Eugene Volokh's Blog, page 280

[Eugene Volokh] Police Officers' Libel Lawsuit Against Seattle City Councilwoman Kshama Sawant Thrown Out

From Miller v. Sawant, decided Thursday by Ninth Circuit Judges William Fletcher, Carlos Bea, and John Owens:

In February 2016, Miller and Spaulding [two Seattle police officers] fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Miller and Spaulding's [defamation] complaint … against [Seattle City Council member Kshama] Sawant [was] based on her remarks, at public protests, that Taylor's shooting was a "blatant murder at the hands of the police," and that Taylor was "murdered by the police."

Summary judgment was proper because Miller and Spaulding did not establish essential elements of their defamation claim, namely: that Sawant's statements were actionable statements of fact (as opposed to nonactionable opinions); that Sawant's statements were false; and that Sawant acted with actual malice.

First, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant's statements were actionable statements of fact…. Applying Washington caselaw, we conclude that Sawant's remarks were opinions, not statements of fact. She made them at politically charged public protests organized in the wake of police-involved shootings, i.e., "in circumstances and places that invited exaggeration and personal opinion."  Sawant also framed her statements in terms of a larger political movement against "systematic racial injustice." Thus, the statements were made "[i]n the context of ongoing political debates" such that protestors who heard them "[were] prepared for mischaracterizations and exaggerations, and [were] likely to view such representations with an awareness of [Sawant's] subjective biases."

Lastly, Sawant's statements did not imply she knew more than the public about whether Taylor's shooting was justified. Indeed, at the time she made them, it was public knowledge that Miller and Spaulding shot Taylor, and dashboard-camera video footage of the shooting had already been released by the Seattle Police Department.

Second, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant's statements were false. Miller and Spaulding aver that Sawant's statements at the protests were false because Miller and Spaulding were never charged with or convicted of murder. But Sawant did not state that Miller and Spaulding were charged with or convicted of murder. Instead, Sawant declared that she used the term "murder" in her statements "to convey that [she] believed the officers' actions were wrongful and should be considered criminal."

Nothing in the record can be construed as proving the falsity of Sawant's statements. This includes the fact that Miller and Spaulding were never charged with murder. A prosecutor's belief in a person's innocence is not the only reason the prosecutor may choose not to bring charges against the person. Thus, we cannot infer that Sawant's remarks were false based on the fact that Miller and Spaulding were not charged with murder.

Third, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant acted with actual malice…. Miller and Spaulding do not contest the district court's determination that they are "indisputably" public figures. To survive summary judgment, then, Miller and Spaulding had to establish that Sawant made her statements "with knowledge that [they were] false or with reckless disregard of whether [they were] false or not."

The district court properly determined that Miller and Spaulding failed to do so. Miller and Spaulding argue Sawant acted with actual malice because she failed to investigate sufficiently before she made her statements. But Miller and Spaulding do not address Sawant's declaration that, prior to her statements, she reviewed "publicly available information about the facts and circumstances of Taylor's death" and had "conversations with community members" who called Taylor's killing a "murder." Moreover, although actual malice can be inferred from a failure "properly [to] investigate an allegation," this failure "in isolation [is] generally insufficient to establish actual malice."

Seems correct to me. The Ninth Circuit let the case proceed in 2021, but that decision dealt only with "the single element of their defamation claims at issue on this appeal—the of and concerning element" of libel law; as I noted then,

The court doesn't deal with the separate question whether the label "murder" (1) should be seen as an opinion based on disclosed or widely known facts, much as saying "O.J. Simpson is a murderer" would be generally seen as opinion (opinions aren't actionable libel), or (2) should be seen as a claim that the Councilwoman knew some other undisclosed facts that show the police officers engaged in deliberate non-self-defense killing (such implicit factual assertions may be actionable libel, if they are factually false and said with the requisite mental state).

The Ninth Circuit has concluded, among other things, that the statement should be understood as fitting within category 1.

The post Police Officers' Libel Lawsuit Against Seattle City Councilwoman Kshama Sawant Thrown Out appeared first on Reason.com.

[Ilya Somin] 16 Red States File Lawsuit Challenging Biden "Parole in Place" Program for Undocumented Immigrant Spouses of US Citizens

[The lawsuit deserves to lose. But it may well lead to a prolonged legal battle.]

A wedding proposal. (Tunahan Karadongel | Dreamstime.com)

 

In June, the Biden Administration granted "parole in place" to undocumented immigrant spouses of US citizens. Predictably, 16 GOP-controlled states led by Texas have filed a lawsuit challenging the legality of the program. I think the lawsuit deserves to fail. But there may well be a lengthy legal battle before the case is resolved.

Here's my brief summary of the parole in place program (written at the time it was announced):

Today, President Biden announced a policy granting "parole in place" to undocumented immigrant spouses of US citizens who have been in the US for at least 10 years, and meet some other criteria. Those eligible can apply for parole status. If they get it, they will then have a three-year period during which they will have work permits and can apply for "green card" permanent residency (that status will eventually also enable them to apply for citizenship). Currently spouses of US citizens are already eligible to apply for green cards. But if they entered the US illegally, they are required to meet onerous conditions, such as first leaving the United States, and staying away for up to ten years. About 500,000 people could potentially benefit from the program.

The grant of parole will enable them to dispense with these requirements. Under Section 245 of the Immigration and Nationality Act, undocumented immigrants who have been granted parole may have their status adjusted to that of temporary legal residents. That adjustment would dispense with various penalties for unlawful entry, including the requirement to leave the US for a long period of time before applying for a green card.

