Eugene Volokh's Blog, page 301

[David Bernstein] Hamas's Savagery on October 7: Guest Post by Adam Mossoff

[Note from DB: On our lawprof trip to Israel, we were offered the opportunity to watch a compilation of Hamas atrocities on October 7th. I declined. I saw just a bit of this footage back in October, and it was sufficiently searing that I did not want to revisit the experience, and I certainly needed no persuading that Hamas is a theocratic death cult that should be erased from the earth. But my colleague Adam Mossoff did watch the footage, and here is his report.] 

On Day 3 (July 11) of the law professor mission to Israel, we had the opportunity to watch the 45-minute film of the Hamas atrocities on October 7 that was created primarily from the GoPro cameras worn by the Hamas soldiers, but also includes footage from security cameras and CCTV. During the attacks, the Hamas soldiers uploaded their GoPro videos to the internet and blasted them out on social media to hundreds of thousands of Israelis' social media accounts on October 7. The IDF spokesperson unit spent two days taking thousands upon thousands of these videos down from the internet.

I will not describe or detail any of the film's horrors, and so you can read this post knowing that you will not be ambushed with a nightmare that will haunt you for the rest of your days. I will say the film is horrific. In fact, it's beyond horrific. But if one is to bear witness to evil so that one can better defend the good (Israel) and speak out against evil (genocidal antisemitism and supporters of this nihilism in the West), one must know the evil of which one speaks. Thus, I considered it important for me to see the film, but given the shocking and sickening content of this film, I don't begrudge anyone not watching it.

Here's some background context and general information about the film: The IDF created this film in November 2023 given worldwide denials of the atrocities committed by Hamas on October 7. Similar to the Holocaust denials that began in 1945 and continue to this day, the denial of the vile atrocities committed by Hamas on October 7 began on October 8 and continue to this day. It's not just denial of murders of children and babies and other war crimes as "Israeli propaganda." There's also the denial of the rape and sexual violence committed by Hamas soldiers on October 7, which has prompted Sheryl Sandberg to create her first documentary as her own act of bearing witness to October 7. It's called, "Screams Before Silence," and if you have not yet seen it, I recommend doing so (https://www.screamsbeforesilence.com/).

Given its content, the film is closely controlled by the IDF. I already knew this from an opportunity I had last November to see it, which I declined at the time. One can only see the film through an application, a special invitation, or to be invited to a showing for specific audiences, such as political leaders or media industry representatives who have been invited to watch it. We saw it last week given that we were in Israel as a fact-finding mission about October 7. Before we saw it, we had to sign a special agreement not to share any images nor specific details that could be traced back to specific victims. We were also prohibited from having any electronic devices in the room and we had to store our phones in special lockers outside the room.

We later learned that not even all of the IDF spokespeople have seen it, as it has a security clearance rating of "need to know." It appears that the primary reason for this extreme restriction on the film is the observance of the religious rules in Judaism and social norms in Israel about respecting the dignity of the deceased, which I described in my last post about October 7 and how Hamas deliberately sought to violate these rules and norms through explicit acts of desecration and destruction of its victims on October 7. Among those of us on the mission who were speaking with the IDF spokespeople about this, we were of one mind in telling them that Israel would be best served by releasing the film without restrictions, like documentaries about the Holocaust like "Night and Fog" that contain Nazi films of pits filled with bodies, as well as other scenes of body parts or death. Israel is in an existential war on multiple fronts right now, and in such emergency conditions, regular rules or norms that apply during normal life should be relaxed to accommodate the exigent circumstances.

As I mentioned, I won't describe anything I saw in the film, but I would still like to share a few general observations about it. First, the pure glee expressed by the Hamas soldiers. Throughout the film, the Hamas soldiers are constantly shouting expressions of joy and excitement in what they are doing to their victims. They are not torturing or murdering out of necessity, nor is this the work of soldiers who are merely defending territory from an invasion. It was very clear from the first few moments of the film that they took pleasure in what they did. They celebrated it – during and after October 7. Many of us have seen the videos shared on the internet of civilians in Gaza who rushed to the trucks or SUVs to take pictures and beat the dead bodies or living hostages, shouting with glee and celebration. The Hamas soldiers were equally effusive and jubilant about the ghastly atrocities they deliberately committed on October 7 – and they proudly broadcast this by creating and sharing their GoPro videos with the whole world.

Second, the film of the GoPro videos makes it very clear that Hamas is a theocratic authoritarian regime in Gaza, not merely a dictatorship or a freestanding terrorist organization like Hezbollah or the Houthis. The Hamas soldiers expressed their glee and joy by constantly proclaiming "Glory to God!" ("Allah Ackbar!). One hears this more times than I could count, although I was frozen by the horrors of what I was witnessing and so I was not capable of counting at the time. Hamas is an authoritarian Islamic theocracy that rules over Gaza (it was elected into power when Israel withdrew from Gaza in 2006 and then it took). Thus, Hamas is like Iran, the Taliban (Afghanistan), the Muslim Brotherhood in Egypt from 2011-2013, and ISIS in Syria and Iraq from 2014-2019. There have been non-ideological dictatorships in the Middle East, such as Saddam Hussein in Iraq and Bashar Al-Assad in Syria, but that is not Hamas.

This is important to understand and fully appreciate: October 7 was not about any grievances over land or alleged abuses by the Israeli government over the Palestinians. Hamas seeks the genocidal destruction of both Jews and Israel, just as its financial and military Iran, which is reported to have had a direct role in the planning and approval of the October 7 atrocities. This explains more than anything the atrocities and war crimes of October 7. Hamas is dedicated to the genocidal evil of the death of all Jews and the destruction of all of Israel.

Third, and last, the Palestinian culture considers dogs to be disgusting filth, and this is conveyed in the film as well. I had previously read articles and seen a few videos about how the many stray dogs in Gaza are viewed as nuisances and pests, and that Palestinians regularly kill or torture these dogs. They kill or torture dogs because they view dogs as not even befitting any respect for life. One does not have to be a "dog person" like I am to think this is deeply disturbing. There is valid reason for the famous dictum that dogs are "man's best friend."

