Eugene Volokh's Blog, page 268

[Eugene Volokh] Tuesday Media Recommendations: Historical Fiction Books

[Post your recommendations in the comments; other weeks, there'll be other posts for other genres and other formats.]

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[Steven Collis] The Lesson From Supreme Court Justices Changing Their Minds

[For all of the commentary West Virginia Bd. of Ed. v. Barnette has received over the years, perhaps one of the more stunning aspects of that case was two Supreme Court Justices changing their minds.]

The following is an excerpt from Chapter 6, "Be Open to Change," of my book Habits of a Peacemaker:

In the introduction, I mentioned the 1943 Barnette case, in which the Supreme Court ruled that school districts could not force Jehovah's Witness children to say the Pledge of Allegiance. I return to that now to illustrate an important principle. The case is remarkable for a number of reasons. It represents the foundation and, arguably, the founding of our modern understanding of freedom of speech and thought. It included what is often considered to be some of the most powerful language regarding the limits of government action in the modern era. In addition to what I shared in the introduction, it includes some of these important gems:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Or this, when talking about our constitutional system and how it limits government from having power in certain areas of our lives:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government…. Observance of limitations of the Constitution will not weaken government in the field appropriate for its exercise.

And, finally, this sentence, explaining the purposes of the Bill of Rights:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

It may come as a shock to those not trained in the law, but the above quotations were not well established as part of the American experience until around the time of the Barnette decision, in the middle of the twentieth century. Prior to that, government, and particularly state and local governments, enjoyed tremendous power over people's lives. The primary reason we don't often hear about that is because lawmakers for the first one hundred years of our country's existence were less inclined to pass as many laws as they do today.

The Barnette decision represented an important shift in American constitutional law and one that paved the way for much of the success and growth—with its accompanying discomfort—of the twentieth century.

But it was almost not to be.

The first time the Jehovah's Witnesses asked the court to rule in their favor, the justices decided differently. As already explained, three justices then retired and were replaced. Two more changed their minds. Consider how remarkable that is. It is difficult today to imagine a Supreme Court justice changing his or her mind after only a few years, especially when so much is at stake. These cases arrived at the court during the height of World War II. The impetus for wanting children to recite the Pledge of Allegiance was to instill a love for the United States and the promotion of good citizenship at a time when the nation's very existence seemed to be in question. The cases were controversial, just as many are today. With Nazi Germany in Europe and imperial Japan in the Pacific, the stakes could not have been higher. What the Jehovah's Witnesses were asking was strange to everyone around them.

Yet Justices William Douglas and Hugo Black changed their minds. In doing so, they helped solidify one the most important Supreme Court decisions in modern history. When they did, they said, "It is appropriate that we make a brief statement of reasons for our change of view." They explained that they had been reluctant to apply some of the terms of the federal Constitution to state laws—something courts did not do until the early twentieth century.

Then they offered the important line for our purposes: "Long reflection convinced us that although the principle is sound, its application in the particular case was wrong."

Long Reflection

I am not interested in discussing here why the court ruled the way it did in that particular case, nor in whether we as readers eighty years later agree with the outcome or the court's reasoning to get there. Legal academics have spilled gallons of ink exploring and dissecting those issues. Instead, I want to focus on how these two justices changed their minds. They listened to the best arguments the other side could muster. Then they engaged in long reflection. To do that, they opened their minds to the possibility of change. They considered the reality that they may have been wrong. Unlike politicians, they didn't need to worry about losing their jobs for doing so. And unlike justices today, they didn't need to dread endless hours of cable news and social media condemnation for their decisions. Instead, they considered new and more sophisticated arguments and came to believe that the rule they had wanted to apply was not the right way forward.

I pause here to emphasize the importance of both the word "long" and the word "reflection." It is okay to have a high threshold for how much evidence and logic we need to change our minds—it may require a long period of time to explore and examine a topic before we allow ourselves to be convinced. Otherwise, we risk shifting too much too often. But without being willing to change our mind, to at least consider the evidence and logic others might present to us, we abandon all hope of finding better solutions to the world's problems.

This is what peacemakers do. With intellectual humility comes the recognition that there may be more to learn about any topic and that as we learn, our positions may change. Peacemakers do not fear that. They do not see it as selling out or compromising on core values. Quite the opposite. For Justices Douglas and Black, their core values had not changed at all. What they realized was that the rule they had originally adopted was not the right way to achieve their core values.

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[Josh Blackman] Today in Supreme Court History: September 10, 1949

9/10/1949: Justice Wiley Rutledge dies.

Justice Wiley Rutledge

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[Eugene Volokh] Court Lets Plaintiff Suing Over "Pro-Hamas Demonstrations at Northwestern" Proceed Pseudonymously

[Plaintiff had alleged that being publicly identified would put him at risk of physical harm.]

