Eugene Volokh's Blog, page 283

[Eugene Volokh] "The Amended Complaint Alleges a Sprawling Tapestry of Ethical Lapses by Major Players in the Nation's Bankruptcy System"

From Van Deelen v. Jones, decided Friday by Chief Judge Alia Moses (S.D. Tex.) (for more on the underlying scandal, see here):

The Amended Complaint alleges a sprawling tapestry of ethical lapses by major players in the nation's bankruptcy system. The Defendants insist that these accusations, however salacious, create no viable cause of action for the Plaintiff to pursue. Upon reviewing the applicable law and the Plaintiff's allegations, the Court agrees and dismisses the Plaintiff's claims—though it does so with some consternation….

The Plaintiff alleges that the Defendants—a former Chief United States Bankruptcy Judge, his romantic partner, and two firms with nationally renowned bankruptcy practices—rigged the nation's busiest bankruptcy court for profit and prestige. This scheme propelled the Defendants to national prominence and yielded tens of millions of dollars in attorneys' fees, all drawn from bankruptcy estates at the expense of creditors. The Defendants advanced this scheme, the Plaintiff claims, through a pattern of deception that included the concealment of a romantic relationship between then-Chief Judge David R. Jones ("Jones") and Elizabeth Freeman ("Freeman"), a partner at Jackson Walker, LLP ("Jackson Walker") and Jones's former law clerk.

This relationship, while unknown to the public, was an open secret among the close inner circle of lawyers whom Jones appointed to dozens of the most lucrative bankruptcy cases in the country. According to the Plaintiff, the Defendants' scheme diminished the financial recovery of parties, like him, with a pecuniary interest in the cases Jones oversaw. The Plaintiff ultimately seeks relief from what he calls "perhaps the most significant bankruptcy scandal in U.S. history." …

Today, Houston looms large in the nation's bankruptcy system, but this was not always so. According to the Plaintiff, Jones transformed Houston, almost single-handedly, from a "bankruptcy backwater" into the chapter 11 filing capital of the nation. Upon becoming Chief Judge of the United States Bankruptcy Court for the Southern District of Texas in 2015, Jones set out to make Houston an attractive venue for large corporate chapter 11 filings. He established a "complex advisory" committee that featured the head of Kirkland's bankruptcy practice, among other prominent bankruptcy lawyers in Jones's inner circle. Jones also directed all complex chapter 11 bankruptcies filed in any division in the district to himself and the Honorable Marvin Isgur, United States Bankruptcy Judge, who also sits in Houston. Consequently, parties filing chapter 11 cases in the Southern District would reliably face one of two judges—Chief Judge Jones or Judge Isgur—in a district that was now custom built for goliath chapter 11 filings.

Predictably, bankruptcy lawyers flocked to Houston. The city soon became "the single most popular destination for large, public company bankruptcy filings," far surpassing New York and Delaware. By 2023, Jones and Judge Isgur oversaw nearly half of all large chapter 11 cases nationally. …

While Jones was transforming his docket into the top venue for major chapter 11 filings, he and his then-law clerk, Elizabeth Freeman, maintained an intimate relationship. Although it is unclear when the relationship began, Jones's and Freeman's lives were meaningfully intertwined as early as 2016, when Jones purchased a home in Coldspring, Texas, in which Freeman had lived since 2007. A year later, Jones and Freeman were living together in a co-owned home in Houston. And in 2020, Freeman's parents moved into Jones's Coldspring home—which Jones still owns. Jones has since admitted to maintaining a romantic and personal relationship with Freeman….

Freeman left Jones's chambers in 2018 and joined Jackson Walker, where she became a bankruptcy partner. Upon her arrival, the firm immediately began securing lucrative appointments as local counsel in large Houston bankruptcies. Jackson Walker soon became the go-to local counsel firm for corporate debtors filing for bankruptcy in Houston. By 2022, Jackson Walker was the top firm in the country for local counsel appointments in large bankruptcies.

Jackson Walker was not the only firm whose bankruptcy practice burgeoned after Freeman entered private practice. Kirkland's bankruptcy practice also began rapidly expanding in 2018. According to the Plaintiff, these two firms formed a relationship that "went beyond a traditional referral arrangement," in which Kirkland would serve as lead counsel on dozens of complex bankruptcies, with Jackson Walker hired as local counsel. The Plaintiff claims that Kirkland used Jackson Walker as "a back channel to Houston's two judges," as the firm included former law clerks to both Judge Isgur and Jones. By 2023, Kirkland was the nation's top firm representing debtors in large chapter 11 cases "by a significant margin." …

Despite his ongoing romantic relationship with Freeman, Jones presided over many cases in which Freeman, Jackson Walker, and Kirkland appeared as counsel. These cases were goldmines for the firms. Jones awarded over $12 million in attorneys' fees and expenses to Jackson Walker across at least 26 cases, including several matters in which Freeman was substantially involved. Kirkland's attorneys' fees in these matters totaled $162 million. These cases included the chapter 11 bankruptcies of Seadrill Partners, LLC and GWG Holdings. Yet in none of the cases did anyone disclose the obvious conflict. In fact, both Jackson Walker and Kirkland filed declarations of disinterestedness, which included verified statements of the attorneys' potential conflicts on each case but did not mention the Jones-Freeman relationship.

The case most pertinent to this suit is the chapter 11 bankruptcy of McDermott International, Inc. ("McDermott"), a company in which the Plaintiff once held 30,000 shares. In February 2020, Jackson Walker partner Matthew Cavenaugh ("Cavanaugh") filed an application for the firm to be appointed as Kirkland's conflicts counsel and co-counsel. As in previous cases, Jackson Walker's application included a declaration of disinterestedness that did not mention the Jones-Freeman relationship. Jones approved the request. Although Jones's appointment order did not mention his ongoing relationship with Freeman, he ordered Jackson Walker to "review its files periodically during the pendency of these chapter 11 cases to ensure that no conflicts or other disqualifying circumstances exist or arise." Jones further advised the firm that "[i]f any new relevant facts or relationships are discovered or arise, Jackson Walker LLP will use reasonable efforts to identify such further developments and will promptly file a supplemental declaration, as required by Bankruptcy Rule 2014(a)." In March 2020, Jones appointed Kirkland as lead counsel for the debtors in possession.

The case proceeded, and the parties submitted a proposed reorganization plan (the "Plan"), which set forth the terms of McDermott's reorganization. The Plan, among other things, cancelled "all equity interests of McDermott International Inc," including the Plaintiff's 30,000 shares in the company. The Plaintiff opposed this Plan and litigated his objections before Jones. After several heated exchanges with the Plaintiff, Jones forbade him from entering his courthouse unless escorted by a court security officer. Jones also notified the United States Marshal and United States Attorney about the Plaintiff's unruly behavior in court.

Over the Plaintiff's objections, Jones entered orders confirming the Plan on March 12 and 14, 2020. Five months later, on August 14, 2020, Cavenaugh filed an application for $21,154.16 in expenses and $391,655 in attorneys' fees. Freeman's work accounted for nearly a third of those fees. Over a two-month period, Freeman billed 147 hours, including 2.7 hours for appearing at a telephonic hearing before Jones. Cavenaugh also filed a fee application on Kirkland's behalf. In it, Kirkland sought $8.2 million in attorneys' fees and $142,428.01 in expenses. Jones adopted the firms' proposed fee award orders verbatim. Throughout the fee application process, neither Jones, nor Freeman, nor anyone at the law firms, disclosed the Jones-Freeman relationship….

