Eugene Volokh's Blog, page 259

[Josh Blackman] En Banc Fifth Circuit Tells Judge Ezra to RTFM

Last month I wrote about Judge David Ezra's worrying behavior in the Buoy Case. I won't even attempt to rehash the unusual hijinks in his court. Rather, for present purposes, it is enough to recount how Judge Ezra was perplexed about why the en banc Fifth Circuit reversed him. He cited "chatter" from "law professors" who doubted whether Judge Willett's opinion was actually a controlling majority opinion.

On Monday, the en banc Fifth Circuit finally issued the mandate in the Buoy Case, with a two-sentence message for Judge Ezra:

IT IS ORDERED and ADJUDGED that the district court's order granting a preliminary injunction is REVERSED, and the case is REMANDED with instructions to vacate the preliminary injunction and for further proceedings consistent with the majority opinion of the court. The stay pending appeal is DISSOLVED.

In other words, RTFM. No, not that RTFM. Rather, Read The Following Majority opinion. I have never seen a mandate like this before. Mandates are usually boring documents that contain nothing of substance. But there is a clear signal here

Short and succinct, the Fifth Circuit says loud and clear that there is a "majority opinion of the court." And it is Judge Willett's opinion. All members of the Fifth Circuit agree on that much. This should not have been difficult. Chief Judge Richman's concurrence refers to Judge Willett's opinion as the "majority opinion." Judge Douglas's dissent refers to Judge Willett's opinion as the "majority opinion." When all of the members of the court label an opinion a "majority opinion," it is a majority opinion. But that message did not get through to Judge Ezra. Now, perhaps, the mandate will make that clear.

Judge Ezra's confusion seems to stem from the relationship between Judge Willett's majority opinion, and the concurrences from Judges Richman and Ho. It is true that Judge Richman did not join Judge Willett in all regards. But Judge Ho thought the federal suit was defeated by the U.S. Constitution. Indeed, Judge Ho also found that the district court lacked jurisdiction. In any case where Judge Willett would rule for Texas, so would Judge Ho. The upshot is that a majority of the en banc court said a PI cannot be granted. That much was clear in July, and it is crystal clear today. Judge Ezra should promptly issue a judgment in favor of Texas, and let Solicitor General Prelogar file her certain-to-be-granted cert petition so it can be granted before the inauguration. Move along.

Again, for all the outrage about rogue judges in Amarillo and Fort Worth, the eyes of Texas should be upon Judge Ezra.

The post En Banc Fifth Circuit Tells Judge Ezra to RTFM appeared first on Reason.com.

[Eugene Volokh] No Legal Duty to Remove or Update Accurate Report of Arrest, Even After Charges Were Dismissed

From Holt v. Gray Television, Inc., decided Friday by Chief Judge David Proctor (N.D. Ala.):

This action arises from Plaintiff's arrest on January 7, 2021. Plaintiff was charged with three counts of child pornography—that is, sending, receiving, and possessing child sexual abuse material. Plaintiff alleges that, on that same day, Defendants reported this information on WTOK TV and posted it on their website. On September 15, 2022, Plaintiff's charges were dismissed. Plaintiff alleges that he contacted Defendant Harms, provided proof that the charges had been dismissed, and requested that the story on his arrest be removed or updated. Plaintiff further alleges that Defendant Harms refused to update the story or take down the information that had been posted on the website.

At the time of his arrest, Plaintiff alleges that he was a candidate for Ward 2 City Councilman for the City of Meridian, Mississippi. He also alleges that he was a political activist, and had a podcast called "Reaching Out With Eddie," where he exposed the "illegal acts and wrong doing of government officials, city officials, politicians, and the law enforcement community." …

Plaintiff sued for defamation, but the court rejected the claim; here is part of the reasoning:

A district court sitting in diversity applies the choice-of-law rules of the forum state. In Alabama, the choice of law for substantive law is governed by the principle of lex loci delicti, which means Alabama courts "will determine the substantive rights of an injured party according to the law of the state where the injury occurred." Since the injury allegedly occurred in Mississippi, Mississippi law will govern the substantive law.

Under Mississippi law, to establish a defamation claim, a plaintiff must prove four elements, one of which is that the defendant made "a false and defamatory statement concerning plaintiff." Defendants argue (and the court agrees) that Plaintiff cannot prove a defamation claim because Defendants' statements were true: Plaintiff was actually arrested and charged—and that is exactly what Defendants reported. Moreover, this claim is barred by Mississippi's fair report privilege. That is, even based on Plaintiff's allegations, Defendants merely reported accurate information that was obtained from law enforcement. None of the information included in the news story is in dispute or challenged by the Plaintiff as being false….

Defendants also argue that to the extent Plaintiff claims Defendants defamed him, Plaintiff has failed to exhaust his remedies. They assert that "under Mississippi law, the plaintiff must, in writing, serve notice to a television station to their regular place of business with the alleged defamatory statement at least ten days before filing suit." While Plaintiff claims he asked Defendant Harms to remove or update the story after his charges were dismissed, he has not alleged that he provided written notice to the station. Because Plaintiff has not shown that he provided written notice to Defendants, he failed to exhaust his remedies pursuant to Mississippi law.

