that Trump critics labeled as an example of the president's illiberal, rule-of-law violating, authoritarian impulses." Harvard Law School professor Charles Fried, the former solicitor general for Ronald Reagan, said Trump's use of authority was specifically "to undermine the only weapon that a judge has in this kind of ultimate confrontation." Another Harvard Law School professor, Noah Feldman, said the pardon "would express presidential contempt for the Constitution." According to The New York Times, legal experts found the fact that Trump "used his constitutional power to block a federal judge's effort to enforce the Constitution" to be the "most troubling aspect of the pardon"

Hunter should hope that the District Courts in Delaware and California promptly dismiss the case, and the Trump DOJ does not have an opportunity to continue litigating the matter. But there is adverse precedent. After the pardon of Arpaio, the district judge actually held proceedings about how to deal with the pardon. Lawyers even argued that the court should not accept the pardon! Ultimately, the district court accepted the pardon, thus preventing the sentencing, but did not vacate the conviction. The Ninth Circuit affirmed. Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand. He will remain a convicted felon in the legal sense, even if he is pardoned.

Second, Trump's pardon of Arpaio was criticized because he bypassed the DOJ Pardon Attorney. He unilaterally decided to issue the pardon. Hunter would have never qualified for a pardon set forth by the DOJ Pardon Attorney. Chalk up another victory for the unitary executive.

Third, Trump was widely criticized for issuing a pardon to advance his personal interests. Arpaio was a big supporter of candidate and President Trump. The pardon was largely viewed as payback for a loyal supporter. Biden is in a similar position, though it is in many regards worse. This is not merely a political ally. It is his flesh and blood. Biden wrote, "I hope Americans will understand why a father and a President would come to this decision." Oh yes, we understand this decision quite well. Biden assured the public many times that he would not pardon his son. This promise was no doubt part of his appeal for the 2024 election. Biden ran for President (briefly) on the platform that he was honest, could be trusted, and would not put his personal concerns before the country. Historians can now judge whether Biden kept these promises.

Fourth, President Trump lobbied Attorney General Sessions to drop the Arpaio prosecution. These communications were viewed by critics as a breach of the "independence" between the Department of Justice and the President. Sessions declined to accede to Trump's requests. In 2024, Politico reported that Biden told "confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure." Sounds familiar? Biden said much the same in his pardon statement: "The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election." It was Merrick Garland, Biden's Attorney General, who appointed the special counsel, not Republicans in Congress.

I don't see how Garland continues to serve. The President publicly declared that he has loss faith in his Attorney General. I would not be surprised to see Garland resign shortly. What a tragic figure, Garland is. He was nominated for the Supreme Court, never received a hearing, stepped down from the D.C. Circuit to become Attorney General, pledged to restore the rule of law, spent his entire administration enmeshed with special counsels and January 6 prosecutions, and all of those convictions have been, or will be pardoned. If Attorney General Meese was the most influential Attorney General in American history, where would Garland rank?

Fifth, Trump's pardon was viewed as an attack of Judge Susan Bolton. Adam Liptak wrote in the Times, "It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies." President Biden's statement managed to criticize the federal judge in Delaware who presided over Hunter's trial: "a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. " This statement is flat-out false. The plea deal unraveled after it became clear the prosecution and defense did not agree how the plea agreement would be interpreted. Biden has no basis to insinuate that the District Court judge, who was supported by both Delaware senators, was politicized. Would Biden call Judge Norieka, who was appointed by President Trump, a "Trump Judge"? Cue Chief Justice Roberts.

Sixth, Trump's pardon of Arpaio concerned his conviction, and "any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio . . . in the United States District Court for the District of Arizona." In other words, this pardon would prevent a prosecutor from bringing future charges related to that case. Biden's pardon of his son was far, far broader:

For those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.