From the plaintiff's argument in Doe v. Northwestern Univ. (N.D. Ill.); Judge John Robert Blakey has granted the motion, without a detailed explanation, but likely because he agreed with its general argument:

Plaintiff [John Doe 3] is a Jewish student at Northwestern University … who has been subjected to threats of physical violence while on campus and is the victim of retaliation and false accusations by individuals that attended pro-Hamas demonstrations at Northwestern. Other Jewish students on campus have been physically assaulted and have similarly faced severe and pervasive hostility on campus as a result of their Jewish identity. The perpetrators of these acts of intimidation and violence have acted with impunity and are waiting for Plaintiff on campus when he returns this Fall quarter. Plaintiff thus brings this motion to proceed pseudonymously in order to protect his identity and avoid further victimization.

Northwestern has adopted various policies designed to ensure the privacy of victims of discrimination and other wrongs. Not only does Northwestern claim to protect victims, but the university has also stated that it will protect the very individuals that are responsible for the harassment and threats of violence Plaintiff endured on campus. Northwestern recognizes the potential harm Plaintiff would face if his identity was exposed and does not oppose Plaintiff's request for anonymity. Nevertheless, because the Seventh Circuit disfavors the use of pseudonyms by litigants, the Court must engage in an exacting independent analysis of Plaintiff's request.

The Seventh Circuit has long rejected the use of a rigid test for determining whether the harm to the plaintiff from public identification exceeds the likely harm from concealment of their identity. Rather, the Seventh Circuit requires district courts to engage "in the careful and demanding balancing of interests required in making this determination," which includes consideration of, inter alia, whether a victim or wrongdoer seeks anonymity, whether disclosure risks retaliation to the victim, whether the public interest is served by anonymity, and whether a defendant will suffer any prejudice. The Seventh Circuit's recent decisions in Doe v. Trs. of Ind. Univ. (plaintiff John Doe sued Indiana University after he was expelled for physically abusing female student), and Doe v. Loyola Univ. Chi. (plaintiff John Doe sued Loyola after he was expelled for nonconsensual sexual activity with female student), do not change this analysis, because (as discussed below) neither sets forth a rigid test to be applied to victims of discrimination who are at risk of further violence and retaliation for their religious identity.

As a victim of severe hostility and discrimination based on his Jewish identity, Plaintiff reasonably fears further harm and retaliation from disclosure of his identity. As explained below, this harm is not speculative but grounded in the calls for violence against Jews on campus, and indeed, actual acts of violence. Moreover, Plaintiff reasonably fears retaliation because his perpetrators remain on campus and, over the course of the summer, have continued their efforts to harass and threaten Jews out of hatred….

This action concerns information of the most private and personal nature for Plaintiff, the disclosure of which would put him at risk of suffering further injury, including physical assault. "Lawsuits involving religion can implicate deeply held beliefs and provoke intense emotional responses[,]" which may raise the "'danger of retaliation'" and provide "compelling ground for allowing a party to litigate anonymously.'" The Seventh Circuit reiterated this point in Loyola, stating that retaliation based on an "animus toward people with unpopular religious belief" may warrant a plaintiff proceeding anonymously. Loyola Univ. Chi. (citing Doe v. Elmbrook School Dist.).

Here, Jewish students like Plaintiff have become persona non grata on Northwestern's Evanston campus. E.g., Compl. ¶ 89 (sign with black Star of David with a red slash through it); ¶ 100 ("we don't want no Zionists here"). Among other allegations, Plaintiff alleges that Northwestern permitted an openly hostile, discriminatory, and at times violent group of demonstrators to squat for days on the main campus lawn of Deering Meadow in an encampment called the "Liberated Zone." The encampment contained individuals who are openly pro-Hamas, a designated terrorist organization that calls for, inter alia, "attack[ing] every Jew on planet earth" and to "fight Jews and kill them." These calls for violence have been heeded by individuals on Northwestern's campus. For example, Jewish students on Northwestern's campus were physically assaulted, spat on, called "dirty Jews," and told to "burn in hell." During one particular incident on campus, Plaintiff encountered protesters promoting the slogan: "resistance is justified when people are occupied. #AlAqsaFlood," which only refers to Hamas' October 7th murder, raping, and torture of Jews. Plaintiff is also concerned that individuals that have threatened him with physical violence may attempt to "doxx" him and otherwise continue to assert harmful false accusations against him as a form of retaliation.

As a result, Plaintiff reasonably fears that he will face similar physical and verbal antisemitic incidents on Northwestern's campus when Northwestern's Fall Quarter begins in September 2024, and beyond…. Finally, Plaintiff also fears threats from the public given the general rise of antisemitic incidents in the United States and, more specifically, the public attention the issue of antisemitism on college campuses has received.

At this stage, Plaintiff is not required to submit "evidence of actual violence arising out of this particular suit." Elmbrook Sch. Dist. Rather, Plaintiff's uncontradicted account of past retaliation suffices and the Court should not give "an innocent construction [to Plaintiff's experiences] in order to reject [his] motion."

