Eugene Volokh's Blog, page 282

[Eugene Volokh] Unusual Fraud Claim Against Scientific Co-Author Over Alleged Research Problems Fizzles Out

[The claim was brought too late, the court holds, and the associated defamation claim is barred by the judicial proceeding privilege.]

From Judge Wendy Beetlestone's opinion today in Pratico v. Giannopoulos (E.D. Pa.):

According to his Complaint, well-pleaded allegations from which are taken as true, Praticò is a professor at Temple University, where he researches "clinical pharmacology …." Giannopoulos graduated from Temple with a PhD in 2015. While he was at Temple, Praticò served as his advisor, and he conducted original research in Praticò's lab, which helped form the basis for his doctoral dissertation. Praticò also helped Giannopoulos publish that data, including in a journal from Springer Nature Academic Publishing … in 2018 and 2019.

As part of that process, the parties communicated via email, and Praticò notified Giannopoulos that his data was being put together and that he would "be in the authorship." The first article lists Praticò and Giannopoulos as authors, while the second article lists them and another person named Jian Chiu as authors. Giannopoulos allowed the Springer Nature papers to be featured on his profile on the website ResearchGate.

In March 2020, individuals challenged the accuracy of the data underlying these articles on a website called Pubpeer. Praticò responded by "email[ing] Dr. Giannopoulos to schedule a conversation." Giannopoulos did not, at this point, "say anything about [the] authorship" of these papers. Later, in 2023, further criticism of Giannopoulos's work came out.

In response to an inquiry from Springer Nature, Giannopoulos's attorney sent a letter to its Associate Editor and Publisher, which insisted that: (1) his "name was placed as the lead author [of these papers] without his consent, nor was he informed of the submission of these manuscripts;" (2) he "has never met, worked with, and cannot identify" Chiu; and, (3) he "did not receive any form of communication from the corresponding author regarding these manuscripts." This, as far as Praticò knows, was the first time that Giannopoulos had disputed the authorship of these articles.

The feedback from third parties led Praticò to review Giannopoulos's data himself, and he concluded that "the integrity of [the] data is compromised." This episode has led to the retraction of three papers that the parties co-authored, and Praticò has requested the retraction of four additional papers on which Giannopoulos is the first author….

Praticò alleges: (1) that Giannopoulos's statements, made through his attorney, were defamatory; and, (2) that Giannopoulos defrauded him by "represent[ing] … that his data was reliable for scholarly publications." …

Defamation

"It has long been the law of Pennsylvania that statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation." "Judicial proceeding" is a capacious term, covering "not merely … pleadings and sessions in open court, but also … 'less formal circumstances, such as preliminary conferences, negotiations, and routine correspondence exchanges between counsel in furtherance of their clients' interests.'" It includes "'communications made prior to the institution of proceedings' if such communications were 'pertinent and material' and 'ha[d] been issued in the regular course of preparing for contemplated proceedings.'" …

Giannopoulos argues that the privilege covers his attorney's statements because "they were sent in an effort to explain [his] position related to certain allegations against him" and contemplated "a suit against [him] for fraud." Praticò counters that no such judicial proceeding has been identified: at the time Giannopoulos's lawyer sent the letter, Praticò had not filed a lawsuit yet, so no immunity can be applied here.

The privilege applies here even though the letter does not facially contemplate a proceeding between the two parties. Buschel v. MetroCorp. (E.D. Pa. 1996), is instructive. In that case, a journalist and Philadelphia Magazine had gotten into a dispute over whether he had orally agreed to sell the publication rights to an article. The journalist signed a written contract with another magazine, Esquire, for rights to the piece. In the course of this dispute, counsel for Philadelphia Magazine wrote a letter to the journalist and to Esquire that "made clear that Philadelphia would pursue its legal rights against [the plaintiff] … arising from [his] contractual arrangement with Philadelphia" and referenced a statement by Philadelphia Magazine's editor that characterized the plaintiff's decision to contract with Esquire as "a moral transgression against me and my magazine." The author alleged that these statements amounted to defamation because they accused him "of breaching a contract and committing the crime of conversion" and "of a breach of journalistic ethics." …

[T]he court concluded that the judicial privilege applied. These letters "were both relevant and material to Philadelphia's contemplated litigation" because they: (1) "informed each potential defendant … of [its] belief in the existence of its oral contract;" and, (2) "served to inform each recipient of the factual basis upon which Philadelphia would rely to prove the oral contract."

Here, as in Buschel, Giannopoulos's lawyer's letter lays out his legal position and the factual basis for it. In response to serious allegations—according to the Second Amended Complaint, academic fraud—the letter disclaims any responsibility for any possible misconduct because Giannopoulos did not "agree to be accountable for any/all aspects of" the at-issue articles' publication. In support of that position, Giannopoulos made three specific factual assertions, which form the basis for Praticò's defamation claim. Therefore, as in Buschel, those statements are entitled to judicial privilege. The defamation claim therefore will be dismissed without prejudice….

Fraud …

Fraud claims in Pennsylvania are governed by a two-year statute of limitations. The limitations period runs from "the time 'the right to institute and maintain the suit arises.'" It thus is subject to equitable tolling, inter alia, "until the plaintiff knew, or through the exercise of reasonable diligence should have known, of the injury and its cause."

Giannopoulos argues that, because the Second Amended Complaint presses a fraud claim based on "work [that] was done in 2015," "articles … published in 2018 and 2019," and "data [that] was subject to scrutiny in 2020," the two-year limitations period has run. In response, Praticò argues that he originally defended Giannopoulos's work and only discovered any inaccuracies after hiring an independent reviewer in 2023.

