Eugene Volokh's Blog, page 279

[Eugene Volokh] Judge Preliminarily Blocks Missouri AG's Enforcement of AG's Investigative Demand Against Media Matters

An excerpt from Media Matters for America v. Bailey, decided Friday by Judge Amit Mehta (D.D.C.); read the full opinion for more:

On November 16, 2023, Plaintiff Media Matters for America, Inc., a District of Columbia-based media company, published an article authored by Plaintiff Eric Hananoki reporting that advertisements for several major corporations were appearing next to extremist content on X.com ("November 16 Article"). Defendant Texas Attorney General Ken Paxton served a Civil Investigative Demand ("Texas CID") on Media Matters shortly thereafter, seeking a host of records concerning Media Matters' reporting and operations. Plaintiffs filed suit against Defendant Paxton in January 2024, asserting a Section 1983 claim for retaliation in violation of the First Amendment and seeking to enjoin enforcement of the Texas CID. The court granted Plaintiffs' motion for a preliminary injunction on April 12, 2024, finding that Plaintiffs were likely to succeed in establishing jurisdiction over Paxton and on the merits of their claim.

Meanwhile, on March 25, 2024, Defendant Andrew Bailey, the Attorney General for the State of Missouri, served his own Civil Investigative Demand ("Missouri CID") on Media Matters with a return date of April 15, 2024. The Missouri CID sought nearly the same records as the Texas CID. On the same day Defendant Bailey served the CID, he preemptively filed an enforcement petition in Missouri state court, claiming that an immediate enforcement action was needed because Media Matters had resisted the Texas CID.

The court issued a preliminary injunction against AG Bailey's actions:

To prevail on their First Amendment retaliation claim, a plaintiff must show "(1) [they] engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [them]." …

In his opposition brief and motion, Defendant did not challenge that Media Matters' reporting is heartland First Amendment protected expression. In fact, at oral argument, he acknowledged that Media Matters is a "media company" and that "core First Amendment protections would apply to [it]."

But in his reply brief, for the first time, Defendant raises the possibility that Media Matters' reporting is not protected expression. In a section addressing the causation element, he argues, "if in fact Media Matters defamed X by knowingly posting false information, then its activity was not protected by the First Amendment, and so no 'retaliation' is even possible." … [But] Plaintiffs have likely shown that their reporting was not defamatory and therefore was protected speech under New York Times v. Sullivan. Hananoki has averred in these proceedings that his "November 16 article contains screenshots of X feeds, which include at least nine organic posts from X users and six advertisements from major corporate entities." In its public response to Hananoki's article, X did not deny that advertising in fact had appeared next to the extremist posts on the day in question. X stated that it had served "less than 50 total ad impressions" next to the "organic content featured in the Media Matters article" (a mere fraction of the 5.5 billion ad impressions served that day), and it conceded that Hananoki and one other person had seen advertisements of two of the brands identified in the article next to the extremist content. X called these "contrived experiences," but did not deny the basic premise of the article: that X's platform was delivering ads of major brands next to extremist content. Many other media outlets, as recently as April 2024, have published similar findings. These other stories corroborate Hananoki's reporting and Plaintiffs' belief in its accuracy.

The only contrary evidence that Defendant offers are (1) the purportedly "credible" allegations made by X in the suit it filed against Media Matters, and (2) a statement from the online brand safety organization, DoubleVerify, published on April 15, 2024, weeks after Defendant Bailey issued the Missouri CID and filed the Petition. According to DoubleVerify, X's Brand Safety Rate—"a measure of how frequently ads appeared adjacent to content that met advertiser-approved criteria"—was 99.9% from October 24, 2023, to March 14, 2024. But this limited evidence—lawsuit allegations not independently confirmed and an article that is not specific to Media Matters' reporting—does not provide reason to suspect that Hananoki's story on X was false or that Plaintiffs acted with actual malice. Defendant's evidence thus does not undermine the likelihood of Plaintiffs proving their reporting was protected by the First Amendment….

Next, the court holds that Plaintiffs have demonstrated a likelihood of success on element two—that Defendant engaged in "retaliatory action[s] sufficient to deter a person of ordinary firmness in [Plaintiffs'] position from speaking again[.]"

The court already has held that Defendant Paxton's announcement of an investigation and issuance of a CID demanding records relating to Media Matters' organization, funding, and journalism would sufficiently deter a news organization or journalist "of ordinary firmness" from speaking again about X-related matters. Defendant Bailey has gone one step further. He has filed suit not only to enforce the Missouri CID, but he has asked a state court to sanction Media Matters with a civil penalty. Such action chills speech.

Further, Plaintiffs' "actual response" demonstrates the chilling effects of Defendant Bailey's conduct. Plaintiff Hananoki avers that the CID and Petition, as well as Defendant Bailey's public attacks, "have had an extremely negative effect on my work and on me personally." He continues to limit his communications with other journalists and his editor, and self-censors research and writing on X. Hananoki's editor, Benjamin Dimiero, confirms that Hananoki and other Media Matters' journalists have self-censored out of fear that "certain topics will lead to backlash, and perhaps even imperil the organization's future operations." He also attests that Defendant's actions have adversely impacted Media Matters' editorial process, resulting in slowed output and hampering efforts to issue timely reporting. "[E]xtreme[ ] caution[ ]" remains pervasive within the organization.

Defendant does not dispute that Plaintiffs' actions would objectively "deter a [journalist or media organization] of ordinary firmness in plaintiff's position from speaking again." Instead, he questions whether Media Matters' expression has in fact been chilled. He cites one story by Media Matters published post-March 25, 2024, that is critical of him and at least 20 articles about Elon Musk that ran after the November 16 Article. But as did Defendant Paxton, Defendant Bailey "asks too much of Plaintiffs. They need not show that the government action led them to stop speaking altogether, only that it would be likely to deter a person of ordinary firmness from the exercise of First Amendment rights." Thus, the fact that Media Matters has continued to publish some related stories—although none specifically identified about extremist content or advertising on X—does not mean Plaintiffs' expression has not been sufficiently chilled….

Defendant Bailey devotes most of his attention to the third element: the causal link between Media Matters' protected speech and his issuance of the CID and filing of the Petition…. For three reasons, the court concludes that Plaintiffs are likely to succeed in proving this element.

First, Defendant's public statements are direct evidence of retaliatory intent. Two days after Media Matters published the November 16 Article, Musk posted a tweet threatening "a thermonuclear lawsuit against Media Matters" for its "fraudulent attack on our company," accusing Media Matters of manipulating X's algorithm to artificially force placement of the ads next to extremist content. In response, Stephen Miller tweeted, "Fraud is both a civil and criminal violation. There are 2 dozen+ conservative state Attorneys General." Only hours later, Defendant Bailey took up Miller's call, responding "[m]y team is looking into this matter," even when there was no apparent connection to Missouri. Defendant's investigation thus began with a political bent.