This pardon immunizes Hunter from prosecution for any conduct he committed between January 1, 2014. If Hunter shot someone on Fifth Avenue during that period, he could not be tried for murder in federal court. I haven't studied pardons closely, but I am skeptical there has ever been such a broad, prophylactic pardon over the course of a decade. Even President Ford's pardon of Richard Nixon was limited to offenses "committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974." And President Andrew Johnson's 1868 pardon and amnesty of former confederates was limited to the offenses of insurrection, rebellion, and treason, during the four-year long Civil War. (Johnson's pardon had the effect of cutting short the pending appeal to the Supreme Court of the criminal prosecution of Jefferson Davis.) Finally, there is a longstanding debate about whether a pardon can be issued without enumerating a specific offense. Professor Phillip Kurland raised this issue after Ford pardoned Nixon. He said, "It is certainly not clear that the power to pardon an individual may properly, i.e. constitutionally, be invoked prior to indictment and conviction."'

Seventh, Trump's pardon was part of a long-term campaign to charge that the DOJ was politicized. Here, Biden said "I also believe raw politics has infected this process and it led to a miscarriage of justice." Again, this is Biden's Attorney General. Biden's remarks about the politicization of his own DOJ provide more credence to what Trump has said, and what he will do after January 20.

***

The more things change, the more things stay the same. For what it's worth, this pardon does not prevent Hunter from facing charges in state court. Nor does it prevent the Department of Justice from prosecuting Joe Biden over his documents case. Remember, Ron Hur only declined to prosecute Biden for his "poor memory." If Biden had continued to serve as President, I think that is an admission that he is competent to stand trial. I also think that the statute of limitations would be waived while Trump is in office. (The proceedings in New York with Justice Merchan will speak to this issue.)

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[Eugene Volokh] AI Jesus Experiment Said to Be a Success

The AP (Jamey Keaten) reports:

Researchers and religious leaders on Wednesday released findings from a two-month experiment through art in a Catholic chapel in Switzerland, where an avatar of "Jesus" on a computer screen — tucked into a confessional — took questions by visitors on faith, morality and modern-day woes, and offered responses based on Scripture….

[S]ome 900 conversations from visitors — some came more than once — were transcribed anonymously. Those behind the project said it was largely a success: Visitors often came out moved or deep in thought, and found it easy to use….

"What was really interesting (was) to see that the people really talked with him in a serious way. They didn't come to make jokes," said chapel theologian Marco Schmid, who spearheaded the project….

Schmid was quick to point out that the "AI Jesus" — billed as a "Jesus-like" persona — was an artistic experiment to get people thinking about the intersection between the digital and the divine, not substitute for human interaction or sacramental confessions with a priest, nor was it intended to save pastoral resources.

"For the people it was clear that it was a computer … It was clear it was not a confession," Schmid said. "He wasn't programmed to give absolutions or prayers…." …

"For us, it was also clear it was just a limited time that we will expose this Jesus," he said …. "We are discussing … how we could revive him again,"

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[Josh Blackman] Today in Supreme Court History: December 1, 1897

12/1/1897: Justice Stephen Field resigns.

Justice Stephen Field

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[Eugene Volokh] Court Rejects "Jewish, Zionist" Teachers' and Parents' Lawsuit Over Allegedly Anti-Capitalist and Anti-Zionist School Curriculum

From today's decision by Judge Fernando M. Olguin (C.D. Cal.) in Concerned Jewish Parents & Teachers of L.A. v. Liberated Ethnic Studies Model Curriculum Consortium:

The Concerned Jewish Parents and Teachers of Los Angeles …, "an unincorporated association comprised of Jewish, Zionist Los Angeles teachers who teach in the [Los Angeles Unified School District] and Jewish, Zionist parents of children who are students in the LAUSD," initiated this action on May 12, 2022….

As an initial matter, the court notes that plaintiffs' [Complaint] is difficult to understand and contains a morass of largely irrelevant—and sometimes contradictory—allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed. Indeed, so confusing are the allegations that plaintiffs spend approximately a third of their Omnibus Memorandum of Points and Authorities in Opposition to Defendants' Motions, endeavoring to explain exactly what they contend their [Complaint] alleges—and, at times, attempting to walk back certain allegations or add new ones. The lack of clarity is particularly troubling given that this is plaintiffs' fourth iteration of their complaint….

In any event, plaintiffs' claims appear to revolve around the Liberated Ethnic Studies Model Curriculum ("LESMC" or "challenged curriculum"), a set of teaching materials developed by an independent non-profit organization that has not been adopted by LAUSD. Plaintiffs allege that as of 2020, LAUSD has required high school students to take an ethnic studies class and "integrate ethnic studies into PreK-8 curricula." Plaintiffs claim that the UTLA and Consortium defendants—the non-District defendants—have advocated for implementation of the challenged curriculum and "are inserting, or attempting to insert" these materials into LAUSD schools….