Elmbrook Sch. Dist. is instructive. In that case, plaintiffs testified that "they and their children had suffered reprisals in the past—including from teachers, school officials and workplace supervisors—for airing their views on religion and that they feared future reprisals should their involvement in the litigation become public knowledge" and submitted comments from an online forum supporting their concern for future harm. Despite the Seventh Circuit finding that "[m]ost of the comments [concerning plaintiffs] merely reflect[ed] the overheated rhetoric common to passionate debate about significant social issues," the court affirmed the district court's finding that pseudonyms were warranted. With respect to the online comments, the Seventh Circuit found that comments such as " Does' views '[s]ound[] like the Muslim attitude of hating all Christians and wanting to do away with them,' that the appropriate response is to 'do them in before they do you in' and suggesting that the conflict between supporters and detractors of the District's use of the Church is 'a war of survival'" raised "legitimate concerns" for retaliation. Similar comments against Jews—if not more violent—were routinely shouted at Plaintiff and found on campus….

Plaintiff has "disclosed his identity to Northwestern on an Attorney's Eye's Only basis," and "seeks only to shield his identity from the public."

Plaintiff also argued,

Plaintiff's request for anonymity is not only justified, but also supported by the public interest in ensuring the enforcement of Title VI. As an initial matter, Plaintiff's actual identity has minimal value to the public in cases such as this, where the legal and procedural rulings will remain a matter of public record…. Furthermore, the public's general interest in open proceedings is outweighed by its interest in enforcing Title VI and protecting the identities of victims "'so that other victims will not be deterred from reporting such crimes.'"

Here, Plaintiff was subjected to a hostile and discriminatory environment, including threats of physical violence, by untold numbers of Northwestern students, faculty, and employees, as well as unaffiliated third parties Northwestern allowed on its campus. Such conduct is part of a much larger history of Northwestern tolerating antisemitism on campus. What's more, while the public interest in ensuring a non-hostile educational environment for Jewish students at Northwestern alone is enough, the public has a strong interest in sending a message to all universities that antisemitism on campus cannot be institutionally acceptable. Breaking the systemic acceptance of antisemitism on college campuses will only be dismantled through Plaintiff's and others' courage in seeking justice and reform. Allowing Plaintiff to proceed anonymously will encourage other victims of discrimination to come forward without the risk of harassment, retaliation, and unwanted public attention. A contrary determination may result in deterring other victims of discrimination from coming forward to vindicate their rights, and in allowing bigot perpetrators to continue to harm others without fear of prosecution. Therefore, it is in the public interest to allow Plaintiff to proceed anonymously, ensuring open access to proceedings without denying him access to the justice system. Thus, this factor also favors anonymity….

Here's an excerpt from Doe v. Elmbrook School Dist. (7th Cir. 2011), on which the motion heavily relies; the case involved an Establishment Clause challenge to "the District's practice of holding high school graduation ceremonies and related events at a Christian church rented by the District for the occasion":

The Does' motion was supported by sworn declarations from eight of the plaintiffs. They testified that they and their children had suffered reprisals in the past — including from teachers, school officials and workplace supervisors — for airing their views on religion and that they feared future reprisals should their involvement in the litigation become public knowledge. In addition, the Does attached comments posted in an online community forum after this lawsuit was filed. Most of the comments merely reflect the overheated rhetoric common to passionate debate about significant social issues, but a few comments do raise legitimate concerns, including one comment that the Does' views "[s]ound[] like the Muslim attitude of hating all Christians and wanting to do away with them," that the appropriate response is to "do them in before they do you in" and suggesting that the conflict between supporters and detractors of the District's use of the Church is "a war of survival."

Lawsuits involving religion can implicate deeply held beliefs and provoke intense emotional responses. Although there is no evidence of actual violence arising out of this particular suit, the district court was not required to disbelieve the Does' uncontradicted accounts of past retaliations against them and their children or to give the online postings an innocent construction in order to reject the Does' motion. The district court's assessment of the seriousness of the potential danger faced by the plaintiffs is certainly entitled to significant deference by this court. District judges sitting in communities throughout the vast area included within our circuit are far more familiar with the customs and practices of individual communities and far better situated to assess accurately the "temperature" of public discourse in those communities. Those of us who review cold records in our appellate chambers must exercise great circumspection in evaluating the estimation of our colleagues in the district court in these matters.

It also is significant that children are involved in the suit. Although Doe 1 is no longer a minor, Doe 1's sibling Doe 3 is, and Does 2, 4 and 9 currently have minor children attending District schools. Identifying these adult plaintiffs also would expose the identities of their children. Because the subject matter of the suit frequently has a tendency to inflame unreasonably some individuals and is intimately tied to District schools, such a risk to children is particularly compelling.

The district court was entitled to conclude that the Does' interest in privacy, supported in the record, outweighs the public's interest in totally transparent judicial proceedings to the extent that the Does need not divulge their real names.

Note that one concern raised by the plaintiff—that requiring plaintiff to identify himself would deter him and similar plaintiffs from suing to enforce Title VI—rarely carries the day by itself, since it would be present in a vast range of cases. Many ex-employees, for instance, may in some measure be deterred from filing employment claims for fear of being viewed as litigious by future employers; and of course many such plaintiffs might worry that the defendant will argue that the plaintiff was really fired because of some alleged misconduct, and plaintiffs might be deterred from suing by the prospect of such claims being publicly aired. Likewise, many defendants might settle proposed lawsuits for fear of being publicly accused (of, say, rape or malpractice or fraud or what have you), and may therefore be deterred from raising sound defenses (such as "I didn't do it").