From that point forward, Defendant consistently characterized Media Matters in ideological terms. When publicly announcing his issuance of the document preservation notice, Defendant referred to Plaintiffs as "radicals" and called them "progressive tyrants masquerading as [a] news outlet[ ]." He also claimed Media Matters had acted to "wipe out free speech." Months later, when simultaneously issuing the CID and filing the Petition, in a press release he called Media Matters a "political activist organization" and "'progressive' activists masquerading as [a] news outlet[ ]," which had "pursued an activist agenda in its attempt to destroy X." These statements are at odds with Defendant's concession in these proceedings that Media Matters is a "media company" that is "absolutely" entitled to "core" First Amendment protections.

Then, on June 3, 2024, Defendant Bailey said out loud the true purpose of his investigation. During an online interview with Donald Trump Jr., Defendant Bailey was asked "what's the end game" of his investigation of Media Matters. Defendant Bailey responded: "It's a new front in the war against the First Amendment … We've seen a direct assault by the deep state and President Biden's Administration." He accused Media Matters of "rigging the system to take down X." He continued:

They don't want us to have a medium of communication and they will bend and break the rules through any means necessary … My office was one of the first in the nation joined by my colleague Ken Paxton in Texas to file an investigation, launch an investigation, into Media Matters … We're not going to let them destroy free speech in America[.]

Revealingly, Defendant Bailey expressly tied the investigation to the upcoming election: "This is absolutely a new front in the fight for the war for free speech. This investigation is really critical and again especially as we move into an election cycle in 2024." (Emphasis added.) Finally, on June 5, 2024, Defendant Bailey once again reiterated on a podcast that Media Matters is a "radical progressive advocacy group masquerading as a 501(c)(3) … when in reality what they really want to do is want to silence conservative voices."

Although tough talk is not foreign to the law enforcement arena, such overt political messaging is atypical. A reasonable factfinder is likely to interpret Defendants' words as targeting Media Matters not for legitimate law enforcement purposes but instead for its protected First Amendment activities.

Second, there is evidence from which a neutral factfinder likely would find that Defendant Bailey's proffered nonretaliatory explanation for the investigation of Media Matters is pretext. In his public announcement, Defendant stated that his investigation of Media Matters related to "its allegedly fraudulent solicitation of donations from Missourians amidst its efforts to target X[.]"In the Petition, he said that his investigation centered on Media Matters' "use of fraud to solicit donations from Missourians in order to trick advertisers into removing their advertising from X … one of the last platforms dedicated to free speech in America," in violation of Section 407.020 of the MMPA. The evidence that these explanations are a pretext for retaliation is strong.

According to a declaration submitted by Missouri Assistant Attorney General Steven Reed, in November 2023, the Attorney General "discovered that Media Matters was credibly accused of defaming the social media platform X … by falsely representing that X routinely populates advertisements for brands like Apple, IBM, and Xfinity next to extremist, fringe content.". Those "credible allegations," according to Reed, were based on a lawsuit filed by X against Media Matters in the Northern District of Texas, challenging the truthfulness of its reporting.  Reed does not say that his office independently sought to substantiate these allegations. Rather, he points to an article published by an online brand safety organization, DoubleVerify, on April 15, 2024, weeks after Defendant Bailey issued the Missouri CID and filed the Petition.  According to that article, X's Brand Safety Rate—"a measure of how frequently ads appeared adjacent to content that met advertiser-approved criteria"—was 99.9% from October 24, 2023, to March 14, 2024. This evidence, according to Reed, was indicative of "potential violations of the Missouri Merchandising Practices Act."

But that logic is difficult to follow. Even accepting this as evidence that Media Matters' reporting about X was misleading if not defamatory, Reed nowhere explains how the publication constitutes "fraud to solicit donations from Missourians.". He never identifies what suspected fraudulent statements or omissions Media Matters made to Missourians for the purpose of soliciting donations. If he means to say that Media Matters' defamatory reporting itself is the fraud, he nowhere links that content to Media Matters' fundraising efforts. He does not claim, for example, that Media Matters used its reporting on X to solicit donations. In fact, the webpage on which the November 16 Article appeared made no express fundraising appeal. Nor did it include a donation link. Defamation is not fraud. It is thus likely that the false reporting-as-fraudulent fundraising justification for the investigation is pretext for retaliation.

Defendant submitted a second declaration from Reed with his reply brief that sought to bolster the bona fides of his investigation. In that declaration, Reed averred for the first time that the Attorney General's Office "has come into possession of internal Media Matters documents that are expressly marked not for circulation and which reveal plans by the organization to use solicited funds for activities contrary to those publicly disclosed to its Missouri donors."  The court has reviewed the documents. It is perplexed by Reed's representations.

The records are internal strategic action plans that identify Media Matters as one of multiple organizations aligned to resist President Trump. Media Matters, the strategy materials say, plans to "disarm[ ] right-wing misinformation," "lead[ ] the fight against the next generation of conservative misinformation," coordinate opposition research, push news stories and research, and fight for ethical standards in government. The documents appear to be published around 2016, seven years before Hananoki's reporting on X, a fact Defendant Bailey appeared to confirm on a podcast. One of the documents has been publicly available on the internet since 2017.

According to Reed, the materials are at odds with Media Matters' public representations about its operations. He says that Media Matters uses funds "not just to issue reports about perceived misinformation, but to actively interfere with and neutralize the operational infrastructure of certain 'target' companies." Reed continues, "these documents reveal that Media Matters has entered into partnerships with Facebook and Google—competitors of X—and has developed strategic plans to interfere with the infrastructure systems used by 'target' companies to display advertisements."  Reed apparently is referring to that portion of the strategy document that states, "[k]ey right-wing targets will see their influence diminish as a result of our work," and Media Matters will work with "[i]nternet and social media platforms, like Google and Facebook," "to stem the flow of damaging fake news on its platform's pages. Google will cut off these pages' accompanying sites' access to revenue by pulling their access to Google's ad platform." "These materials," Reed states, "are in tension with the organization's public comments and solicitations to Missourians and suggest that Media Matters is likely using solicited donations for activities in conflict with the explicit purposes disclosed to donors."

The court does not understand how a publicly available document written in 2016, years before Elon Musk acquired X, is proof that Media Matters "used fraud to solicit donations from Missourians in order to trick advertisers into removing their advertisements from X" in 2023. The "targets" referenced in 2016 document were small "alt-right" online publications that Media Matters believed pushed "fake news," not large social media platforms like then-Twitter, now X, that host content created by others. And, the way Media Matters would accomplish its objective, according to the 2016 document, was by working with large social media companies like Google and Facebook, not against one like X, then-Twitter.