Defendants also contend that Plaintiff's claim was not filed within the statutory limitations period. Under Alabama law, the statute of limitations of a defamation claim is two years2 and begins to run from the date of publication. The two-year "statute of limitations for actions alleging libel or slander prescribes a period that runs from the date of publication—that is the date on which the injury to the plaintiff's reputation occurs and the cause of action is completed." Plaintiff's argument that the statute of limitations period began to run on September 15, 2022, when the charges against him were dismissed is off the mark. The statute of limitations period began to run when the allegedly defamatory statement was published by Defendants, which Plaintiff himself alleges was on January 7, 2021. Therefore, Plaintiff ran out of time to file this lawsuit two years later on January 7, 2023. Because Plaintiff waited to file this case until March 29, 2024, the claim should also be dismissed for this additional reason.

Next, Plaintiff claims that Defendants harmed him by failing to remove or update the news story. But, Defendants had no obligation to do so. First, as a general matter, news organizations do not have a duty to retract, remove, or update previously-published true stories based on subsequent developments. Martin v. Hearst Corp., 777 F.3d 546, 551 (2d Cir. 2015) (noting that later-occurring developments "cannot undo historical facts or convert once-true facts into falsehoods"); Rogatkin v. Raleigh Am., Inc., 69 F. Supp. 3d 294, 298 (D. Mass. 2014) ("The publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law."); see also Pacheco Quevedo v. Hearst Corp., 2019 WL 7900036, at *6 (Conn. Super. Ct. Dec. 19, 2019) ("[T]he law of defamation does not impose a duty to update news coverage with later developments.").

Mississippi law provides that the obligation to issue a correction, update, or retraction only arises where the statement made was false. As discussed above, because the statement was not false (a fact that Plaintiff does not dispute), Defendants had no obligation to update the story once Plaintiff's charges were dismissed. Moreover, imposing such an obligation on a news organization would violate the news station's First Amendment rights to freedom of speech. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 ("It has yet to be demonstrated how governmental regulation of [editorial control and judgment] can be exercised consistent with First Amendment guarantees of a free press ….").

I have argued that libel law should indeed in essence require updating such online material once charges are dismissed (see pp. 343-49 of this article), and that there is some authority supporting such a proposition (at least when the statute of limitations had not yet run). But that apparently is not the law in Mississippi.

The post No Legal Duty to Remove or Update Accurate Report of Arrest, Even After Charges Were Dismissed appeared first on Reason.com.

[Eugene Volokh] Libel, College Students, and Garnished Wages: Even Entry-Level Workers Aren't "Judgment-Proof"

I wrote last November about a libel verdict in Cody v. Dirir, a lawsuit between two college students. To quickly excerpt the facts, from the court's opinion:

On October 12, 2022 [likely should say 2019 -EV], the plaintiff and the defendant were students at the University of Connecticut in Storrs, Connecticut (University). They did not know each other until October 12, 2022 [likely should say 2019 -EV], when the defendant attended a party at a home of a fraternity that the plaintiff was a member of and where he resided. During the party, the defendant believed that she was called a nigger (N-word) by another member of the fraternity, Frank V., a black male. When the defendant told the plaintiff, a white male, that Frank called her the N-word, the plaintiff tried to convince her that Frank would never say that and if he did, he did not intend it in a negative way as he used the N-word with an "a" at the end of the word and not with an "er" at the end of the word. Frank used the N-word in the defendant's presence, and she believed the word was directed to her.

The defendant was upset by this exchange at the party, and after the defendant left the party, she reported this encounter to her cousin, … Ellie …. With the defendant's assistance of providing a picture of the plaintiff and Frank, Ellie posted on her Twitter page the picture of Frank and the plaintiff with the following statement: "These two called my little cousin a nigga and continued to belittle her infront of their white friends at a UConn frat party. If anyone knows their names, please let me know. And tell them keep that energy." The statement with the picture (also referred to as "post" or "tweet") was seen initially by approximately 700 to 1000 people who are the cousin's Twitter followers. Those followers then forwarded the post/tweet to their Twitter followers, resulting in approximately 5000 or more people viewing the post.

The statement, plaintiff argued, was false, badly damaged his reputation, and distressed him. (For more details, see the longer excerpt here.) And the judge ultimately agreed, concluding (to oversimplify) that the statement was false and highly distressing. Because of this, the judge awarded $10K in compensatory damages to plaintiff, and left open the possibility of punitive damages. In May 2024, the judge indeed awarded $26K in punitive damages, reflecting 3/4 of the plaintiff's attorney fees (since plaintiff had prevailed on the most significant part of his claims but not all his claims).

Defendant thus owed $36K, and plaintiff moved to garnish defendant's wages, which is to say to have the judgment paid off (slowly) out of defendant's paycheck. Here's what happened, according to Judge Matthew Wax-Krell's order issued last week:

On May 16, 2024, the plaintiff filed a motion for an order of "nominal" installment payments…. The court granted the motion and ordered weekly payments of $35 beginning July 3, 2024.

The defendant failed to make the payments, and the plaintiff applied for a wage execution, which was issued by the court on July 24, 2024…. Although her attorney stated that $700 was being removed from each biweekly paycheck [under the execution], plaintiff's attorney stated that the amount being removed was $592, with $514 of that going to the plaintiff, and the remainder going to the marshal for his statutorily authorized fee.

The defendant seeks a modification on the basis that losing 25% of her paycheck is not financially feasible for her given her additional debts (including hospital bills and student loan payments of $700 per month). She also claims that going from paying $35 per week to $592 every two weeks is a large increase. Notably, the wage execution was only necessary because she failed to make the weekly $35 payments. She seeks to have the waged execution modified back to the $35 per week that was originally ordered.