While the McDermott bankruptcy was ongoing, the Plaintiff sued several McDermott officers in state court for conspiracy, fraud, breach of fiduciary duty, and other state law claims. But despite filing his case in state court, the Plaintiff soon faced a familiar cast of characters. The McDermott officers, represented, inevitably, by Jackson Walker and Kirkland, removed the case to bankruptcy court, where it was assigned, of course, to Chief Judge Jones. Still unaware of the Jones-Freeman relationship, the Plaintiff moved to recuse Jones based on the latter's "animosity" toward the Plaintiff in the McDermott bankruptcy proceedings. The motion languished on Jones's docket for seven months.

While waiting for Jones to rule on the recusal motion, the Plaintiff received an anonymous letter. The letter accused Jones of corruption and of maintaining an intimate relationship with Freeman. The Plaintiff emailed Cavenaugh on March 6, 2021, with this new information. He also filed this letter on March 8, 2021, as an addendum to his recusal motion. The next day, Jones referred the motion to Judge Isgur, who, after a hearing, denied the recusal motion in a one-sentence order. Judge Isgur also ordered the clerk's office to seal the anonymous letter. Jones then promptly dismissed the Plaintiff's adversary proceeding. The Plaintiff appealed the dismissal to the district court, where the dismissal and denial of the motion to recuse were affirmed.

In none of these proceedings did Jones, Freeman, Jackson Walker, or Kirkland disclose that Jones was maintaining an intimate relationship with Freeman. In fact, the relationship remained hidden from the public until the Plaintiff filed this lawsuit. Only then did Jones admit that he and Freeman shared a home and were romantically involved….

There's a lot more in the factual recitation, and in the legal analysis. Ultimately, for complicated reasons, the judge concludes that plaintiff cannot prevail in this case. But she adds:

The Court takes no pleasure in this result. The Plaintiff's allegations, if true, cast doubt on the integrity of numerous high-profile bankruptcy cases. Litigants should not have to wonder whether the judge overseeing their case stands to gain from ruling against them; but in Jones's courtroom, they did. Dismissing the Plaintiff's allegations at this early stage deprives him of discovery tools to further investigate his claims and potentially try this case to a jury of his peers. Of course, the Plaintiff is not alone in investigating these allegations—the U.S. Trustee has been seeking to claw back attorneys' fees paid to Jackson Walker and, by all indications, has been vigorously investigating the Jones-Freeman relationship. And thus, this saga continues. But the damage has been done. Public confidence in our courts is difficult to rebuild. No one litigant—no matter how zealous or well-represented—can lift the specter of impropriety these allegations have cast over the courthouse in which, until recently, half of all large bankruptcy cases were decided. This could have, and should have, been avoided.

She also writes:

None of the foregoing discussion redeems Jones's misconduct. By statute, a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The Jones-Freeman relationship presented a glaring appearance of impropriety. Even if Jones felt that his relationship with Freeman would not actually affect his judgment, courts evaluate § 455(a) "on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance." Jones also violated § 455(b), which requires disqualification when a judge's "spouse, or a person within the third degree of relationship to either of them … is acting as a lawyer in the proceeding." Subsection (b) also requires disqualification where the judge "knows that he … or his spouse … has a financial interest in the subject matter in controversy." Although Jones and Freeman are unmarried, courts interpret § 455(b) to require disqualification whenever a conflict presents "the functional equivalent of a relationship that creates the objective appearance of a § 455(b) violation." The disqualifying conflicts outlined in § 455(b) are non-waivable.

When a law firm partner is related to the judge within the third degree and is counsel in a case, the Fifth Circuit has found that he "automatically has an interest that could be substantially affected by the outcome of the proceedings." Here, the Plaintiff alleges an even clearer conflict: an attorney who is romantically involved with the judge and living with him in a co-owned house. Any litigant or member of the public might reasonably question whether the fees Jones awarded to Jackson Walker may have been paying the judge's mortgage and utility bills.

Likewise, as Chief Judge Richman explained, Jones ran roughshod over several canons of the Code of Conduct for United States Judges. (ECF No. 10-1); e.g., Code of Conduct for U.S. Judges, Canon 2 (2019) ("A judge should avoid impropriety and the appearance of impropriety in all activities."); id. at 2B ("A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment."); id. at 3C(l)(c) (requiring disqualification when a judge's spouse, or anyone "with whom the judge maintains both a household and an intimate relationship" has a financial interest in the case).

Whether through hubris, greed, or profound dereliction of duty, Jones flouted these statutory and ethical requirements by presiding over dozens of cases from which he was obviously disqualified. The legal deficiency of the Plaintiff's claims does not erase these failures….

Kirkland has filed a Motion for Sanctions against the Plaintiff and his attorneys. It argues that the Amended Complaint is "legally and factually frivolous." Kirkland thus seeks an award of attorneys' fees and costs it spent defending against the Amended Complaint, including fees and costs associated with its Motion for Sanctions and Motion to Dismiss. Further, Kirkland asks that the Court order the Plaintiff to "pay a 'penalty into the court' in an amount the Court deems appropriate." As outlined below, the Court finds that sanctions are not appropriate at this juncture and denies Kirkland's request….

According to Kirkland, "[b]oth Plaintiff and his counsel have astounding track-records of filing meritless cases." The Plaintiff has filed myriad federal cases as a pro se litigant. Kirkland also highlights several statements the Plaintiff allegedly made in bankruptcy court as evidence of his history of misbehavior. The bankruptcy court record indicates that the Plaintiff "called the Court a 'son of a bitch'" and made other "vulgar remarks" toward a partner at Kirkland. The Plaintiff denies making these statements.

Kirkland argues that the lawyers whom the Plaintiff hired to represent him in this suit have an equally sordid history of unethical litigation tactics. Indeed, the Bandas Law Firm is no stranger to Rule 11. The firm has been "widely criticized by … courts around the country" for its "excessive and irrelevant pleadings and documents to slow down the litigation process." …

Just because the Plaintiff and his lawyers have previously violated Rule 11 does not mean they have done so here. Assuming the truth of the Plaintiff's allegations, he was a victim of a conspiracy that deprived him of fair access to the federal courts and extinguished a valuable interest in McDermott. Although the Plaintiff fails to state a valid cause of action, his allegations, if true, show that he suffered injustice in Jones's courtroom. The Court will not punish the Plaintiff for seeking to redress his grievances in a forum in which, for once, the deck is not stacked against him.

True, the Plaintiff has a history of filing meritless claims about supposed public corruption. But this time, he was right. Time and time again, the most powerful players in the bankruptcy system dismissed him as another crazed, vexatious litigant. And now, in one final twist of the knife, Kirkland seeks to punish the Plaintiff for having the audacity to sue it. The Court will not oblige. After all, it was the Plaintiff's audacity that brought this scandal to light. Had the anonymous letter arrived in anyone else's mailbox, perhaps Jones would still be on the bench, awarding millions of dollars to Kirkland and Jackson Walker.

The Court is less sympathetic towards the Plaintiff's counsel, Robert Clore and Mikell West of the Bandas Law Firm. These attorneys have considerable experience litigating complex federal cases. They, of all people, should know the limits of Article III standing. Yet across hundreds of pages of briefing, they advance a theory of the Plaintiff's injury that contradicts binding precedent and leaves this Court without jurisdiction over almost all of the Plaintiff's claims. Still, this case presents some novel issues in an unusual factual context. Courts sometimes give special consideration to allegations of misconduct that target the federal judiciary. As the Second Circuit concluded in Alix:

[T]his case requires us to focus on the responsibilities that Article III courts must shoulder to ensure the integrity of the Bankruptcy Court and its processes. Litigants in all of our courts are entitled to expect that the rules will be followed, the required disclosures will be made, and that the court's decisions will be based on a record that contains all the information applicable law and regulations require. The fact that this case invokes our supervisory responsibilities makes our resolution of it sui generis and of little, if any, application to "ordinary" RICO cases where these responsibilities are not front and center.