But courts are indeed open to pseudonymity when there is some serious risk of physical harm to the plaintiff from third parties who might learn of plaintiff's identity (see pp. 1397-98 of The Law of Pseudonymous Litigation); perhaps in this case the judge concluded that enough such risk was indeed shown; see also this Exhibit to plaintiff's complaint that plaintiff argued supported his concerns about physical harm.

Plaintiff is represented by Elizabeth A. Fegan & Jonathan D. Lindenfeld (Fegan Scott LLC) and David Freydin.

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[Ilya Somin] My New Article "The Presumptive Case for Organ Markets"

[t makes case that enormous benefits of organ markets create a strong presumption in favor of legalization that standard objections don't even come close to overcoming.]

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My new article "The Presumptive Case for Organ Markets," is now available for download on SSRN. It will be part of a forthcoming Routledge volume on organ markets edited by James Stacy Taylor and Mark Cherry. Here is the abstract:

The debate over legalizing organ markets has gone on for years, and the basic arguments are well-known. This chapter recasts the issue by emphasizing not just the nature, but the enormous magnitude of the considerations weighing in favor of legalization: saving tens of thousands of innocent lives, preventing prolonged suffering for many thousands more people, and enhancing bodily autonomy. That magnitude creates a strong presumption in favor of legalization, at least in some substantial form. Any countervailing argument must not only be valid in and of itself, but also sufficiently weighty to overcome the presumption. Standard arguments based on the risks of kidney donation, concerns about the "exploitation" of the poor, and dangers of "commodification" and moral corruption, fall short of that standard. Recent evidence on the number of lives that can be saved by legalizing organ markets and the diminishing risks of donating kidneys further accentuate the enormous magnitude of the gap between the benefits and costs of legalization

Part I provides an overview of the kidney shortage in the United States and the immense potential gains of legalizing organ sales. Doing so would save tens of thousands of lives every year, and also save many thousands more kidney failure patients from the pain and suffering of enduring many months or years of kidney dialysis. It would also enhance rights of bodily autonomy for both sellers and users of kidneys put on the market. These enormous benefits create a strong presumption in favor of legalization. Part II goes over several standard objections and explains why they fail to meet that demanding standard. These include claims that organ markets would lead to "exploitation" of the poor, arguments that they would lead to the commodification of the body, and concerns that they impose too great a risk on sellers. Each of these arguments lacks the necessary weight. In addition, to the extent objections are valid, they can be addressed by steps short of banning organ sales entirely.

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[Eugene Volokh] Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Survives in Part

[The opinion includes some interesting discussion of defamation by implication.]

From Judge Loren L. AliKhan's opinion today in Shalit Barrett v. Atlantic Monthly Group LLC:

Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.

In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of  … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.

Twenty years later,

The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.

That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:

Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….

Count One: Accusations that Ms. Barrett acted dishonestly with respect to the article

Ms. Barrett's first claim alleges defamation per se with respect to the following statements made in the Editor's Notes and the Peck Memorandum, specifically, that

Barrett "was complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family;" that her "fabrication" had been "confirmed," and that it was "established" that Ms. Barrett "deceived The Atlantic and its readers"; Barrett "lied" to and "misled" the fact-checking department and editors and was "accused of inducing at least one source to lie to our fact-checking department"; Sloane's attorney said "[Ms.] Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity"; and "We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article,"

Defendants argue that none of these statements are actionable because the first three are true based on the facts alleged in the complaint and the fourth is a protected statement of opinion. The court agrees ….

Ms. Barrett makes clear in her complaint that she knew before the article's publication that Sloane did not have a son. Ms. Barrett further alleges that she had pitched magazine editors about including such a masking detail, but they declined; that she knew that Sloane planned to tell fact-checkers this fictitious detail and supported it; and that, after the fabrication about Sloane's son was added, she was "aware of the inclusion" and believed it to be "fully justified." This course of events is fully consistent with Defendants' description of Ms. Barrett as "complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family" and related statements. The "gist" of the statement is that Ms. Barrett allowed incorrect information about Sloane's family into the article—and that is substantially true…. The same is true for Defendants' statements that Ms. Barrett "lied" to and "misled" the fact-checking department and editors and had been "accused of inducing at least one source to lie to our fact-checking department." …

Ms. Barrett takes issue with the fact that The Atlantic did not qualify its statements with her motive to protect Sloane's identity, arguing that this omission suggests that she was acting in "bad faith." She suggests that a juror presented with these facts could choose between "two pictures: one of an insidious scammer out to deceive the world for no good reason … and one of a meticulous writer forced to make an impossible choice between absolute accuracy and … confidentiality … to sources." But, as Defendants note, the alleged defamatory statements do not omit this information. In his Memorandum, Mr. Peck states that the reference to a son was added "to make Sloane less identifiable, because she was concerned about maintaining anonymity." The same is true of the Editor's Notes. No matter how noble Ms. Barrett's motives may have been, it does not change that fact that Defendants' description accurately states the events that transpired.