But the Complaint alleges that Praticò learned about the alleged problems with Giannopoulos's data three years earlier in 2020. Once Pubpeer posted concerns about the data, he emailed Giannopoulos "to schedule a conversation." Considering such allegations, Praticò at least should have known through the exercise of reasonable diligence about the alleged falsity of Giannopoulos's data more than two years ago. His fraud claim therefore is barred by Pennsylvania's two-year statute of limitations and will be dismissed with prejudice….

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[Mark Movsesian] "The Best Man," Sixty Years Later

[Gore Vidal's classic film on presidential nominations holds up]

Just in time for this week's DNC, I have an essay over at Law & Liberty on the 60th anniversary of Gore Vidal's classic film on presidential nominating conventions, "The Best Man." I've always enjoyed the film for its portrayal of the fun and banality of democratic politics–as well as its ironic take on the whole thing. Here's an excerpt:

This year marks the 60th anniversary of perhaps the greatest political film of all time, 1964's The Best Man. Based on a play of the same name by Gore Vidal, who also wrote the screenplay, The Best Man tells the story of a deadlocked political convention at which two candidates vie for their party's presidential nomination. Sixty years on, the film remains tremendously entertaining: clever, suspenseful, with an exceptional cast. The dialogue is outstanding. Considering what we have witnessed in the current presidential campaign—and it's only August—Americans might again find interest in Vidal's depiction of the backroom intrigue that determines a nomination.

The Best Man holds up for its mordant but profound observations about American democracy. There's not much idealism here. The film's most principled character has flaws that make him unfit to lead and the ultimate nominee is a "nobody" whose lack of record is his best quality. But there are important lessons about the sort of person who seeks high office in a democracy—and the sort of person high office requires. Perhaps surprisingly, given that Vidal was a man of the Left and had a rather acid personality, The Best Man offers a basically fair, even forgiving, depiction of progressives and conservatives. Neither are wholly good nor wholly bad, just human.

You can read the whole essay here.

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[Ilya Somin] Freedom House Report Highlights Use of Mobility Restrictions as a Tool of Repression

[Authoritarian states increasingly resort to this tactic. Immigration restrictions enacted by liberal democracies exacerbate the problem.]

(NA)

In its new report "No Way In or Out: Authoritarian Controls on the Freedom of Movement,"  Freedom House, highlights authoritarian states' growing use of mobility restrictions as a tool of repression. Immigration restrictions enacted by liberal democracies contribute to the problem; authoritarian regimes aren't the only ones that enact unjust mobility restrictions. Here's a summary of the Freedom House report's findings:

At least 55 governments around the world restrict freedom of movement in order to punish, coerce, or control people they view as threats or political opponents.

The four main tactics for controlling mobility are revoking citizenship, document control, denial of consular services, and travel bans.

Restrictions on the freedom of movement can be a less visible form of authoritarian control. They are often informal or imposed arbitrarily, leaving targets without a means to effectively challenge them. Restrictions are also frequently combined with other forms of repression, including asset seizures, smear campaigns, and bogus criminal charges.

The impacts of coercive mobility controls are severe and far-reaching—including the loss of legal status, family separation, inability to pursue educational or professional opportunities, and psychological distress. They interfere with people's ability to express dissent and participate in prodemocracy activism, and signal to would-be government critics that they may face similar consequences.

Democratic governments should seek to hold those applying these tactics accountable, and review their own migration policies to ensure that they do not contribute further to the hardship inflicted on individuals facing coercive restrictions on their freedom of movement.

The report includes a variety of recommendations, including that democratic "Governments should review migration and asylum policies to ensure that they do not contribute to the hardship inflicted on individuals facing coercive mobility restrictions. This includes avoiding penalizing individuals who are unable to produce a valid national passport due to the application of mobility controls with fines, obstacles to education or health care, or restrictions on the ability to register newborn children or marriages."

I endorse these ideas. But they only address the tip of a much larger iceberg of policies enacted by liberal democratic governments that end up reinforcing authoritarian repression. The most important is that migration restrictions exclude many people fleeing authoritarian repression. The right to exit an authoritarian state is worth little if not coupled with the right to enter a freer society.

Most democracies do have laws granting asylum to people who qualify as "refugees." But the legal definition of "refugee" embedded in international and US law is a very narrow one that excludes many people fleeing terrible violence and oppression. It only covers people whose "life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion." This effectively excludes may who are fleeing what I have called "equal-opportunity" repression and violence, doled out to everyone who lives under the rule of an oppressive government, as oppose to just members of specific defined social groups.

Even many people who meet legal definition of "refugee" are often expelled under rules like the Biden Administration's new asylum policy, which bars most migrants crossing the border from trying to apply for asylum, including many who might have a strong legal case. Many Republicans advocate even more severe asylum and migration restrictions. They seek to shut down legal pathways of migration for people fleeing brutal repression, including at the hands of socialist regimes conservatives rightly condemn, like those of Cuba and Venezuela. Opening Western doors to migrants fleeing repression is both the right thing to do, and a good way to boost our economies, and reduce budget deficits.

Liberal democracies' mobility restrictions are generally not as bad as those of authoritarian states. But our governments are not as far superior to theirs as they should be, and there is plenty of room for improvement. We can start by expanding the definition of "refugee" to cover all people fleeing oppression and violence, and ending other arbitrary restrictions on asylum rights. Giving asylum seekers the right to work legally  would also help.

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[Eugene Volokh] Can Law Forbid Threatening Judges with Impeachment Because of Their Votes?

[Donald Trump, Rick Perry, and more.]

At a rally in Wilkes-Barre, Pa., President Trump said this:

[H]ow courageous were our justices of the United States Supreme Court? What they did—they're saving our country. They're actually saving our country….

And I just have such respect for the job they've done against—and, you know, the radical left plays the ref. You know the great Bobby Knight? He supported me. He used to fight with the referees all the time. Scream at him, "Bobby, Bobby, please, don't do that." It's not going to work. He said, "You're right. It's not going to work now." It's going to work for the next one. And the next call, there'd be a flagrant foul, and they wouldn't call it. They didn't want to get screamed at.