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]" Plaintiffs allege there is "rank discrimination embedded in the LESMC," because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism." Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic….

The court rejects plaintiffs' claims on various grounds, which it discusses in too much detail to render here. But here's a good big-picture summary of a key part of the court's concerns:

[B]eyond the particular, claim-specific failures outlined above, it must also be noted that significant First Amendment concerns underlie plaintiffs' claims and requested relief. In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.

First, plaintiffs' claims directly implicate the First Amendment rights of the non-District defendants. Plaintiffs take issue with the non-District defendants' forms of discussion, expression, and petitioning in relation to the challenged curriculum. Notwithstanding plaintiffs' insistence and disclaimers that they challenge only publicly-funded government activities, plaintiffs seek to have this court impose restrictions on the non-District defendants' protected speech. (See, e.g., id., Prayer for Relief at ¶ 6) (requesting an injunction "prohibiting all Defendants from using the elements of the LESMC at issue in this case … in any training sessions funded by public funds, or for which salary points are awarded by LAUSD"). In particular, plaintiffs seek to have the court suppress any speech by the non-District defendants in teacher-training sessions that might involve the use of "elements" of the challenged curriculum.

But the non-District defendants have a right to express their views about the curriculum under the First Amendment and to petition for curricular changes under the Noerr-Pennington doctrine, which provides that "those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct." The doctrine also applies to state actors. The non-District defendants thus have a protected right to express their views on, and petition for, an ethnic studies curriculum. Moreover, even if teaching the challenged curriculum were unlawful, and the non-District defendants encouraged the material to be taught, the non-District defendants' activities would be protected, as plaintiffs have not alleged incitement to imminent lawlessness action.

In their Opposition, plaintiffs try to walk back their claims and insist they are only after the alleged control that the non-District defendants exercise over the curriculum. But characterizing the non-District defendants' petitioning activities as effectively exercising state control does not change the fact that they are engaging in protected activity.

Second, plaintiffs maintain that the only speech they seek to suppress is that of teachers in LAUSD classrooms, and specifically request that the court enjoin LAUSD teachers from teaching from the challenged curriculum. But this request raises serious concerns about the First Amendment and principles of academic freedom.

Although high school teachers do not have freedom of speech to the full extent of the First Amendment, there is no doubt that "allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district's assignment of" curricular material could have broader, potentially chilling effects on speech. In other words, while teachers' speech rights in the classroom may be reasonably abridged by their employers, such limitations are fundamentally different than speech restrictions imposed by a court at the behest of a group of private citizens. Confronted with a similar lawsuit over curricular material, the Ninth Circuit in Monteiro v. Tempe Union School Dist. (9th Cir. 1998) wrote:

Were the plaintiff to succeed in this litigation or even to succeed in forcing the defendants to engage in a trial over such [curricular material], the threat of future litigation would inevitably lead many school districts to "buy their peace" by avoiding the use of books or other materials that express messages—or simply use terms—that could be argued to cause harm to a group of students. In short, permitting lawsuits against school districts on the basis of the content of literary works [or curriculum] to proceed past the complaint stage could have a significant chilling effect on a school district's willingness to assign [material] with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.

"The Supreme Court has long recognized that the freedom to receive ideas, and its relation to the freedom of expression, is particularly relevant in the classroom setting." Students have a right to receive information and "lawsuits threatening to attach civil liability on the basis of the assignment of [curricular material] would severely restrict a student's right to receive material that his school board or other educational authority determines to be of legitimate educational value."

The Supreme Court has also noted "the importance of protecting the 'robust exchange of ideas[.]'" By their nature, these exchanges may sometimes involve uncomfortable conversations—but a system of education "which discovers truth out of a multitude of tongues" must allow teachers and their students to explore difficult and conflicting ideas. "[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective."

Determining the content of curricula is a complicated, important matter, and it is for this reason that school boards generally retain broad discretion in doing so, and that teachers must have some discretion and academic freedom in implementing and teaching the curriculum. It would be of great concern for the educational project and for academic freedom if every offended party could sue every time they did not like a curriculum or the way it was taught….