And here's my summary of why the program is legal (which anticipated many of the key legal arguments raised by the plaintiff states):

The relevant statute gives the president the power to grant parole entitling non-citizens to temporary legal residence, "on a case-by-case basis for urgent humanitarian reasons or significant public benefit."

This is the same statute under which Biden earlier granted parole to Ukrainians fleeing the Russian invasion of their country, and to migrants from four Latin American nations (Cuba, Nicaragua, Venezuela, and Haiti, the "CNVH" countries) wracked by oppression and violence. A coalition of twenty red state governments filed a lawsuit challenging the legality of the CNVH program. In March, federal District Judge Drew Tipton (a conservative Trump appointee whose court the states picked because they expected him to be sympathetic to their cause) ruled the states lacked standing to bring the case. That ruling is now on appeal.

As in the CNVH case, there is a strong argument that parole for spouses of US citizens is backed by "urgent humanitarian reasons." Deporting such people (or requiring them to leave the country for many years to become eligible for legal residency) inflicts serious harm on their families, including many children. There is also a strong case that this grant of parole creates "significant public benefit." As already noted, keeping families intact benefits the larger community, as well as the families themselves. Again, don't take my word for it! Take that of pro-family social conservatives (as well as many social scientists across the political spectrum).

If, as is likely, conservative red states challenge the new policy in court, they will probably focus on the requirement that parole only be granted on a "case-by-case basis  and claim that the administration's rules are too categorical [update: they do indeed emphasize this point]. This issue has come up in the CNVH case, and I addressed it in some detail in my amicus brief in that case (filed on behalf of the Cato Institute and MedGlobal, as well as myself) (pp. 11-20). I think most of the points made there apply to parole for spouses of citizens, as well. I summarize the most important points in a September 2023 article in the Hill:

[A]ny case-by-case decision-making must be guided by rules and presumptions, if it is not to be completely random and arbitrary. And it is entirely reasonable to presume that migrants from nations with horrifically oppressive governments, widespread violence and economic crisis, have urgent humanitarian needs….

Similarly, it is reasonable to presume that families have an "urgent humanitarian need" to stay together, and that keeping them together is a significant public benefit.

It is worth noting that parole in place has been used since 2007 to protect spouses of US military servicemembers from deportation (a policy begun by administration of Republican President George W. Bush). That policy, too, relies on general rules and presumptions: that keeping servicemembers' families intact is a humanitarian imperative, and that it creates significant public benefits.

The plaintiff states do make a couple arguments I didn't anticipate. They note that the the the parole statute empowers the executive branch to parole migrants "into" the United States, and thus—they contend—cannot apply to those already in the US. The answer to this is that, in context, the phrase "into the United States" refers to the legal status of the of the migrants' entry, not mere physical presence. Moreover, if the courts accept this argument, it would mean the longstanding parole program for spouses of  US servicemembers is also illegal (almost all of these spouses are physically present i the US, as well).

The states also contend that the parole-in-place program violates the Take Care Clause of the Constitution, which requires the president to "take Care that the Laws be faithfully executed." But if the program is otherwise legal, it can't possibly violate the Take Care Clause, because the president would not be failing to enforce any binding federal laws by implementing it. To the contrary, he would be exercising authority duly granted by Congress. Moreover, given the vast quantity of federal laws, presidents cannot possibly enforce them all against every violator and thus much necessarily exercise substantial discretion in deciding which violations to to target, and which to let go.

The states also raise various claims under the Administrative Procedure Act. I will leave this to experts on administrative law. But I am skeptical any of these arguments can succeed if the federal government's (and my) interpretation of the parole statute is correct.

Finally, this case, like the CNVH case noted above, raises standing issues. Courts might end up dismissing this case on standing grounds, just as the district court in the CNVH case did. My own view is that states should have broad standing  to challenge  federal policies, including those that I believe should be upheld on the merits (like this one should be). But in recent years, federal courts—including the Supreme Court—have taken a significantly narrower view of state standing, and that might end up foiling the states in this case.

Whatever happens, it may well take many months to resolve this issue. Whoever loses in the district court will almost certainly appeal to the US Court of Appeals for the Fifth Circuit. The case could even eventually land in the Supreme Court. The CNVH case has dragged on for almost a year now, and this one could also take at least that long. A quick resolution is only likely if Trump wins the election, at which point he would almost certainly revoke the policy soon after taking office.

If that happens, it would resolve legal uncertainty, but at the cost of perpetrating a grave injustice. I discussed the moral considerations raised by this policy in more detail in my previous post about it. Legal issues aside, it is deeply reprehensible that conservative state governments that claim to be committed to "family values" are so intent on breaking up families when it comes to immigration issues.

The post 16 Red States File Lawsuit Challenging Biden "Parole in Place" Program for Undocumented Immigrant Spouses of US Citizens appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 25, 1998

8/25/1998: Justice Lewis Powell dies.