What's more, Defendant's declaration is incomplete. Reed accurately quotes from a portion of Media Matters' website to claim that it misrepresented its mission to donors. The website does say that Media Matters "posts rapid-response items as well as longer research and analytic reports documenting conservative misinformation throughout the media" and "works daily to notify activists, journalists, pundits, and the general public about instances of misinformation." But Reed omits a key statement: that Media Matters' work includes "providing [activists, journalists, pundits, and the general public] with the resources to rebut false claims and to take direct action against offending media institutions." Defendant's selective quotation of Media Matters' website undermines the credibility of his representations. Alongside his overselling of a years-old, publicly available document, it is proof of pretext.

Third, a reasonable factfinder is likely to view Defendant Bailey's unorthodox approach to enforcing the CID as further proof of retaliatory intent. Defendant Bailey mailed the Missouri CID on the same day that he filed an enforcement action in Missouri state court. According to the Petition, the reason Defendant filed it before Media Matters even received the CID was that Media Matters "has failed or will fail to comply with" it. Defendant's assertion that Media Matters "will fail" to comply was based on its earlier lawful filing of this suit against Defendant Paxton. MMPA § 407.090, which Defendant cites as the source of his authority to enforce the CID, does not authorize filing suit in anticipation of noncompliance. It provides that the Attorney General may request a court order "[w]henever a person fails to comply with any civil investigative demand[.]"Media Matters, of course, had not yet "fail[ed]" to comply with the Missouri CID as of March 25, 2024, because the CID was still en route. Defendant's filing of a preemptive suit not authorized by Missouri law is evidence of retaliatory intent.

Defendant's strategic amendment of the Petition supplies even more proof of pretext. [Procedural details omitted. -EV] …

The court does not discard lightly the presumption of regularity generally afforded to prosecutorial decision-making. "But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise." And "the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends." That apparently is what has occurred here.

On this record, the court finds that Plaintiffs are likely to succeed in proving a but-for causal linkage between their protected First Amendment activities, Defendant's decision to issue and enforce the Missouri CID, and Plaintiffs' chilled expression….

The post Judge Preliminarily Blocks Missouri AG's Enforcement of AG's Investigative Demand Against Media Matters appeared first on Reason.com.

[Sasha Volokh] Suddenly, Kahless

[A song about Klingons in time for Dragon Con]

Hi all, in preparation for Dragon Con here in Atlanta this coming weekend, I present "Suddenly, Kahless", a song to the tune of "Suddenly, Seymour" from Little Shop of Horrors. I wrote it during Dragon Con's "Klingon Karaoke" event last year, but didn't have a chance to sing it then — but I hope to do the first public performance during this year's Klingon Karaoke this Sunday. Note: you're unlikely to appreciate this song unless you're into Star Trek.

If you're interested in any of my other (non-academic) work, I recommend you look at my YouTube channel generally, "Honesta homo" (a film about Diogenes in Esperanto), "Palladio Shark", or the Sasha Reads playlist where I do readings of 50 of my favorite poems. Or, if law songs are up your alley, check out "I've Looked at Law from Both Sides, Now", "The Ballad of FDA v. Brown & Williamson", or "You Don't Need a Canon" (studio version and music video version).

The post Suddenly, Kahless appeared first on Reason.com.

[Jonathan H. Adler] Senate Democrats "Virtually Certain" to Pass "Supreme Court Reform" Bill By Majority Vote in 2025

[Senator Sheldon Whitehouse on what Democrats plan on enacting with control of Congress and the White House.]

The Dispatch reports that congressional Democrats are making plans to "reform" the Supreme Court and counteract recent abortion and voting rights decisions should they obtain unified control of Congress while retaining the White House. This is according to  Senator Sheldon Whitehouse, who appeared on a panel last Thursday during the Democratic convention where he addressed these issues.

If Democrats capture the White House, the Senate, and the House of Representatives, Whitehouse said, Senate Democrats would be "virtually certain" to pass a "Supreme Court reform" bill by a simple majority, evading the current 60-vote requirement for legislation. The senator said Democrats would tie their Supreme Court legislation—imposing 18-year term limits for Supreme Court justices and establishing ethics and recusal rules—to an omnibus package that would include a bill creating a national right to abortion and other top Democratic priorities.

"To get around the filibuster, we're going to have to have a process that allows very substantial debate from the Senate minority," Whitehouse said at an event hosted in Chicago by the Brennan Center for Justice. "We are not going to want to give the Republicans multiple stalls, multiple filibusters on this, so the bill that gets around the filibuster will be virtually certain to include permanent reproductive rights, permanent restored voting rights, getting rid of corrupting billionaire dark money, and Supreme Court reform. If you've got a bill like that moving, that's going to have spectacular tailwinds behind it." . . . .

While Vice President Harris has not publicly endorsed this plan, the Biden-Harris administration has endorsed the broad strokes of such reforms, including term limits for justices. This apparently leads Senator Whitehouse to conclude that a Harris-Walz administration would support his plan.

Whitehouse told Dispatch Politics on Thursday that he expects Harris will support legislation to enact Supreme Court term limits. "They have not gone so far as to say, 'We endorse your bill.' They have said that your bills are precisely aligned with what we are talking about," he said when asked if he had received any formal indication from Harris's campaign that the vice president supports his term-limit legislation. . . .

Whitehouse's Supreme Court term limits bill in its current form requires an intervening presidential election before taking effect, but the senator was noncommittal when asked if that's an essential piece of the legislation. "Everything is subject to the will of the Senate and the House and the input from the president as we do these things," Whitehouse told Dispatch Politics. "The point of that is that we want to make it seem a little bit less like it's an immediate targeting" of Supreme Court justices.

While this would be a big change, Rep. Raskin's remarks suggested that convention organizers did not want to make court reform a major theme, perhaps for fear of alienating moderates.

When the moderator at Thursday's Supreme Court panel asked why there had been so little talk of court reform from speakers at the Democratic convention, Raskin said that he submitted a 5,000-word speech to convention organizers, mostly focused on the Supreme Court, but was asked to cut it down to 500 words. "There was a half sentence where I described them as the kangaroo Supreme Court, and I got that in, but that was all I could get," Raskin said.

Separately, Senate Majority Leader Chuck Schumer has indicated that a change to current filibuster rules is at the top of his agenda. He previously supported passing voting rights legislation by a majority vote and has indicated a willingness to consider avoiding the filibuster for abortion rights legislation as well.

The post Senate Democrats "Virtually Certain" to Pass "Supreme Court Reform" Bill By Majority Vote in 2025 appeared first on Reason.com.

[Stuart Benjamin] Donald Trump Promising a Position to RFK Jr. Isn't Illegal

[Criminalizing such promises would violate the First Amendment]

As Newsweek discussed in an article entitled "Donald Trump Accused of New Federal Crime as He Cozies Up to RFK Jr.," some people have claimed that Donald Trump promising a position to Robert Kennedy, Jr. is a federal crime. Trump offering a position to Kennedy may be a bad idea, but it is not illegal. Mitu Gulati and I pointed out in an article ("Mr. Presidential Candidate: Whom Would You Nominate?") that the relevant statute is ambiguous and, more importantly, applying the statute to a public promise of a position would run afoul of the First Amendment.