You can read the opinion for more details, but here's an excerpt from the court's conclusion that most of the defendants aren't government actors, and thus aren't constrained by the First Amendment or the Equal Protection Clause:

Taken together, the gist of plaintiffs' allegations appears to be that: (1) the Consortium developed the challenged curriculum; (2) UTLA has supported the challenged curriculum; and (3) members of UTLA and the Consortium serve or have served on the ESC, and as a result, the non-District defendants are effectively determining the curriculum and thus engaged in state action. But plaintiffs' allegations that LAUSD has effectively walked away from developing an ethnic studies curriculum and left it to the non-District defendants are simply not plausible, especially given the other allegations in plaintiffs' [Complaint]. As plaintiffs acknowledge, LAUSD established the ESC as an advisory committee—under LAUSD'S control—to provide input on the development and implementation of an ethnic studies curriculum. And there are no specific and plausible allegations to establish, as plaintiffs contend, that the non-District defendants "have stepped into th[e] vacuum" left by LAUSD merely because they have advocated for the challenged curriculum. Such reasoning would sweep up virtually every group that succeeds in advocating for changes to public programs….

And an excerpt from the court's rejection of plaintiffs' Free Exercise Clause challenge:

"Offensive content that does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights." This is so even where such content contains material that plaintiffs may find "offensive to their religious beliefs."

Plaintiffs contend that the substantial burden on the exercise of religion "in this case is not only a function of the impact of the teaching on Jewish children who hold this belief: it is also on other children who are being taught to hate that belief and to oppose it actively." But plaintiffs do not cite to any portions of the [Complaint] to support their contention that instruction from the challenged curriculum burdens the exercise of their faith. Indeed, plaintiffs' [Complaint] does not identify any burden at all—it does not allege that plaintiffs have somehow been prevented from practicing their faith, or that the parent-plaintiffs have been barred in any way from instructing their children at home. In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum—and its possible adoption—offends them. But mere offense is insufficient to allege a burden on religious exercise [citing cases holding that "class materials offensive to Hindu [and Muslim] plaintiffs did not violate Free Exercise Clause"]….

The post Court Rejects "Jewish, Zionist" Teachers' and Parents' Lawsuit Over Allegedly Anti-Capitalist and Anti-Zionist School Curriculum appeared first on Reason.com.

[Eugene Volokh] DePaul Professor Who Wrote Anti-Palestinian Article, Was Censured by Faculty Council, Loses Contract, Defamation, and Discrimination Claim

From Hill v. DePaul Univ., which was decided in September by the Illinois Appellate Court (Justice Martin, joined by Justices Rochford and Hoffman) but which I missed at the time:

Jason Hill is a tenured professor of philosophy at DePaul University in Chicago. Professor Hill authored an article, which he describes as an "op-ed," that appeared in the online publication The Federalist in April 2019 titled "The Moral Case for Israel Annexing the West Bank – and Beyond." The article noted that Benjamin Netanyahu had been recently elected to a fifth term as Israeli prime minister, having campaigned on a promise to "annex Jewish settlements in occupied Palestinian territories." Professor Hill wrote that the election victory "will, hopefully, see the enactment of Netanyahu's promise." He went on to argue that "Israel has the moral right to annex all of the West Bank *** for a plethora of reasons." The article contains the following subheadings: (1) "Israel's Mistake Was Allowing the Palestinian Pretense," (2) "The Palestinian Authority is a Terrible Government," (3) "Israel Has Every Right to Defeat Terrorists," and (4) "Why Palestinians Have No Moral Authority." Among Professor Hill's opinions, he wrote:

"Not all cultures are indeed equal. Some are abysmally inferior and regressive *** a strong argument can and ought to be made to strip Palestinians of their right to vote—period *** They constitute a national security threat to Israel because a core feature of their identify is a commitment to destroying Israel as a Jewish state *** only a policy of radical containment or expulsion remains a viable option."

A note printed below the article stated, "Jason D. Hill is honors distinguished professor of philosophy at DePaul University in Chicago."