Ms. Barrett also argues that the phrase "at least one" suggests the existence of multiple accusers and that the Third Editor's Note change of language from "at least one source" to "one source" suggests that Defendants were aware of the falsity and walked it back. But this is the type of "slight inaccurac[y] of expression" that is not actionable because the substance as a whole is accurate. At most, the phrase "at least one" suggests a "lack of definitive knowledge about the issue," comparable to a question, which is rarely a successful basis for a defamation claim…

Finally, Defendants argue that their statement in the Second and Third Editor's Notes that "[w]e have decided to retract this article [because w]e cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article" is not actionable because it is protected opinion. The court agrees….

Count Two: Accusations that Ms. Barrett was fired from The New Republic in 1999 for misconduct

Ms. Barrett's second count alleges defamation per se with respect to the following statement made in each Editor's Note and the Peck Memorandum:

In 1999, when Barrett (her married name) was known by Ruth Shalit, she left The New Republic, where she was an associate editor, after plagiarism and inaccurate reporting were discovered in her work.

Defendants again argue that these statements are technically and substantially true. This time, however, the argument fails because it ignores the most likely interpretation of the statement by readers and the context of the speech overall.

Defendants are correct that it is literally true as a matter of timing that Ms. Barrett left The New Republic after the controversy surrounding her work (several years after, in fact)—but that literal truth is a strained reading of the statement in its full context. A defamation-by-implication claim lies where a statement, viewed in context, is capable of defamatory meaning and implies provably false statements of fact. The court considers "both the words themselves and the entire context in which the statement occurs." In Fells, the D.C. Court of Appeals recognized a defamation-by-implication claim based on a statement that the plaintiff had been terminated after an investigation into sexual misconduct "triggered by allegations that another recently ousted executive … was having inappropriate sexual relationships with  subordinates." While the plaintiff had not been terminated for sexual misconduct, the defendant stated that the investigation had "brought to light the serious problems related to [the plaintiff's] abusive behavior towards staff, predominantly female staff." 281 A.3d at 586 (emphasis omitted). The court held that, although the defendant had not explicitly stated that the plaintiff was terminated for sexual misconduct, the defendant's reference to the other executive's departure and the plaintiff's abuse "towards … predominantly female staff" heavily implied that the plaintiff's termination was related to sexual misconduct.

The statement that Ms. Barrett left The New Republic "after plagiarism and inaccurate reporting were discovered in her work" similarly implies a causal relationship between her departure and the alleged infractions. That meaning is further underscored by the statement's placement alongside allegations that Ms. Barrett had been an inappropriate choice to write the story and that her assignment to the story was "a second chance." Like the mention of the sexual misconduct investigation and abuse toward women in Fells, use of the phrase "second chance" strongly suggests that Ms. Barrett had been driven out of the industry due to her past failings and had yet to receive another chance. This is especially the case considering the court's obligation to draw all inferences in Ms. Barrett's favor at this stage in the proceedings.

Defendants point to Ms. Barrett's concessions that she had been accused of plagiarism and other journalistic malfeasance during her tenure at The New RepublicBut that is beside the point—the defamation claim rests on the implication that she was pushed out of her job because of these incidents, not that they did not occur. Because the "gist" and "sting" of the statements addressed in Count Two are capable of defamatory meaning, they survive the motion to dismiss.

Count Three: Statements related to Ms. Barrett's byline

Ms. Barrett's third claim alleges defamation per se with respect to the following statement, made with slight variation in all three Editor's Notes and the Peck Memorandum:

The assignment [to Ms. Barrett] was a mistake. So was the initial byline under which the piece ran. We typically defer to authors on how their byline appears, and originally we referred to Barrett as Ruth S. Barrett at her request. In the interest of transparency to our readers, we should have included the name that she used in her byline in the 1990s. We have changed the byline on this article to Ruth Shalit Barrett.

Ms. Barrett further points to an additional statement by an editor at The Atlantic—later included in a Washington Post article—that Ms. Barrett "was hoping to disguise her name in her byline to prevent people from realizing that she had once written articles under her maiden name of Ruth Shalit." Defendants argue that these statements are truthful and that the assertion "we should have included the name that she used in her byline in the 1990s" is an inactionable subjective judgment and statement of opinion. The court disagrees and concludes that these statements are capable of defamatory meaning.

A defamation-by-implication claim survives here because the statements, viewed in context, are capable of defamatory meaning and imply provably false statements of fact. As Defendants note, it is literally true that Ms. Barrett requested the "Ruth S. Barrett" byline. But the context of the statement suggests that Ms. Barrett chose this variation to distance herself from her journalism in the 1990s and to mislead readers. However, Ms. Barrett alleges that this is false—she never intended to conceal her identity, and in fact, she affirmatively chose to use the more identifying "Ruth S. Barrett" as opposed to "Ruth Barrett." She even requested that the magazine link to her personal website, which included articles she had penned under her unmarried "Ruth Shalit" byline. The "gist" of the statements is that Ms. Barrett sought to conceal her identity and distance herself from some nefarious past; that is capable of defamatory meaning.