Justice Lewis Powell

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[Eugene Volokh] Court Dismisses ASU Academic/Administrator's Libel Suit Against Journal That Had Retracted His Article, with Reference to Possible Plagiarism

From Rodriguez v. Taylor & Francis Group, LLC, decided Thursday by Chief Judge Murray Snow (D. Ariz.):

This action concerns Dr. Cristobal Rodriguez's allegations of defamation and trade libel against Taylor & Frances Group, LLC …. Dr. Rodriguez is the Associate Dean of Equity, Inclusion, and Community, as well as an Associate Professor of Educational Leadership and Policy studies, at the Mary Lou Fulton Teachers College at Arizona State University. He researches inclusion and equity in education for "dual language learners, Black, Latino, and Indigenous" families and students. On March 7, 2022, Dr. Rodriguez and two other authors published an article in Educational Studies entitled "Our Separate Struggles Are Really One: Building Coalitions and Solidarity for Social and Racial Justice in Education" …. Educational Studies is an education journal published by Defendant.

Within days of publication, Plaintiff became aware of a potential issue with the Rodriquez Article. Plaintiff and his co-authors researched other published works and discovered that the Rodriquez Article and an article published by Dr. Sonya Douglass Horsford shared references to a conversation between Dr. Martin Luther King, Jr. and Cesar Chavez and had similar titles. Dr. Horsford titled her article "Our Separate Struggles are Really One: Building Political Race Coalitions for Educational Justice ….

On March 12, 2022, Dr. Rodriguez contacted Defendant to inform them of the overlap due to an oversight to "check for title similarities with other publications," to offer a revised title, and to address certain references in the Rodriguez Article. Plaintiff and his co-authors submitted a revised draft of the Rodriguez Article that included different references and a new title. Defendant accepted the changes and updated the print and online publication. Defendant informed Plaintiff that the editorial board was reviewing the matter but ceased all further communications with Plaintiff.

On June 20, 2022, Defendant informed Plaintiff that it would remove the Rodriguez Article from the issue of Education Studies and issue a retraction on its website with the basis for the retraction. Defendant provided Plaintiff no specific basis for the removal or the specific content of the retraction statement. Defendant then retracted the Rodriguez Article and published a public notice of retraction on its website. The notice referenced both the Rodriguez Article and the Horsford Article and included a brief explanation of Defendant's reasoning:

Since publication, significant concerns have been raised about the fact that this article has substantial overlap with the following article, particularly in title, references, and ideas pertinent to the content … As plagiarism is a serious breach of publishing ethics, we are retracting the article from the journal. We have been informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions.

Plaintiff alleges that "[t]he continued presence of the retraction statement on Defendant's website has the extreme potential to cause harm to Dr. Rodriguez and his professional reputation, including prohibiting and preventing him from opportunities for future professional advancement." Additionally, Plaintiff alleges that Arizona State University placed him on administrative leave and that he lost his administrative position because of Defendant's public notice. The loss of that position, Plaintiff alleges, included a substantial loss in income….

Plaintiff sued for defamation, but the court held on Mar. 29 that plaintiff didn't sufficiently allege "actual malice," which is to say the defendant's knowledge that its statement was false or likely false:

There is no apparent dispute that the Rodriguez and Horsford Articles share a title and some content. Plagiarism does not require a complete identity between articles. In other words, a claim that two works contain some differences does not necessarily absolve an author of plagiarism—even where those claims are accurate. Generalized allegations alone are too conclusory and thus insufficient to make the actual malice element plausible. The same is true of academic publishers.

And thus, Dr. Rodriguez's denial of plagiarism, even if true, does not give rise to an inference that Defendant made the retraction statement recklessly absent Plaintiff having provided Defendant some exonerating information in connection with his denials that would make plausible his claim that Defendant acted with malice when it proceeded with retraction statement without further consulting him….

The Mar. 29 decision allowed plaintiff to add further allegations to his Complaint, but onb Thursday the court concluded these extra allegations were insufficient:

Plaintiff has … added two allegations in connection with his defamation claim: (1) the specific explanation in his March 12, 2022, email to Defendant and (2) the "position of Dr. Horsford that [s]he did not want to or intend for Defendant to take any further action." Plaintiff claims that these two facts provided "sufficient exonerating information to put the Defendant on notice that the later publication of the allegations in the Retraction Statement alleging plagiarism were done with malice and/or with reckless disregard of whether the allegations in the Retraction Statement were false or not." …

Specific Explanation in the March 12, 2022, Email

Plaintiff's email informs Defendant that the Rodriguez Article had a similar title to the Horsford Article and states that the similarity was due to an "oversight…to check for title similarities with other publications." However, even if true, Plaintiff's email does not provide Defendant with information that would cause Defendant to "entertain[ ] serious doubts as to the truth of" the retraction statement.

The retraction statement points to "significant overlap" in not only title but also as to "references" and "ideas," neither of which were addressed in the March 12 email…. The text of the email is expressly limited to a conversation about "title similarities." Plaintiff's failure "to check for title similarities with other publications" does not reasonably suggest that what he did, or failed to do in this respect, prevented plagiarism. Moreover, a simple, uncorroborated denial by Plaintiff to Defendant that he committed plagiarism is not sufficient to make plausible his claim of actual malice on Defendant's part in concluding otherwise….

Dr. Horsford's Email to Plaintiff Regarding Further Action

Dr. Horsford, in an email response to Plaintiff's offer to make additional changes to the article, wrote that the decision was not hers to make and that she did not "expect any particular action to be taken." Although not explicitly stated, Plaintiff assumes that Defendant inferred, or should have inferred, from Dr. Horsford's email that Dr. Horsford would have responded differently had she believed her article had been plagiarized. Therefore, according to Plaintiff, Dr. Horsford did not believe Plaintiff plagiarized, and the email was sufficiently exonerating to put Defendant on notice, such that any later publication of alleged plagiarism was done with malice. This is not a "reasonable inference."