I say this because the Palestinian's horrible view of dogs is on full display in the film of the GoPro videos made by the Hamas soldiers. The most common insult one hears in the film, it is a refrain that is second only to the shouts of "Allah Ackbar," is the one that the Hamas soldiers constantly scream at the Jews they are shooting and slaughtering: "You are dogs!"

It is a well-known fact in human history that people who commit mass murder explicitly dehumanize the people they are killing. The Nazis did this, for example, by labeling Jews as rats, vermin, and as a subspecies separate from Aryan humans. Hamas now does it by labeling Jews as dogs, which may seem strange to someone in the West who is unaware of the rat-like status that dogs apparently have in Palestinian culture. (Another example of this is found in this video (https://x.com/LizaRosen0000/status/18...…) of an interview with an old Palestinian woman who says, "Jews are dogs.")

For all these reasons, the film is especially horrific and searing psychologically and emotionally. Hamas sent 3000 soldiers to invade Israel for the purpose of murder, torture, rape, and kidnapping of innocent people (about 1,450 babies, children, and adults). This fact is bad enough by itself, but these soldiers did not commit their war crimes dispassionately or out of a sense of military duty. They committed their atrocities willingly, happily, and with effusive expressions of glory. The film is a window into a human capacity for evil that I knew only in the abstract from my historical study of the Holocaust or the Killing Fields of the Khmer Rouge, but, based on what I know, the Nazi or Khmer Rouge soldiers did not revel in and enthusiastically celebrate their murders and atrocities. The Hamas soldiers did.

When the film concluded, I was in psychological shock. I had been and continued to cry. My hands were shaking, and I felt almost physically numb. I also felt a sense of detachment from my body and my surroundings. I still vividly remember holding my right hand out flat in front of me and watching it tremble and shake, as if I had just over-exerted myself in a workout at the gym, despite my having sat still in an air-conditioned room for the past hour. After a break, we met with IDF lawyers and then continued the mission with lunch and more meetings with lawyers from NGOs and others, but it took me several hours to recover from the shock.

This was all a week ago, and the shock has long since worn off, but that film will be with me for the rest of my life. I hope that I can now use my writing and speaking skills as a professor and advocate to help in my own way by speaking truth to the vicious lies and propaganda of the pro-Hamas activists in the U.S. and the West. Let no one be mistaken what the slogans "from the river to the sea" and "intifada" truly mean, and what the flags of Hamas and Hezbollah that are now regularly flown at the protests in the U.S. and Europe mean. These all represent a pure and unadulterated nihilism that many of us in the West have a hard time fully understanding. This is not just antisemitism, and will not end with Jews or Israel. I hope the U.S. wakes up to this fact before its continuing appeasement of Iran results in Iran obtaining a nuclear weapon, because after watching the film of the October 7 atrocities, I think I know what will happen when it does.

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[David Post] A Star-Spangled Banner for the Ages

[But not, unfortunately, for good reasons]

Having heard Ingrid Andress' performance at the MLB Home Run Derby Monday night, I think we may now be able to retire the coveted trophy for Worst Rendition of the National Anthem at a Major US Sporting Event. Have a listen.

To my ears, it is considerably worse—more grotesquely out of tune—than the only real competition, Fergie's rendition at the 2018 NBA All-Star Game. [I have eliminated Roseanne Barr's spectacularly awful 1990 performance before a San Diego Padres game from consideration because she clearly wanted it to be awful, and that violates the rules of the competition.]

I don't mean to pile too much criticism onto Ms. Andress, who admitted after the performance that she had been drunk. She's got, obviously, a pretty serious alcohol problem—to get drunk before the most important performance, by far, of your life is a pretty terrifyingly self-destructive act. She has subsequently checked herself into rehab, and I genuinely wish her well, although the message she sent out on Instagram announcing her decision was not encouraging, and was meant, I hope, to be taken as sarcasm:

"I'm not gonna bullshit y'all, I was drunk last night. I'm checking myself into a facility today to get the help I need…. I'll let y'all know how rehab is! I hear it's super fun."

And speaking of national anthems, the recent international soccer tournaments in Europe and in the US revived my fondness for national anthems—there's nothing quite like hearing 30,000 or so people belting out La Marseillaise, or Il Canto degli Italiani, or O! Canada!, to get the blood running.

It makes me wonder whether there has ever been a good comparative study of the world's national anthems. They're pretty interesting, I think, insofar as they all—every last one, as far as I can tell—sound like they were written in Vienna or Dresden around 1880. There's a wonderful compilation of all of them here—pick a few at random and have a listen. China, Cameroon, El Salvador, Bahrain, Uruguay, Pakistan, …

It's quite bizarre, when you think about it. All of these countries—… Nicaragua, Senegal, the Comoro Islands, Malaysia, Tunisia, Argentina …—each with their own very distinctive domestic musical traditions, and each one has, as its "national anthem," something that sounds like it came out of Johann Strauss' workshop.

Obviously, much of the explanation for this astonishing homogeneity is that it is a holdover from colonial days.  But many, many artifacts of the increasingly distant Colonial Era have been dispensed with—constitutions have been re-written, new languages have been declared "official," public school curriculums have been revised, etc. Why has nobody changed its national anthem? Might be an interesting subject for a book.

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[Eugene Volokh] "Someone Must Have Taken the Bar Exam for You" Was Just Insult, Not Libel

["[A]nyone who has used Facebook is aware that it is a platform that breeds spiteful and juvenile exchanges."]