It is not unreasonable, then, for Mr. Clore and Mr. West to believe a court might give "special consideration[ ]" to allegations of corruption within the nation's most important bankruptcy court.

The Court is satisfied that the Plaintiff's lawyers have not litigated this case in bad faith, and thus, the Court declines to impose sanctions at this juncture. The claims advanced in the Amended Complaint are legally insufficient but not altogether frivolous. Still, the Court admonishes Mr. Clore and Mr. West to diligently review the facts and the relevant law in all future filings….

The post "The Amended Complaint Alleges a Sprawling Tapestry of Ethical Lapses by Major Players in the Nation's Bankruptcy System" appeared first on Reason.com.

[Eugene Volokh] "There Is No Basis for Preventing the Public from Learning That Natale Seeks Recourse for the Defendants' Alleged Misconduct"

[A reminder to libel plaintiffs (and other plaintiffs).]

From Monday's opinion by Judge Denise Casper in Natale v. Barstool Sports, Inc. (D. Mass.):

Pro se litigant Diana Natale has filed a civil complaint, in which she alleges that the defendants published defamatory false statements against her, invaded her privacy, and shared her personal information in a podcast [apparently Barstool's The Case] without her consent….

Natale has filed several ex parte motions to impound [i.e., seal]…. Natale asks that "names of the parties, the docket, and all documents filed herein to date" be impounded. She also asserts that, "because of the nature of [her] complaint and the parties involved," if the motions are denied, "this will be all over the internet at first light possibly compromising the case."

The Court DENIES these motions to impound. There is a long-standing common law presumption of public access to judicial records. "[P]ublic monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system." Although "it is within a court's discretion to curtail the common law presumption of public access, '[o]nly the most compelling reasons can justify non-disclosure of judicial records.'"

Here, Natale has not set forth an adequate basis for the Court to order the impoundment of the "names of the parties, the docket, and all documents filed" in this case. The thrust of Natale's claim is that the defendants have recently widely broadcasted false statements that, thirty years ago Natale and her then-minor children engaged in criminal or otherwise reprehensible misconduct. There is no "compelling reason" to curtail access to alleged misinformation that, even as alleged by Natale, is already largely available to the public. In addition, there is no basis for preventing the public from learning that Natale seeks recourse for the defendants' alleged misconduct….

The court also dismissed the case because of lack of federal jurisdiction over this sort of tort law claim (absent sufficient allegations, which Natale didn't provide, of total diversity of citizenship among the parties).

The post "There Is No Basis for Preventing the Public from Learning That Natale Seeks Recourse for the Defendants' Alleged Misconduct" appeared first on Reason.com.

[Josh Blackman] Mission to Israel Part VIII: The Nir Oz Kibbutz

[Hostages from this kibbutz were held only a few kilometers away.]

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

The concept of an Israeli Kibbutz is likely foreign to most readers. Historically at least, these collective farms were operated according to the principles of socialism. Everyone worked according to their abilities on the farm. And everyone received food and shelter according to their needs. Now is neither the time nor the place to discuss the economic viability of these models. Needless to say, Kibbutzim (the plural of Kibbutz) became an important aspect of the Israeli pioneer culture before and after independence.

During our mission to Israel, we visited Kibbutz Nir Oz in the south of Israel about one mile from the Gaza Border. On October 7, about 25% of the four-hundred residents of Nir Oz were either killed or abducted. The Kibbutz is currently unoccupied. It looked like a ghost town. Everywhere you looked, there were burned-out buildings, shattered glass, and bullet holes. I visited the kibbutz shortly after I visited Yad Vashem, the Holocaust museum. The horrific sights made me think of the Holocaust, but it was still fresh and raw.

Our guide that day was Sharon Lifschitz. She grew up on that Kibbutz with her parents, Oded and Yocheved. On October 7, her eighty-five year old father and eighty-three year old mother were taken hostage and brought to Gaza. Her mother, Yocheved, was freed in late October, but her father is still held in captivity.

Sharon and Oded Lifschitz

As readers may infer, people who lived on Kibutzim were not right-wingers. They were very much left-wing, and had great sympathy for the situation of the Palestinians. Indeed, Oded Lifschitz spoke fluent Arabic. He had many friends in Gaza. He was a peace activist who opposed the settlements. He would regularly drive to the Gaza border in a Kibbutz vehicle (no kibbutz member owned a car) and would take sick Palestinians to a hospital in Jerusalem. The Kibbutz employed workers from Gaza, and ensured they would be paid wages. These were the last people in the world who deserved to be murdered, raped, kidnapped, and held hostage. Indeed, there is some evidence that the workers on the kibbutz provided Hamas with intelligence of where to attack and what the vulnerable locations would be. Still, Sharon did not blame the workers. She said they likely faced threats to their own families and did what they had to do. These people are far more magnanimous than I could have imagined.

I asked Sharon where she finds the strength to go on, knowing that her father is held only a few kilometers away. She said that people must go on. There is trauma, but no time to mourn. Unlike September 11, 2001, where the tragedy ended fairly quickly, this pain is ongoing. Sharon hoped her father was able to get along well with his captors, and he was being treated humanely. But there is no way to know for sure. The uncertainty is the pain. Sharon repeated over and over again that there is no reason to hold an eighty-five year old hostage. He should be released on humanitarian grounds. But these savages are not humanitarians.

This post will walk through the trip to the Kibbutz, largely chronologically. I was able to document this trip with photographs. The descriptions are as accurate as I can recall.

The Entry

It is difficult to visualize how close Kibbutz Nir Oz is to the Gaza Strip. As we drove south from Jerusalem, I kept checking Google Maps to see where we were. And we kept getting closer and closer to the Gaza Strip. I was a few kilometers from one of the most dangerous places on earth. Ironically enough, the South of Israel is generally safer than the North, since it is out of range of missiles from Lebanon or Syria.

We pulled up to the gate of the Kibbutz. I am not certain if this gate was installed in the wake of October 7, but it looked heavily fortified. I saw surveillance footage from another kibbutz's gate. On October 7, a terrorist hid in the bushes as a resident used his ID to open the gate. Once the gate was open, the terrorists shot the driver and drove into the kibbutz. Carnage was unleashed.

The first stop on our tour was the community center. Sharon pointed to the photographs of the people who were held hostage and abducted. She explained that several of the people taken from the community where Thai workers. This was not about Jews, she told us.

The Dining Hall Door

The terrorists arrived at the dining hall fairly early in the morning. At the time, no one was inside. Yet they fired several bullets through the glass window. You could actually trace the path of the shattered glass from one window to another. As you walked into the digning hall, there was still broken glass all over the floor. It was never cleaned up. This crime scene has remained in the same eerie state for nearly a year.

Mailbox

The community center also had the mailboxes for the residents. Many of them still had unopened envelopes that likely will never be retrieved.

 

On a bulletin board was a flyer for a protest the evening of October 7 in Be'er Sheva. The sign roughly translates to there will be a demonstration without a march. I couldn't quite tell if this was a poster opposing the Judicial Reforms, or if it was opposing the Settlements. Either way, to reiterate a point above, these were people who were opposed to the current government, and went to great lengths to promote peace.

The Dining Room

The dining room had the stench of death. The refrigerators were used to store dead bodies until they could be buried. The tables were still set for breakfast that day. It was exactly in the same state as it was on October 7.

Two baby seats were placed to remember the Kfir and Ariel Bibas, who were taken hostage when they were nine months and four years, respectively.

The smell of burning reminded me of September 11. Even in Staten Island, on September 12, I could smell the burning of metal from across the river.