Plaintiff asserts that Dr. Horsford meant that she did not "want or intend" for Defendant to take action when she wrote that she did not "expect any particular action to be taken." No such presumption is merited. In fact, Dr. Horsford explicitly wrote in that same email that decisions about changes to the Rodriguez Article were not hers to make and that she was just bringing the similarities to Plaintiff's attention. Actual malice means Defendant "entertained serious doubts as to the truth of the accusation."

Dr. Horsford's email does not give rise to an inference that Defendant "entertained serious doubts as to the truth" of the plagiarism of Dr. Hosford's article, as any such inference from Dr. Horsford's email is unwarranted. For this reason, Plaintiff has not sufficiently alleged actual malice….

Note that the court applied the "actual malice" standard on the grounds that,

Because Plaintiff is a professor employed by a public institution, the parties agree that he is a public figure subject to a higher showing of "actual malice."

The post Court Dismisses ASU Academic/Administrator's Libel Suit Against Journal That Had Retracted His Article, with Reference to Possible Plagiarism appeared first on Reason.com.

[Eugene Volokh] No Pseudonym for Ex-Pro-Basketball-Player Sexual Assault Defendant

["While this case involves a statutory conferral of anonymity, the legislature is not exempt from the Constitution."]

From Judge John Kralik's decision in Dylan v. Doe (Cal. Super. Ct. L.A. County Aug. 2, 2024); the private school has identified itself as Campbell Hall, a prominent L.A. school, though the ex-player's name has not yet been noted in a court filing:

Plaintiff Haylsey Dylan f/k/a Hayley Mendell ("Plaintiff") alleges that in the summer of 1987, she was 15 years old and was attending summer school at Defendant Private School Doe when she was sexually assaulted by an adult male, Defendant John Doe (alluded to as a "Former Professional Athlete"), in a locked janitor's closet in the high school gymnasium. Plaintiff alleges that the Los Angeles Lakers were filming an instructional basketball video in Private School Doe's gym and that students and faculty were allowed to meet and interact with the players during breaks in the filming.

Plaintiff alleges that during one of the breaks, the production staff began ushering out the students, faculty, and parents to resume filming, but John Doe pointed toward her and said to the production staff, "She can stay." Plaintiff alleges that Private School Doe faculty members and staff were present in the gym that day, saw John Doe single Plaintiff out to remain with him, left her unattended, and did not provide any safeguards.

Plaintiff alleges that she took photographs with John Doe, he invited her to eat lunch with him, and he asked her for a school tour. Plaintiff alleges that during the tour, he took her to a janitor's closet and sexually assaulted her….

There has never been a basis, consistent with the constitutional right of the public to open proceedings, to conceal the names of the parties in this case. There is a general constitutional right of access by the public to all court proceedings….

In general, "[t]he names of all parties to a civil action must be included in the complaint. That requirement extends to real parties in interest—anyone with a substantial interest in the subject matter of the action."

To be consistent with the constitution, anonymity for parties must be demonstrated to be necessary to protect an important privacy interest. The Court of Appeal stated in the DFEH case:

[An] important constitutional right is implicated when a party is allowed to proceed anonymously: the right of public access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public. Public access to court proceedings is essential to a functioning democracy. It promotes trust in the integrity of the court system, and it exposes abuses of judicial power to public scrutiny. The right of public access applies not only to criminal cases, but also to civil proceedings like this one. And the right to access court proceedings necessarily includes the right to know the identity of the parties.

The Court further stated:

Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.[] In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur "only in the rarest of circumstances.

While this case involves a statutory conferral of anonymity, the legislature is not exempt from the Constitution. [The relevant statute is Cal. Code Civ. Proc § 340.1, which allows lawsuits based on long-past alleged sexual assaults, but calls for defendants to be pseudonymous "until there has been a showing of corroborative fact as to the charging allegations against that defendant."] At a minimum, there must be a demonstrated need to restrict such access. This is plainly stated in the Constitution of the State of California:

A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

Here, there is no need to restrict the public's knowledge of accusations of child sexual abuse. There is no rational basis by which the legislature could possibly be justified in providing anonymity to persons accused of childhood sexual abuse, or persons making such accusations. There is no need to limit the public's access. Such anonymity can only perpetuate the secret nature of childhood sexual abuse, with the result that more abuse will occur. Even if there were a need for anonymity in specific cases, allowing anonymity of all plaintiffs and persons accused of childhood sexual abuse in civil courts is not a narrowly drawn limitation on the public's right to know.

A recent law article … discusses these concerns further:

Public naming of litigants is one aspect of the broader "presumption, long supported by courts, that the public has a common-law right of access to judicial records." []"Public access to civil trials … provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system." []In particular, the right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," []and "promotes the institutional integrity of the Judicial Branch." []"Public confidence [in the judiciary] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.'"[]

In citing various Circuit Court cases, the article continues:

"The public[]" has a "legitimate interest in knowing all of the facts involved, including the identities of the parties." []"The people have a right to know who is using their courts." []"Anonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." [] "The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court." [] …

[P]seudonymization can lead to possibly pseudonymizing the name of others (such as a minor's parent and other parties) or even other cases; redactions and sealings of documents filed in the court and sealing of related cases; interference with reporting on cases; making it difficult to determine whether a party is a vexatious litigant or a judge is biased in favor of or against a litigant; and affecting a defendant's ability to test credibility and rebut a plaintiff's claims of damages. In addition,

Pseudonymity can also create a "risk of unfairness to the opposing party," []even when … the defendant knows the plaintiff's identity. … Fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity.