From Massachusetts Superior Court Judge John Pappas's opinion in Lucey v. Kinnon, decided last month but just posted on Westlaw; seems correct to me:

Mr. Kinnon's allegedly defamatory statement was made to … Mr. Lucey … in response to a comment Mr. Lucey made under a post Mr. Kinnon published on the Facebook Group, "Malden (MA) Politics." The group has over 2000 members, and "is a forum for discussion of local events and political issues relevant to Malden and the surrounding area." Mr. Lucey alleges that he and Mr. Kinnon have a history of online exchanges "dating back years," and that Mr. Kinnon has engaged in casting "obnoxious" insults at him, including those attacking his skill as an attorney and his intellectual prowess…. The [allegedly defamatory] comment, in full, reads as follows:

I am beginning to wonder if you are capable of reading. Might want to read again and anyone who would hire you as an attorney God Bless them, because someone must have taken the bar exam for you. Read below again for my answer to Mr. Bernstein, it might help you.

Read in its entirety, it is clear that Mr. Kinnon's comment is not making any factual assertions, but instead uses hyperbolized language meant to insult Mr. Lucey. For example, although Mr. Kinnon is clearly aware that Mr. Lucey is not illiterate, given his history of engaging in written exchanges with Mr. Lucey, Mr. Kinnon derisively states, "I am beginning to wonder if you are capable of reading." Mr. Kinnon then writes "someone must have taken the bar exam for you." This statement is clearly an exaggeration following Mr. Kinnon's obvious frustration with Mr. Lucey's previous comment.

Notably, Mr. Kinnon did not assert, as a fact, that someone took the bar exam for Mr. Lucey. Rather, he speculates that someone "must have" taken the bar exam for Mr. Lucey, in the same way he sarcastically speculated whether Mr. Lucey could read.

Furthermore, anyone who has used Facebook is aware that it is a platform that breeds spiteful and juvenile exchanges. Therefore, the Court cannot conclude that an objectively reasonable Facebook user, particularly those frequenting a page about local politics, would call into question Mr. Lucey's ethics or credentials as an attorney simply by reading Mr. Kinnon's statement….

Before you use this as an excuse to tell me, "someone must have taken the bar exam for you," remember that I now have judicial precedent for the proposition that "."

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[Eugene Volokh] "It Is Their Care That the Gear Engages; It Is Their Care That the Switches Lock"

["It is their care in all the ages to take the buffet and cushion the shock."]

The recent computer outage reminded me of one of my favorite poems, Kipling's The Sons of Martha. It has been at times, I'm told, an anthem of engineers; maybe it should be more broadly.

The poem is a reference to a Bible passage from Luke 10:38-42. (The passage, it turns out, immediately follows the story of the Good Samaritan, which is triggered by question from a lawyer—but that's the end of any legal connection.) Indeed, I would say it's something of a criticism of the passage, which runs:

[38] … [Jesus] entered into a certain village: and a certain woman named Martha received him into her house.
[39] And she had a sister called Mary, which also sat at Jesus' feet, and heard his word.
[40] But Martha was cumbered about much serving, and came to him, and said, Lord, dost thou not care that my sister hath left me to serve alone? bid her therefore that she help me.
[41] And Jesus answered and said unto her, Martha, Martha, thou art careful [i.e., full of cares] and troubled about many things:
[42] But one thing is needful: and Mary hath chosen that good part, which shall not be taken away from her.

Here then is the Kipling poem; my favorite parts are the first two lines of each stanza (except the last), but of course you have to read it all:

The Sons of Mary seldom bother, for they have inherited that good part;
But the Sons of Martha favour their Mother of the careful soul and the troubled heart.
And because she lost her temper once, and because she was rude to the Lord her Guest,
Her Sons must wait upon Mary's Sons, world without end, reprieve, or rest.

It is their care in all the ages to take the buffet and cushion the shock.
It is their care that the gear engages; it is their care that the switches lock.
It is their care that the wheels run truly; it is their care to embark and entrain,
Tally, transport, and deliver duly the Sons of Mary by land and main.

They say to mountains "Be ye removèd." They say to the lesser floods "Be dry."
Under their rods are the rocks reprovèd—they are not afraid of that which is high.
Then do the hill-tops shake to the summit—then is the bed of the deep laid bare,
That the Sons of Mary may overcome it, pleasantly sleeping and unaware.

They finger Death at their gloves' end where they piece and repiece the living wires.
He rears against the gates they tend: they feed him hungry behind their fires.
Early at dawn, ere men see clear, they stumble into his terrible stall,
And hale him forth like a haltered steer, and goad and turn him till evenfall.

To these from birth is Belief forbidden; from these till death is Relief afar.
They are concerned with matters hidden—under the earthline their altars are—
The secret fountains to follow up, waters withdrawn to restore to the mouth,
And gather the floods as in a cup, and pour them again at a city's drouth.

They do not preach that their God will rouse them a little before the nuts work loose.
They do not preach that His Pity allows them to drop their job when they damn-well choose.
As in the thronged and the lighted ways, so in the dark and the desert they stand,
Wary and watchful all their days that their brethren's ways may be long in the land.

Raise ye the stone or cleave the wood to make a path more fair or flat;
Lo, it is black already with the blood some Son of Martha spilled for that!
Not as a ladder from earth to Heaven, not as a witness to any creed,
But simple service simply given to his own kind in their common need.

And the Sons of Mary smile and are blessèd—they know the Angels are on their side.
They know in them is the Grace confessèd, and for them are the Mercies multiplied.
They sit at the feet—they hear the Word—they see how truly the Promise runs.
They have cast their burden upon the Lord, and—the Lord He lays it on Martha's Sons!

We Sons of Mary—including in the secular sense, as people who are paid to opine and teach law and Think Deep Thoughts—indeed smile and are blessed; for us the Mercies are indeed multiplied. But it's worth remembering how much of that comes from the burden that Martha's Sons bear.

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[Eugene Volokh] EEOC Gets $110K Settlement for Employer's Ignoring Religious Accommodation Requests as to Vaccine Mandate

From the EEOC:

Hank's Furniture, Inc. (HFI), a nationwide furniture retailer, will pay $110,000 and furnish other relief to settle a religious discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the lawsuit, a former assistant manager at HFI's Pensacola, Florida, location notified the company that her religious beliefs prevented her from receiving a COVID-19 vaccine. Rather than discuss the employee's religious beliefs to determine the feasibility of an accommodation, management ignored accommodation requests then summarily denied the employee's requests and attempted to dispute the validity of her sincerely-held religious beliefs.