The plaintiff opposes any modification of the statutory amount of the execution, which can be up to 25% of her disposable earnings. The plaintiff argues that the $35 per week is a "measly" payment that will take the defendant more than 20 years to pay off, however plaintiff had not moved to increase the $35 weekly payment order since it was entered on June 5, 2024. Plaintiff further argues that the defendant has not proven her financial inability to pay the $592 per paycheck and that the judgment should take priority over her other obligations.

Taking into account the judgment obtained by the plaintiff and the defendant's other financial obligations, the court modifies the wage execution to be $75 per week, commencing September 30, 2024.

So the defendant is having to pay about $4K per year, to pay off the $36K judgment. That's not a lot for a typical court case; this isn't the $36M that the presumably solvent Oberlin College had to pay in a libel case. And if plaintiff Cody had paid his lawyer up front, he will likely be in the red on that business proposition for many years to come.

But the $36K, and the $4K/year, is probably a considerable cost to the defendant, who appears to be a freshly minted registered nurse. Might it might feel to her roughly the way the $36M felt to Oberlin College officials (who after all didn't have to pay the amount, roughly 3.5% of the College's endowment, out of their own pockets)? If plaintiff wanted defendant to feel some of the pain that the defamatory statements caused him to feel—to be sure, just speculation on my part—plaintiff is likely succeeding in that.

And more broadly, this is a reminder: If you commit a tort against someone, your being a college student with no assets and no or little current income might well deter that person from suing you. But maybe the person will still sue, whether because he or his family has the money to spend, or because a lawyer is willing to help him. (I can't speak to this case, but in some cases the lawyer might have ideological reasons for participating, or might be a friend of the family and thus be willing to help.) And you might indeed end up having to pay money that's small by litigation standards, but a large chunk of whatever income you make as a young worker.

The post Libel, College Students, and Garnished Wages: Even Entry-Level Workers Aren't "Judgment-Proof" appeared first on Reason.com.

[Paul Robinson and Jeffrey Seaman] It's Time to Confront Failures of Justice (Part III)

This is the third in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. The last two posts introduced the problem of failures of justice (instances of unpunished or inadequately punished crime) and discussed how the problem is not solving itself. Now it's time to talk about costs. Why should we care about failures of justice? One cost is moral—we, along with most people, believe that there is a moral obligation to punish serious crime. This argument could also be made in social contract terms—the government has a duty to its people to punish those who victimize them.

But in addition to these moral costs, failing to punish serious crime produces enormous real-world harms. These include trauma to victims and co-victims, as well as increased crime through loss of incapacitation, reductions in deterrence, and, perhaps most importantly, the consequences of a decline in the law's moral credibility with the community. Consider an excerpt from our book discussing the harms caused to victims and their families.

Many serious, violent crimes leave victims alive but scar them with emotional trauma, especially when justice is not served. Surviving a rape or attempted murder is merely the beginning of suffering for most victims. A victim may well find some measure of solace and healing in the thought that their attacker has been caught and punished, but most victims of serious crime never experience that comfort…. It is impossible to quantify the suffering victims experience when their victimizers escape justice, but the cost is real and significant.… Studies have found that rape victims are more likely to experience post-traumatic stress disorder if they have "negative experiences with the criminal justice system" compared with those who have positive experiences with the system or even those who had no interaction with the system. The knowledge that one's attacker still walks free can be infuriating and crippling to many victims.…

Rape is not the only crime with enormous personal costs. When a murderer or other serious violent offender gets away without deserved punishment, the victims' families and friends are emotionally scarred. The relatives and friends of someone lost to homicide are often referred to as "co-victims," a term that acknowledges that victimization extends far beyond the person killed. Anyone who has had a friend or a family member murdered will have to deal with lifelong grief, but a failure of justice adds anger, upset, and fear to that pain through the constant knowledge that the killer is free.

In the United States, it is estimated that roughly 9% to 15% of adults are co-victims of homicide and that roughly 8% to 18% of youths are co-victims of homicide. Since justice fails in more than half of such cases, around 5% or more of the population suffer from the knowledge that the killer of their loved one got away with murder. Worse, the co-victimization rates are staggeringly higher for other crimes, such as rape or aggravated assault, where the punishment rates are extremely low, even trivial.

But failing to punish serious crime does more than traumatize victims and their families. It also breeds more crime through several mechanisms.

First, low punishment rates decrease deterrence as criminals or would-be perpetrators correctly believe they are unlikely to be punished for any given crime. Another cost is failing to stop repeat offenders, since much, if not most, serious crime is committed by repeat offenders.

Failures of justice commonly leave the uncaught criminal free to reoffend, thus adding to the cost of crime which is estimated at a staggering 2.6 trillion dollars each year in America. Criminals rarely escalate from nothing to murder, and most serious crimes are committed by repeat offenders who have escaped justice repeatedly in the past. If the justice system was more effective in solving and punishing crime, repeat offenders would often have their careers ended earlier, avoiding a string of later crimes. Given the enormous costs of repeat criminals to society (even excluding the costs to victims and co-victims of letting offenders go free), allowing criminals to escape justice is unlikely to save societal resources on net. Doing justice ultimately more than pays for itself in the long run.

In addition to reducing deterrence and incapacitation, failing to justly punish crime carries another criminogenic cost through eroding the law's moral credibility with the community.