For example, plaintiffs' pseudonymity may make it hard for defendants to defend themselves in public and may create an imbalance in settlement negotiation positions as a named defendant would be more eager to settle than a pseudonymous plaintiff.

As stated by the Court of Appeal in DFEH:

Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.[] In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur "only in the rarest of circumstances."

In the NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) case, the California Supreme Court discussed that before closing substantive courtroom proceedings and sealing documents, the trial court must hold a hearing and expressly find that: (i) there exists an overriding[] interest supporting closure and/or sealing; (ii) there is a substantial probability[] that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.[]"

Based on these factors, the Court cannot justify allowing defendants to proceed anonymously in this action. As summarized above, John Doe opposes the request to reveal his name on the basis that Plaintiff's request is premature because, he says, there are no known facts to corroborate her allegations against John Doe at this time. He also argues that he is a public figure such that irreparable harm to his character and reputation may ensure such that it would be reasonable to maintain his confidentiality until after discovery.

However, John Doe has not provided any admissible evidence or other factual support for his claims. He has not explained or shown that the case is without merit, as he contends. John Doe has not explained how his status as a public figure affords him additional rights to maintain the confidentiality of his name or shield his identity. Celebrities must suffer the same embarrassment of accusation as regular people. Here, there is no overriding interest requiring that any party remain anonymous. Ms. Dylan has never sought such anonymity for herself—she is ready to subject herself to the embarrassment and stress of a public trial.

Moreover, there is an important public interest in knowing the names of anyone accused of childhood sexual assault as well as the names of the accuser so that those claims can be fairly evaluated and handled. The records of the Catholic Church and the Boy Scouts of America and other organizations that have cared for children show the tragic folly of attempting to suppress evidence of such accusations. Why should the Courts, which have imposed crippling judgments against these organizations, follow the same procedures they have condemned? When such accusations occur, both the accuser and accused should be identified by their true names so that the accusations can be proven or disproven in an open and fair court proceeding.

Thus, the Court does not find that there is an overriding interest supporting anonymity in Defendants' true names or that there is a substantial probability that Defendants' interests will be prejudiced if their true names are revealed. Rather, the Court upholds the constitutional right of access by the public of all court proceedings, which includes knowing the name of all parties in an action….

Defendant John Doe and Private School Doe shall proceed with this case with their true names upon entry of this order. The Plaintiff may amend the Complaint to disclose their true names….

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[Ilya Somin] Is Mobility More Important than Density?

[Economist Tyler Cowen argues the answer is "yes." But much depends on what kind of mobility we're talking about.]

The Jetsons' flying car. (Hanna Barbera)

 

Urban planners, land-use scholars, and other experts often advocate for greater density. But economist Tyler Cowen has an interesting blog post suggesting the US would do better to promote mobility, instead. His argument for mobility has considerable merit. But much depends on what kind of mobility we are talking about. Currently, increasing mobility in the sense of speed of transportation is less significant than increasing mobility in the sense of making it easier for people to "move to opportunity" by migrating from one place to another. Increasing the latter type of mobility often requires allowing greater population density (though, as discussed below, that may be compatible with increasing per-person living space).

Here's Tyler's argument:

American history is much more about rapid and cheap transport than about extremes of population density.  Even New York, our densest major city by far, became dense relatively late in American history.  To this day, the United States is not extremely dense, not say by European or East Asian standards.

But in American history, themes of horses, faster ships, safer ships, turnpikes, canals, our incredible river network, railroads, cars, and planes have been absolutely central to our development.  America has put in a very strong performance in all those areas.  When it comes to density, we have a smaller number of victories….

These days I see an urbanist movement that is more obsessed with density than with mobility.  I favor relaxing or eliminating many restrictions on urban density, and American cities would be better as a result.  Upward economic mobility would rise, and Oakland would blossom.  But still I am more interested in mobility, which I see as having a greater upside.

One issue is simply that urban density seems to lower fertility.  It is not obvious the same can be said for mobility.

And do you really want to spread and replicate the politics of our most dense areas?….

The density crowd is very interested in high-speed rail, which I (strongly) favor for the Northeast corridor, but otherwise am not excited about, at least not for America.  Otherwise, the density crowd works to raise the status of a lot of low-speed means of transport, for instance bicycles…..

I prefer to look to a better future where higher-speed transport is both affordable and green.  Ultimately, low-speed transport is a poor country thing….

I do not want to see the United States moving in poor country directions.

If you are obsessed with mobility, you will attach great importance to Uber, Waymo, self-driving vehicles more generally, and better aviation.  To me these are major advances, and they all can get much, much better yet….

These points were obvious to many people in the 1960s.  The Jetsons had their (safe) flying cars.  The ultimate innovation in Star Trek was the transporter.

I share Tyler's enthusiasm for high-speed transport. It would be great to have flying cars like the Jetsons! The Star Trek transporter would be even better. I also love the Uber, Lyft, and other similar enterprises that have made transportation faster and cheaper. I even share some of Tyler's relative distaste for bicycles, and dislike how they  tend to slow down traffic.