The radical left harasses our judges and harasses our justices. They scream at them. They call them names. They say they're incompetent, they're horrible, they're this, they're that, they should be impeached. They're constantly saying they should be impeached. But they're screaming. And you know what? It has an effect on some people.

But so far, they've been very strong. It's really horrible. I believe it's illegal what they do. And it's a—I'm trying to give you things that you've never heard before, and this is true. I believe they are playing the ref. They're constantly criticizing our great—some of our greatest justices and a lot of great judges.

You know, I kept hearing so much about the Florida case because, you know, they weaponized our system, our government, totally weaponized. The first time it's ever happened. And they said, "My biggest case is in Florida, Florida, Florida." And we had a very brilliant—I don't know the judge—but a fair and very brilliant judge who took tremendous abuse. It would have been so easy for her to just rule against me. But she didn't do that.

She ruled for—she threw out the whole case. It was thrown out. That was a big case. And I have such respect for her—— because she is, in fact, brilliant. But they were hitting her so hard. She's going too slow. She's that. She should be removed immediately from office.

These people are horrible. I really think—I really think it's illegal what they do with judges and justices. They're playing the ref no different than Bobby Knight….

[W]e can't let these radical left thugs constantly scream at our judges and say, we're going to impeach him, we're going to take him out of office, or her. We're going to do horrible things to him. Continuous—when you heard Schumer get up on the stairs of the courthouse, Supreme Court, and talk about, "Kavanaugh, we're going to get you, Kavanaugh. We're going to hit you," or whatever the hell he said. If a mobster said that, they'd be put in jail immediately. He, frankly, should have been put in jail or certainly spoken to very strongly….

Now there's a lot going on here:

[1.] Obviously, simply "criticizing" judges is constitutionally protected under modern First Amendment law (fortunately for Trump, who has shown little hesitation in criticizing judges). That wasn't always so: During much of American history, judges punished people for "contempt of court" for their public statements that were seen as aimed at influencing court decisions. But in the mid-1900s, the Court made clear that such statements couldn't be punished, at least unless they involved threats of violence and the like (see, e.g., Bridges v. California (1941)).

[2.] Equally obviously, threats of criminal attack aimed at influencing judges—if a mobster did say "we're going to get you," which would likely be construed as involving physical "getting" rather than just political—can be punished, with no First Amendment problem.

[3.] Public calls for impeachment, by ordinary citizens, are also constitutionally protected, because they are calls for government action.

[4.] But here's the most interesting question: Could threats of impeachment by legislators or legislative leaders be criminally punished when they are aimed at influencing the judges' future votes? I think the answer is definitely "no," but the path to that answer is an interesting one—and it goes through a case involving, of all people, Trump's former Secretary of Energy, Rick Perry.

Let's step back a bit, and note why this is an interesting question. Say that an employer threatens employees that he will fire them if they vote in ways the employer disapproves of. Such threats (and such firing itself) are illegal in all states, and indeed a crime in many.

Likewise, say that an employer threatens an employee, who is also a part-time elected city council member, with firing if the employee votes on the city council in ways the employer disapproves of. I think many of the state statutes that bar firing employees based on their political activity would outlaw that, and constitutionally so. See also Wyo. Stats. § 22-26-116, which expressly forbids an employer's using employment actions "attempting to control such employee's vote on any question at any public election, or in any public position or board or in any office to which such employee may be appointed or elected."

Or say that an employer threatens an employee with being fired if the employee votes in a particular way while on a jury—or if the employee is a part-time judge, and renders a particular decision as a judge. I think that too can be criminalized, and is probably already criminal obstruction of justice or juror intimidation in many jurisdictions. (Indeed, many states expressly bar employers from using the threat of firing and similar threats to keep an employee from serving as a juror; federal law does the same with regard to service as a juror in federal cases. Surely employers can equally be barred from using such threats to influence the employee's vote as a juror.)

Nor is this limited to threats to do something illegal: If someone threatens a juror or a judge with disclosure of some embarrassing secret (e.g., an affair) if the juror or judge votes a particular way, that would be criminally punishable blackmail (to oversimplify slightly). Indeed, offering someone a job to induce him to vote a particular way as a judge or juror would be criminal bribery. Threatening to eject someone from a job to induce him to vote a particular way as a judge or juror could be criminally punishable, too.

Well, one might say, members of Congress threatening a judge with impeachment are just like employers threatening one of their employee who is a judge with being fired. Why then can't that be outlawed? For an answer, we can look at Ex parte Rick Perry, a 2016 case from Texas's high court for criminal matters. (Disclosure: I argued on behalf of amici in the case.)

In that case, Perry was prosecuted because, while governor, he threatened to veto (and did veto) a particular appropriation if an Austin DA, Rosemary Lehmberg, refused to resign. Lehmberg had pleaded guilty to drunk driving, so Perry argued that she was unfit for office; but Perry's critics argued that Perry's real motivation was that Lehmberg had been prosecuting his political allies. In any event, Perry was prosecuted on the theory that he had "intentionally or knowingly influenced or attempted to influence … Lehmberg … in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney." The relevant statute stated, in effect,

A person commits an offense if by means of a threat, however communicated, to take or withhold action as a public servant, he influences or attempts to influence a public servant in a specific performance of his official duty.

On its face, the statute applied to Perry's threatened veto. And the statute would also indeed punish a legislator for expressly or implicitly threatening to impeach a judge if the judge votes a particular way—"a threat … to take … action as a public servant" that "attempts to influence a public servant [the judge] in a specific performance of his [the judge's] official duty."