Communities that witness repeated failures of justice commonly lose faith in the criminal justice system, which undermines the criminal law's ability to gain compliance, deference, and assistance and, perhaps most importantly, to get people to internalize its norms. Instead of inspiring cooperation, a criminal justice system with reduced credibility provokes resistance, subversion, and rejection. This leads to increased lawbreaking and can provoke a justice-seeking backlash in the form of vigilantism … where members of the community take the law into their own hands and undertake to do justice where the system seems unwilling or unable to do it. Of all the pernicious effects of failures of justice, the criminal justice system's loss of moral credibility with the community may be the most damaging because it creates a vicious cycle in which lost credibility produces more crime and less justice, which in turn reduces the system's credibility further.

It should be common sense that when the justice system fails to do justice in most cases of serious crime, people notice and lose faith in that system. This dynamic is particularly noticeable in many of America's urban neighborhoods where high rates of crime go together with high rates of crime non-reporting, witness non-cooperation, vigilante killings, and distrust in official justice system processes.

It is important to note that all the above costs apply regardless of whether a criminal completely escapes punishment or whether they are convicted and punished in a way the community sees as insufficient. Sometimes delivering a flagrantly inadequate punishment may be worse than delivering no punishment at all. For example, if an individual rapist escapes justice, it is unlikely to attract public attention. By contrast, the case of a rapist who is convicted but receives a slap on the wrist sentence (e.g., community service) is likely to spark far greater public outrage and cynicism because it showcases that the system is unable or unwilling to do justice even when a perpetrator is caught.

Yet another cost of failures of justice, and one that should be especially compelling to liberals and progressives, is the disparate impact unpunished crime has on poor and minority communities.

One final factor that makes the societal cost of justice failures all the more tragic and unjust is its disparately large impact on racial minorities and the economically disadvantaged.… Crime clearance rates are significantly lower in poorer areas with high racial minority populations than they are in White middle-income and high-income areas.… One analysis of 52 of the US's largest cities found that police arrested someone in 63% of homicides that killed White victims, compared with just 47% of homicides of Black victims, a 16-percentage-point difference in clearance rates. Data from Chicago indicates that homicide cases involving a White victim are solved 47% of the time, cases involving a Hispanic victim are solved 33% of the time, and cases involving a Black victim have a clearance rate of a mere 22%.

There are several factors that likely contribute to these disparities (such as the type of killing, with street shootings being especially hard to solve), but regardless of the causes, the effect is clear: poor neighborhoods and minority communities suffer failures of justice at highly disproportionate rates to their share of the population.… Too often the same advocates who protest against police violence and decry the injustices caused by systemic racism in the legal system are nowhere to be found on the issue of solving and punishing crime.

No society should ignore the costs of failures of justice, particularly a modern liberal society that seeks to value and promote the rights and wellbeing of all its citizens. Unfortunately, justice failures may not receive the attention they deserve because academics, politicians, and society's wealthy and powerful members are much less impacted by crime (and its subsequent lack of punishment) than are society's worst-off members. The criminal justice system's current policies and rules reflect a poor balance of societal interests that leaves most victims without justice and many communities locked in spirals of crime. The next post discusses the question of how to balance societal interests in criminal justice policy and who should do that balancing.

The post It's Time to Confront Failures of Justice (Part III) appeared first on Reason.com.

[Josh Blackman] A Reminder Of What Will Happen When The Filibuster Is Gone

[Harris says the quiet part out loud. ]

Today Vice President Harris announced that she would support eliminating the filibuster to codify Roe v. Wade:

"I think we should eliminate the filibuster for Roe [v. Wade], and get us back to the point where 51 votes would be what we need to actually put back in law the protections for reproductive freedom."

Senate Majority Leader Schumer likewise said eliminating the filibuster is "something our caucus will discuss in the next session of Congress." Translation: Democrats will nuke the filibuster if they win the White House and have majorities in both houses.

I agree with the Wall Street Journal that once the filibuster is eliminated for abortion, it will be eliminated for all other legislation.

She's couching this procedural coup as related only to imposing a national abortion law on all 50 states. But anyone paying attention knows that's a ruse. Once the 60-vote filibuster rule ends for one piece of non-budget legislation, it will end for everything.

Chuck Schumer, the Senate Majority Leader, recently said he wants to break the filibuster for a national abortion law and pass a bill that would impose California-style voting rules on all 50 states. Good-bye voter identification, and hello nationwide ballot harvesting.

It won't stop there. Sen. Sheldon Whitehouse says he wants to break the filibuster to restructure the Supreme Court. Sen. Bernie Sanders has recently given up on his former institutional objections and now favors 51 votes to pass his proposals.

Every interest group in the Democratic coalition will demand that its priorities pass with 51 votes too. Think statehood for the District of Columbia. And think Big Labor's PRO Act that would ban right-to-work laws nationwide, among other ideas that would normally require bipartisan majorities to pass the Senate.

This wishlist is not fanciful. Jeff Toobin offered a similar roadmap in 2020.

Once D.C. has statehood, it will become far more difficult for Republicans to obtain a majority in the Senate, and nearly impossible to confirm Republican-nominated judges. And once the lower courts and Supreme Court are packed, there will be no judicial check on whatever a simple majority of Democrats can muster. Within a span of a two years, our country would become nearly unrecognizable. If you think this sort of rapid change is impossible, look at what just happened in Mexico.