Destruction

The Hamas terrorists did not simply murder people. They burned homes to the ground. They brought accelerant with them to inflict the most pain and suffering in as little time as possible.

These houses were burned to the frames. Electronic devices melted. The smell of death will never leave me.

I found this stray cat walking around. There were at least some signs of life in this graveyard.

Kid's Room

October 7 was a Saturday and the holiday of Simchat Torah. The terrorists at Kibbutz Nir Oz first went to the children's school. There, they murdered the teacher who was preparing for the children to return. Fortunately, the children were not at the school at the time.

But children were murdered throughout the kibbutz.

I found one home with a kid's room. On the wall was a chart used to measure how tall the kid grew. I have something very similar in my home. No future markings will be made on this graph.

There were bunk beds that were not made. It looked like a kid had just jumped out of it. There were books hidden under the blankets. There were board games, including Monopoly in Hebrew. There were toys. There was everything that would make a young kid happy in that room. But now it is only a place of mourning.

Outside one house was a pink bicycle. It will never be used again.

The Lifshitz Home

Sharon showed us her parents' home. She recognized that her father was only a few kilometers away. Sharon described the tragedy that befell another parent–an actual Sophie's Choice. The mother and her children were being taken hostage. In a split second, she had a choice of whether she could save her daughters or save her sons. She chose her daughters. I can't even fathom what that mother has to live with.

This is a poster for Oded Lifshitz outside his burned-down home.

Some of the elderly in the kibbutz were completely disabled, and could not walk. They burned alive in their beds.

This is a video from inside the Lifshitz home.

Gaza

On the kibbutz, there was an elevated lookout platform. In the distance, we could see Gaza. Seeing this sight brought such a range of emotions. Unlike the barbarous savages on October 7 who gleefully murdered, tortured, and raped innocent civilians, we did not take any joy in the loss of Palestinian life. But we also recognized what October 7 means, and why the government was taking the actions it was taking. And, at the same time, we knew that Oded Lifshitz, the Bibas Brothers, and so many others were held hostage a stone's throw away. The situation is so complex. I don't think any media account or student encampment can even come close to describing the situation there.

Even a month after the trip, I still have very mixed emotions. I was able to fly home, and take some time to reflect. The people of Israel live through this trauma every day of their lives.

The post Mission to Israel Part VIII: The Nir Oz Kibbutz appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 21, 1798

8/21/1798: Justice James Wilson dies.

Justice James Wilson

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[Eugene Volokh] Interesting Stay Dispute in Seventh Circuit Minors'-Access-to-Porn Case

From Free Speech Coalition, Inc. v. Rokita, decided Friday by Judges Frank Easterbrook and Amy St. Eve:

Indiana seeks a stay of the preliminary injunction that a district court entered preventing the enforcement of Ind. Code § 24-4-23, which requires web sites to limit minors' access to certain sexual materials.

Indiana's statute is functionally identical to one adopted by Texas. That statute has been held to be valid [by the Fifth Circuit, though the Supreme Court has agreed to hear the case]. Free Speech Coalition, Inc., which is a plaintiff in both the Indiana case and the Texas case, asked the Supreme Court to prevent enforcement of the Texas statute while that litigation continued. That application was denied, so the Texas statute is now in force.

We do not see any adequate reason why Texas's law may be enforced pending the [Supreme Court's] decision on the merits in Free Speech Coalition v. Paxton, while Indiana's may not be enforced. Functionally identical statutes should be treated the same while the Supreme Court considers the matter. Accordingly, Indiana's request for a stay is granted. The stay will remain in effect until the Supreme Court has issued its mandate in Free Speech Coalition v. Paxton.

Briefing in this appeal will be deferred until the Supreme Court has decided Free Speech Coalition v. Paxton.…

But Judge Ilana Rovner concurred in part (as to deferring briefing) and dissented in part (as to the stay of the trial court injunction):

I can certainly see the value in terms of judicial efficiency and deference in the approach taken by the majority here, and it has an intuitive appeal. Because of the opposite procedural postures of the two cases, however, granting the stay here upends the status quo and imposes a burden on the plaintiffs that cannot be justified by the Supreme Court's summary denial of the stay here.

The Fifth Circuit in Paxton held that the age-verification component of the statute was constitutional, and the plaintiffs did not seek a stay in that court. Therefore, the "status quo" at the time the Supreme Court was presented with the stay motion was that the statute was not enjoined and was being enforced—and the plaintiffs therefore were already subjected to its burdens. The Supreme Court's summary decision without any comment or dissent merely left the case as it found it, leaving the parties no worse off than they had been.

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis. Otherwise, we impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater, by subjecting the parties to that burden while awaiting the Supreme Court's decision without ever considering the relative harms to the parties.

If we reached that conclusion after a careful analysis of the stay motion on the merits, the result would be justified. But to reach it for parity alone, when the cases are presented in opposite postures, accords too much weight to a one-sentence denial of a stay by the Supreme Court, and that is too thin a reed to support imposing what, in our case, have been deemed unconstitutional burdens. We should impose such burdens only after considering the standards appropriate to a stay appeal on the merits: the likelihood of success on the merits and existence of irreparable injury to the moving party, the injury to the other party if a stay is granted, and the public interest. The grant of a stay without proceeding through that analysis unjustifiably absolves the moving party of its burden of proof in its quest to upend the district court's denial of that stay.

A denial of a stay by the Supreme Court, which might turn on the relative harms to the parties and not the merits of the legal claim, is not a decision on the merits of the case, nor is a grant of certiorari. By granting a stay of the district court's injunction here, and allowing enforcement of a law deemed unconstitutional by the district court, we give the Supreme Court's stay denial an impact beyond its precedential value. One could as easily argue that the Court's grant of certiorari signals a concern with the Fifth Circuit's determination of constitutionality, and favors leaving the district court's determination in place. Either approach is problematic, because neither the summary denial of the stay nor the grant of certiorari is a decision on the merits, nor should they be treated as such.

Although I do not support granting the motion, I am sympathetic to the argument that sometimes the most prudent and respectful course is to hold an appeal in abeyance until the Supreme Court's ruling, particularly in a situation such as the one before us involving functionally-identical statutes. But a true abeyance here would be to freeze the proceedings in this case as is, retaining the status quo until the Supreme Court issues its decision. Holding proceedings in abeyance is also supportable, given that the grant of certiorari means that the likelihood of success component of the stay motion is up in the air. It is a legally-supportable approach that adequately defers to the Supreme Court's decision to consider the merits of the underlying issue here.

For that reason, if we choose not to consider the motion before us on the merits, the more supportable approach would be to suspend proceedings until the Supreme Court issues its ruling, as we have done numerous times where a pending Supreme Court case may be dispositive. Summarily granting the stay and upending the status quo, and allowing a statute that the district court has determined to be unconstitutional to take effect without holding the moving party to any burden of proof, should not be an option….

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[Eugene Volokh] Court Reverses Injunction Against Anti-Anti-Semitic Speech Targeted at Neighbor

[Galapo’s neighbor Oberholzer called him a “fucking Jew”; the Galapos “posted twenty-three signs” on their property, facing the Oberholzers’ property.]

[A.] From today's Pennsylvania Supreme Court majority opinion in Oberholzer v. Galapo, written by Justice Kevin Dougherty, joined by Chief Justice Debra Todd and Justices Christine Donohue and Sallie Updyke Mundy:

Dr. Simon and Toby Galapo (appellants) own a home in Abington Township, Montgomery County, the rear yard of which borders the property of Frederick and Denise Oberholzer (appellees). Although the properties are separated by a creek, low-lying shrubs, and some tall trees, the houses and yards remain visible to one another. In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a "fucking Jew."