But that can't be right, I think (see this amicus brief that I had co-filed in the case, together with Prerak Shah and then-lawyer Jim Ho, and see also this post). And the Texas court agreed, holding that the statute was unconstitutionally overbroad:

[P]ublic servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [T]he fact that speech is coercive does not, alone, mean that it can legitimately be proscribed: "[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action." And political logrolling—which involves the swap of one authorized official act for another—"has never before been condemned as extortion." …

Unconstitutional Applications Are Many

As we have explained, public servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [Yet under this statute, m]any threats that these public servants make as part of the normal functioning of government are criminalized:

a threat by the governor to veto a bill unless it is amended, a threat by the governor to veto a bill unless a different bill he favors is also passed, a threat by the governor to use his veto power to wield "the budget hammer" over a state agency to force necessary improvements, a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated, a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy, a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached, [a] threat by a trial judge to quash an indictment unless it is amended.

I think the same reasoning applies even to an explicit threat ("Vote to uphold this law, or we will impeach you"), and certainly to an implicit threat that tries to "work the refs." Members of Congress have the constitutional power to choose to impeach a judge. Under longstanding American legal tradition, they do not exercise that power based just on the judge's decisions, but they may break with tradition, and may threaten to break with that tradition. The protection against such impeachments is political (both the requirement of 2/3 vote in the Senate to remove a judge, and the possible voter pushback against a party that is seen as trying to influence the courts this way), not judicial. Likewise, the protection against threats of such impeachments comes from the integrity of the judges and the potential for voter retaliation against the politicians, not from the possibility of criminal punishment for the threat of impeachment.

The same of course applies to other situations. An employer's telling an employee who is a part-time city council member "Quit the city council, or I'll fire you" may be criminalized. But if a Vice-President and several Cabinet officials tell the sitting President, "Resign, or we'll invoke the Twenty-Fifth Amendment to force you to step aside," that can't be made a crime. And the list could go on, as the Perry opinion suggests.

To be sure, I should acknowledge that some of the lines here can be hazy. What constitutes punishable blackmail and what is protected speech, for instance, is famously complicated to decide. Even the definition of bribery can be quite vague around the edges. And, as I noted, ordinary employers generally may not trying to influence their employee-judges with the threat of firing. But I think it's quite clear, as Ex parte Perry concludes, that government officials have broad latitude to threaten official action in order to pressure other government officials—and that would apply, I think, to threatening impeachment.

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[Eugene Volokh] Can't Get Case Sealed Just Because "People Ask Me About [It]"

[The plaintiff says she "thought the whole it was going to be confidential"—but court cases are public.]

From yesterday's decision by Magistrate Judge Patricia Cohen (E.D. Mo.) in Contejean v. Ameren:

This matter is before the Court on self-represented Plaintiff's letter to the Court requesting that her "case be removed from the internet[,]" which the Court interprets as a motion to seal the "case." On July 22, 2024, Plaintiff filed a complaint bringing claims of race and age discrimination and retaliation under the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

Plaintiff requests the Court to "remove all information regarding her case from "the internet" because "people ask me about this[.]" Plaintiff states she "thought the whole time it was going to be confidential." Plaintiff further states that "[i]f there is another process [she needs] to follow in order to have it removed please advise."

There is a common-law right of access to judicial records. Although not absolute, there is "a general right to inspect and copy public records and documents, including judicial records and documents[.]" While the Court has supervisory power over its own records and files, "only the most compelling reasons can justify non-disclosure of judicial records." Instead, "[s]ealing documents is generally appropriate when necessary to 'shield victim identities, protect trade secrets, secure matters of national security, honor the rules of sovereign nations, and conceal personal identifying information such as social security numbers or dates of birth.'"

Here, Plaintiff seeks to remove all references to her case from the "internet" based upon her desire for the case to remain "confidential." However, Plaintiff's desire for the case to remain "confidential" does not outweigh the Court's interest in preserving the common-law right of access to judicial records in civil proceedings. Accordingly, based on the record currently before the Court, the Court denies Plaintiff's motion to seal….

I've seen a few cases in which courts have granted such motions to seal, or to retroactively pseudonymize, presumably in order to protect a litigant's future employment prospects; I hope to write about one such cases shortly. But those decisions almost always lack any detailed legal analysis, and I think there's really no precedent supporting them; the Contejean decision accurately follows the legal rules.

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[Eugene Volokh] First Amendment Doesn't Protect Speech That Solicits a Specific Crime

[Calling for the burning of a particular mosque, for instance, or the bombing of a particular police station, or the killing of a particular person (politician, police officer, activist, or anyone else) may be constitutionally unprotected solicitation.]

There's been much discussion recently about the English government's prosecution, in connection with the recent riots there, of various people who have been seen as advocating violence or hatred. Here's an excerpt from yesterday's New York Times article:

They Spouted Hate Online. Then They Were Arrested.

[Subtitle:] As hundreds of people appear in court for their role in recent anti-immigrant riots in Britain, several are accused of fueling disorder through online posts, raising questions about the limits of free speech.

A 53-year-old woman from northwest England was jailed for 15 months after posting on Facebook that a mosque should be blown up "with the adults inside." A 45-year-old man was sentenced to 20 months for goading his online followers to torch a hotel that houses refugees. A 55-year-old woman was questioned by the police for a viral post that wrongly identified the suspect in a deadly knife attack at a children's dance class.

The article goes on to note that English law is less protective of free speech than American law, and that much is correct. But I think it's also worth noting that speech urging the commission of a specific crime against a specific target is likely constitutionally unprotected even in America. In particular, calling for people to blow up a particular mosque (which is what the woman mentioned in the article seemed to be doing) or burn down a particular hotel would almost certainly fall within the "solicitation" exception to the First Amendment (or perhaps within the "solicitation" facet of the broader "speech integral to criminal conduct" exception).