The statute, 18 U.S.C. § 599, provides in relevant part:

Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.

As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is "procuring support in his candidacy." Is this trigger procuring support from the public for his candidacy or instead procuring support from the potential nominee (or perhaps the potential nominee's associates) for his candidacy?

Picking up the argument from there, below is the relevant portion of our article (sans footnotes; if you want to read it with the footnotes, click here):

We do not dwell on these arguments regarding statutory interpretation because any attempt at applying this statute to a candidate's promises would violate the First Amendment.  In Brown v. Hartlage, the United States Supreme Court confronted a state statute very similar to § 599.  A candidate for county commissioner had promised to lower commissioners' salaries if elected, and the Kentucky Court of Appeals found that this violated the following state statute:

[W]hen a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain.

The Supreme Court reversed, unanimously.  The Court treated this regulation of candidates' speech as subject to strict scrutiny (one in a long line of cases so finding), and it invalidated this statute because it failed the first prong of a strict scrutiny inquiry: the identification of a compelling state interest.  The Court noted that there was a plausible claim that a promise to accept a lower salary would reduce voters' taxes, but it found that the state's interest in preventing vote-buying was not implicated because "Brown did not offer some private payment or donation in exchange for voter support; Brown's statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens."  As the Court emphatically stated:

Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote.  The fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment.  We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.  So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one's ballot.

In Hartlage, there was at least a plausible interest that the state could articulate (avoiding vote-buying), even though it was unpersuasive.  It is difficult to see any legitimate—much less compelling—interest that the government would have in preventing corruption via prohibiting the naming of cabinet or Supreme Court nominees.  Put differently, it is hard to fathom what the state's interest would be.  In Hartlage, there was a benefit to voters in the form of reduced taxes, but here there is no benefit to voters other than the likely nomination of appointees whom they would like to see in positions of power—and there is no conceivable state interest in preventing that from happening.

The government might have an interest in prohibiting concealed promises from candidates to potential nominees.  Secret promises give no information to voters, so their only benefit is a private one to the candidate and/or to the nominee.  That underscores the implausibility of any government interest in preventing the public naming of nominees in advance.  There is no corrupting element.

A different way to come at this question is to consider why the First Amendment is treated as placing a high value on electioneering speech.  One reason is because an active and full debate among candidates helps voters make more informed choices.  The voters are the customers choosing among products in the marketplace of ideas.  Reading the statute to prohibit the public disclosure of prospective nominees results in the implicit (and sometimes explicit) bargains between presidential candidates and prospective nominees being pushed underground.  And that in turn prevents voters from being able to evaluate the competing bargains that the different candidates have struck—the opposite of what First Amendment values push toward.  In effect, this occurred with Earl Warren's appointment to the Supreme Court in 1953.  Dwight Eisenhower reportedly promised Earl Warren that he would be appointed to the Court as soon as a seat opened up.  The public, though, had no way of factoring this promise into their decision as to whether to vote for Eisenhower.

It is simply impossible to imagine any compelling interest for the application of § 599 to our proposal, much less a compelling interest to which application of § 599 would be narrowly tailored.  And it bears noting that in the years since Hartlage, the Court has, if anything, raised the First Amendment bar for regulations on campaign speech.  For example, the Court has held that a prohibition on candidates for judicial office "'announc[ing] his or her views on disputed legal or political issues'" violates the First Amendment, despite the obvious state interest in avoiding the appearance of impartiality. The bottom line, then, is that application of § 599 to our proposal would run afoul of the First Amendment.

The post Donald Trump Promising a Position to RFK Jr. Isn't Illegal appeared first on Reason.com.

[Eugene Volokh] Material in Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Thesis Should Be Unsealed

[So the District Court in Sen. Mastriano's case just held.]

From Mastriano v. Gregory, decided today by Judge Stephen Friot (W.D. Okla.):

[1.] Eugene Volokh (Volokh), an emeritus law professor, who writes a legal blog hosted by Reason Magazine, has moved to intervene in this case and to unseal two exhibits of the recently filed complaint….

According to the complaint, Mastriano is a retired U.S. Army colonel, a recipient in 2013 of a Ph.D. in military history from the University of New Brunswick, Canada (UNB), a former Army War College professor, a published author of books on Sergeant Alvin York and the World War I conflict in France, and a public speaker on military history. He alleges that he is also a current State Senator for the Commonwealth of Pennsylvania's 33rd District. He was the 2022 Republican nominee for Pennsylvania governor and, by his account, at least, was considered the frontrunner for the 2024 United States Senate seat for Pennsylvania.

In his complaint, Mastriano alleges, among other things, claims of civil racketeering, anti-trust violations, fraud, and defamation against the University of New Brunswick (UNB), UNB's president, vice-president, dean of graduate studies, and several history professors, faculty or instructors, the National Research Council of Canada and its research officer, members of an investigatory commission tasked with looking into Mastriano's Ph.D. work, and a graduate student and Ph.D. candidate at the University of Oklahoma.

Mastriano specifically alleges that the graduate student, James Gregory III, made fraudulent statements to the press about Mastriano's books and Ph.D. thesis and filed fraudulent complaints with UNB seeking to debunk his Ph.D. thesis, to cancel his books and to cancel his historical authority in the field of World War I history. Mastriano also specifically alleges that the UNB professors, faculty or instructors signed and publicly issued a letter defaming Mastriano, depriving him of his intangible property interest in his Ph.D., books and speaking engagements and interfering with his elected position and candidacies.

Exhibit no. 2 to Mastriano's complaint is a redacted Insider Higher Ed article written by Katherine Knott in 2022. It concerns criticism of Mastriano, who was then running for Pennsylvania governor. The exhibit is referenced with respect to the allegations of fraudulent statements made by Gregory to the press. Exhibit no. 4 to the complaint is the letter signed and publicly issued by UNB professors, faculty or instructors which Mastriano claims defamed him. It is specifically referenced in paragraphs 17, 24, 34, and 125 of the complaint. Upon request of Mastriano, exhibit no. 4 was filed under seal.

Volokh seeks to intervene pursuant to Rule 24(b), Fed. R. Civ. P., for the purpose of unsealing exhibit nos. 2 and 4. According to Volokh, he "wants to write about this case and needs access to the full record to better understand the Plaintiff's allegations of defamation, fraud, antitrust violations, and racketeering." …

[2.] Initially, the court finds Volokh has Article III standing to intervene in this case. To establish Article III standing, Volokh bears the burden of showing that (1) "[he] has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;" (2) "the injury is fairly traceable to the challenged action of [Mastriano];" and (3) "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Volokh has plainly satisfied all three prerequisites.