Such alleged conduct violated Title VII's prohibition on religious discrimination, which requires an employer to accommodate an employee's sincerely held religious beliefs if the employer knows or suspects the beliefs conflict with an employer requirement, and there is no undue burden on the employer. The EEOC filed suit (EEOC v. Hank's Furniture, Inc., Case No. 3:23-cv-24533-MCR-HTC) in the U.S. District Court for the Northern District of Florida after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

Under the three-year decree settling the case, HFI will also adopt and implement a written policy assuring employees HFI will interpret religious accommodation requests broadly based on EEOC guidance and will accommodate religious beliefs that do not put an undue burden on the company. Additionally, decision makers, managers and employees will receive updated training about Title VII's religious accommodation and anti-discrimination provisions.

"Although the COVID-19 pandemic posed novel issues, employers must remain mindful of their obligation to accommodate sincerely held religious beliefs of employees, absent an undue burden," said Marsha Rucker, regional attorney for the EEOC's Birmingham District Office. "Title VII's principles and ideals stand strong, even during a pandemic."

Birmingham District Director Bradley Anderson said, "Employees should not have to renounce their religious beliefs in order to remain employed. Let this case serve as a reminder that employers should afford accommodation for religious beliefs unless doing so would cause an undue hardship."

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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[Josh Blackman] Today in Supreme Court History: July 20, 1990

7/20/1990: Justice William Brennan resigns.

Justice William Brennan

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[Steven Calabresi] Judge Aileen Cannon's Opinion in U.S. v. Trump

[My thoughts on this opinion.]

After an incredibly busy week, I finally had time today to read carefully Judge Aileen Cannon's opinion in United States v. Trump. I thought it was excellent, indeed better than most Supreme Court opinions on the Appointments Clauses (although entirely consistent with those opinions). I might be biased given that Judge Cannon's opinion cited Gary Lawson's and my law review article on this topic, but she went way beyond that article. President Trump of course was also biased in calling her wise and brave, but in this instance I think he was correct.

Here is the heart of the question that Judge Cannon was considering: Has Congress delegated to the Attorney General either the power to create inferior officers or the power to create the office of Special Counsel, which Jack Smith fills? In her very detailed and textualist opinion, Judge Cannon persuasively shows that the answer is "no."

Judge Cannon's opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.

Judge Cannon also discusses, but does not decide whether an office like the office of Special Counsel, if it existed, would be a Principle or Inferior Office for Appointments Clause purposes. Her discussion of that issue is good as any judicial opinion since one written by Justice David Souter concurring in Edmond v. United States, 520 U.S. 651 (1997).

In addition, Judge Cannon discusses what I think is a very serious Appropriations Power issue in the case. She quite rightly concludes that the Justice Department should lose on both grounds, but she correctly relies only on the Inferior Office Appointments Clause and the statutory arguments before her as deciding the case.

Gary Lawson and I argued in Why Robert Mueller's Appointment as Special Council, 95 Notre Dame Law Review 87 (2019), that the "Department of Justice should write a new regulation, replacing the 1999 Janet Reno Regulations, specifying that, in the future special counsels shall be appointed from among the ranks of the permanently appointed U.S. Attorneys."

This would give an Attorney General a list of up to 93 names from which she or he could appoint a Special Counsel.  All of the people on that list are Senate-confirmed officers of the United States who could be given the additional power of prosecuting a case outside of their own districts.

Democrats who are concerned by Judge Cannon's opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?

Sadly, instead of doing that, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon's ruling to the Eleventh Circuit.

He has done this with no acknowledgment of the dangers that the Janet Reno regulations pose to the separation of powers or to the system of checks and balances, which the Constitution creates.

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[Eugene Volokh] Disaster Relief: Court Extends Filing Deadlines Due to "Global IT Outage"

From the Northern District of Illinois federal court's General Order 24-0021 today:

The court recognizes that the July 19, 2024 global IT outage creates great difficulty for litigants attempting to meet court deadlines. It is, therefore, HEREBY ORDERED THAT the date for filing of any orders, writs, process, pleadings, or other matters otherwise due or heretofore made returnable on July 19, 2024, is hereby extended and continued to Monday, July 22, 2024.

Makes sense to me. I expect that, even without such an order, courts would forgive delays under such circumstances, but it's always good for a court to acknowledge this up front. (I don't know whether this will help with statutory deadlines that affect a court's jurisdiction; if readers know the answer to that, please note it in the comments.)

Rumors that federal courts worried about the Y2K bug extended court deadlines to January 1, 1900 have no basis in fact.

C-00000291-00000000-00000032.sys delenda est.

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

[Sen. Mastriano (who is running for reelection to the state senate, and who ran in 2022 for Governor) is suing for, among other things, libel—but trying to keep the allegedly libelous material under seal.]

Some backstory on the underlying lawsuit, from the Canadian Broadcasting Corporation (Aidan Cox):

The University of New Brunswick has become the target of legal action by a Republican politician in Pennsylvania who's accusing the school of leaking his doctoral thesis and of participating in a scheme to discredit his research on a First World War hero.

Doug Mastriano, a U.S. Army veteran and state senator, is suing UNB and several of its faculty members following a wave of criticism directed at the thesis he wrote on Sgt. Alvin C. York that earned Mastriano a PhD from the university in Fredericton.

"Defendants embarked on a racketeering enterprise to deprive Col. Mastriano of his intangible property interests in his PhD, his books, and his speaking engagements," says the lawsuit, filed in Oklahoma by lawyer Daniel Cox….

The lawsuit says it was filed in that court because James Gregory …, one of the named defendants, lives in that jurisdiction….