That exception is not as well-known as other exceptions, such as for true threats of illegal conduct, incitement of imminent and likely illegal conduct, defamation, child pornography, and so on. But the Court has made clear that it does exist, most recently in U.S. v. Hansen (2023):

Criminal solicitation is the intentional encouragement of an unlawful act. [T]he crime of solicitation is complete as soon as the encouragement occurs [and does not require that the solicited crime take place -EV] …. [S]olicitation … [does not] require[] lending physical aid; … words may be enough. [It] require[s] an intent to bring about a particular unlawful act. [It is a] longstanding criminal theor[y] targeting those who support the crimes of a principal wrongdoer….

Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected. We have applied this principle many times, including to the promotion of a particular piece of contraband, solicitation of unlawful employment, and picketing with the "sole, unlawful [and] immediate objective" of "induc[ing]" a target to violate the law.

And to quote another leading precedent, U.S. v. Williams (2008),

Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection….

To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it.

So abstractly calling for violent revolution, or for attacks on police officers, or the burning of mosques is constitutionally protected (unless it falls within the "incitement" exception for intentional advocacy of imminent and likely illegal conduct). But concretely calling for an attack targeting a particular person or a particular piece of property is solicitation, and punishable if the speaker "intended to bring about a particular unlawful act." Thus, for instance, U.S. v. White (7th Cir. 2010) held that public speech aimed at getting listeners to attack a particular former juror would be criminal solicitation of a crime of violence:

According to the government's indictment, William White created and maintained the website Overthrow.com. Overthrow.com was affiliated with the "American National Socialist Workers Party," an organization comprised of white supremacists who "fight for white working people" and were "disgusted with the general garbage" that the white supremacist movement had attracted….

On September 11, 2008, White posted personal information about the foreperson of the jury in the [solicitation of murder trial of white supremacist leader Matthew Hale] ("Juror A")…. The September 11 entry by White was entitled "The Juror Who Convicted Matt Hale." It identified Juror A by name, featured a color photograph of Juror A and stated the following:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number]….

The indictment here … charges White with having the intent for another person to injure Juror A, and soliciting another person to do so. It provides corroborating circumstances of White's intent. As one example of his intent, the government points to the re-posting of the information once action was taken by Juror A's employer to remove his picture from public access. As another, the government argues that White knew the persons solicited were prone to violence….

Although First Amendment speech protections are far-reaching, there are limits. Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside its protection…. In the case of a criminal solicitation, the speech—asking another to commit a crime—is the punishable act. Solicitation is an inchoate crime; the crime is complete once the words are spoken with the requisite intent, and no further actions from either the solicitor or the solicitee are necessary. Also, a specific person-to-person request is not required….

So, whether or not the First Amendment protects White's right to post personal information about Juror A first turns on his intent in posting that information. If White's intent in posting Juror A's personal information was to request that one of his readers harm Juror A, then the crime of solicitation would be complete. No act needed to follow, and no harm needed to befall Juror A. If, on the other hand, White's intent was to make a political point about sexual orientation or to facilitate opportunities for other people to make such views known to Juror A, then he would not be guilty of solicitation because he did not have the requisite intent required for the crime.

For another example, see U.S. v. Rahman (2d Cir. 1999), upholding a solicitation conviction of a jihadist religious leader in part because they went beyond "simply the expression of ideas" and instead constituted "solicitation of attack on the United States military installations, as well as of the murder of Egyptian President Hosni Mubarak … during his visit to the United States." This line, and others like it, may sometimes be difficult to draw, but that's what the law calls for in this area.

To be sure, if the statement was intended just as hyperbole, or just as an attempt to let off steam, then it might not constitute punishable solicitation. Again, recall that there has to be a showing of an intent (in the sense of a deliberate purpose) to bring about some criminal behavior by asking people to engage in it. But if such an intent can be shown, then in America as well as in England, the solicitation of crime would be criminally punishable—though in America (but perhaps not in England) the abstract advocacy of crime, without naming a particular target, generally would not be.

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[Josh Blackman] Mission to Israel Part IX: The Nova Music Festival

[Imagine if 400 people were killed in cold blood at Burning Man.]

[This is the ninth post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, VI, VII, and VIII.]

After our mission left the Nir Oz Kibbutz, we traveled to the site of the Nova Music Festival. Think of burning man (not that I've ever been): a music festival in the middle of the desert. On October 7, this festival was being held close to the Gaza Border. According to some reports Hamas was not even aware this gathering would occur. Rather, the terrorists happened upon the festival. They murdered more than 360 civilians in cold blood, and took about 40 as hostages.

These were the last people in the world who would ever want war, or even think about politics. For lack of better word, they were hippies–committed to peace, love, and happiness. As it was described to me, the music festival raged throughout the night, and around sunrise reached the crescendo. That is when the missile attacks began. And shortly thereafter, terrorists approached the complex and began to murder. People tried to drive or run away, but they were shot and captured on the one road to the festival.

This post, like my others, will have some sensitive content. I encourage you to read on, with care. Moreover, this post does not have any particular structure. Rather, it reflects my observations, as I recall them.

Memorials

The music festival was held in an open field in the middle of the desert. Burning man is the closest analogy I can think of. There were no permanent structures for miles. Other than some portable toilets and bars, the people attending were one with nature and the music.

Today, the field consists of a series of memorials. Everywhere you look is another remembrance of the people who were killed or taken hostage. I was struck by how young and beautiful these people were. They looked so joyful, and had so much life ahead of them. They simply wanted to attend a music festival to enjoy themselves.

Many of the attendees were on various controlled substances, including hallucinogens. I do not mention this fact to cast any aspersions on them. Rather, being under the influence gave them an extra edge that may have helped to save their lives under extremely stressful situations.

Families of the hostages and victims mass-produced stickers to remember their loved ones. You see these stickers plastered on signs and buildings throughout the country. At the music festival, they were everywhere.