This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages "along the back tree-line directly abutting [the Oberholzers'] property line, pointed directly at [the Oberholzers'] house, and in direct sight of [other] neighbors' houses." All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances….

The signs included, among others, "No Place 4 Racism," "Hitler Eichmann Racists," "Racists: the true enemies of FREEDOM," and twenty more. The Oberholzers sued, claiming the Galapos' posting of the signs constituted "(1) private nuisance; (2) intrusion upon seclusion; (3) defamation – libel and slander; (4) publicly placing the Oberholzers in false light; and (5) intentional infliction of emotional distress." The trial court ordered the Galapos to move or reorient the signs so that they "be positioned in such a way that they do not directly face and target [the Oberholzers'] property: the fronts of the signs (lettering, etc.) are not to be visible to [the Oberholzers] nor face in the direction of [their] home."

Today, the Pennsylvania Supreme Court held the injunction violated the Pennsylvania Constitution's free speech clause. The Court applied its 1978 precedent in Willing v. Mazzacone, which generally suggested that injunctions against speech (in that case, against libel) are unconstitutional prior restraint, and held that it applied to this situation as well. Recent court decisions throughout the country have mostly concluded that the federal First Amendment doesn't prohibit permanent injunctions against speech found to be constitutionally unprotected, for instance because it is libelous. But state courts are entitled to read their state constitutions as more speech-protective than the federal Constitution. A few excerpts from the 57-page opinion:

[1.]

The fact that one purpose of the Galapos' signs was to engage in a "personal protest" against the Oberholzers does not alter this conclusion [that the speech cannot be enjoined]…. Article I, Section 7 [of the Pennsylvania Constitution] "specifically affirms the 'invaluable right' to the free communication of thoughts and opinions, and the right of 'every citizen' to 'speak freely' on 'any subject' so long as that liberty is not abused." Those sweeping terms necessarily include the right to use speech as a means of (peaceful) protest.

[2.] For purposes of this categorical protection,

What matters is whether the "speech is of public or private concern, as determined by all the circumstances of the case." "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Further, the "arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."

And the speech here was on a matter of public concern, even though it stemmed from a private dispute:

Mrs. Oberholzer admitted to making an offensive, anti-Semitic remark to Dr. Galapo, which some might argue is "part of a broader, societal trend of hate and violence toward Jewish people." In response, the Galapos erected on their own lawn stationary signs decrying hatred, anti-Semitism, and racism. We have no hesitation in finding "[t]hese are concerns of general interest to the Jewish community and the wider public[.]"

[3.] Injunctions might be proper when "substantial privacy interests are being invaded in an essentially intolerable manner," but that high threshold was not met here:

The Galapos' signs are stationed exclusively on their own property and they lack any coercive or other element that might implicate the Oberholzers' privacy interests. Nor do the signs present any type of actionable, non-speech-based nuisance, like excessive illumination or loud noises. The signs are just that: signs. All homeowners at one point or another are forced to gaze upon signs they may not like on their neighbors' property—be it ones that champion a political candidate, advocate for a cause, or simply express support or disagreement with some issue. If a single judge could suppress such speech any time an offended viewer invoked a generalized right to residential privacy, without proving more—specifically, that substantial privacy interests are being invaded in an essentially intolerable manner—it would mark the end to residential expression; after all, we cannot ignore that the Galapos have property rights too….

[W]e do not doubt the permanent injunction judge's finding that the Galapos' signs "severely and negatively impact the [Oberholzers'] well-being, tranquility, and quiet enjoyment of their home." That finding, however, is not equivalent to a determination "that substantial privacy interests are being invaded in an essentially intolerable manner[,]"and the record does not support such a conclusion in any event.

[4.] Nor does it matter that the injunction "only ordered the Galapos to turn their signs around and make them opaque rather than take them down entirely": "By preventing the Galapos from directing their message to one of their intended audiences—the Oberholzers—the court violated the Galapos' speech rights."

[B.] Justice Kevin Brobson dissented, arguing that content-neutral injunctions aimed at preventing private nuisances caused by residential speech are constitutional; here's an excerpt (though this opinion is also quite long):

[1.]

[T]he signs were not directed toward the public. Instead, the Galapos erected the signs in their back yard and directed them strictly toward the Oberholzers—i.e., one private home—while placing zero signs in their front yard for the public to see. Additionally, if the Galapos intended to reach a broader audience with the signs, there would be no need for the Galapos to appeal from the trial court's order entering the Injunction because, under the Injunction's limitations, the signs were still visible to the neighbors, just not the Oberholzers. The nail in the coffin that cements these points is Dr. Galapo's testimony that it was irrelevant whether anyone other than the Oberholzers saw the signs. Thus, the foregoing makes clear that the Galapos' signs were targeted speech designed to disrupt the quiet enjoyment of the Oberholzers' home….

[2.]

I fail to see how a severe and negative impact upon the well-being, tranquility, and quiet enjoyment of the Oberholzers' home is insufficient to warrant injunctive relief. Surely, the quiet enjoyment of the home is a "substantial privacy interest." The Majority also offers no explanation for how a severe and negative impact on that interest has any meaningful distinction from an "intolerable invasion" of privacy.

[C.] Justice David Wecht dissented as well, also in a long opinion. A few excerpts:

[1.]

I conclude ultimately that the injunction here is not a prior restraint and does not violate the no-injunction rule, a rule that in any event does not exist in Pennsylvania, and one that would not apply to this case even if it did exist here. Contrary to the Majority's analysis, equity courts possess the authority to issue certain kinds of narrow injunctions that restrict speech so long as those injunctions can withstand either intermediate scrutiny (for content-neutral injunctions) or strict scrutiny (for content-based injunctions). Because the instant injunction survives application of either standard, it should be upheld.

[2.]

At the heart of the prior restraint doctrine is the idea that "a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand." Narrowly tailored permanent injunctions do not throttle speakers before they break the law. Rather, they threaten subsequent punishment for repeat lawbreaking.

[3.]

[T]he injunction here also is extremely narrowly tailored to remedy the nuisance without burdening any more of the Galapos' speech than is absolutely necessary. The injunction does not prevent the Galapos from expressing—to the Oberholzers or to anyone else—any of the messages that appear on any of the twenty-three signs. The injunction merely prohibits the Galapos from expressing those views in the exact manner that they had been employing—i.e., the tortious manner, which consisted of a years-long performance involving a rotating assortment of nearly two dozen signs placed along the property line so that they would be visible from inside the Oberholzers' home.

Even with the injunction in place, the Galapos remain free to communicate the messages featured on their signs to the Oberholzers in any other way that they please. They can move the signs to their front yard. They can hang fliers on telephone poles in the neighborhood. They can place bumper stickers on their cars. They can post the messages on a social media application for neighbors. They could even stand on the sidewalk in front of the Oberholzers' home holding the signs. I could go on. The critical point here is that the present injunction is laser-targeted to remedy the nuisance while preserving the Galapos' right to express their thoughts and ideas in a non-tortious manner….

Furthermore, even assuming that the Majority is correct that the Galapos' aim here was at least partially to educate the "local community" on "the consequences of hatred and racism," … [t]he injunction has no impact at all on the Galapos' freedom to speak to the community about anti-Jewish hatred in any of the usual ways that many of us do [citing several articles about anti-Semitism, including by Justice Wecht himself].

The post Court Reverses Injunction Against Anti-Anti-Semitic Speech Targeted at Neighbor appeared first on Reason.com.

[Eugene Volokh] "Johns Hopkins University Articulates Restrained Approach to Issuing Public Statements"

["[T]he very idea of an 'official' position of the university on a social, scientific, or political issue runs counter to our foundational ethos ...."]