This blog is hosted by a non-profit, so I will resist making any sort of political endorsement. Instead, I would urge people who are generally right-of-center to think very carefully about which candidate actually poses the bigger threat to that which they care the most about. I know of several never-Trumpers who today became reluctant-Trumpers. You are not alone.

The post A Reminder Of What Will Happen When The Filibuster Is Gone appeared first on Reason.com.

[Eugene Volokh] N.Y. Law Mandating That Delivery Services Share More Customer Data with Restaurants Violates First Amendment

From today's opinion by Judge Analisa Torres (S.D.N.Y.) in Doordash, Inc. v. City of New York:

When a diner orders food from a restaurant using the online platform of a third-party food delivery service …, the restaurant generally receives only the individual's first name, the first initial of her surname, and the order's contents—the minimum information required to fulfill the order. In August 2021, in an effort to support local restaurants that use Delivery Services, … the City of New York … enacted … [t]he Customer Data Law[, which] requires that Delivery Services provide restaurants with a diner's full name, email address, phone number, delivery address, and order contents.

The court concludes that the Customer Data Law compels commercial speech by Delivery Services, and must therefore be judged under the First Amendment intermediate scrutiny applicable to commercial speech regulations (at least ones not aimed at misleading statements):

The government can freely regulate commercial speech that concerns unlawful activity or is misleading. But where, as here, the information does not fall into those two categories, courts apply a balancing test to determine whether a commercial- speech regulation passes intermediate scrutiny. Courts inquire into (1) "whether the asserted governmental interest is substantial," (2) "whether the regulation directly advances the governmental interest asserted," and (3) "whether [the regulation] is not more extensive than is necessary to serve that interest." …

To evaluate whether an interest is substantial, the Court must "evaluate the City's asserted goal in enacting the regulation." "When the [g]overnment defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured." Intermediate scrutiny requires that the state "demonstrate that the harms it recites are real."

Next, the City must demonstrate that "the speech restriction directly and materially advances the asserted governmental interest" and "will in fact alleviate [the harms identified by the City] to a material degree." "[T]he regulation may not be sustained if it provides only ineffective or remote support for the government's purpose."

"The last step of the … test complements the [prior] step, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it." The fit need not be "perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served." …

The City argues that it has a substantial interest in protecting the restaurant industry—"a critical sector of the New York City economy"—from the "exploitive practices" of Delivery Services. The Customer Data Law seeks to "strike the right balance and equity between those that hold the information and those that supply the goods and services."

Courts have held that "promoting a major industry that contributes to the economic vitality of the [locality] is a substantial government interest." Society has an "interest in maintaining the small businesses necessary for functioning neighborhoods." And, "the Government's interest in eliminating restraints on fair competition is always substantial." But, the City cannot simply "posit the existence of the disease sought to be cured"; it must demonstrate that the harms exist, that the regulation posed addresses those harms, and that the regulation is tailored to those harms.

The City identifies three allegedly "exploitive" practices. First, Delivery Services "limit the ability of restaurants to retain data on their own customers," which hampers restaurants' ability to "reach out to their loyal customers" and "assess menu items' popularity." Second, Delivery Services may use a restaurant's customer data to promote competitor restaurants that pay the services higher fees, or to establish virtual restaurants that sell meals solely on the platform. Third, Delivery Services "list[] false information about a restaurant (for example, listing it as closed), in order to direct traffic to a restaurant paying higher commissions and fees."

The Court shall begin with the latter two practices identified by the City. Although the City has explained why these practices harm restaurants and has established a substantial interest in regulating them, it has not provided evidence that the Customer Data Law will in fact affect the objectionable practices. The City states, "[I]t is undisputed that the [Customer Data] Law does not restrict Plaintiffs' use of customer data (such as using the data to provide delivery or marketing services)." Therefore, Plaintiffs may continue to use customer data to promote competitors. And, the Customer Data Law does not aim at false or misleading statements made by Plaintiffs, even though Central Hudson permits such regulation of commercial speech. The only effect that the Customer Data Law could have on these two practices is to make it more desirable for restaurants, now equipped with data that they could use to target customers, to leave Plaintiffs' platforms. But, even that has a "remote" connection to these practices, because restaurants can leave Plaintiffs' platforms now, and Plaintiffs could continue these practices with whatever restaurants choose not to leave the platforms….

The July 29 Report states that restaurants could use customer data to "offer promo codes, discounts, and new menu items" and "assess the popularity of menu items." But, Plaintiffs currently provide marketing tools—with solicited listings, promotions, and other forms of advertising—that permit restaurants to reach out to the customers who place orders through their platforms. Plaintiffs also provide data analytics that permit restaurants to understand the performance of menu items.

The City's July 29 Report also claims that Plaintiffs' restrictions on data leave restaurants with no records regarding repeat customers. But, the City has failed to show the effect of this practice on the strength of the restaurant industry. According to the City, the practice affects restaurants because "80% of [them] are small and employ less than 20 employees," and they "continue to weather the effects of the COVID-19 pandemic." The City does not explain why the size of the restaurants and the fact that they remain affected by COVID-19 make it more likely that withholding customer data will harm the restaurant industry as a whole. The City does not dispute that Plaintiffs provide restaurants with access to customers and orders that they may not otherwise have. Certain of Plaintiffs' advertising tools permit outreach to individual customers that have previously interacted with the restaurants. And, Plaintiffs—through their Storefront, Webshop, and Grubhub Direct products—provide restaurants with back-end support for building their own websites and owning their customer data. Accordingly, the City's claim that the Delivery Services' practice of withholding data is exploitative is "too speculative to qualify as a substantial state interest." The City may prefer that restaurants have access to customer data, but a mere preference for one industry over another is not a substantial state interest….