There was a large display for this individual. I did not catch his name, but he managed to escape, but went back to rescue others several times. He was killed upon his final return.

I do not think I have any relation to Yakir Blochman, but our names are very similar.

There were row after row of Jewish flags. They reminded me of the Fields of Flanders, which were discussed in the Bladensburg Peace Cross case. But in that case, as Justice Ginsburg's dissent pointed out, there were only a few scattered Stars of David. But here, virtually all of the deceased were Jewish.

Several families put up detailed remembrances that described who their loved ones were.

Shanai Gabay's family published a minute-by-minute account of how she died. With all of the surveillance footage, this sort of play-by-play is possible. I don't know if it is comforting, or traumatizing to have such a intricate roadmap. The poster was titled "Shanai Gabay's Black Saturday."

In her last moments, Shanai was hiding in an ambulance. The terrorists threw a grenade into it, shot at those lying underneath, and fired an RPG missile. Approximately eighteen people were burned alive. I will return to the ambulance below.

 

This collage of all of the murdered people and hostages was very moving.

Testimony of Bar Hinitz

During the visit, we heard testimony from Bar Hinitz. Bar was attending the festival. He stressed how joyful and happy the festival was. Early in the morning, as the sun was rising, the people started to get alerts on their phones of missile attacks. Soon, they started hearing explosions, and they began to scatter. Bar managed to get to his car. He was supposed to turn right on the main road (to go away from Gaza) but he inadvertently turned left (toward Gaza). That decision likely saved his life. Had he turned right, he would have encountered Hamas militants who were shooting at cars and burning them to the ground. Bar described making the wrong turn as his "lottery" ticket. Bar would soon be forced to abandon his car and had to flee on foot. He spent some time in hiding, and thankfully, lived to tell his story.

This was the backpack he carried with him as he fled from the festival. He called it his lucky backpack.

Bomb Shelters

Surrounding the festival were several bomb shelters. Our security team told us that if we heard a missile siren, we had approximately seven seconds to get a shelter. It would be very unlikely to make it to the shelter. We were told to simply drop on the ground.

The Car Cemetery—Tekumah

In the aftermath of October 7, about 1,600 cars were abandoned throughout the region. In some cases, the drivers and passengers were able to escape, and they fled on foot. In other cases, the drivers and passengers were shot in the car. And in other cases, the terrorists set the cars on fire, and burned people alive. There was one ambulance near the music festival where many people were hiding. Hamas incinerated the ambulance. Human remains from eighteen different people were found inside.

In the Jewish tradition, every last particle of human remains is to be buried. And these cars were carefully inspected to ensure that all remains were treated with respect. But what then to do with all of the cars? The vehicles were moved to an area known as Tekumah, basically a huge field a few miles from the Gaza border. From a distance, you might think it was a huge used car lot. But if you look more carefully, the vehicles are riddled with bullets, and in many cases are burned to the frame. There is a wall of burned-out cars, nearly twenty feet tall

These photos and videos depict the horrors of the car cemetery. We received a briefing from CPT. (Res.) Adam Ittah, Spokesman of the Southern District, Home Front Command, Israel Defense Forces. There were also motorcycles and two pickup trucks used by the terrorists. There were machine guns installed on turrets in the bed.

This is the ambulance that Shani Gabay was murdered in.

The bodies were so badly burned that they had to use DNA analysis to identify the remains.

This car is riddled with bullets, the windows were shot out, and the front was smashed.

This was the car of the person who drove back to the festival to rescue others.

 

 

 

 

 

This Dodge pickup was used by the terrorists to murder Israelis. You can see a machine gun turret in the back. I have no idea how a Dodge pickup made its way to Gaza. As a general matter, there were very few American cars in Israel. I saw only a handful of American pickup trucks.

The post Mission to Israel Part IX: The Nova Music Festival appeared first on Reason.com.

[Eugene Volokh] "All the Craziness … Needs to Stop Totally"

The heading of the post comes from a 2019 Wisconsin restraining order case. The judge  there ordered a woman "to cease posting any information about your parents on social media referencing indirectly or directly reference either one of them"—not just defamatory speech, or threatening speech, or otherwise constitutionally protected speech, but any information about the woman's parents. And the court added, "Court informs the respondent that all the craziness described in these petitions needs to stop totally."

That injunction, I think, is unconstitutional; there's no "craziness" exception to the First Amendment. Nonetheless, I think the reasoning described above is at the heart of quite a few decisions.

Thus, for instance, Monday's Ohio Court of Appeals decision in Kennedy v. Kennedy (Judge John Eklund, joined by Judges Eugene Lucci and Matt Lynch) deals with a trial court order that prohibited the parties from

posting on the Internet and all social media platforms, including, but not limited to, Instagram, any messages, photographs, images, and/or content that fall within the following subject matters:

– Photographs of the parties' minor child …;

– Comments about the parties' minor child;

– Alleged conspiracies or abuse involving the parties' minor child and/or those affiliated with the minor child …;

– References to the present litigation and/or prior litigation in Colorado … involving the parties;

– References to other individuals associated with the present litigation and/or prior domestic relations litigation in Colorado ….

[The parties shall] each take the necessary steps within seven (7) days of the filing of this Order to remove any and all previous content … which contain messages, commentary, photographs, images or other content referring to the above-referenced subject matters.

The order had apparently been issued in response to the father's request (though that request may have been limited to information related to the child); it bound both parties, but it seems to me to likely have been targeted at the mother. In any case, though, it strikes me as unconstitutionally overbroad: Even if there's some compelling interest in keeping references to the minor out of the public eye (and I'm skeptical about that), the last two items strike me as very hard to defend.

The appellate court didn't disturb the underlying order, because the mother, who was representing herself, didn't challenge it on appeal. And the mother committed various procedural errors that led to the rejection of the arguments she did make.