So reports the Johns Hopkins Hub; here's the underlying statement, from the President, Provost, and top deans:

As leaders of Johns Hopkins University, we are often called upon in the face of global, national, or local occurrences to issue public statements on behalf of the institution. These requests are usually grounded in a sense of connection to the values and purpose of our university and our common humanity, and on the occasions when we have issued such statements, we have attempted to choose our topics and words carefully.

In recent years, requests for institutional statements have increased in frequency. The subjects upon which we have been urged to speak have varied widely—human rights violations, acts of discrimination, changes in health regulations, incidents of targeted violence, military conflicts, and natural disasters, among others, have led to calls for a university statement.

Often those seeking such statements want us to identify and condemn the actors whom they regard as principally responsible. In other cases, those seeking statements simply desire an expression of concern or sympathy for the persons directly affected by the incident in question. However, we must recognize that taking institutional positions can interfere with the university's central commitment to free inquiry and obligation to foster a diversity of perspectives within our academic community.

As is the case with many of our peers, we have been weighing the value, appropriateness, and limitations of such institutional statements. We—as university leaders and deans—have arrived at a strong commitment to make institutional statements only in the limited circumstances where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. We write today to share our reasoning on this important issue and to clarify and deepen our commitment to a posture of restraint.

To begin, the very idea of an "official" position of the university on a social, scientific, or political issue runs counter to our foundational ethos—articulated most clearly in our Statement of Principles of Academic Freedom—to be a place where competing views are welcomed, challenged, and tested through dialogue and rigorous marshaling of evidence. The university is the site, more than any other institution in our society, where the process of truth-seeking through intense and open contestation is given pride of place. Although institutional statements may feel warranted, consoling, or, at times, even necessary to guide the university through difficult moments, experience has shown that they can be counterproductive, and even at odds with our core mission. These statements can too easily fuel a perception that there are approved or endorsed "institutional" views on political or social issues, which may, in fact, conflict with the views of members of our community. They risk interfering with our truth-seeking function and compromising the ethos and credibility of the institution in the process.

Additionally, institutional statements can be perceived as performative or rote: They can excuse the absence of meaningful action to bring the community together in challenging moments, take up difficult questions, and learn, discuss, and debate together in a mutually respectful and supportive manner. They also can unintentionally model for our students that the only, or best, avenue for engaging with issues is to make public statements, obscuring that there are more effective ways to make change in the world.

Moreover, such statements foster an expectation that the institution will speak on a wide range of topics and a perception that when we decline to do so, it is a signal that the issues or the concerns of affected community members are unworthy of our attention. Why do some domestic or international conflicts or crises command our institutional attention, while others are regarded as less salient?

As the tide of statements has risen across the university, it has become clear that the more statements we publish, the more injurious the slight to members of our community when we decline to issue a statement in response to some other incident. This pattern not only undermines our commitment to inclusivity but also erodes trust in institutional leadership and, as noted earlier, compromises our core mission as a place of open inquiry and diverse perspectives.

For these reasons, we will restrict our communications to the standard we have articulated—limiting our statements to those occasions where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. This means that not issuing a statement will be our default in the great majority of cases we are likely to face.

We acknowledge that the line between those issues that implicate a core interest of the university and those where the impact is less direct is not always easily drawn. But the inevitability of hard cases is not an argument against the approach we are adopting, which we believe will address the lion's share of cases that typically confront the university. Against this benchmark, for instance, a decision by government to reduce our permitted scope of activities might well justify a statement, but an event that has occurred internationally or nationally and that has no direct or concrete impact on our capacity to discharge our mission would not.

Critically, this posture of restraint does not mean the university will be unresponsive or unfeeling in the face of controversy or tragedy. Our priority is to respond to the events around us through the channels that are our university's core strength and time-honored calling—creating knowledge, engaging with ideas, and bringing discoveries and care to the world. When an external event affects members of our community, our university's focus will be to engage interested members of our community in educational and community programming that addresses the topic. Where appropriate, the university can offer direct support and engagement for those among us who are affected by the matter.

Further, our commitment as university leaders to embrace a policy of restraint is not meant to signal that members of the community should retreat from the world or the priorities of our institution. Indeed, our faculty, students, and staff engage the communities around us in countless productive ways, and we will continue to encourage our scholars to bring their ideas and expertise to inform the critical issues of the day. With the opening of the Hopkins Bloomberg Center, our capacity to serve as a platform to explore these issues has been magnified. And the university will remain unwavering in its commitment to values and aspirations in areas of strategic importance such as those embodied in foundational documents like the Ten for One and the Second Roadmap on Diversity, Equity, and Inclusion.

Finally, we are eager to engage faculty colleagues in an examination of whether this posture of restraint is appropriate not only for university leaders and deans but also for departments, centers and other units of the university. We will be working with the Johns Hopkins University Council to develop an answer to this question over the course of the fall term and to solicit broad input from the university, including divisional academic advisory boards and senates.

Of course, the dedication to institutional restraint will not apply to any individual faculty member speaking in their own scholarly or personal capacity. Again, the intent of this commitment is to extend the broadest possible scope to the views and expressions of our faculty, bolstering the freedom for them to share their insights and perspectives without being concerned about running counter to an "institutional" stance.

Ours is an extraordinary institution, a place furthered by the courageous interrogation and boundless discovery of our colleagues. The project of the university as an institution is to create the conditions for that exploration, discovery, and engagement, even for controversial or disquieting ideas. Against that overarching and foundational goal, we believe that the policy of restraint to which we are now committing ourselves is timely, principled, and critical for the continuing relevance and mission of our university.

The post "Johns Hopkins University Articulates Restrained Approach to Issuing Public Statements" appeared first on Reason.com.

[Josh Blackman] Mission to Israel Part VII: The Surveillance Video

[Fifty minutes of pure, uncensored barbarism that will haunt me for the rest of my life. ]

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

On the final day of our mission to Israel, we visited the headquarters of the IDF Spokesperson in Tel Aviv. This is the public affairs department of the Israeli military. We would attend a screening of surveillance footage of the October 7 attacks. This was a moment I had been thinking about since I agreed to go on the trip. Would I watch it? This descriptions in this post will be quite graphic, though I encourage you–for reasons that will be made clear at the end–to read on through.

The Holocaust and October 7 Happened

To this day, people deny the Holocaust happened. Some claim the entire Shoach is a fiction. Others claims that there was some murders, but the number of deaths was been greatly exaggerated. Others assert that the German government was not behind the mass exterminations. And so on. What is remarkable is that people hold these views in the face of mountains of evidence. The Nazis were quite proud of their efforts, and documented their systematic efforts to wipe the Jewish people off the map. If you haven't visited the Holocaust museums in Washington, D.C. or New York, you should. And if you went a long time ago, you should go again.

Still, when you visit these institutions, all of the photographs are black-and-white, and the videos are grainy. Though we know these accounts are real, watching them feels like watching a history movie. Nearly nine decades removed, they seem like a thing of the past. And Holocaust deniers insist that these sources are doctored or manufactured.

October 7, 2023, however, is still raw and fresh. And much like the Nazis before them, Hamas was proud of their barbarism. They recorded their acts of terror with body-cameras. They livestreamed murders–often on their victims' phones. They shared on social media photos and videos of horrific acts. All in high definition! There are already specters of October 7th denialism–perhaps the most egregious is that the Hamas terrorists did not commit rapes because their religion forbids it. I saw this claim repeated in the press, without any skepticism. But Hamas documented their own atrocities.

Should I Watch The Video?