The court finds the Volokh has suffered an injury in fact. Using increasingly unequivocal language, the Tenth Circuit has recognized a common-law right of access to court documents. The injury is concrete and particularized and actual and imminent because

if it were not for the exhibits being redacted or under seal in this case, Volokh would be free to write and publish about the exhibits in his blog.

Mastriano suggests that Volokh does not have an injury in fact because he is seeking to advance the economic interests of his employer, Stanford University, and his blog host, Reason Magazine. He states that Volokh has not attested under oath that he is seeking to intervene "pro se." In reply, Volokh has submitted a declaration that he has filed his intervention motion on his own behalf and not on behalf of Stanford University or Reason Magazine. He has also filed the motion on his own initiative and not with direction from any organization. The court is satisfied that Volokh has brought this motion on his own behalf.

Mastriano also suggests that Volokh does not have an injury in fact because he has not shown any "right" inhibited. He points out that Volokh has admitted in his motion that the unredacted article of exhibit no. 2 is in the public domain and that he may be able to find it online. He also points out that the complaint indicates that UNB published the letter, exhibit no. 4, online. Additionally, Mastriano asserts that Volokh seeks access to the judicial records to admittedly protect himself from a libel claim based upon Oklahoma's fair report privilege. Mastriano contends that Volokh should not be permitted to misuse Oklahoma law to avoid a defamation case.

The court rejects Mastriano's arguments. Although Volokh may be able to find the article and letter on the internet, there is no guarantee, as explained by Volokh, that the article and letter which he may find on the internet is the same article and letter which Mastriano relies upon to support his claims. The court agrees that Volokh, in writing about this case, should be permitted to know precisely what statements form the basis for Mastriano's claims. In the court's view, Volokh has shown that the common-law right to access to court records is impaired because of the redacted article and the sealed letter.

Further, assuming without deciding that Volokh would be protected by Oklahoma's fair report privilege if he were to disseminate what is contained in exhibit nos. 2 and 4 in his blog, the court is not convinced that that fact precludes a finding that Volokh does not have an injury in fact. Mastriano has not cited any authority to support that position.

Next, the court finds Volokh's injury in fact is fairly traceable to Mastriano because he redacted exhibit no. 2 and requested and obtained an order sealing exhibit no. 4.

Lastly, the court finds Volokh's injury in fact is likely to be redressed by a favorable decision because if the court requires an unredacted copy of exhibit no. 2 and unseals exhibit no. 4, Volokh will have access to the documents for publication in his blog.

[3.] Next, upon review (and mindful that permissive intervention is a matter within the sound discretion of the court, the court concludes that Volokh should be permitted to intervene in this case…. The Tenth Circuit has explained that "[w]hen a collateral litigant seeks permissive intervention solely to gain access to discovery subject to a protective order, no particularly strong nexus of fact or law need exist between the two suits." Courts in this district have applied the same principle to non-party motions to intervene to unseal court documents. The court concludes Volokh has sufficiently shown a common question of law or fact in relation to the underlying action.

The court also finds that Volokh's intervention will not unduly delay or prejudice the adjudication of the original parties' rights. This case is in its infancy. And while Mastriano has had to respond to Volokh's motion while also preparing a response to a motion to dismiss by UNB and its administrators and staff members, the court cannot conclude that Mastriano's adjudication rights have any in way been prejudiced. Mastriano has sought and received an extension of time to respond to the dismissal motion.

Moreover, the court concludes that Mastriano's increased litigation costs in opposing Volokh's motion do not warrant the denial of Volokh's intervention to unseal exhibit nos. 2 and 4. The court is not convinced that the fees incurred in responding to Volokh's motion will result in Mastriano being prevented from prosecuting his case.

[4.] Although the common-law right to access to court documents is not absolute, there is a "strong presumption in favor of public access." …

Although Mastriano has argued that the exhibits contain "highly defamatory statements" and that he has identified in his complaint and motion to seal "massive loss of past, present and future income, including a lucrative movie opportunity worth at least $10 million, and his property interests in the sales of his books, his speaking tours and his career and academic degree," the court concludes that Mastriano has not satisfied his heavy burden to show a significant or substantial interest that outweighs the strong presumption in favor of public access.

First, as the allegations in the complaint reveal, the exhibits are central to the adjudication of some of Mastriano's claims, which Volokh has interest in disseminating to the public in his blog. Indeed, it would be difficult to imagine any way this action could be adjudicated on its legal and factual merits—which is precisely what Mastriano asks the court to do—without a thorough airing of most, if not all, of the matters Mastriano seeks to keep from the public record. And Mastriano has not demonstrated that the statements at issue involve information that is highly sensitive and personal in nature to him. "[T]he mere presence of allegedly libelous statements is not enough, on its own, to justify keeping matters secret from the public."

Further, as Mastriano has indicated, the exhibits have already been publicly disseminated. Although it is not clear whether the exhibits at issue are in all respects identical to the materials that have been disseminated publicly (which is one reason why Volokh seeks to unseal the exhibits), the fact that Mastriano admits that the information from those exhibits has already been made publicly accessible supports a finding that Mastriano has not met the heavy burden of showing a significant or substantial interest that outweighs the strong presumption in favor of public access to the exhibits….

Thanks to Stanford law student Olivia Morello, who worked on the briefing with me.

The post Material in Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Thesis Should Be Unsealed appeared first on Reason.com.

[Eugene Volokh] Russian Opera Singer Anna Netrebko's Sex Discrimination Lawsuit Over Firing by N.Y. Metropolitan Opera Can Go Forward

[But her national origin discrimination claim (apart from the sex discrimination component) is rejected, as is her defamation claim.]

From Thursday's opinion by Judge Analisa Torres (S.D.N.Y.) in Netrebko v. Metropolitan Opera Ass'n:

After Anna Netrebko, an acclaimed opera singer, refused to repudiate Russian President Vladimir Putin in the wake of Russia's 2022 invasion of Ukraine, the Metropolitan Opera fired her….

Netrebko first alleges that the Met's February 27 Policy, in which it announced it would cut ties with artists and institutions that support or are supported by Putin, is "facially discriminatory" because it "singles out Russian artists." The Met argues that the Policy was "a political statement" and demonstrates that Netrebko's termination "ha[d] nothing to do with Netrebko being Russian" and everything to do with the Met's support for Ukraine and Netrebko's support for Putin….

The February 27 Policy is not facially discriminatory as it does not explicitly implicate a protected class. On its face, non-Russians can run afoul of the Met's policy. Moreover, a policy that targets "a generalized political affiliation, [and] not a specific national origin," cannot form the basis of a claim for national origin discrimination. That there exist Russian expatriates in the United States who support Putin does not compel a finding that the February 27 Policy facially discriminates against them.