But the alleged libel at the heart of Mastriano's libel claim (one of several claims in the case) is sealed, and parts of an online article that is claimed to be the basis for the lawsuit are redacted. I've therefore moved to intervene and unseal those exhibits; longtime readers of the blog may remember my successfully doing something similar in the Northern District of Oklahoma (this case is in the Western District of Oklahoma), in Parson v. Farley. Here are key parts of my motion to unseal, which were written together with Stanford law student Olivia Morello (you can also read our motion to intervene).

[* * *]

The defamation portion of this case is "a garden-variety libel case involving a few allegedly false statements about an individual running for office that are embarrassing and potentially injurious to his reputation and business dealings." Parson v. Farley, 352 F. Supp. 3d 1141, 1154 (N.D. Okla. 2018). The standard for such libel cases—as for other cases—is to allow the public to access litigants' filings. Id. The public has a common-law and constitutional right to review court documents. See Courthouse News Serv. v. New Mexico Admin. Off. of Cts., 53 F.4th 1245, 1264 (10th Cir. 2022); Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). Yet the central documents in this case—the allegedly libelous UNB letter and a press article that allegedly echoes the libels—are sealed. And this is so even though public access to both documents is more crucial than usual, given that this case involves allegations that touch on the integrity and competency of an elected public official who continues to run for office.

This case is therefore closely analogous to Parson. As in this case, the plaintiff in Parson was a candidate for public office who sued a defendant for defamation based on the defendant's letter criticizing the plaintiff. Parson, 352 F. Supp. 3d at 1146. As in this case, the plaintiff in Parson filed that letter under seal and attached it to his complaint. Id. As in this case, the sealed letter in Parson played a central role in understanding the plaintiff's defamation claims. Id. at 1153. And, as in this case, proposed intervenor Eugene Volokh filed a motion to unseal in Parson to protect his interests both as a free speech scholar and as a member of the public. Id. at 1147.

Therefore, Volokh moves to unseal

the 2023 letter written by UNB history instructors concerning Plaintiff's thesis, attached as Exhibit 4 to the Complaint (ECF No. 1-4), and the redacted portions of the October 17, 2022 Inside Higher Ed article written by Katherine Knott, attached as Exhibit 2 to the Complaint (ECF No. 1-2).

Memorandum

[I.] The public has a strong presumptive right of access to the sealed letter and the redacted article

Under both the First Amendment and common law, Volokh and the public have a right to access civil judicial records. "Access to the judicial system . . . allows the public to 'participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.'" Courthouse News Serv., 53 F.4th at 1265 (citation omitted). Courts have therefore held that members of the public—and especially those who wish to report on cases, such as Volokh—possess this right even when they are not parties to the case. "The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98 (1978).

The First Amendment provides one basis for this right of access. "[T]he press and public enjoy a First Amendment right of access to newly filed civil complaints." Courthouse News Serv., 53 F.4th at 1264 (citation omitted). "Because [complaints] allow the public to understand the parties involved in a case, the facts alleged, the issues for trial, and the relief sought, providing public access to complaints . . . is crucial to 'not only the public's interest in monitoring the functioning of the courts but also the integrity of the judiciary.'" Id. at 1265 (citation omitted). This reasoning squarely applies to the allegedly defamatory UNB letter and article in this case. Plaintiff has attached both as exhibits to his civil complaint. Both exhibits also serve as primary bases for his claims in his complaint. Without access to either, the public cannot fully understand the merits of Plaintiff's claims and this Court's eventual decision.

In addition, "[c]ourts have long recognized a common-law right of access to judicial records." Mann, 477 F.3d at 1149 (citing Nixon, 435 U.S. at 597). The allegedly defamatory UNB letter and article here qualify as judicial documents to which a common-law right of access attaches. "The 'modern trend' among circuit courts is to classify pleadings in civil litigation as judicial records." Parson, 353 F. Supp. 3d. at 1152. Just like the sealed letter in Parson, the allegedly defamatory UNB letter and article in this case "are relevant to adjudicating the parties' rights; are relevant to the performance of judicial functions; and will assist Volokh and the public in understanding the reasons for the Court's substantive decisions. Therefore, the requested documents are judicial documents to which a presumption of public access attaches." Id. at 1153.

This presumption of open access is particularly strong given the central role that both the letter and the article play in understanding this case. "Where documents are used to determine litigants' substantive legal rights, a strong presumption of access attaches." Colony Ins. Co. v. Burke, 698 F.3d 1222, 1242 (10th Cir. 2012) (citation omitted). "Disclosure is particularly compelling when the documents at issue are central to the litigation." Jacobs v. J. Publ'g Co., No. 1:21-cv-00690-MV-SCY, 2022 WL 540955, at *1 (D.N.M. Feb. 23, 2022) (citation omitted). Thus, for instance, the Tenth Circuit has sua sponte unsealed settlement agreements that contained explicit confidentiality provisions "in light of the centrality of these documents to the adjudication of this case." Burke, 698 F.3d at 1242.

Courts have also applied this standard to defamation cases: "Here, the sealed Letter and the sealed dispositive briefs and their attached exhibits, are central to adjudication of the [defamation] controversy . . . . Therefore, . . . the Court finds the sealed materials are the type of 'judicial documents' entitled to a strong presumption of public access." Parson, 352 F. Supp. 3d at 1153-54 (citation omitted). "The public maintains a strong interest in access to the content of the alleged defamatory statements. If the information currently redacted remains so, the public will have no means to understand the dispute [the plaintiff] has asked the Court to adjudicate." Manhattan Telecomm. Corp. v. Granite Telecomm. LLC, No. 2020-0469-JRS, 2020 WL 6799122, at *5 (Del. Ct. Ch. Nov. 20, 2020). When a document "is at the center of the controversy and forms the basis of [the] legal claims[], the public cannot understand th[e] litigation without access to" the document. Parson, 352 F. Supp. 3d at 1153 (citation omitted). "By asking to maintain the [document] under seal throughout the lawsuit, [Plaintiff] is essentially asking the Court to shield the entire litigation from the public." Id. at 1153.