In the wake of October 7, Israeli forces collected these photos and videos to document the horrors. Moreover, there were recordings by Israelis on dashboard cameras, doorbell cameras, and other surveillance systems. The Israeli government compiled these scenes into a single movie that stretches about fifty minutes. While many, if not most, of the individual clips can be found online, the compiled footage is kept under strict control. It is only exhibited at secure facilities to certain guests who are cleared.

Members of the Israeli military are not allowed to watch it. It is considered far too traumatic, and traumatizing for people who have lived through October 7. None of my family members in Israel had watched. They had no doubts about what happened on October 7, so why go through the pain of enduring the day again?  My Rabbi told me not to watch it. There is a teaching to not cause any shame for dead people. He asked if the people who had been murdered in those videos would want me to watch them in such a terrible state. These were all fair points.

I thought long and hard about whether I would watch it. Initially, on a personal level, I was inclined not to. I do not like horror movies. Generally, if there is any movie with blood or gore, I turn it off. I can't even watch medical programs that depict surgery and other procedures. I close my eyes when I get a shot or have dental work. Yes, I am quite squeamish. There is an expression that is far too overused–"You can't unsee this!" But it is very apt for the surveillance video. I knew that these fifty minutes of pure, uncensored barbarism would haunt me for the rest of my life.

What turned me was a presentation I saw by Judge Roy Altman, who led a mission to Israel for federal judges. Altman described, in graphic detail, what he saw. He has given this lecture in many places, and it is moving. After the lecture, I asked Altman point blank if he regretted watching the videos. On one level, he did, as these images would never leave him. But on a deeper level, watching these videos made his message that much more powerful. Having witnessed the savagery, he could now spread the message around the globe. And this is not a second-hand account. He watched the video with his own eyes. And he didn't simply scan through a few clips on social media. He endured the entire curated film, with no break, in an Israeli military facility.

Altman's explanation persuaded me to watch it. I routinely lecture at law schools and other venues throughout the country. This year, I plan to talk about Israel–if any law school is brave enough to host me. (So far only a few takers.) I intend to relay the medieval acts of terror I witnessed. Having personally seen these clips will allow me to speak to the issue in a way I simply could not have by reading about it. I regret that I personally had to endure the screening. (Although whatever minor inconvenience I had pales in comparison to the suffering that happened on October 7, and to this day.) And to this day, I cannot forget what I saw. I recently watched the Deadpool-Wolverine movie. In one scene, a character decapitates another character, and holds the head up like a trophy. The audience roared in gruesome laughter. I didn't. I saw an actual video of a Hamas terrorist hacking off an innocent person's head, stretching out the skin, and dangling the head by the scalp as the lifeless body lay on the ground. But this was the choice I made, and I think it was the right one.

Not everyone on our mission watched the video. Several members of our mission excused themselves from the room before the screening began. I fully understand their decision. Everyone can bear witness to atrocities in the way that works for them. Indeed, even going to Israel was a risk, as our safety could not be fully assured at all junctures.

The Screening

We would watch the movie in a military briefing room. This was not a cushy movie theater. We were seated in what looked like any law school classroom, with some large displays at the front of the room. There was a clock, which allowed us to keep track of time. I had to leave my phone in a locker outside, as recording was prohibited.

A female officer in the Spokesperson Unit gave a brief introduction. I understand that she is one of the few people in the military who has clearance to watch the video. I can't even fathom what trauma she endures by watching this video each and every day, as different delegations come through. She explained this was the twenty-third version of the video. Apparently, the earlier iterations were even more violent. They showed torture, including the cutting of breasts, a newborn who was shot in the head, and other acts of barbarism. Moreover, there was footage of genital mutilation. Some of the families objected. The faces on those clips were either blurred out, or the clips were removed altogether out of respect for the family. Just think that some video editor within the Israeli government had the harrowing task of winnowing down these clips.

The officer only gave a few preparatory remarks. One, that stuck with me, was how she described the terrorists. She used the word "glee." These were not soldiers who were performing a mission. They were not in any way struggling with their actions. They were joyful for having the chance to kill so many innocent Israelis. It was like they were playing a first-person shooter, but in real life. And they kept repeating one refrain over and over and over again. Allahu Akhbar. Allahu Akhbar. Allahu Akhbar. In almost every scene, the men repeated that phrase at the top of their lungs.

With those brief remarks, the officer started to play the video.

Scenes from the Video

It is difficult to describe in words what I saw. During the fifty-minute video, I sat in stunned silence, with each scene worse than the one before. At a few junctures, I had to close my eyes. When I opened them, I hoped the particular scene would be over, but it wasn't. Occasionally, I would look around the room at the fellow law professors. They all had the same looked of being stunned and mortified. Some closed their eyes. Others put their heads in their hands.

Immediately after the video finished, I started to write down in a notebook everything I could recall. I knew that the particulars would evanesce from my mind, even if the general gore would remain. What follows is a scattered list of my recollections. It does not have any sort of pattern or coherent flow, as the actual surveillance video had none. And it is entirely possible that some of these recollections are composites–a few different scenes were seared together in my memory. But I remember each of these tragic events occurred.