Defendants argue that these statements are inactionable opinion because they "reflect[] a subjective judgment about what The Atlantic 'should' have done to better promote 'transparency' to its readers." To be sure, that is what the text literally says.

But a reasonable reader could infer two negative narratives, both of which "imply unstated defamatory facts": first, that Ms. Barrett sought to conceal her identity and distance herself from her work in the 1990s; second, that her history was sufficiently unsavory to warrant her doing this. Here, a reader cannot understand that The Atlantic's opinion represents its interpretation of the facts presented because no truthful facts in relation to the byline or Ms. Barrett's professional past are presented.

Accordingly, the reader cannot "draw his or her own conclusions" and is instead led to believe the negative implications of the statements. The key question is whether this statement of opinion has an "implicit factual foundation" that would be "objectively verifiable." In this instance, the implicit factual foundation is that Ms. Barrett tried to use an opaque byline to mislead readers because her maiden name evoked a nefarious history from the 1990s. Those facts can be proven true or false. Accordingly, Count Three survives.

Count Four: Statements suggesting that Ms. Barrett is a dishonest journalist with a history of fabricating facts

As her final defamation claim, Ms. Barrett argues that each of the previously addressed allegedly defamatory statements, taken together and with two additional statements, constitute defamation. The two additional statements are substantially similar to each other. In his Memorandum to The Atlantic staff, Mr. Peck stated

We decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

In each version of the Editor's Note, there were slight variations on the statement that

[The Atlantic] decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

Defendants contend that the newly added statements are inactionable as subjective opinion. As explained in relation to the statements regarding Ms. Barrett's professional past and the byline, Defendants failed to provide the reader with adequate truthful facts from which to infer their own conclusions. Defendants' opinions have "implicit factual foundation[s]" that would be "objectively verifiable"—namely, that Ms. Barrett had committed journalistic malpractice, that she needed a "second chance" as a result of that malpractice, and that her conduct was sufficiently severe that she should not have been afforded the opportunity to write the article.

The question is close with respect to the statements that "[The Atlantic] [was] wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision." These two sentences, standing alone, could be classic statements of opinion. But "[c]ontext is critical … '[to] determin[ing] the way in which the intended audience [would] receive'" these statements. These sentences cannot be separated from the preceding statements. A reader would consider them part of a whole in conveying a defamatory narrative….

Further, this count draws in all the defamatory statements together—the scope now captures the larger narrative. Here, the court concludes that a reasonable juror could infer that the full cadre of statements paints a picture of a serial liar who maliciously set out to deceive editors and readers. There is enough in the complaint to survive this initial stage….

The court also concluded that Barrett was not a public figure, and, separately, rejected Barrett's breach of contract claims.

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[Eugene Volokh] Journal of Free Speech Law: "Speech Regulation and Tobacco Harm Reduction," by Jonathan H. Adler & Jacob James Rich

[The final article from the Information as Medicine symposium.]

Here is the Introduction; the full article is here:

Regulatory constraints on the provision of truthful information to consumers about tobacco products may be having deadly consequences. Different types of tobacco products present different degrees of risk, yet a substantial proportion of consumers are unaware of these differences. Existing regulations governing tobacco products limit the ability of manufacturers to address these misperceptions. As a consequence, well-intentioned public health regulations may be undermining the protection of public health.

Regulation of commercial speech is a major component of federal regulation of tobacco products. Even before the enactment of the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act"), Congress authorized cigarette warning labels and the regulation of cigarette advertisements. In 2009, this legislation expanded the regulation of speech, imposed a permitting regime for comparative health claims of alternative tobacco products and subjected cigarette alternatives, such as electronic nicotine delivery systems (ENDS) and other vaping products, to the same regulatory regime as cigarettes.

Federal regulation of tobacco company speech was adopted to counteract tobacco industry misinformation and manipulation of consumers. Controlling the advertisement, promotion, and labeling of tobacco products was embraced as a central element of reducing smoking rates and youth initiation in particular. While the regulation of tobacco advertising and labeling was considered an important public health measure, it was nonetheless subject to First Amendment scrutiny.

Since the adoption of federal tobacco legislation, the Food and Drug Administration (FDA) has asserted regulatory authority over ENDS and other vaping products as "tobacco products," subjecting them to the same regulatory regime as cigarettes and other traditional forms of tobacco products. This includes labeling requirements and regulations governing tobacco product advertising. It also includes restrictions on providing consumers with truthful, and potentially life-saving, information about the relative risks of competing products.