And both documents here are indeed central to Plaintiff's case, as Plaintiff's own complaint shows. The UNB letter is of course the very document that forms the basis for the defamation claim, Compl. ¶ 125, ECF No. 1, and it also forms part of the allegations for the other claims, id. ¶¶ 34, 46, 56, 67, 78, 94, 100, 109, 117, 123. Similarly, Plaintiff brings claims against Defendant Gregory for his "repeated fraudulent statements . . . against Col. Mastriano's books and thesis" reported in Exhibit 2. Id. ¶¶ 33, 46, 56, 67, 78, 94, 100, 109, 117, 123.

Given the centrality of the letter and the article to the case, "it is difficult to envision a judicial opinion in this matter that could maintain the confidentiality of all the designated material and yet be comprehensible to the reading public." Manhattan Telecomm. Corp., 2020 WL 6799122, at *5 (citation omitted). As this Court must eventually discuss both documents in its opinion, it benefits both this Court and the public to unseal them now, especially since Plaintiff is "in a forum where Plaintiff has . . . the opportunity to respond to the [defamatory] statements." Holmes v. Grambling, No. 1:13-CV-04270-HLM, 2014 WL 12905012 at *3 (N.D. Ga, Oct. 17, 2014). And even if this case never reaches the stage of a judicial opinion discussing the merits, the public is entitled to immediate access to the documents. E.g., United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (allowing intervenors to access previously sealed documents produced during discovery in a case that ultimately settled); Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 136 (2nd 2016) (sua sponte refusing to seal complaint in a case that was settled shortly after it was filed).

[II.] Plaintiff's claimed injuries to his reputation fail to overcome the strong presumption of public access

"Courts have held that injury to one's reputation and potential embarrassment generally do not outweigh the strong presumption of public access attaching to judicial documents." Parson, 353 F. Supp. 3d. at 1152 (citing Mann, 477 F.3d at 1149). Likewise, potential future harm to Plaintiff's "economic interest, teaching professor status and payment, and value of his books and his speaking fees," Compl. ¶ 84, is also insufficient to justify the requested sealing and redaction.

A party "must show more than mere 'potential for collateral economic consequences'" to overcome the strong presumption of public access. Manhattan Telecomm. Corp., 2020 WL 6799122, at *3 (citation omitted). Holding otherwise would block public access to routine libel cases: "The logical conclusion of Plaintiff's argument [for sealing] is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal." Holmes, 2014 WL 12905012 at *2. "[A]ll libel cases would [then] be litigated with the key underlying allegations kept secret." Parson, 352 F. Supp. 3d at 1154.

This is an application of the general principle that a party who seeks to seal access to court records must articulate a significant interest that "warrant[s] the drastic remedy of preventing the public from understanding the nature of his lawsuit." Id. at 1154-55. The "interests of the public . . . are presumptively paramount" in weighing against the interests of Plaintiff. Helm v. Kansas, 656 F.3d 1227, 1292 (10th Cir. 2011) (citation omitted). Therefore, "[t]he party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption." Mann, 477 F.3d at 1149 (citation omitted).

"[A] generalized allusion to confidential information is woefully inadequate" for parties to overcome the public's strong presumption of access. JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs of Cnty. of Montrose, Colorado, 754 F.3d 824, 827 (10th Cir. 2014). Plaintiff has offered only the most general of claims to justify his sealing motion, writing a single sentence: "The letter contains highly defamatory statements and assertions." Mot. to Seal, ECF No. 2. Plaintiff does not cite case law supporting sealing in such cases.

Plaintiff also has not filed a motion to allow the filing of Exhibit 2 with redactions, and therefore has offered no justification for such redactions. Assuming, however, that Plaintiff wishes to similarly argue to that Exhibit 2 contained defamatory statements, such a general reference is not also enough. Like in Parson, neither the allegedly defamatory UNB letter nor the article in this case appear to include Plaintiff's "private information, such as bank account records, social security numbers, or family members' names. Nor do[] [they] reference or name any third parties or their sensitive information." Parson, 352 F. Supp. 3d at 1154.

Plaintiff's interest in protecting his reputation and privacy is especially weak compared to the public's interest because Plaintiff is a current government official. The public therefore has a significant interest in understanding Plaintiff's claims that Defendants used defamatory statements as part of a conspiracy to "commit[] extortion and election interference, so that [Plaintiff] might drop out of the election or lose." Compl. ¶ 63. The public also has an interest in understanding the basis for an elected official's attempt to restrict the speech of his critics—as well as in evaluating whether the critics' allegations may be accurate. As Parson concludes, "the Court finds [plaintiff's] privacy interests in the Letter particularly uncompelling, because [plaintiff] was running for public office when the Letter was written and the Letter expressly references his candidacy." Parson, 352 F. Supp. 3d at 1155.

The fact that this Court has initially granted Plaintiff's motion to seal Exhibit 4 does not allow Plaintiff to continue to keep both Exhibits 2 and 4 under seal. "[T]he party seeking to keep records sealed bears the burden of justifying that secrecy, even where, as here, the . . . court already previously determined that those documents should be sealed." United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (citation omitted). And, even if Plaintiff overcomes his heavy burden, "any denial of public access to the record must be 'narrowly tailored to serve th[e] interest' being protected by sealing or restricting access to the record." United States v. Walker, 761 F. App'x 822, 835 (10th Cir. 2019) (quoting Press-Enter. Co. v. Superior Ct. of California, 478 U.S. 1, 13-14 (1986)) (alteration in original). Plaintiff has redacted broad swaths of the Inside Higher Ed article and has sealed the entire UNB letter. This is not narrow tailoring.

Conclusion

The public possesses a right to access Exhibits 2 and 4. These exhibits do not contain Plaintiff's sensitive personal information. Sealing such do­cu­ments that are central to the case just to protect Plaintiff from embarrassment would set a pre­cedent that all garden-variety libel cases should be conducted under the veil of secrecy.