Still, I think Tyler is emphasizing the wrong type of mobility. What really built America is not so much fast transportation (though that surely helped), but the ability of people to "vote with their feet" by moving to places where there is greater freedom and opportunity. Foot voting opportunities, not mere speed of transportation, is the more important secret of America's success. Most obviously, America developed as a result of large-scale foot voting through international migration. But, in addition, we have a long history of internal foot voting, through such things as westward expansion, and migration of groups to places where there was greater economic opportunity and freedom from various types of oppression. I provide an overview of that history and its significance in "Foot-Voting Nation."

Today, the US suffers far more from constraints on foot-voting mobility, than limitations on transportation speed. Exclusionary zoning prevents millions of people from moving to opportunity, thereby denying them better work and educational options, and slowing down growth and innovation. Immigration restrictions have a similar damaging impact on international migrants, and also greatly impede growth and innovation.

Cutting back on these barriers would lead to greater population density, especially in major metro areas that have many job and educational opportunities. That's often good! Density often creates useful "agglomeration" effects that increase productivity.

We usually think of density as causing crowding. But it can be increased in ways that simultaneously increase per person living space. Breaking down barriers to housing construction would make it cheaper and easier for people seeking more living space to purchase or rent larger homes. Reducing immigration restrictions would increase the construction work force (recent immigrants are disproportionate contributors), thereby also expanding the amount of housing and making it cheaper. In this way, contrary to Tyler's fears that density leads to lower birthrates, the extra density created by breaking down barriers to foot voting, can actually be pro-natalist, by making housing cheaper and more plentiful.

Tyler and I agree more than we differ. I too am a fan of increasing transportation speed. By all means, bring on the flying cars! But real-world Jetsons and others like them could benefit even more from increasing the kind of mobility that enables foot voting.

 

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[Jonathan H. Adler] AI Fabricates More than Fake Legal Authorities

[It can make up fake movie review quotes too.]

Linosgate pulled a trailer for the forthcoming Francis Ford Coppola movie, Megalopolis, this week. The trailer, which meant to show that some of Coppola's most well-regarded works were not always appreciated by movie critics at the time, contained multiple fabricated quotes.

Where did the fabricated quotes come from? Variety reports they were AI generated.

Sources tell Variety it was not Lionsgate or Egan's intention to fabricate quotes, but was an error in properly vetting and fact-checking the phrases provided by the consultant. The intention of the trailer was to demonstrate that Coppola's revered work, much like "Megalopolis," has been met with criticism. It appears that AI was used to generate the false quotes from the critics.

For instance, the trailer claimed that Pauline Kael wrote in the New Yorker that "The Godfather" was "diminished by its artsiness." Kael in fact loved the movie.

When Variety prompted AI service ChatGPT to provide negative criticism about Coppola's work from well-known reviewers, the responses provided were strikingly similar to the quotes included in the trailer.

It seems lawyers are not the only ones who need to be careful relying on the veracity of AI-generated sources.

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[Josh Blackman] Today in Supreme Court History: August 24, 1946

8/24/1946: Justice James McReynolds dies.

Justice James McReynolds

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[Eugene Volokh] "Let's Go Brandon" T-Shirts Can Be Barred from Middle School on Grounds of Vulgarity

Before we get to Brandon, let's detour to Bethel School Dist. No. 403 v. Fraser (1986). Matthew Fraser gave this nomination speech for a friend who was running for high school vice-president:

I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most … of all, his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds.

Jeff is a man who will go to the very end—even the climax, for each and every one of you.

So vote for Jeff for A.S.B. vice-president—he'll never come between you and the best our high school can be.

You'll note that none of the words here were what one might colloquially call "vulgarities," but the Court concluded that the school was entitled to discipline Fraser for engaging in "vulgar" speech. (Some language in the opinion suggests that the doctrine might be limited to speech before audiences at school assemblies, but courts have generally read it more broadly than that.)

Today's decision by Judge Paul Maloney in D.A. v. Tri County Area Schools (W.D. Mich.) applies this general principle to D.A.'s wearing a "Let's Go Brandon" T-shirt (multi-asterisk expurgation, as you might gather, in original):

A school can certainly prohibit students from wearing a shirt displaying the phrase F*** Joe Biden. Plaintiffs concede this conclusion. Plaintiff must make this concession as the Supreme Court said as much in Fraser … ("As cogently expressed by Judge Newman, 'the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket [which read {F*** the Draft}].'") The relevant four-letter word is a swear word and would be considered vulgar and profane. The Sixth Circuit has written that "it has long been held that despite the sanctity of the First Amendment, speech that is vulgar or profane is not entitled to absolute constitutional protection." …

If schools can prohibit students from wearing apparel that contains profanity, schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane. Removing a few letters from the profane word or replacing letters with symbols would not render the message acceptable in a school setting. School administrators could prohibit a shirt that reads "F#%* Joe Biden." School officials have restricted student from wearing shirts that use homophones for profane words … [such as] "Somebody Went to HOOVER DAM And All I Got Was This 'DAM' Shirt." … [Defendants] recalled speaking to one student who was wearing a hat that said "Fet's Luck" … [and asking] a student to change out of a hoodie that displayed the words "Uranus Liquor" because the message was lewd. School officials could likely prohibit students from wearing concert shirts from the music duo LMFAO (Laughing My F***ing A** Off) or apparel displaying "AITA?" (Am I the A**hole?)…. Courts too have recognized how seemingly innocuous phrases may convey profane messages. A county court in San Diego, California referred an attorney to the State Bar when counsel, during a hearing, twice directed the phrase "See You Next Tuesday" toward two female attorneys.