Even if the Court were to find that the City has a substantial interest in ensuring that restaurants obtain data about customers who order food, it has not demonstrated that the Customer Data Law is appropriately tailored to this goal…. [T]he Second Circuit has required that the government offer some empirical evidence that there is a "fit" between a speech restriction and the "degree of the harm" it aims to redress. The Customer Data Law mandates that Plaintiffs hand over specific customer data within their possession. Less restrictive alternatives to promote the same goal include requiring Plaintiffs to offer an opt-in program for customers to send their data to restaurants, providing financial incentives to encourage Delivery Services to provide certain customer data to restaurants, and subsidizing the development of online ordering platforms for individual restaurants.

{The City could also enact more targeted regulations to address more specific goals. For example, if the City wanted to ensure that restaurants had a record of repeat customers, the City could seek to regulate how Plaintiffs' platforms integrate external customer loyalty programs. If the City were concerned about the fees that Plaintiffs were charging for advertising on their platforms, it could seek to regulate such fees. And, if the City were concerned about Delivery Services misleading restaurants about who owned the customer data, it could seek to regulate that specific practice.}

The City has not demonstrated that an incentive-based program or more fine-tuned regulation would be ineffective, and compelling Delivery Services to disclose customer data is incommensurate with the identified harm. Because the Customer Data Law regulates commercial speech but fails intermediate scrutiny, it violates the First Amendment….

The post N.Y. Law Mandating That Delivery Services Share More Customer Data with Restaurants Violates First Amendment appeared first on Reason.com.

[Eugene Volokh] The Digitalist Papers (on AI and Democracy in America) Now Out from Stanford

Check out the essays here, or buy a Kindle ($1.99) or paperback or hardcover copy on Amazon. The book was put together by Erik Brynjolfsson, Alex "Sandy" Pentland, Nate Persily, and Condoleezza Rice, and by the Stanford Digital Economy Lab, the Stanford Cyber Policy Center, the Project Liberty Institute, the Stanford Institute for Human-Centered Artificial Intelligence (HAI), and the Hoover Institution (Stanford).

The chapter authors include Eric Schmidt (formerly at Google), Reid Hoffman (LinkedIn), and many others, including—to give some names most likely to be familiar to our lawyer readers—Profs. Larry Lessig (Harvard Law), Nate Persily (Stanford Law), and me. Here's a full list, with links:

Erik Brynjolfsson, Alex Pentland, Nathaniel Persily, Condoleezza Rice, and Angela Aristidou, Introduction: Artificial Intelligence and Democracy in America
Lawrence Lessig, Protected Democracy
Divya Siddarth, Saffron Huang, and Audrey Tang, A Vision of Democratic AI
Lily Tsai and Sandy Pentland, Rediscovering the Pleasures of Pluralism: The Potential of Digitally Mediated Civic Participation
Sarah Friar and Laura Bisesto, The Potential for AI to Restore Local Community Connectedness, the Bedrock of a Healthy Democracy
Jennifer Pahlka, AI Meets the Cascade of Rigidity
Eric Schmidt, Democracy 2.0
John Cochrane, AI, Society and Democracy: Just Relax
Nathaniel Persily, Misunderstanding AI's Democracy Problem
Eugene Volokh, Generative AI and Political Power
Mona Hamdy, Johnnie Moore, and E. Glen Weyl, Techno-Ideologies of the Twenty-First Century
Reid Hoffman and Greg Beato, Informational GPS
James Manyika, Getting AI Right: A 2050 Thought Experiment

The post The Digitalist Papers (on AI and Democracy in America) Now Out from Stanford appeared first on Reason.com.

[Eugene Volokh] State Constitution Tool

[A great free resource for lawyers, judges, academics, and students doing cross-state constitutional law research.]

Check it out, at https://stateconstitutiontool.org (from American Juris Link); the site lets you easily find state constitutional provisions related to a particular topic, and then compare them.

Thus, for instance, say you're writing about a state constitutional right to bear arms, free speech, open government, privacy, etc. You can select that option, and then either select "all states" or some set of states in which you're interested. That will then show you those provisions in all state constitutions, and let you compare them further, or search their text for particular keywords.

Each state, of course, has its own constitution, and many provide more rights than the federal Constitution does (or provide the same rights but with different, and potentially more capacious, language). They also have very different sorts of non-rights provisions, for instance statutory single-subject rules, prohibitions on certain kinds of special laws, and more.

The Tool is focused on text; users will still need to do their own caselaw research about how various textual provisions have been interpreted. But the text is the first place to start (among other things because it can help show which other state provisions are similarly written, and can thus help guide the user's followup research). And though it was just released very recently, it has already been cited in an Alabama Supreme Court concurrence:

The problems associated with lockstepping [i.e., interpreting a state constitutional provision in lockstep with its federal analog -EV] are magnified in instances in which the text of the State constitutional provision differs substantially from that of the federal constitutional provision. Here, Alabama's Due Process Clause and the Fourteenth Amendment's Due Process Clause have little in common except for the phrase "due process of law." Compare Ala. Const. 2022, art. I, § 13 ("[E]very person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.") with U.S. Const. amend. 14, § 1 ("No State shall … deprive any person of life, liberty, or property, without due process of law.").14 It would be unusual for two provisions that are worded so differently to have an identical meaning and application in all cases.