But some of the appellate court's description of the mother's behavior strikes me as pretty telling as well:

The [trial] court noted that both [mother] and [father] had a history of mental health issues. The court appointed Dr. Kopit to assist in determining the child's best interests. Dr. Kopit reported that [mother] exhibited signs of delusional thinking. For example, [mother] claimed that the minor child's biological father was a member of the heavy metal band, Avenged Sevenfold. She denied that [father] was the child's biological father, despite two conclusive tests proving that he was. Further, [mother] had made unfounded allegations that Dr. Kopit had sexually assaulted her during interview sessions. The court also said that [mother]'s testimony was "erratic, puzzling, and at times illogical. Mother rambled incessantly and on numerous occasions lacked focus." …

The magistrate's decision described [mother]'s post [that was found to violate the order], which contained a link to a Google Document, saying it

alleged conspiracies involving [father's] family (sister and parents), the Royal Family (King Charles, Duke of Windsor, Prince William and his Wife, and their children, [father's] family (her father, …), and several other individuals. This Google Document also made numerous references to the rape of both [[mother]] and the parties' minor child … by or at the behest of [[father]], other family members or other third parties.

… [E]ach of [mother]'s assignments of error [on appeal] are disjointed, difficult to follow, and express conspiratorial, rather than legal or factual, arguments. [mother] has signed her brief as an "INTERNATIONAL SUPERAGENT" and has identified herself as an Interpol officer. Her assignments of error argue the case against her is an "illegal Sorensen dynamic" amounting to torture in violation of 18 U.S.C. § 2340-2340A. She claims that the trial court's restraining order undermines [mother]'s role in international security and have "objectively undermined the stability of the global, sociopolitical landscape, for the sake of the aggrandizement of allegedly malfeasant actors."

Hard to win a case under circumstances such as this, whatever arguments there may be about the First Amendment in the abstract.

The post "All the Craziness … Needs to Stop Totally" appeared first on Reason.com.

[Eugene Volokh] Wearing a "Military-Style" Tactical Vest to School Isn't a Crime

[The Eighth Circuit held that plaintiffs had adequately alleged that school resource officers lacked probable cause to arrest them; note that nothing in the court's decision casts doubt on the school's ability to investigate or even briefly detain the students short of arrest.]

From Evans v. Cabot School Dist., decided Thursday by Eighth Circuit Judge Michael Melloy, joined by Judges James Loken and Jonathan Kobes:

Two high school brothers were arrested for disorderly conduct after wearing {military-style} tactical vests to school. {Kameron's vest had a "U.S. Army" patch on it. The parties agree that the vests were not real tactical or military vests, nor were they bulletproof. Kameron's vest was mostly obscured under a large winter coat he was wearing. Noah did not have his coat on over his vest. Kameron also carried a green duffle bag that he used to carry his ROTC equipment. The Officers describe the bag as a "military-style duffle bag," but the Evanses dispute that the duffle bag was military-style. Kameron alleges that he regularly used the bag to carry his marching band and ROTC equipment, in addition to his Airsoft war game equipment.}

The brothers were acquitted, and sued the school resource officers; the court held that the officers weren't entitled to qualified immunity on the brothers' claim that they were arrested without probable cause in violation of the Fourth Amendment:

"Probable cause exists when the totality of circumstances at the time of arrest would lead a reasonable person to think the defendant committed or is committing a crime." … The Officers begin by arguing they had "probable cause to arrest Kameron and Noah for disorderly conduct based on what they wore to school on that particular day." The Arkansas disorderly conduct statute states in part:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:

(1) Engages in fighting or in violent, threatening, or tumultuous behavior; …

(4) Disrupts or disturbs any lawful assembly or meeting of persons[.]

The Officers argue that the Evanses purposely or, at the very least, recklessly caused alarm by wearing tactical vests on a day when the school was screening an active-shooter video. The Officers do not expressly identify which of the enumerated disorderly acts the Evanses allegedly engaged in, though they seem to contend that the brothers' conduct disrupted a lawful assembly. For their part, the Evanses deny that they even knew about the active-shooter video.

Regardless of whether the Evanses purposely or recklessly wore their vests to school, there was no disruption of a lawful assembly. The Officers present no evidence that the Evanses were disruptive. The Officers were only aware of Noah's vest because Ms. Evans informed them, and Kameron's teacher would not have known about the vest under his coat absent two students quietly bringing it to her attention after class.

Officers argue that because two students reported Kameron's vest, the Evanses disrupted a lawful assembly. But students tell on other students all the time. Moreover, Ms. McGhee testified that Kameron's vest did not cause disruption in her class or during passing periods. The Officers also stated that the Evanses were respectful during their search and interrogation. In fact, Officer Dodd considered sending Kameron back to class with his vest.

Cases interpreting Arkansas' disorderly conduct statute further support the conclusion that the Officers were not objectively reasonable in arresting the Evanses for disrupting a lawful assembly. For example, in Holloway v. State, a man was convicted of disrupting a lawful assembly after attending a basketball game between two rival high school teams where the man threw soda, hamburgers, and French fries onto the floor of the gymnasium and swore and yelled at a game official. Although there was no evidence that spectators left on account of his behavior, the Arkansas Court of Appeals nonetheless held that the defendant had disrupted a lawful assembly because "the game had to be stopped to clean up the spilled soft-drink." Likewise, the Arkansas Supreme Court opined in dicta that a loud confrontation between defendants and a pastor in the middle of church services disrupted a lawful assembly, citing as authority disorderly conduct cases that predated Arkansas Code § 5-71-207. In both cases, the defendants' conduct interrupted an organized group gathering. No similar circumstances are present here. Accordingly, based on the totality of the circumstances and the facts viewed in the light most favorable to the Evanses, we cannot say as a matter of law that the Officers had probable cause to arrest both Kameron and Noah for disrupting a lawful assembly….