While ENDS are now subject to the same federal regulatory regime as cigarettes, they do not pose the same risks. ENDS and other vaping products pose far less danger to users than combustible tobacco products, such as cigarettes. Yet recent polling shows that most consumers have a poor understanding of the relative risks of tobacco products, and that this public misunderstanding is getting worse. Barring producers from informing consumers about the relative risks of vaping products and their potential to help smokers quit smoking eliminates a potentially powerful tool for consumer education. Measures to prevent fraudulent or misleading marketing claims may be necessary, but current restrictions go so far as to outlaw the promotion of information acknowledged by the regulators themselves. Current restraints on truthful health information that could help or encourage smokers to quit are not only constitutionally dubious, they may undermine the protection of public health as well.

Part I of this essay describes what is currently understood about the relative health risks of ENDS and other vaping products, particularly as compared to combustible cigarettes. While uncertainties remain about the long-term risks posed by ENDS, the weight of existing scientific and medical evidence suggests that such products pose less risks to consumers and bystanders than cigarettes. The FDA concurs in this assessment. There is also strong evidence that such products can help smokers reduce their cigarette consumption and are more effective aids to smoking cessation than available FDA-approved alternatives.

Part II of this essay describes the current regulatory regime governing tobacco products and how this regime has been applied to ENDS and other vaping products. Under the Tobacco Control Act and the FDA's subsequent decision to deem ENDS as tobacco products, such products require FDA approval before they may be sold, much like drugs and medical devices. They are also subject to specific regulation under statutory provisions governing "modified risk tobacco products" if any relative risk claims are made about such products, and, in some cases, even being treated as drugs or devices under the Federal Food, Drug and Cosmetic Act (FDCA).

Part III of this essay explains how the FDA's regulatory regime hampers the ability of ENDS manufacturers to inform consumers about the relative risks of their products and the potential use of ENDS as smoking cessation aids. Under current law, ENDS producers must also obtain FDA approval before making any comparative risk claims, such as claiming that such products are less dangerous than cigarettes. Further, if ENDS manufacturers wish to inform smokers that ENDS may assist in smoking cessation, they must seek FDA approval for their products as drugs or devices. Even though such claims are accepted as true by the FDA, such speech is prohibited without prior FDA approval. In practice, this means that ENDS producers face greater restrictions on speech about their products than do other regulated entities, such as makers of nutritional supplements. These regulatory constraints hamper public health efforts and are constitutionally dubious.

Part IV explains why this regulation of health claims may be having serious negative consequences for public health. A majority of consumers, including current cigarette smokers, are misinformed about the relative risks posed by various nicotine products. Such public misunderstanding appears to be getting worse.

Part V explains why the current regulation of speech about the relative risks of ENDS and other vaping products is highly questionable under current commercial speech jurisprudence insofar as the FDA is prohibiting the communication of truthful information about such products. Even though product claims are subject to less demanding constitutional scrutiny than restrictions on political speech, existing restrictions are not sufficiently tailored to fit the government's interest in promoting health. Greater recognition and protection of the speech rights of ENDS producers is not only required under existing First Amendment jurisprudence, it would also likely benefit public health.

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[Jonathan H. Adler] "How Different Are the Trump Judges?"

[A new empirical study assesses the "quality" of Trump's judicial nominations.]

A new paper by Stephen Choi and Mitu Gulati, "How Different Are the Trump Judges?" seeks to evaluate the quality of Trump's judicial appointments as compared to their colleagues on the bench. It produces some interesting results. Here's the abstract.

Donald J. Trump's presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, Trump was open about how "his" judges could be depended on to rule in particular ways on key issues important to voters he was courting (e.g., on issues such as guns, religion, and abortion). Other factors such as age and personal loyalty to Trump seemed important criteria. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking "good" judges, we were curious about how the Trump judges performed on a basic set of measures of judging. One prediction is that Trumpian constraints on judicial selection produced a different set of judges.  Specifically, one that would underperform compared to sets of judges appointed by other presidents. Using data on active federal appeals court judges from January 1, 2020 to June 30, 2023, we examine data on judges across three different measures: opinion production, influence (measured by citations), and independence or what we refer to as "maverick" behavior. Contrary to the prediction of underperformance, Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.

Some of the data Choi and Gulati compile is quite interesting, in particular some of the rankings of the most productive and most-cited judges.

Here, for instance, is the list of the most productive circuit judges, adjusted for circuit court norms.

Michael Scudder—7th Circuit (Trump) Amy St. Eve—7th Circuit (Trump) Andrew Oldham—5th Circuit (Trump) James Ho—5th Circuit (Trump) David Barron—1st Circuit (Obama) Kevin Newsom—11th Circuit (Trump) Jennifer Elrod—5th Circuit (G.W.Bush) Steven Menashi—2nd Circuit (Trump) Stuart Duncan—5th Circuit (Trump) Daniel Bress—9th Circuit (Trump) Lawrence VanDyke—9th Circuit (Trump)

And here is a list of the circuit court judges that are most cited by judges in other circuits.

Eric Murphy—6th Circuit (Trump) Amy St. Eve—7th Circuit (Trump) Kevin Newsom—11th Circuit (Trump) John Nalbandian—6th Circuit (Trump) Cheryl Krause—3rd Circuit (Obama) David Porter—3rd Circuit (Trump) Chad Readler—6th Circuit (Trump) Stuart Duncan—5th Circuit (Trump) Britt Grant—11th Circuit (Trump) James Ho—5th Circuit (Trump)

These results may be more surprising to some than to others.