Two weeks following the publication of Professor Hill's article, Dr. Paeth [President of DePaul's Faculty Council] drafted a resolution titled "Faculty Council Resolution on Academic Freedom and Responsibility," which contained statements critical of Professor Hill's article while also acknowledging Professor Hill's academic freedom to publish it. A copy of the draft resolution appeared by hyperlink in conjunction with an article in DePaul's online student newspaper The DePaulia on April 30, 2019. The next day, Dr. Paeth presented the resolution to the Faculty Council for consideration. Following discussion, the Faculty Council voted 21 to 10 to approve the resolution with amendments that removed some language from the original draft. An article regarding the approved resolution appeared in The DePaulia on May 6, 2019. The article provided a link to the original draft resolution that did not reflect the amendments approved by the Faculty Council.

The preamble of the resolution asserts that Professor Hill's article (1) "misrepresents the history of the Israeli-Palestinian conflict," (2) "distorts the facts about the current state of Israeli-Palestinian relations," (3) "promotes racisms toward Arabs generally and Palestinians in particular," and (4) "advocates for war crimes and ethnic cleansing against the Palestinian populations of the West Bank and the Gaza Strip." It goes on to state that the Faculty Council "affirms Professor Hill's right to publish and express his opinions consistent with the Faculty Handbook, the AAUP [American Association of University Professors] Statement on Academic Freedom and Tenure, and the Guiding Principles on Speech and Expression" and "affirms that Professor Hill's article failed to exercise adequate concern for accuracy, restraint, or respect for the opinions of others, as per the AAUP guidelines." The resolution continues, stating that the Council:

"condemns in the strongest possible terms both the tone and content of Professor Hill's article, and affirms the claims that it expresses positions that are factually inaccurate, advocate war crimes and ethnic cleansing, and give voice to racism with respect to the Palestinian populations of the West Bank and Gaza Strip, as well as Arabs generally."

Finally, the resolution concludes that the Faculty Council:

"urges Professor Hill to seriously reconsider his positions on these issues, to take cognizance of the perspectives of other scholars on these issues, as well as the real harm his words have caused to students and other members of our community, and to refrain from abusing his freedom as a scholar in writing on controversial issues in the future."

A few weeks later, Provost Ghanem sent an email to the entire DePaul community with the subject line: "A Message from Acting Provost on Free Speech and Vincentian Values." In part, the message stated:

"While I am deeply saddened that Professor Hill used his right to academic freedom and free speech to disparage one group over another, resulting in some members of our community feeling unwelcome and unsafe, I am extremely impressed by the way members of the DePaul community made their voices heard."

Hill sued, but the court concluded his claims lacked legal merit. It rejected Hill's claim that DePaul's actions breached promises made in its Faculty Handbook (see the opinion for that), and it rejected Hill's claims that the statements condemning him were defamatory.

The five [allegedly defamatory] statements were that Professor Hill's article: (1) "failed to exercise adequate concern for accuracy, restraint, or respect for the opinions of others, as per AAUP guidelines," (2) "represents an abuse of [Professor Hill's] academic freedom," and expresses positions that (3) "are factually inaccurate," (4) "advocate war crimes and ethnic cleansing," and (5) "give voice to racism." …

[W]e find that the resolution's alleged defamatory statements are nonactionable, pure expressions of opinion. Insofar as the statements bore on Professor Hill's conduct, qualifications, or character, the resolution stated the factual basis for the opinions it expressed—the existence and content of Professor Hill's article…. [And] the resolution's opinions about the article are evaluative. That is, they express a value judgment of Professor Hill's article…. Evaluative opinions are not actionable since, by definition, such statements are based on disclosed facts, i.e., the work product evaluated.

Like a movie or book review, one can judge the merit of the evaluation or form their own opinion of the work product simply by viewing it independently. Such is the natural consequence of publishing a work for public consumption. Evaluation, positive or negative, is to be expected. Just as the first amendment protected Professor Hill's freedom to publish his "op-ed," it also protects responsive criticism like the statements in the resolution….