There were pools of blood on the ground. In movies, blood looks bright red and shiny. but in reality, it is much darker, and quickly absorbs into the dirt. It looks brownish. If I didn't know what it was, I might think it was spilled motor oil. Bodies were burned alive in cars. The Hamas terrorists brought accelerant with them, and placed it on the tires and the hoods of the car, so they burned hotter, faster, and longer. One charred corpse was reaching out of the car, trying to escape, but never would. The scorched bodies reminded me of footage from the Holocaust. But unlike grainy footage at a Holocaust museum, these scenes were in full HD. One woman was murdered. The terrorists took her phone, and livestreamed it on her social media account. The woman's family learned of her death when she "went live"–something she apparently never did–and saw it in real time. A father finds his daughter's burned body. He screams in agony that it is not his daughter. Another woman said that those were the daughter's tattoos. The father refused to believe it. This young woman's legs were spread apart. She was not wearing any undergarments. There was blood between her legs. One Hamas terrorist was wearing a Palestinian flag on his body armor. All I could think of was those college students who wave the Palestinian flag around without having any clue what that flag represents. There was a radio call intercepted between a Hamas terrorist who entered Israel, and his commander back in Gaza. The commander ordered him to bring a body back to Gaza, and the people could play with the body parts in the square–like a Soccer game. There was footage of a bar, plastered with Coca-Cola signs. Many innocent people were hiding behind the bar, but they were shot and killed. Bodies were stacked one on top of another. People hid in dumpsters and port-a-potties. They were covered in garbage and feces when they were shot dead. One Hamas terrorist dragged a bleeding body from a bedroom all the way outside. The blood streaked across the floor, the entire way. A terrorist was piling dead bodies in a pickup truck. The Jewish tradition is to bury all human remains. Hamas knew this, and brought the corpses back to Gaza, so not even the dead could be buried. There was another intercepted radio call. A commander said that a captured Israel soldier should be hanged in a square. Bodies of captured hostages were paraded in Gaza. The Hamas terrorists actually had to protect the hostages to prevent them from being lynched. For many of these Israelis, their last time being outside was among these mobs. At the Nova music festival, young women had their genitals mutilated. They were bound and their clothes were pulled off. Understandably, rape kits were not performed under the circumstances. As a result, much of the evidence of rape was buried with these poor souls. Surveillance footage showed a dog approaching a terrorist. The dog looked friendly, and posed no threat. The terrorist shot the dog once. The dog huddled over but kept walking. Two shots, and the dog fell over, but was still moving. Three shots, and the dog died. A terrorist tried to decapitate a person. But he was using a dull garden hoe, so he couldn't cut through all the way. He kept hacking and hacking and hacking at the neck, but it didn't sever all the way. The head sort of flopped over, but was still connected. This sort of medieval barbarism belongs in a different millennium. It is early in the morning. A father and his two sons run from their bedrooms into the living room. The boys (about 7 and 9 years old) are still wearing their underwear. They run into a bomb shelter in their backyard. These shelters are meant to protect people from explosions, but are not locked. Several terrorists throw a grenade into the shelter. It explodes. The surmise is that the father jumped on the grenade. He died.The terrorists bring both of the boys into the backyard and are yelling at them. The boys are then left alone in the living room. One boy says, "I think we are going to die." The other says, "Dad is dead." One of the boy's eye is bleeding. The brother asks if he can see out of that eye. He cannot. They are sitting there, crying, unsure of what to do. Somehow, they manage to escape and run to a cousin's house and survived. The boy would lose his eye. Later, the mother would come home and see the shelter, and her husband's corpse. The agony on her face was heart wrenching. Hamas terrorists enter a kindergarten. There are posters of Queen Elsa from Frozen, which is one of my daughters' favorite movies. Another corpse of a young child is shown wearing Mickey Mouse pajamas, which were stained with blood. Hamas terrorists were setting a house on fire after killing the occupants. They used accelerants to make the fire burn hotter. One shouted "burn it down." The symbolism was clearly intended to invoke the Holocaust. There was shattered glass everywhere, which invoked Kristallnacht. I've seen countless movies where a person is shot. Usually, the person who is shot stumbles, falls, and moves around a bit afterwards. The dying is very dramatic. In reality, a person shot at close range in cold blood immediately drops and dies almost instantaneously. One terrorist repeated over and over again "This is for history" and "We are heroes." They truly believed they were making history, and they would be remembered as heroes. But not in the way they intended. In another video, the decapitation was successful. After many cuts, the head was fully severed off. The skin sort of draped over the neck. It reminded me of the stretch-faced characters from Beetlejuice.  And like in the Deadpool movie, the terrorist held up the head by the hair, as if it was a trophy. The lifeless body was bent on his knees. Hamas social media uploaded a photo of that headless body. During the decapitation. I kept closing my eyes, hoping the scene would be over, but it wasn't. It continued on and on. There was a burned head that was severed in half. The teeth were burned. It looked like a mummy from ancient Egypt. The IDF intercepted a voice call between a Hamas terrorist and his parents in Gaza. The son told his father, beaming with pride, that he killed 10 Jews with his bare hands. He kept telling his father to check his Whatsapp. (Someone should tell him who the founder of Meta is.) Then he says, "I want to talk to mom." As if he got a sterling report card. His mother was so proud. She said "Praise to god" and "Kill, Kill, Kill." The Aftermath

The video concluded abruptly, without any notice. It was over. We were then given a short break. I was stunned. I walked out into the courtyard for some fresh air. A fellow law professor was crying on the ground. I gave him a hug, even though I felt about the same.

We were brought back into the classroom to discuss what we had witnessed. I didn't have many words. All I could think of was asking how the officer was able to watch this video day-in and day-out.

After the presentation, we had a briefing from some IDF military lawyers (MAG). I wrote about some of what I learned from the military lawyers here. In truth, I was pretty distracted, but I tried to pay attention as closely as I could. It amazed me that knowing how horrific these atrocities were, the military lawyers could still be so committed to these international institutions that treat Israel so unfairly.

Afterwards, we went to lunch with several of the soldiers from the Public Spokesperson division. One of them, Oriyah Solomon, was an Orthodox female who recently was married. Until recently, there was no obligation for observant Jews to serve, and certainly no expectation that "frum" women would serve. But she volunteered, in part to demonstrate that other religious women can serve their countries. I found her message inspiring.

Who Should Watch This Video?

Israel has not released this video to the general public. The fear is that if it is released, it would make a splash for a short period, and then quickly be forgotten. And, in turn, it would cheapen the atrocities. Some may actually valorize the killers, and it could be used as propaganda. Frankly, I do not think most people would have the stomach, or motivation to sit through the full hour of footage. They may watch a brief clip, and then shut it down. There was something meaningful in watching the clips at a secure facility, in a room full of interested people, with a military chaperone. I would never forget it.

The post Mission to Israel Part VII: The Surveillance Video appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 20, 1866

8/20/1866: President Andrew Johnson proclaims an "end to insurrection in the United States."

President Andrew Johnson

The post Today in Supreme Court History: August 20, 1866 appeared first on Reason.com.

[Josh Blackman] Is Mike Luttig A "Prominent Conservative"?

[That may have been true about two decades ago, but conservative is as conservative does.]

The front page of CNN.com blares the headline, "Prominent conservative endorses Harris, calls Trump a threat to democracy." Below the photograph of Mike Luttig is the caption, "It'll be the first time the retired federal judge, a veteran of two GOP administrations, has voted for a Democrat."

Is Mike Luttig "prominent"? And is he still a conservative? At one point, he was unquestionably both. The former Wunderkind held senior posts in DOJ and was appointed to the Fourth Circuit before most lawyers make partner. He was at the tip-top of the Supreme Court short list, but President George W. Bush passed over him to select John Roberts and Samuel Alito. In 2006, Luttig retired from the Fourth Circuit and became general counsel of Boeing. After that point, he fell off the map. I had completely forgotten about him. I had never seen him at any Federalist Society event. He did not offer any public advocacy. He said nothing about the leading issues facing the conservative legal movement. He was a non-entity.

But then January 6 happened. And the Luttig hagiography emerged. Greg Jacob, Mike Pence's counsel, relates that Luttig had no conversations with Pence prior to January 6. Jacob simply cited some of Luttig's tweets in his already-completed letter. That's it! Yet, somehow, Luttig is commonly viewed as Pence's close advisor, and a person who helped save the Republic. Never happened.

Since January 6, I cannot think of a single "conservative" position that Luttig has taken on anything. He has filed amicus briefs in several Supreme Court cases, always on the liberal side of the issue. As best as I can recall, he said nothing favorable about Dobbs, perhaps the crowning achievement of the conservative legal movement. Most recently, he has said nothing at all about Senator Schumer's nuclear jurisdiction stripping bill. He has organized a new organization that is meant to be a counter to the Federalist Society. All of his pro-democracy advocacy may as well be an in-kind donation to the Kamala Harris campaign. Formally endorsing Harris was a foregone conclusion. By what measure can Luttig still claim to be a conservative?

David French also recently endorsed Kamala Harris (which I flagged here). He offered this self-reflection:

I'm often asked by Trump voters if I'm "still conservative," and I respond that I can't vote for Trump precisely because I am conservative. I loathe sex abuse, pornography and adultery. Trump has brought those vices into the mainstream of the Republican Party. I want to cultivate a culture that values human life from conception through natural death. Yet America became more brutal and violent during Trump's term. I want to defend liberal democracy from authoritarian aggression, yet Trump would abandon our allies and risk our most precious alliances.

The only real hope for restoring a conservatism that values integrity, demonstrates real compassion and defends our foundational constitutional principles isn't to try to make the best of Trump, a man who values only himself. If he wins again, it will validate his cruelty and his ideological transformation of the Republican Party. If Harris wins, the West will still stand against Vladimir Putin, and conservative Americans will have a chance to build something decent from the ruins of a party that was once a force for genuine good in American life.

French, Luttig, and others have joined the august company of people like John Paul Stevens and David Souter, who insist that they never moved to the left, but the conservative party moved too far to the right. Tell me about it. To paraphrase Rahimi, legal conservatism is not trapped in amber. To paraphrase Forest Gump, conservative is as conservative does. As I wrote last year, "there should be a statute of limitations for calling a person a legal conservative."

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