Next, Netrebko alleges that the Met's discriminatory motivation is evidenced by (1) the "pretextual nature" of its stated reason for her firing (Netrebko's support of Putin), and (2) the fact that she was replaced by non-Russian performers. The Court disagrees.

First, the truth or falsity of the Met's stated reason for Netrebko's termination is immaterial so long as the Met's decision was based on a belief held in good faith. Netrebko has alleged no facts which plausibly suggest that the Met's stated reason for her termination masked an invidious motive to discriminate against Russians. This argument is, therefore, unavailing.

Netrebko's claim that her replacement by non-Russian performers establishes pretext fares no better…. The [Complaint's] treatment of Netrebko's non-Russian replacements is too cursory to permit a jury to determine whether they were similarly situated. "Plaintiff must 'show that similarly situated employees who went undisciplined engaged in comparable conduct.'" In support of this claim, Netrebko alleges only her replacements' nation of origin. The SAC fails to describe how Netrebko's non-Russian [Ukrainian, Italian, and Norwegian] replacements might be similarly situated as either Putin supporters or holders of a political belief or affiliation the Met finds similarly odious.

At bottom, the Met's firing of Netrebko, "while potentially indicating unfair dislike," does not sufficiently implicate her national origin to permit an inference of discrimination….

But the court concluded that

[Netrebko] has pleaded a claim of gender discrimination based on the "more favorable treatment" received by her male counterparts whom Netrebko alleges also had connections to Putin and the Russian state. For example, she alleges that the male opera singer Ildar Abdrazakov performed at political events, "including at least one event at which Putin … spoke about the war in Ukraine," and that Abdrazakov organized a Kremlin-backed music festival. She further states that male opera singer Evgeny Nikitin was featured at a Victory Day event involving Putin, and that Igor Golovatenko and Alexey Markov have performed at state-sponsored venues since the invasion of Ukraine. Although Netrebko has not alleged comparable conduct on the part of her female, non-Russian replacements, she has alleged conduct that permits comparison on the basis of gender.

{Netrebko does not claim that the male Russian performers had connections to Putin outside of a professional performance setting or made statements hinting at a pro-Putin stance. At summary judgment, Netrebko will be required to produced evidence to establish that the conduct of the male performers is not "too different in kind to be comparable to [Netrebko's] conduct."}

Here, Netrebko's claim of gender discrimination crosses the line from merely possible to plausible. The Second Circuit has held that "[a] defendant is not excused from liability" when discrimination is not the product of "a discriminatory heart, but rather [ ] a desire to avoid practical disadvantages" such as "negative publicity" or public pressure. "[C]lear procedural irregularities," against the backdrop of potential backlash and public scrutiny, may evince an unlawful "policy of bias favoring one sex over the other."

In [two past Second Circuit cases], male plaintiffs accused of sexual misconduct alleged that they were subject to disparate treatment when the defendant universities—facing public pressure over their mishandling of sexual assault and harassment on campus—found them culpable after hasty adjudicative processes plagued by procedural irregularities. The Circuit found that the irregularities in the handling of these matters coupled with other allegations were sufficient to establish a prima facie case of gender discrimination.

Here, the simultaneity of Netrebko's termination, public outcry over Putin's 2022 invasion, and the Met's efforts to show its pro-Ukraine bona fides—taken in conjunction with Netrebko's claim that the Met arbitrarily applied the February 27 Policy—suffice at the pleadings stage to create an inference of discrimination. Since 2017, the Met has collaborated with Moscow's Bolshoi Theatre, a "state-controlled institution," and Gelb [the Met's general manager] was in Moscow for a Bolshoi rehearsal "on the eve of the invasion of Ukraine." Netrebko alleges that the Met's "rapid turnabout on the Russian question"—from being at the Bolshoi one day to firing her a few days later—was part of its "anti-Russia publicity campaign."

Given the prominence of female opera singers compared to their male counterparts, Netrebko claims that "actions against [her], as a well-known 'diva' or 'prima donna' … would garner more international headlines than similar actions taken against male artists and would therefore be more successful in furthering the Met's anti-Russia publicity campaign." {Further supporting Netrebko's gender discrimination claim, an article cited—and incorporated by reference—in the SAC notes that another female Russian performer, Hibla Gerzmava, was fired by the Met after "com[ing] under fire for her ties to Putin," including for "signing a letter in support of Putin in 2014."}

In all, Netrebko plausibly alleges that, faced with "practical disadvantages"—such as the possibility of public pressure and negative press over its connections to the Russian state and individuals aligned with Putin—the Met adopted a "policy of bias favoring one sex over the other." …

Finally, Netrebko alleges that over the course of a year—coinciding with Russia's invasion of Ukraine and her firing by the Met—Gelb, on behalf of the Met, defamed her on multiple occasions…[:]

{In an August 14, 2022 article in the Sunday Times, Gelb stated, "I was always aware [Netrebko] was, you know, a huge Putin supporter … The fact is she put herself in this awful position by being Putin's political acolyte and fan club member over a period of many years, which I had witnessed." In the same Sunday Times article, Gelb stated "When the war is over, Putin has been defeated, he's no longer in office, [and] [Netrebko]'s demonstrating genuine remorse. Maybe that's when we can consider [rehiring her]…. But I would say there's a very small chance of that happening. In a September 12, 2022 Guardian article, Gelb stated that Netrebko "is inextricably associated with Putin… She has ideologically and in action demonstrated that over a period of years." In a November 9, 2022 article in Limelight, Gelb stated, "Netrebko has demonstrated over a period of many years that she was kind of in lockstep politically and ideologically with Putin." In a February 27, 2023 Associated Press article, Gelb stated, referencing Netrebko's termination, "It's a small price to pay…. To be on the side of right was what's important. I wouldn't be able to look at myself in the mirror and have known Putin supporters performing on our stage." In a March 17, 2023 New York Times article, Gelb stated, "Although our contracts are 'pay or play,' we didn't think it was morally right to pay Netrebko anything considering her close association with Putin…. It's an artistic loss for the Met not having her singing here. But there's no way that either the Met or the majority of its audience would tolerate her presence."}

Because Netrebko is a public figure, she must prove that the allegedly defamatory statements were made with actual malice. "Actual malice is a high bar. A plaintiff cannot, for example, allege merely that the speaker was negligent in failing to uncover falsity or that he should have investigated his claims further before speaking." Actual malice exists if a false statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." "A 'reckless disregard' for the truth requires more than a departure from reasonably prudent conduct." The allegations must "permit the conclusion that the defendant in fact entertained serious doubts as to the truth" of the statements. Moreover, the actual malice standard is subjective and must be proven by clear and convincing evidence….