Further, the context weighs toward finding that the resolution's statements are not actionable. The resolution is fundamentally an academic's or group of academics' criticism of the views expressed in another academic's work on a controversial subject. "[I]t is well established in Illinois that academic evaluations and decisions are not subject to judicial review." Some courts and commentators have suggested that courts should not be the arbiters of academic debate. Rather, "[m]ore papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us." …

And the court rejects Hill's discrimination claim:

Professor Hill describes himself as "a dark-complected man of Afro-Caribe descent," of Jamaican origin, and homosexual. Professor Hill alleged that other DePaul faculty members—none of whom shared Professor Hill's race, national origin, or sexual orientation—have made "controversy-generating" statements concerning the Israeli-Palestinian conflict but were not subject to a Faculty Council resolution, as he was. In addition, he claimed that DePaul faculty orchestrated a student protest against him, and DePaul allowed a digital bulletin board to be created in which pejorative postings accumulated that discouraged students from enrolling in his courses. Thus, Professor Hill alleged that DePaul discriminated against him on the basis of race, color, ethnicity, and sexual orientation….

To qualify as an adverse employment action [under federal antidiscrimination law], the action must be "tangible" or "material." A "tangible employment action" connotes a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." "Materially adverse" employment actions can also include "a demotion evidenced by a decrease in wage or salary, a less distinguished title, … or other indices … unique to a particular situation." "'[N]ot everything that makes an employee unhappy is an actionable adverse action.'"

In Professor Hill's opening brief, he asserts that he pled an adverse employment action by citing "numerous instances of loss of pay." However, he fails to cite any portion of the complaint in support. As best as we can glean, the complaint's only allegations that could be construed as claiming a loss in pay is that "[t]he opportunity for Dr. Hill to be awarded promotions, with concomitant wage increases, has been diminished." In his reply brief, Professor Hill contends that the Faculty Council's approval of the resolution was itself an adverse employment action.

We find that Professor Hill failed to plead that he suffered an adverse employment action. As acknowledged at oral argument, Professor Hill remains a tenured professor at DePaul. He was not fired. He was not suspended. He was not demoted or reassigned. And his pay was not reduced. Professor Hill has pled no tangible loss, only amorphous speculation that his prospects are diminished.

We observe that Professor Hill characterizes the Faculty Council's resolution as a censure and DePaul disputes that characterization. We need not resolve the question but note that even if we were to regard the resolution as a censure, we would find that a censure alone is not a materially adverse employment action. "[W]here a censured employee retains his job and does not suffer any loss of pay or rank, any alleged harm to his stature or earnings prospects is purely speculative."

The post DePaul Professor Who Wrote Anti-Palestinian Article, Was Censured by Faculty Council, Loses Contract, Defamation, and Discrimination Claim appeared first on Reason.com.

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

From Ruth v. Carter, decided Tuesday by the Nevada Supreme Court:

Appellant Shannon Ruth sued respondent Nickolas Carter for sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress, alleging that Carter sexually assaulted Ruth following a Backstreet Boys concert in 2001, and that Carter had also sexually assaulted several other women. Carter asserted counterclaims for defamation [and related torts] …. Carter's counterclaims were based on statements by Ruth that generally alleged that Carter sexually assaulted Ruth and that Carter is a "serial" rapist and abuser of "multiple people."

Ruth moved to dismiss Carter's counterclaims under Nevada's anti-SLAPP statutes, which require a two-prong analysis:

First, the district court must determine whether the defendant has established, by a preponderance of the evidence, that the plaintiff's "claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." If the defendant satisfies the first prong, the burden shifts to the plaintiff under the second prong to show "with prima facie evidence a probability of prevailing on the claim." Only a claim that satisfies both prongs of the anti-SLAPP statute—i.e., a claim based on a good faith communication and that lacks minimal merit—is subject to dismissal. Because Ruth filed the anti-SLAPP motion to dismiss Carter's counterclaims, Carter is the plaintiff and Ruth is the defendant for purposes of the anti-SLAPP analysis.

The court concluded that Ruth's statements accusing Carter of assaulting her weren't subject to dismissal under the anti-SLAPP statute (so that Carter's defamation case as to those matters can go forward):

The [key] issue is whether Ruth established, by a preponderance of the evidence, that the communications were made in good faith—that the communications were "truthful or made without knowledge of [their] falsehood." Rather than looking to the individual words, we ask "'whether a preponderance of the evidence demonstrates that the gist of the story, or the portion of the story that carries the sting of the [statement], is true." …

Ruth provided an affidavit stating that "[t]he allegations in [Ruth's] Complaint in this action are true and correct to [Ruth's] own knowledge and experience." … [W]hen, as here, there is contradictory evidence in the record, we must consider that evidence in determining whether the defendant demonstrated good faith.