Plaintiff is also an elected official. The allegations over which he is suing implicate his integrity and competence. The public, even more than with a traditional libel case, possesses a weighty interest in supervising the judicial process in this case. Volokh therefore asks the court to lift the seal on Exhibit 4 and to order that Exhibit 2 be filed in unredacted form.

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

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

[Pepper spray, carry permits, and adult cabaret.]

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

This week on the Short Circuit podcast: We visit the D.C. law firm of Hogan Lovells for a live show about silencers, shipping containers, and speech. If you're jealous and would like Short Circuit to visit your firm, reach out to our own Anthony Sanders.

Get out your bingo cards, libertarian nerds, because this D.C. Circuit case has Elon Musk, environmental review, and space NIMBYs rolled into one. The bottom line? Starlink gets to operate thousands of broadband-providing satellites, but amateur astronomy might get a little harder. Allegation: After the U.S. invasion of Iraq, our company contracted with the new Iraqi government to help rebuild its military—but the Iraqi government instead gave our money to a third party (and maybe murdered our CEO, though that could have been someone else). D.C. Circuit: Iraq is immune from suit because the contract and its effects all happened in Iraq. (The murder, it turns out, doesn't affect the analysis and was just there for color.) First Circuit Senior Judge Bruce Selya gets a lot of attention for his penchant for unusual vocabulary. But don't overlook Senior Judge O. Rogeriee Thompson, who has apparently discarded cliché section headings like "Facts," "Discussion," and "Conclusion." Last month, we got "Table-Setting," "The Main Course," and "Parting Words." This week, we get "How the Case Came to Us," "Our Take on the Situation," and "What This All Means." Along the way, the court denies qualified immunity to "public officials who baselessly threatened a citizen-journalist with legal action if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law." (IJ submitted a sage amicus brief in this case.) Eastern European sailors on a Liberian-flagged vessel blow the whistle on illegal bilgewater dumping. When the ship arrives in Maine, it's detained pending criminal investigation. The sailors are arrested as material witnesses and not allowed to leave the country for two months, during which one sailor's mother-in-law dies overseas. After they're finally released, they sue over their extended detention. First Circuit: But it's a Bivens case, so you know how that goes. During a federal sentencing in New York, the defendant lunged at the prosecutor's table. Security personnel restrained him, breaking his arm in the process. Can he bring a Bivens claim about that in the Second Circuit? A three-sentence per curiam tallies the votes across twenty-two pages of discussion: "yes," "no," and "really really no." Wedding photographer who does not believe in same-sex marriage alleges that New York's public-accommodation law unconstitutionally compels her to photograph same-sex weddings. Second Circuit: The photographer states a plausible free-speech claim, and the district court should consider her application for a preliminary injunction on remand. All other claims were properly dismissed. Your summarist has sought (and obtained) his fair share of preliminary injunctions in constitutional cases, but even he has to admit the quality of the Third Circuit's cri de cœur against courts' granting preliminary injunctions in constitutional cases all willy-nilly and such. Does modern American society still morally contemn the solicitation of prostitutes? We mere newsletter scriveners couldn't begin to tell you: That's a question for philosophers, sociologists, and, of course, the Fourth Circuit interpreting the Immigration and Nationality Act. Sometimes questions of reasonableness should be reserved for the factfinder, but the bodycam footage in this case (some of which, admittedly, consists of "groans, gasps and difficult to decipher words") is enough for the Fourth Circuit to decide as a matter of law that qualified immunity protects an officer who shot a man who charged at him in the dark. In which the Fifth Circuit, en banc, holds that Mississippi's felon-disenfranchisement law (or more precisely, some-felon-disenfranchisement law) does not violate the Eighth Amendment's Cruel and Unusual Punishments Clause. Bad news for convicted bigamists in the Magnolia State. Why is bigamy one of the ten crimes leading to disenfranchisement? No idea. If you know, tell us! A 2023 Tennessee law prohibits performing "adult cabaret entertainment" in places where minors might see it. Drag-show theatrical organization: This violates our First Amendment rights. Sixth Circuit (2-1): The law covers only performances that "lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor." And since the drag-show group likens its performances to Shakespeare and Ancient Greek theater, it hasn't carried its burden of showing that it plans to arguably violate the law. No standing. (And while it's far outside your light-hearted summarists' mandate, we'll note with some dismay that both the majority and the dissent say some decidedly dodgy things about Article III standing.) Transgender individuals: A Tennessee law prohibiting people from amending the sex listed on their birth certificates violates their due process rights to equal protection and informational privacy. Sixth Circuit: Transgender status is not a suspect class, the law is rationally related to Tennessee's interest in recording biological sex, and there is no deeply rooted "right to a birth certificate matching one's gender identity." Dissent: The law impermissibly classifies individuals based on the state's view of sex, and it violates their "fundamental interests in bodily integrity and private sexual matters." Chicago police officers engaged in "proactive policing" stop a minivan for traffic violations. They recognize the passenger as a gang member, and, after a third pat-down, find an illegal gun. The passenger moves to suppress the gun. And after more than a year and a half without a ruling, he then moves to dismiss the indictment under the Speedy Trial Act. District court: No to everything. Seventh Circuit: Fourth Amendment violation? No. Speedy Trial Act violation? Absolutely. The lower court cannot rely on its "crowded calendar" as a reason for the delay. The indictment must be dismissed (though it's up to the district court whether the feds should be allowed to refile). Joliet, Ill. police officer criticizes her neighbor via text regarding the neighbor's testimony at a criminal trial of the officer's boyfriend. Neighbor tells the prosecutor, who believes it to be witness harassment, and detectives get a search warrant for the officer's phone. The officer hands her phone over but expresses concern about material that she didn't want anyone to see. Spoiler alert: They saw. She says that another detective unrelated to the case intentionally accessed her phone data to view an explicit photo, illegally intruding on her seclusion. The detective says he saw it only