Netrebko has not met this high bar. She alleges that because the Met knew she made multiple statements opposing the war, distancing herself from Putin, and disavowing any connection to him, its subsequent statements referring to her as a Putin supporter must have been made with knowledge of their falsity or with reckless disregard for the truth. Yet, such a finding is not required. There is a difference between the Met knowing that Netrebko uttered these statements and the Met believing that what she said was true.

Netrebko fails to allege any facts demonstrating that her statements disassociating herself from Putin's war against Ukraine altered the Met's subjective belief that she supported the Russian leader. Thus, she has not adequately pleaded that the Met made any of the allegedly defamatory statements with "high degree of awareness of their probable falsity." … Although a court "typically will infer actual malice from objective facts" like "the defendant's own actions or statements, the dubious nature of [its] sources, and the inherent improbability of the story," the [Complaint] offers none that permit the Court to make this inference. At most, the [Complaint] contains "bare assertions of ill will," which are not sufficient to allege actual malice.

The post Russian Opera Singer Anna Netrebko's Sex Discrimination Lawsuit Over Firing by N.Y. Metropolitan Opera Can Go Forward appeared first on Reason.com.

[Eugene Volokh] "None of The Countries That Bordered Poland In 1989 Exist Today"

Fun fact, passed along in illustrated form by Brilliant Maps.

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[Eugene Volokh] No Pseudonymity for Plaintiff Who Had Posted About Alleged Sexual Assault Under Her Own Name on "Are We Dating the Same Guy?" Facebook Group

Magistrate Judge Bristow Marchant's decision earlier this month in Doe v. Weston & Sampson Engineers, Inc. (D.S.C.) arose in a case where plaintiff sued alleging that a coworker had sexually assaulted her, including by "threatening her with a gun." Many (though not all) courts allow plaintiffs alleging sexual assault to sue pseudonymously in order to protect their privacy as to "matters of a sensitive and personal" nature (see pp. 1430-37 of this article). And the magistrate generally endorsed that position—but concluded that in this instance pseudonymity was unavailable:

[W]here a Plaintiff has not herself acted in a manner to preserve her privacy as to her allegations of sexual assault, this interest [in plaintiff's privacy] may be negated…. [Defendant] Roberts argues that other factors weigh against Plaintiff's request for anonymity here, as Plaintiff herself "has not acted to preserve her privacy" because she used her own name and photograph on social media in claiming that Roberts sexually assaulted her, thus unmasking her identity in a public forum. Roberts argues that "[b]ecause Plaintiff's reasons for anonymity (to preserve her privacy) are belied by her [own] actions, this factor weighs against anonymity." The Court is constrained to agree….

Based on a review of the parties' submissions regarding Plaintiff's Facebook posts, the Court concludes as follows. "Are We Dating the Same Guy?" ("AWDTSG") is a network of approximately 200 female-only Facebook groups that are location-specific. Within these groups, women can post screenshots of men's dating profiles to their specific location's group, asking other members of the group for "red flags" or "tea" (apparently referring to gossip or information) about the identified men…. To join a group, a member must be vetted and only individuals (presumably female) who have been admitted to the group are able to see the content posted by other members and to post content themselves. The rules applicable to these groups prohibit taking screen shots of content and sharing the information outside of the group.

The parties have identified two AWDTSG groups in which Plaintiff was a member and posted information about the issues involved in this case. First, there is a regional group for Greenville and Anderson Counties, which has approximately 16,700 members …. Second, there is a regional group for the Charleston and Columbia areas … with over 40,000 members….

In June or July 2023, a member of one of the two groups posted a request seeking information about Roberts. Plaintiff, using her full name and profile picture, responded to this post as follows:

To everyone, he SA me. I didn't know he had a criminal history. I'm putting this out there to protect anyone I can from him. He is DANGEROUS.

Although members of AWDTSG have the option to post anonymously, Plaintiff posted this comment using her real name along with a photograph. Moreover, Plaintiff's post was linked to her personal Facebook profile, which contained additional pictures and personal information.

Plaintiff acknowledges that she posted the information quoted above using her name, but contends she did not intentionally disclose her identity and later removed the post and ceased involvement in the Charleston/Columbia Group to preserve her privacy. However, in light of the foregoing, the Court finds that by using her own name in a post to a Facebook group consisting of over 40,000 individuals where she claimed that Roberts sexually assaulted her, Plaintiff has not acted to preserve her privacy in this matter, which weighs against allowing her to proceed anonymously in this case …. Plaintiff unmasked herself and published information about her sexual assault to at least 40,000 individuals, any one of whom could have then republished that information outside of the Facebook group where Plaintiff initially disclosed the information….

Plaintiff's argument that she did not intentionally disclose her identity is also not credible. Plaintiff acknowledges that she used her own name and profile picture in making her post, even though the Greenville/Anderson Group, for example, contains a notice advising members as follows:

We do our best to keep this space as safe as we can, but we can't guarantee that something said in the group won't be leaked by another member. Please be mentally prepared for the possibility that things you say here may get back to who you wrote about. We suggest posting anonymously as well as making the details of your story vague enough to not trace back to you.

Indeed, the "rules" for both groups include multiple notices and warnings about posting anonymously and the risks associated with sharing information. If Plaintiff wished to post anonymously, there is no evidence that she could not have done so. But she did not post anonymously. And, despite Plaintiff's argument that the information posted within the AWDTSG groups is not supposed to be shared, both groups provided multiple warnings that information could be shared or leaked to individuals outside of the groups….

Plaintiff argues that the "post should not vitiate her right to continued privacy" as "[s]he did not post her information on a public bill board, on a publicly viewable internet site, in the newspaper or on TV." Instead, she contends, her post was made to "closed Facebook groups dedicated to protecting women." However, Plaintiff's insistence that the post was made to a "closed" or "private" group that was not viewable by the general public is without merit. As an initial matter, the Court reiterates that the post was visible to at least 40,000 individuals, most of whom were no doubt complete strangers to Plaintiff. Even so, she specifically addressed the post to "everyone." And, despite the "closed" or "private" designation of the groups, Plaintiff should have known (especially given the warnings and notices in the rules governing the groups) that once the information was published, she had no control over how that information could be republished or disseminated beyond the four walls of those groups or to whom. And while the number of members who can access the information may not be dispositive, it is at least relevant that Plaintiff purposefully posted her content to a group with over 40,000 members….

{The Court notes that these findings are not meant to diminish the utility of such a group. To be sure, victims of sexual assault can benefit from support groups designed to assist in recovery from the trauma they experienced. That said, a Facebook group designed to share "tea" and "red flags" pertaining to potential dating partners is not the same as a support group for survivors of sexual assault. Plaintiff's lack of discretion in publishing information under her own name about her sexual assault to a large group of individuals in a group that promotes sharing "tea" and "red flags" on potential dating partners without the ability to limit the republication of such information to individuals outside the group belies her argument that she should be permitted to proceed in this action anonymously to protect her privacy.