14For a useful tool to compare state and federal constitutional provisions, see Am. Juris Link State Const. Tool, which, at the time of this decision, could be located at: https://stateconstitutiontool.org.

Much worth checking out.

The post State Constitution Tool appeared first on Reason.com.

[Eugene Volokh] Grey's Anatomy Goes Bad

Last Wednesday's decision by Chief Judge Thomas Kleeh (N.D. W. Va.) in Balise v. Jackson, stems from a "consensual romantic relationship" between plaintiff, a surgical resident at West Virginia University, and defendant, a registered nurse:

Plaintiff claims that he ended his relationship with Defendant in March 2022, and began a new relationship shortly thereafter. According to Plaintiff, Defendant contacted Ruby Memorial Hospital [where she worked and where Plaintiff had privileges -EV] in August 2022 and made false reports to administrators … that (1) Plaintiff is an alcoholic; (2) a previous medical condition during Plaintiff's residency was caused by alcohol abuse; (3) Plaintiff was treated for alcohol withdrawal with Benzodiazepines; (4) hospital residents, Dr. Ballou and Dr. Ringer, removed alcohol from Plaintiff's apartment more than once; (5) Plaintiff made patient care decisions based on Defendant's work assignments; and (6) Plaintiff encouraged Defendant to get tested for a sexually transmitted disease after their relationship ended. Defendant allegedly made these false statements, two weeks after Plaintiff got engaged, to injure Plaintiff's employment and profession….

Due to the allegedly false and defamatory statements, Ruby Memorial Hospital terminated Plaintiff's privileges and West Virginia University terminated Plaintiff's employment. Plaintiff further claims that Defendant's conduct hurt Plaintiff's professional relationship with West Virginia University and future employers.

Balise sued Jackson for defamation and tortious interference with business relations, and the court allowed the claim to go forward:

The Court first addresses whether any of the alleged statements are constitutionally protected opinions. The first four comments relate to Plaintiff's alleged alcoholism. The Restatement (Second) of Tort[s] has addressed this issue in a very similar hypothetical situation. "[S]tatements of belief are defamatory if they imply the existence of defamatory facts that are not disclosed to the listener … for example, the statement 'I think he must be an alcoholic' is actionable because a jury might find that it implied that the speaker knew undisclosed facts justifying his opinion." However, providing additional information behind such a statement can remove the implication of unknown defamatory facts, rendering the statement an opinion.

Restatement (Second) of Torts § 566 provides the following hypotheticals:

A writes to B about his neighbor C: "I think he must be an alcoholic." A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion. A writes to B about his neighbor C: "He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic." The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation….

Here, a developed factual record would be necessary to consider the totality of the circumstances of whether the alcoholism statements were facts or opinions. On one hand, the statements—a previous medical condition during Plaintiff's residency was caused by alcohol abuse; Plaintiff was treated for alcohol withdrawal with Benzodiazepines; and hospital residents, Dr. Ballou and Dr. Ringer, removed alcohol from Plaintiff's apartment more than once—could be considered evidence that it was Defendant's opinion that Plaintiff was an alcoholic. However, this would assume that alleged statements two through four were true. Plaintiff pleads that such statements are false. Viewing the Complaint in the light most favorable to the Plaintiff, the Court cannot find, at this stage of litigation, that statements one though four relating to Plaintiff's alleged alcoholism are opinions.

As for statements five and six, the Court finds that such statements are not opinions because they are provably false. Whether Plaintiff made patient care decisions based on Defendant's work assignments or encouraged Defendant to get STI (sexually transmitted infection) testing are statements of fact which either did or did not happen. Thus, at the pleading stage, they can serve as the basis of a defamation claim. Discovery is accordingly necessary to prove falsity or the lack thereof….

The post Grey's Anatomy Goes Bad appeared first on Reason.com.

[Eugene Volokh] Mother's Derogating Father to Children Leads Appeals Court to Order That Father Get Custody,

[Reversing a trial court decision that awarded custody to mother.]

From In re Marriage of Shada, decided Wednesday by the Iowa Court of Appeals, in an opinion by Judge Gina Badding, joined by Judges Samuel Langholz and Michael Mullins:e

David … challenges the district court's decision to place their three minor children in Nicole's physical care. He argues that Nicole "is not supportive of the children's emotional needs, she is profane in her communications with the children and does not support the children's relationship with [him]." The court discussed those issues but found they were outweighed by Nicole's role as the children's primary caretaker. We disagree on our de novo review of the record and modify the decree to place the children in David's physical care….

Because David does not contest the district court's decision to deny joint physical care, the only issue before us is which parent should serve as the children's primary caretaker. Our focus in resolving this issue is the best interests of the children…. Generally, courts … the suitability of parents, whether the children will suffer from lack of contact with and attention from both parents, quality of parental communication, the previous pattern of caregiving, and each parent's support of the other.

With those factors in mind, David argues that he is the more suitable parent because Nicole's "attitude toward her daughters … is quite negative," she generally dismisses the children's feelings and mental health, she places the children in the middle of parenting issues, and she does not support the children's relationship with David….

We have long recognized "[t]he fact a parent was the primary caretaker prior to separation does not assure he or she will be the custodial parent." We think this is especially true with a father like David who, although he was the family's primary breadwinner, was not uninvolved like Nicole would have us believe.