(Hat tip: Legal Theory Blog)

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[Eugene Volokh] Amicus Brief Urging Supreme Court to Hear Pseudonymity Case

Profs. Benjamin Edwards, Jayne S. Ressler, Joan Steinman, and I—who are among the few academics who have written on the American law of pseudonymous litigation—have just filed an amicus brief in , supporting a petition that asks the court to consider this case, and help guide lower federal courts about when pseudonymity should be available. Here's our Summary of Argument; you can also read the whole brief (and I expect to post some excerpts from it as well):

[1.] In more than a thousand federal cases each year, plaintiffs endeavor to file under a pseudonym. Sometimes, courts explicitly permit this. Sometimes, they do not. Sometimes, they do not address the issue at all.

Decisions about whether to permit pseudonymity are important. They affect the public's right to monitor and supervise the work of the federal courts. They affect the incentives to bring or not bring a case, and to defend or settle it. They affect the accuracy and efficiency of the judicial process. They may cause unfairness to the parties.

[2.] Yet this Court has never decided whether or when pseudonymity is appropriate. At times it has allowed pseudonymous cases to come before it, but without setting forth any test for when courts should allow pseudonymous litigation. Left adrift, twelve circuit courts developed different tests that have led to different results for similarly situated litigants.

Petitioners correctly identify a circuit split. But because many of the factors under the various circuits' tests are so vague, courts also routinely disagree on how to apply those factors, thus often producing inconsistent results. Courts do not agree, for instance, on when pseudonymity should be allowed in cases involving alleged sexual assault, mental illness, or copyright-infringing use of pornography. They do not agree on whether pseudonymity should be available to protect a plaintiff's reputation and employment prospects. And the list goes on.

[3.] This inconsistency is likely to endure, unless this Court steps in. Every circuit reviews pseudonymity determinations for abuse of discretion, which usually leads to the trial court's determination being upheld: Both a decision to grant pseudonymity and a decision to deny it, on the same facts, could easily be viewed as within the district court's discretion.

As a result, circuit courts generally will not set precedents that harmonize lower court decisions about pseudonymity. Similarly situated litigants will continue to be treated differently. And practitioners and prospective litigants will remain in the dark about whether pseudonymity will be available. This Court should grant certiorari to provide at least some guidance to lower courts on these important matters.

Thanks to Stanford Law School students Charles Edward Power, Andrew P. Thompson, and Olivia Morello, who worked on the brief with me.

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[Eugene Volokh] Journal of Free Speech Law: "Freedom of the Test," by Prof. Alex Tabarrok

[An article from the Information as Medicine symposium.]

Here is an excerpt; the full article is here:

At-home testing—DNA testing, for example—is one of those personalized medicine advances that would have been unthinkable not too long ago. DNA tests can tell us about our ancestry, which diseases we may be especially prone to, and which drugs might work especially well or poorly for our body.

Personalized medicine can adjust medications not only to DNA which is unchanging but also to the dynamic response of RNA, proteins, and metabolites. Chen et al. describe how a patient was treated via a "personal omics profile (iPOP), an analysis that combines genomic, transcriptomic, proteomic, metabolomic, and autoantibody profiles from a single individual over a 14-month period." Studies like this point to a future in which we will be able to measure a disease or an infection and a body's response across many different variables in close to real-time. A personal omics profile could thus optimize healthcare strategies not just to a particular person but to a particular person at a particular time and place.

And we do have a history of making use of some aspects of personalized medicine in the United States. While the most advanced tests and devices are not yet integrated with the medical mainstream, pregnancy tests and AIDS tests have been common for years. The recent COVID pandemic also illustrated the value of real-time, at-home tests for viral antigens. Popular wearables like Fitbit are relatively simple medical devices that provide real-time measurements for things such as blood oxygen levels, skin temperature, and heart rate. Much more will be possible as sensors become cheaper, more refined, and more integrated with our bodies….

Personalized medicine, however, has advanced at a far slower rate than the underlying data and technology. U.S. Food and Drug Administration (FDA) regulation has slowed adoption and increased costs for tests and devices that inform patients about their own bodies. In fact, the FDA has a long-standing fear and antipathy towards personalized medical tests.

In 1972, the FDA confiscated thousands of home pregnancy tests, declaring that they were "drugs" meant to diagnose a "disease" and thus fell under the FDA's regulatory dominion. The case went to the U.S. District Court for the District of New Jersey, and Judge Vincent P. Biunno ruled that that the FDA had overstepped. "Pregnancy," he said, "is a normal physiological function of all mammals and cannot be considered a disease…. A test for pregnancy, then, is not a test for the diagnosis of disease. It is no more than a test for news." As a result of Judge Biunno's ruling, home pregnancy tests are today easily available from pharmacies, grocery stores, and online shops without a prescription….

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