The Officers argue they had arguable probable cause to believe the Evanses wore tactical vests to school "with the purpose to communicate a threat at school in a way that would cause alarm and/or disrupt a lawful assembly," in violation of sections 5-71-207(a)(1) and (a)(4). Officers argue that the Evanses' attire alone disrupted a lawful assembly and support their contention by citing McIntosh, where we found the defendant's attire contributed to a disorderly conduct violation. But there, we found that the officers' decision to arrest the plaintiff rested on more than just the defendant's "outlandish and comical dress." Indeed, in McIntosh, the defendant had attempted to interrupt a private fundraising banquet attended by then–Vice President George H.W. Bush.

We determined that the officers had probable cause to believe that the defendant was about to engage in disorderly conduct because he openly "intended to disrupt the banquet, refused to heed the officers' warning, and was attracting attention and creating a disturbance by his dress, his agitation, and his raised voice." Similar facts are absent here. The Evanses did not disrupt class, and they did not disrupt passing period. They politely and respectfully followed the Officers' instructions. They did not raise their voices and did not create a disturbance through their dress. Moreover, their dress did not violate the Cabot High School dress code, and the school had previously allowed other students to wear tactical vests.

The Officers also allege they had arguable probable cause to believe the Evanses engaged in threatening behavior. Although the Officers do not expressly allege what threatening behavior the Evanses engaged in, we can presume that the threatening behavior was wearing a tactical-style vest on a day that Cabot High School was screening a school shooter training video. Cases show that threatening physical behavior constitutes disorderly conduct. For example, one court found that a patient who "engage[d] in the conduct of hitting the nurse and threatening her and the doctor's lives to create public inconvenience, annoyance or alarm" violated the Arkansas disorderly conduct statute. Likewise, another court concluded that "erratic behavior, cursing, flailing … arms, and [a violent] demeanor" may amount to threatening behavior.

By contrast, another court denied qualified immunity on a motion for summary judgment where an officer arrested a Walmart customer he believed was engaging in, or about to engage in, threatening disorderly conduct. The officer claimed that he believed the customer "was becoming unruly in violation of Arkansas's disorderly conduct statute, including raising his voice to a level where he attracted people's attention, stiffening his posture, and bowing up like he might be confrontational." The customer, on the other hand, argued that, even though he refused to provide the officer with identification, he was responsive to the officer's questioning, "stayed relatively still[,] and wasn't loud or obnoxious." Based on the parties' conflicting accounts, the district court concluded that a jury needed to decide whether the customer "was becoming disorderly."  …

[T]he Evanses were cooperative, quiet, and polite. The only evidence the Officers present as threatening are the vests that the brothers wore. Furthermore, the Officers' own actions undermine their argument that the Evanses engaged in threatening behavior. After searching Kameron, the Officers permitted him to walk unrestrained on their way to Principal Hawkins' office and likewise sit outside of Principal Hawkins' office while they met inside. The Officers even considered allowing Kameron to continue wearing or carrying his vest and duffle bag throughout the remainder of the day. For Noah, there is even less support he engaged in threatening behavior. In fact, the Officers present no evidence that Noah acted threatening in any way.

Finally, the Officers do not argue they made a contemporaneous determination that probable cause was established at the time of the arrests. By their own testimony, they made the arrest at the direction of Principal Hawkins. Taking the evidence in the light most favorable to the Evanses, Principal Hawkins' concern was not about disruption caused by wearing the vests, but rather Kameron's support of Colin Kaepernick and the Black Lives Matter movement.

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.

Cabot High School, where the Officers work, is a place that had previously tolerated students wearing military gear, without discipline. After searches of the Evanses revealed they were not armed or in any way threatening, the Officers nonetheless decided to arrest both brothers at the direction of the school principal. These facts, viewed in the light most favorable to the Evanses, do not support a finding of arguable probable cause. Accordingly, because the district court did not err in denying the Officers' motion for summary judgment and qualified immunity on the Evanses' unlawful arrest claim, we affirm.

Judge Kobes concurred as to a separate question that wasn't discussed in the excerpt above.

Paul J. James, John Clayburn Fendley, and Theresa L. Caldwell represented the Evanses.

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[Eugene Volokh] Ding-Dong-Ditch-Get-Attacked-By-Sheriff-at-Gunpoint

From Monday's decision by Judge Amanda Brailsford (D. Idaho) in Cox v. Bingham County Sheriff's Office:

On November 9, 2021, Plaintiffs Chelsea Cox and six minors were leaving "personal written notes that were folded into paper turkeys" "at the front doors of community members" in "expressions of gratitude for the Thanksgiving season." After placing a note at a front door, the minors "pressed the doorbell [and] then ran off to maintain anonymity."

When they went to Defendant Bingham County Sheriff Craig Rowland's home, he "responded to his doorbell ring by having his wife hand him his service-issued sidearm"; "exited the house brandishing his firearm"; "reached into the car and Yanked (sic) Ms. Cox from the car by pulling her hair"; "pointed his gun at [her] head"; and threatened to kill her. Sheriff Rowland was later criminally charged and pled guilty to one count of aggravated assault in August 2022.

The opinion concluded that the lawsuit could only go forward against Rowland personally, not against the Sheriff's Office as his employer:

The only basis Plaintiffs conceivably offer to assert liability against the Sheriff's Office is that it employed Rowland as the Sheriff at the time of the incident. The law is well established, however, that a local government entity is not liable for an individual's conduct simply because it employed a person whom Plaintiffs alleged violated their constitutional rights. Monell v. Dep't of Soc. Servs. of City of New York (1978). "Instead, plaintiffs must establish that 'the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered.'" …

Right or wrong, that legal principle is nothing new; but the fact pattern seemed odd enough that I thought it worth blogging about.

Rowland was sentenced to 10 days in jail for the assault, plus three years' probation.

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