The district court recognized this to a certain extent, finding that while it had "no doubt that Nicole has been the primary caregiver for the children throughout the years," the court was "not saying that David hasn't parented the children." Instead, the court concluded that his "role in caring for the children did not ever consistently rise to the level of Nicole caring for the children." But David correctly challenges the quality of that caretaking and its effect on the children's mental and emotional health, which was already suffering.

While the court also recognized Nicole's negative attitude toward the children and lack of support for David's relationship with them, we agree with David that those factors should have been given more weight. Iowa courts "do not tolerate hostility exhibited by one parent to the other." And Nicole has been hostile to the extreme—not just in private with David, but in text messages with the children and in public with friends and family…. "The ability of each parent to actively support the other parent's relationship with the child is an important factor in determining the physical [care] arrangement." "More importantly, the ability of each parent to do so is instrumental in the successful mental, emotional, and social development of the children." Nicole has shown no ability to support David's relationship with the children, undermining and demeaning him at every opportunity. In contrast, David worked to gloss over Nicole's shortcomings when the children complained to him and continually assured them of her love….

Here's the court's summary of the facts:

David and Nicole married in 2011. Nicole petitioned to dissolve the marriage in March 2023, and a trial was held in October after an unsuccessful attempt at mediation. While the divorce was pending, the parties continued living together at the family's acreage with their three children: daughters born in 2009 and 2010, and a son born 2016….

Nicole shared her negative opinions about David with the children. In a group text with their daughters, when David messaged Nicole about taking the children to the mall, she replied, "Look at you go super dad." In another, Nicole told the middle child that she wouldn't have to babysit her brother "if u[r] dad just came home like any other father i[n]stead of hanging out and drinking with his low life druggy 'friends.'" When David replied, "Totally not appropriate to be texting," and asked her to stop, Nicole shot back with, "Nothing but facts u super father."

The next month, Nicole texted the girls and David, "All the laundry I did is sitting in baskets downstairs … don't worry girls I also do laundry too lmfao." The middle child asked, "Who said you didn't?" And Nicole replied, "Ur father to his attorney."

And in another exchange, Nicole texted the oldest child: "are u okay watching ur brother again this weekend and being home alone while I'm at work and your dad goes out and drinks and doesn't come home again and stays elsewhere until I don't get home till 230 am knowing u have a big tournament … [t]omorrow[?]" David replied, "Yes she said that's fine. And you've already said it's ok." After Nicole answered, "I just need her to sign the paper u went out again so I'm just making sure :)," the oldest child jumped in, "Nope leave me out of this."

Beyond these and other similar text messages, David alleged that Nicole once told the children that he "was out fucking hoes." And he testified that just two days before trial, the youngest child told him, "Mom says you're trying to sell the house and sell all the animals, and I really like my cat." David assured the child that "your mom and I both want you guys to be able to stay in the house."

Nicole unapologetically agreed at trial that she has undermined David's discipline of the children and said things in front of them about David wanting to sell the house, not being an involved parent, drinking with his friends, and using drugs. David testified that when he asks her to not say those things in front of them, Nicole will reply, "This is the truth. They need to hear this."

Nicole's harsh communication was not limited to David. Multiple witnesses testified about times they saw Nicole "cussing and yelling" at David or the kids. Nicole admitted at trial, "I'm a yeller," which is apparent even in her text messages. As just one example among many, Nicole texted the oldest child during a softball game, berating her for missing a catch: "What the fuck!!! That was ur god damn ball out there … how embarrassing." When the child sent David a screenshot of the message, he replied, "Good try honey. See you back at home and love you." In other messages, Nicole will text the children to "[l]et the god damn dog in now" or "[g]et the F off my fn headphones. … Now damnit."

David testified the children often asked him for advice: "We have a really good relationship. … If they struggle with friendship stuff, they'll come talk to me. If they're struggling with their mom, they'll come talk to me." Text messages between David and the children confirmed this. In one, the oldest child told David about a comment Nicole made to her in a dressing room, and David replied, "Well she love[s] you dearly. She just wants you to do well and enjoy homecoming." And when the middle child told David that Nicole "freaking ruins my life" and doesn't love her, David replied, "She was just stressed probably. … She loves you."

After David's counsel uploaded these text messages as exhibits for the trial, David said the middle child contacted him in a panic because, while the children were at school, Nicole had texted them "something like, you know, 'why you guys talking shit on me.'" The child was so upset that David "had to basically walk her through just getting her to the point where we could get her to the counselor's office because she was going into the bathroom and hiding away and crying." …

There's more in the full opinion.

Krisanne C. Weimer of Weimer Law, PC represents David.

UPDATE: Note that Iowa is one of the few states in which appellate courts review trial court custody decisions mostly "de novo" (i.e., applying their own judgment, though taking seriously the lower court's observations and statements) rather than for "abuse of discretion" (i.e., generally deferring to the lower court unless it seems to have applied the wrong legal standard, or have applied the right legal standard but in a way that seems highly unreasonable). According to Seth F. Gorman, Donna Furth & Matthew Barach, writing in Handling Child Custody, Abuse and Adoption Cases (Ann M. Haralambie ed., last updated 2023), the "de novo" states are Arkansas, Iowa, Michigan, Nebraska, Oregon, Pennsylvania, South Carolina, and Tennessee.

The post Mother's Derogating Father to Children Leads Appeals Court to Order That Father Get Custody, appeared first on Reason.com.