The Court does not doubt that Plaintiff sincerely wishes to maintain her privacy in this matter, given the seriousness and sensitive nature of her allegations. However, her conduct outside of this litigation regarding her own publication of this sensitive information is dispositive as to whether she can demonstrate the "exceptional circumstances" needed to overcome the presumption that parties be named in litigation.} …

While given the nature of Plaintiff's allegations (sexual assault), [Roberts'] concerns may not have been sufficient to overcome Plaintiff's request for anonymity had she not herself undermined her request to maintain her privacy[,] the Court finds that Plaintiff should not be permitted to make allegations and accusations using her name against Roberts in a public forum while at the same time being allowed to proceed in a court action against him seeking damages while hiding behind the protections of anonymity….

Deborah B. Barbier represents Roberts.

The post appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: 8th Circuit Rules in Favor of Pistol Brace Owners

[ATF shoots the side of a barn, draws a target around the bullet holes, and proclaims “bullseye!” ]

The U.S. Court of Appeals for the Eighth Circuit has decided that ATF's Final Rule determining that most pistols with stabilizing braces are short-barreled rifles is arbitrary and capricious.  The case is Firearms Regulatory Accountability Coalition, Inc. v. Garland ("FRAC"), decided on August 9 and authored by Judge Steven Grasz.

The decision is filled with illustrations, beginning with a shooter with the brace's strap wrapped around his forearm and a cuff further supporting the forearm.  The device facilitates holding a heavy pistol with one hand.  At the peak of their popularity in 2020, there were seven million braces owned by the public. Untold numbers were sold between then and when the Final Rule was published in 2023.  ATF previously said the braces are legal.  However, as the court notes, "The consequence of the ATF's about-face is that many individuals, relying on the ATF's previous classifications, were apparently committing felonies for years by possessing braced weapons."

The ATF rule's first step is to see if the rearward attachment of a brace "provides surface area that allows the weapon to be fired from the shoulder," but it gives no mathematical guidance as a standard.  ATF implies that, if actual dimensions are set, cheaters will circumvent the rule.  The court responds: "That the regulated parties wish to see more specific metrics does not mean they wish to skirt or circumvent the law, as ATF insinuates. They may simply wish to comply with the law, by producing or equipping stabilizing braces that do not have a rear surface area that allows for shoulder firing a weapon."

The rule's second step assesses two criteria: how a brace is marketed and its use in the community. But that would base criminal liability on third parties' intent, about which a possessor would be unaware.  And the rule doesn't specify how these criteria will be evaluated.  How will ATF assess alternative explanations for the same marketing materials?  Who makes up the "general community"? As the court notes, "the community-use factor relies on circular reasoning: 'the likely use of the weapon by the general community' is determined by its 'use … in the general community.'"

To use a simple example, how would ATF weigh one person posting a video properly firing a braced pistol without shouldering it, while another person posts a video of firing the pistol from the shoulder?

As the court concludes, because the marketing and community-use factors require analyzing third parties' intent and attributing their intent to any individual who affixes a stabilizing brace to a weapon, the Final Rule "would hold citizens criminally liable for the actions of others, who are likely unknown, unaffiliated, and uncontrollable by the person being regulated."

ATF provides two of what it calls "Slideshows" of photographs of numerous configurations of braced pistols and found that all would likely be classified as short-barreled rifles, without providing any explanation of why or how its criteria lead to this result. ATF implies that plaintiffs have the burden to prove that the braced pistols are not short-barreled rifles, an impossible task because ATF gives no guidance.  As the court quips, "The ATF's burden-inverting argument makes as much sense as shouldering a rifle by the barrel…."

That's just one instance of the court's use of gun satire.  The next is its witty remark that "the Slideshows represent no more than the firing of a warning shot."  In other words, the rule "allows the ATF to arrive at whatever conclusion it wishes" without explaining its standard.  Now for the court's most clever but graphic remark:

The ATF claims that it fully intends to "follow up" the Slideshows with "detailed classification letters explaining each determination," and that any remedy for improper agency action would simply be to "remand any unexplained conclusions to the agency for further explanation or reconsideration." This is much like shooting the side of a barn, drawing the target around the bullet holes, and then proclaiming, "bullseye!"

That analogy vividly captures how a bureaucracy reaches its desired conclusion, and then finds the reasons to justify it.  Declare dozens of specific pistols with braces to be short-barreled rifles, and then, whenever you get around to it, explain the reason for each classification using a subjective, multi-factor "test."

Finding the Final Rule arbitrary and capricious, the Eighth Circuit thus remanded the case to the district court to reconsider whether to issue a preliminary injunction.  The district court had previously ruled for Garland by finding that the plaintiffs were unlikely to prevail and denied their motion for a preliminary injunction.

Judge Bobby Ed Shepherd dissented, but not on the merits.  He saw "no need to preliminarily enjoin the enforcement" of the Final Rule because it had been vacated by Mock v. Garland (N.D. Tex. 2024).  He quoted Mock itself as saying: "Because courts presume that the federal government will comply with [their] rulings, … injunctive relief is unnecessary…."

One must not presume too much.  Neither vacatur nor an injunction was entered in Cargill v. Garland at the time of the Fifth Circuit's en banc decision holding bump stocks not to be machineguns.  That holding should have sufficed to tell the government not to prosecute anyone for a bump stock.

Yet in the oral argument in the Supreme Court, the government threatened that members of the public – even in the Fifth Circuit – could be prosecuted anyway because the Federal Register gave bump stock owners notice of the device's status as a machinegun.  Justice Gorsuch wisecracked that reading the Federal Register is what gun owners "do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog." And Justice Alito asked if bump stock owners who "are aware of the Fifth Circuit's decision … can be criminally prosecuted for doing something that the court of appeals that governs their territory has said is not illegal?"  The deputy solicitor general, shockingly, responded that yes, they can be prosecuted, the Court of Appeals decision notwithstanding.

Moreover, in Mock, Attorney General Garland has appealed the district court's granting of summary judgment to the plaintiffs to the Fifth Circuit, which could reverse the vacatur ruling.  And whatever the Fifth Circuit rules will arguably be binding only in that circuit.

To top it all off, the government is continuing to prosecute people for possessing braced pistols notwithstanding the Fifth Circuit's vacatur of the rule. The rationale is that they are not enforcing the rule but rather enforcing the statute directly. Thus, in addition to vacatur of the rule, the district court in FRAC should also enjoin the government from enforcing the NFA against braced pistols using the standards announced in the rule, even if they purport to be doing it under the statute and not the rule itself.

The Fifth and the Eighth Circuits are the only courts of appeals to have ruled on the Final Rule about pistol braces, so no circuit conflict exists.  When the government knocks on the Supreme Court's door, it gets opened with frequency.  But how many gun cases does the Court wish to decide?  And didn't society get along quite well during the years that ATF classified braced pistols as just pistols, not short-barreled rifles?

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