Carter produced affidavits from multiple witnesses that, if believed, would establish that the incident of Carter assaulting Ruth as Ruth described it did not and could not have occurred. For example, although Ruth stated that she met Carter in an autograph line at the venue after the subject Backstreet Boys concert, Carter produced affidavits from several witnesses who personally observed the Backstreet Boys and Carter leave the venue right after the concert and stated that there were no autograph lines after the concert.

Carter also produced affidavits from members of the Backstreet Boys' security detail stating that the band, including Carter, performed a "quick out" following the subject concert, "which meant that the band would rush to their individual tour buses and leave the [concert venue]," and that "it would be impossible for any fan to be alone with any of the band members on their tour bus" because of security protocols. Carter also produced an affidavit from Ruth's close friend at the time, who had discussed the subject concert with Ruth both before and shortly after it occurred, stating that she believed that Ruth did not even attend the subject concert.

Carter also produced evidence of prior inconsistent communications by Ruth. For example, in October 2019, Ruth wrote a private direct message to a woman whom Ruth befriended online in which Ruth stated, "I didn't get hurt by Nick like [others] did. He hurt me by saying really mean things and bullying me. I feel like I don't really have a right to talk about it or be in the fight because what [others] went through is much worse."

Carter also noted inconsistencies in Ruth's various reports to the Tacoma Police Department, including that in one of Ruth's initial calls to the police, Ruth reported that Carter only grabbed her arm, and no other physical activity occurred. Finally, Carter provided his own affidavit, denying that he assaulted Ruth and stating that the band engaged in a "quick out" after the show and that Carter's security guard would not have allowed Ruth, or any other fan, to board the tour bus during the subject tour.

We conclude that Carter's evidence, if believed, establishes that Carter did not sexually assault Ruth following the Backstreet Boys concert in 2001, such that Ruth's statements describing such an incident would perforce be made with knowledge of their falsity. Cf. Taylor v. Colon (Nev. 2020) (observing that "contradictory evidence in the record may undermine a defendant's sworn declaration establishing good faith"); cf. also Chastain v. Hodgdon (D. Kan. 2016) (applying a different procedural standard but explaining that "[i]f defendant knew that the events were false, and nonetheless wrote the detailed narrative describing exactly how plaintiff sexually assaulted … her when it actually never occurred, it is axiomatic that she wrote the narrative with actual malice, or actual knowledge that it was false"). Ruth discounts Carter's evidence, arguing that because only Ruth—and none of Carter's witnesses—can speak to Ruth's knowledge of the truth or falsity of her statements, none of Carter's evidence contradicts or overcomes Ruth's affidavit. But this argument ignores the relevant caselaw. We therefore conclude that Ruth did not satisfy her burden under prong one with respect to the statements that Carter sexually assaulted Ruth.

But the court concluded that the defamation lawsuit should be dismissed as to the statements about alleged rapes of others:

Ruth did, however, satisfy her burden to demonstrate by a preponderance of the evidence that her statements that Carter is a "known" and "serial" "rapist and abuser of multiple people" were truthful or made without knowledge of falsity. Carter's evidence primarily focuses on the 2001 concert, which does not directly pertain to Ruth's knowledge when stating that Carter has raped or abused other people. In fact, some of Carter's evidence may support that Ruth believed that Carter sexually assaulted others. It is also undisputed, and Carter's evidence corroborates, that other women had accused Carter of sexually assaulting them before Ruth made the statements at issue. On balance, Carter's evidence does not adequately contradict or overcome Ruth's affidavit of good faith with respect to this category of statements….

[And u]nder the second prong[,] … we conclude that Carter failed to establish actual malice by clear and convincing evidence to sustain a favorable verdict. "[A]ctual malice is proven when a statement is published with knowledge that it was false or with reckless disregard for its veracity." … Although Carter provided evidence casting doubt on the veracity of other women's assault allegations and provided witness testimony supporting that Ruth was at least tangentially involved in a plot to extort and defame Carter, this evidence on its own does not clearly and convincingly show actual malice. Further, as discussed supra, Carter also produced evidence suggesting that Ruth did believe the truth of her statements….

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