inadvertently. Seventh Circuit: Given that the law requires intentional intrusion, which the parties hotly dispute, a jury needs to sort it out. The Equal Credit Opportunity Act prohibits creditors from discriminating on the basis of sex, marital status, race, national origin, religion, and age. In 2020, the CFPB brought an action alleging that a mortgage lender discouraged Black people from applying for mortgages on its radio show. For example, the lender's CEO referred to a downtown Chicago grocery store as "Jungle Jewel," "a scary place" because its patrons "were people from all over the world." District court: The law doesn't ban discouraging prospective applicants, just actual applicants. Seventh Circuit: Reversed. The point of the law was to end discrimination in credit applications, which includes the lender's actions before someone applies for credit. During the 2020 George Floyd protests in Minneapolis, a 19-year-old is shot in the face by police with a chemical projectile and loses sight in one eye. Qualified immunity? Eighth Circuit: A jury could find the situation was under control and there was no threat to the officers, so that the force used was unconstitutionally excessive. Dissent: Officers were trying to rescue a stabbing victim amid a "large, out-of-control crowd," and the plaintiff "attacked a fellow officer," so the officer who fired acted reasonably (or at least reasonably enough to get qualified immunity). During protests against the police in Brooklyn Center, Minn., in 2021, a protestor is pepper-sprayed and injured by a rubber bullet. He sues state and local law enforcement, who assert various immunities. Eighth Circuit: The state agency has sovereign immunity, and the police supervisors get qualified immunity because it wasn't clearly established that dispersing a crowd counts as a "seizure" for Fourth Amendment purposes. But the claims that the police retaliated against First Amendment-protected speech need more factual development, so no qualified immunity there. Arkansas man fires his shotgun at the bumper of an SUV cruising near his home, thinking it's a pair of ne'er-do-wells who had tried to rob him a couple of days earlier. Surprise! It's actually two federal law-enforcement officers. The man is convicted of assaulting federal officers with a deadly weapon and sentenced to 10 years' imprisonment. Eighth Circuit: And the district court was right in holding that the gov't didn't need to prove that the guy knew that the people he was shooting at were federal officers. A qualified-immunity ouroboros in which a Champlin, Minn. police officer is bitten by a K9 handled by a Hennepin County, Minn. sheriff's deputy. The bitten officer sues his compatriot for Fourth Amendment violation. District court: no qualified immunity. Eighth Circuit: Since the deputy didn't intend for Thor to bite his fellow officer, it's not clearly established that the bite was a seizure. Qualified immunity. Minnesota: The Second Amendment allows us to categorically deny carry permits to people between 18 and 21 because, at common law at the time of the Founding, people under 21 were minors. Eighth Circuit: But a lot of them were minors who carried guns, so this all seems pretty unconstitutional to us. We continue to believe that when the judges on an appellate panel issue at least three different conflicting opinions, the "holding" of the case should be determined exclusively by reference to its Short Circuit summary. But, until the courts adopt that sensible rule, we applaud the Ninth Circuit's decision to also issue a short per curiam opinion detailing where the opinions overlap and what counts as a "holding." Two members of the "Rise Above Movement" ("a combat-ready, militant group of a new nationalist white supremacy and identity movement") are charged with conspiracy to violate the Anti-Riot Act for attacking people at peaceful protests in California. District court (2019): The Anti-Riot Act is facially unconstitutional. Ninth Circuit (2021): No (simplifying slightly), no it's not. District court (2024): Well, the government engaged in selective prosecution by going after these white nationalists and leaving Antifa alone. Ninth Circuit (2024): What? No. Come on. Fuzhou University (in China) offers chemist a five-year, full-time professor gig. But he's already a tenured professor at the University of Kansas, a gig he doesn't want to give up. So he tries to do both without telling KU about Fuzhou, including by omitting Fuzhou from an annual report to KU of his significant financial interests and time commitments. Feds: This omission constitutes a materially false statement that could've been used to influence federal agencies' decisions on the prof's grant proposals. Tenth Circuit (over a dissent): It does not. He had no pending grant proposals when he submitted the annual report, so there were no decisions to influence, making any omissions immaterial. (He's currently trying to get his job back at KU.) A federal program provides grants for family-planning services, but to be eligible recipients must provide "nondirective counseling and referrals for all family-planning options, including abortion." Following the Supreme Court's ruling in Dobbs, Oklahoma says it can't do this anymore. HHS responds that the state can remain eligible if it simply passes along a national call-in number to inquiring patients. Oklahoma initially agrees, but then changes its mind, and HHS ends the grant. Oklahoma sues. Tenth Circuit (over a dissent): But their claims fail. (Ed.: If you'd like to see what they claimed and why they lost, the court provides an unusually helpful summary on pp. 4-5—a laudable practice.) A social-media influencer asks: Does literally shit-posting from a national park count as "conducting business activity" without a license? Tenth Circuit: The regulation's too vague. Given people's tendency to self-promote, our personal and professional identities online are often intertwined. The influencer could not have known that doing posts online was illegal "work activity." Two-judge concurrence: Also, maybe the Supreme Court should reconsider its made-up rule that the Sixth Amendment's jury guarantee applies only to "serious infractions." Georgia driver is pulled over for going 85 in a 55 on a wet road at night. When it turns out he'd been drinking, he's arrested for DUI. He sues the arresting officer for excessive force, alleging he was thrown to the ground for no good reason and suffered a broken collarbone. Eleventh Circuit: Let's go to the videotape! Nope. No excessive force here. Eleventh Circuit: We're withdrawing our previous 111-page opinion in this class action under the Telephone Consumer Protection Act and replacing it with this one. It's identical in every way, but two of us want you to know you can ignore everything but Section III.C.iii, which is the only part we all agree on.

Does video footage of DEA officials' bullying travelers at airports get your dander up? Then take a look at this recent IJ video, which puts a spotlight on the agency's unconstitutional airport interdiction tactics. Or maybe you're the kind of person who's a big fan of unconstitutional airport interdiction tactics? Well … you should probably watch the video too.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.