Because Defendants reasonably interpreted the phrase as having a profane meaning, the School District can regulate wearing of Let's Go Brandon apparel during school without showing interference or disruption at the school….

The court acknowledged that "Let's Go Brandon" also conveyed a political message, but concluded that it did so through the allusion to "Fuck Joe Biden." And it also added the following:

This Court agrees that political expression, the exchange of ideas about the governance of our county, deserves the highest protection under the First Amendment. But Plaintiffs did not engage in speech on public issues. Defendants reasonably interpreted Let's Go Brandon to F*** Joe Biden, the combination a politician's name and a swear word—nothing else. Hurling personal insults and uttering vulgarities or their equivalents towards one's political opponents might have a firm footing in our nation's traditions, but those specific exchanges can hardly be considered the sort of robust political discourse protected by the First Amendment. As a message, F*** Joe Biden or its equivalent does not seek to engage the listener over matters of public concern in a manner that seeks to expand knowledge and promote understanding. When teachers and officials at a middle school reasonably determine that a message conveys profanity, Morse requires deference to that interpretation.

This last paragraph strikes me as something of a departure from the pure application of Fraser, and not generally consistent with First Amendment principles: After all, "Fuck the Draft" isn't materially more substantive than "Fuck Joe Biden," but the Court in Cohen v. California made clear that language—including vulgarities—is protected even when it "conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well." Conversely, the rest of the opinion suggests that vulgarities would be forbidden even if they were nested within "robust political discourse," for instance if a speaker liberally strewed "fucking" as an intensifier in the middle of a long and detailed analysis of the draft or of the President.

Nonetheless, setting aside this paragraph, my tentative view is that the court did plausibly apply Fraser, though taking a relatively broad view of that precedent. The court also notes that B.H. v. Easton Area School Dist. (3d Cir. 2013) (en banc) (the "I boobies! (KEEP A BREAST)" bracelet case), concluded that:

Under Fraser, a school may also categorically restrict speech that—although not plainly lewd, vulgar, or profane—could be interpreted by a reasonable observer as lewd, vulgar, or profane so long as it could not also plausibly be interpreted as commenting on a political or social issue.

But the court declined to follow that decision, which isn't governing law in the Sixth Circuit, where this case arose.

Annabel Shea, John L. Miller, Kenneth B. Chapie & Timothy J. Mullins (Giarmarco Mullins & Horton PC) represent defendants.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Nonaggressive dogs, tactical vests, and the entire internet.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Good news for fans of the Short Circuit podcast: We're now on YouTube! Get all the legal analysis of the federal courts of appeals you're accustomed to, just now with the smiling faces of IJ attorneys. This week's episode: Qualified immunity gets a judge out of trial duty and geofence warrants in the Fifth Circuit.

The old saw is that strict scrutiny is strict in theory but fatal in fact, but when it comes to the curfew New York City imposed amidst the pandemic and the George Floyd protests of 2020, the Second Circuit says strict scrutiny is not so much "fatal" as it is no impediment to dismissing a case on the pleadings. Circuit Split Alert! Monsanto faces thousands of lawsuits alleging that the popular herbicide Roundup causes cancer. When plaintiffs have alleged that Monsanto failed to adequately warn them of this risk, Monsanto has argued that state duty-to-warn requirements were expressly preempted by federal law regulating the labels on its products. The Ninth Circuit (2021) previously rejected this argument, but this week the Third Circuit accepts it, putting this case on a rocket ship to the Supreme Court. Allegation: Inmate at Pennsylvania federal prison is sexually assaulted by a guard on several occasions and subjected to inhumane conditions of confinement, like being forced to sleep on a cold metal bunk in below freezing temperatures for months. Can he bring constitutional claims against the guard and the warden? Third Circuit: Absolutely not. Concurrence: Congress just passed a new federal prison oversight law, and the absence of a civil remedy for victims of staff-on-inmate assaults is noted. Palo Pinto County, Tex. officials recently enacted electioneering regulations that restrict where, when, and how people are permitted to electioneer on county property. Fifth Circuit: And they might have even written constitutional ones if they'd paid a little more attention to what SCOTUS has said about this stuff. As it is, though, preliminary injunction granted. Collingsworth County, Tex. deputy responds to a domestic disturbance call and enters home without a warrant. He then gives contradictory orders to the home's two occupants while pepper-spraying them, shoots and kills their two dogs, and then continues to pepper-spray them while shouting profanities and demanding they lie down on the floor covered in their dogs' blood. District court: Qualified immunity for all but one claim. Jury: For that claim, about killing one of the dogs, we find a constitutional violation. District court: Nevertheless, QI on that claim too. Fifth Circuit: "It should come as no surprise to an officer that he may not go around shooting citizens' nonaggressive dogs." Verdict reinstated, and some other claims can also go forward. In 1971, man pleads guilty to killing his wife. After a few years behind bars he gets out, gets a girlfriend, and then kills her. He agrees to trust his fate to a 3-judge panel (whose identities he knows ahead of time) instead of a jury. Which gives him the death penalty. And after some appeals gives him another one. Later he wins at the Sixth Circuit in 2007 to receive another resentencing. Only problem is it's been so long that all 3 judges are dead or retired. So they use a new 3-judge panel. Which gives him the death penalty. Sixth Circuit (2024, en banc): Which is fine. Habeas denied. Dissent: He waived a jury for the original 3 judges, not any old judges. Buyers: We bought GM cars because we thought they were super clean and green. Turns out that was all lies. And it means GM did the RICO. District court: State law claims are preempted by the Clean Air Act and no RICO standing. Sixth Circuit: State law claims are not preempted but still no RICO. Dissent: We should leave this pollution stuff to "expert agencies." Franklin County, Ky. jail sergeant sexually assaults female inmate he's transporting to hospital. He's fired, convicted—and offered to avoid jail time if he re-enlists in the military. (She remains behind bars.) He's not the first county jailer to engage in sexually inappropriate behavior—three came before him. Sixth Circuit: But those staffers' misconduct is too dissimilar to the sergeant's to hold the county liable. The sergeant went rogue, so he alone should face liability. It's often said that in Illinois elections you should "vote early, vote often." In fact, state law kind of allows the opposite, where as long as a voter puts their ballot in the mail by election day it'll be counted as late as two weeks afterward. But does that conflict with federal election law? Seventh Circuit: Can't say, these voters and candidates have no standing. Partial dissent: I think the plaintiff Congressman has standing, though. Cabot, Ark. high school screens video on how to respond to an active shooter after notifying families of the plan. The day of the screening, a pair of brothers wear tactical vests (military style, not actually real or bulletproof) to school, and one carries a green duffle bag. School resource officers arrest the boys for disorderly conduct, despite not disciplining other students wearing military gear previously. They're acquitted, sue the officers. Eighth Circuit: No QI for the arrests. "In today's climate of school shootings, school officials and police officers are justified in having heightened concern around attire that might suggest a student is armed. But context matters, and schools have many mechanisms to discipline students." You're not going to believe this, but the Ninth Circuit just held that it will not decertify the results of the 2020 general election. If you're gonna buy a bunch of handguns for your convicted-felon son, it's best not to document the entire scheme on WhatsApp. And if you do, don't hand your phone over to a federal agent and allow him to search through it without a warrant. Because, as the Ninth Circuit explains, the Second Amendment isn't going to protect your right to falsely certify on ATF Form 4473 that you're not a straw buyer. California enacts a law requiring online businesses to create "Data Protection Impact Assessment" reports opining on the risk that children may be exposed to potentially harmful material online and take steps to mitigate the risks. NetChoice—which is basically the entire internet—sues. Ninth Circuit: And they get a preliminary injunction. Allegation: Inmate at Honolulu federal prison is hit in the head with a lock in a sock by other inmates, receives no treatment, and has headaches to this day. Can he bring constitutional claims for deliberate indifference to his medical needs? Ninth Circuit (unpublished): Absolutely. Class action in Arizona alleged that the Maricopa County Sheriff's Office conducted racially discriminatory traffic stops under the guise of immigration enforcement. In 2011, a federal district court agreed, issued an injunction against the Sheriff's Office, and appointed an independent monitor to ensure compliance with the injunction. In its fifth appeal, the Sheriff's Office challenged the district court's authority to require certain remedial measures as part of an order to enforce the injunction. Ninth Circuit: Fifth time's not a charm. "[W]e are all too familiar" with this case, and the district court's order is affirmed. Google Chrome users brought a class action alleging that Google illegally causes Chrome to record and send user data to Google despite a Chrome-specific privacy notice that allows users to opt out of data sharing. The district court concluded that the plaintiffs consented to Google's other general, "browser-agnostic" policies, making the Chrome notice irrelevant. The plaintiffs appealed. Ninth Circuit: The question is whether a reasonable user would believe that they consented to data collection based on the various disclosures—not whether a data collection policy is "browser agnostic." And facts material to applying the correct standard are in dispute. Reversed and remanded. Allegation: In 2011, Colorado prosecutor presents false testimony to get two criminal-trial witnesses (the mother of the defendant and a family friend) arrested. (They had not in fact failed to appear.) Malicious prosecution? Tenth Circuit (2020): No absolute prosecutorial immunity; case undismissed. Tenth Circuit (2024): No qualified immunity; case undismissed. Allegation: Inmate at Atlanta federal prison is attacked on several occasions by other inmates and his serious wounds are not properly treated. Can he bring constitutional claims for deliberate indifference to his medical needs? Eleventh Circuit: Absolutely not. For starters, he didn't die. Railroads are public utilities and so generally authorized to use eminent domain to build rail lines—though, as the Pennsylvania Supreme Court reminds us, that means they can take land to build rail lines for the public, not to build a rail line for just, like, this one particular guy. And in en banc news, the Ninth Circuit will not reconsider its (unpublished) decision that a convicted murderer was unconstitutionally denied the right to represent himself after the state trial court hearing his case reappointed counsel for him. Fourteen judges argue the case "cries for reversal," and that the convicted man's obstructionist tactics and equivocal statements—including "I did would [sic] like to have my counsel back"—made it reasonable for the state court to reappoint counsel.

New case! Awa Diagne had hoped to open an African-style braiding salon in South Fulton, Ga. this summer, and she spent tens of thousands of dollars securing a lease and preparing the storefront. But the city council rejected her business permit, not because of any legitimate concerns, but because there's an existing salon nearby. According to one council member, it's "not fair" for that salon to "have to compete" with Awa. But the Georgia Constitution says that, to the contrary, it is naked economic protectionism that is unfair, unlawful, and un-American. Click here to learn more.

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