Eugene Volokh's Blog, page 33

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Follow-Up re: Alleged Discrimination at the University of Oregon Law Review

Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this follow-up item to an earlier post. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to get a copy of the investigative report or other related material from the University of Oregon, but have gotten nothing other than a copy of the initial complaint; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.

From Prof. Raban:

As reported here on May 12, in February this year the University of Oregon received a complaint charging unlawful discrimination at the University Oregon Law Review. The Review rejected an article by an Israeli professor—who also teaches in the U.S.—because she is a faculty member at  Tel Aviv University.. The editors' sense of impunity was such that the discriminatory decision was put in writing. When another editor raised the alarm about the legality of the action, a high-ranking member of the law school administration was consulted and then approved the discrimination. Today, six months after the University received the complaint about this discrimination—which allegedly violated a slew of laws and regulations—no known adverse action has been taken against anyone involved, and the high-ranking official is still holding her prominent position at the law school.

Moreover, in response to my most recent inquiry, the University's Office of Investigations and Civil Rights Compliance informed me that the results of the investigation will be kept secret because "The outcome of the process implicates confidential employee information that we are typically prohibited from sharing."

Is that so? In 2016, when the University of Oregon opened an investigation into a blackface episode involving a law school professor (who in fact ineptly advocated for racial equality), the University released the full report of its investigations, issued public condemnations, and publicized its punitive actions against the professor—all while explaining that academic tenure protections prevented her firing.

In sharp contrast, the University of Oregon is presently engaged in a pattern of stonewalling and refusals to address complaints of unlawful anti-Jewish and anti-Israeli harassment and discrimination on campus. This may be unsurprising, given that University of Oregon officials are often themselves the perpetrators of such acts.

As already noted, a high ranking law school official authorized the discrimination at the University of Oregon Law Review; and this year no less than six university departments and centers joined to invite to campus a  speaker who celebrated the October 7 attacks and denies Israel's right to exist.

When a complaint was filed about this officially-organized and sponsored event with an antisemitic speaker who endorses terrorism (when we cut through the speaker's lip service to respectability), the University appointed an examiner who concluded that there was no reason to even open an investigation. Her conclusion relied on the claim that the Jewish and Israeli students who joined the complaint (and reported being ostracized and harassed in their classrooms and dormitories as a result of the university-created atmosphere on campus)—did not actually attend that speaker's event … as if that should matter. (Indeed what Jewish or Israeli student would want to attend such event?)

In the meantime, examples of unaddressed misdeeds by university officials and others continue to accumulate. Materials celebrating the October 7 attacks and calling for the elimination of the Jewish state are distributed on campus from University-owned and -operated office spaces. One such pamphlet decries efforts aimed at at a two-state solution by protesting (in the obscure vernacular typical of such political manifestos):

This effort aims to depoliticize the fighter through the offer of reintegration into the social and economic order administered by the Palestinian Authority. This tactic seeks to erase the space carved out by resistance. The negotiation is premised on unraveling the wager that the fighter has already made—a wager on death, on ethics, on unknown horizons of politics.

Such materials, which echo the position of the terrorist organization Hamas and call for the violent eradication of Israel, are distributed to students from offices at the University of Oregon's principal Student Center—despite repeated complaints about the matter.

As for the attempt to bury the investigation at the Oregon Law Review: The University of Oregon—a public educational institution entrusted, among other things, with educating the next generation of American lawyers—is engaged in a blatant cover-up of seemingly unlawful actions perpetrated by students and administration officials at the law school. What kind of a message does this send to America's future lawyers and judges? What are University of Oregon law students to think when their own university acts lawlessly?

In his recent commencement address, University of Oregon president Karl Scholz sanctimoniously called on the graduating students to "stay true to [their] values." We are left to hope that their values are different than his.

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[Ilya Somin] My New Bulwark Article on Trump's Unconstitutional Export Tax

[The article explains why the policy is unconstitutional, but also why it is unlikely to be challenged in court in the near future.]

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Today, The Bulwark published my article on Trump's unconstitutional export tax policy. Here is an excerpt:

The Trump administration has imposed a "deal" on chip manufacturers Nvidia and AMD under which they are required to pay the U.S. government 15 percent of revenue earned from computer chip sales to China. Nvidia will do so on sales of its H20 chip, while AMD will be required to pay that percentage of sales of its MI308 chip. This arrangement is likely unconstitutional and sets a dangerous precedent for unilateral executive imposition of taxes without legislative authorization. But it may not be challenged in court anytime soon.

Article I, Section 9 of the Constitution states that "No Tax or Duty shall be laid on Articles exported from any State." The Supreme Court has interpreted this broadly to require "not simply an omission of a tax upon the articles exported, but also a freedom from any tax which directly burdens" exports. Trump's appropriation of 15 percent of the two firms' revenue from chip sales to China surely qualifies as such a tax.

The Supreme Court has held that the Export Clause "does not rule out a 'user fee,' provided that the fee lacks the attributes of a generally applicable tax or duty and is, instead, a charge designed as compensation for government-supplied services, facilities, or benefits." But the payments imposed on the two chip manufacturers pretty obviously aren't user fees, as they are not charges for the use of any government facilities or services…..

The fact that the payments are part of a "deal" with the Trump administration also does not make them constitutional. The executive cannot impose an otherwise unconstitutional tax merely because it has reached an agreement to do so, in this case in exchange for authorizing export licenses. Otherwise, the government could impose taxes in exchange for a variety of discretionary decisions. For example, it could require payment of extra taxes in exchange for providing military protection against foreign attack, law-enforcement protection against criminals violating federal law, and much more. Part of the point of giving the power to tax to the legislature instead of the executive is precisely to prevent this kind of extortion….

The imposition of this unconstitutional export tax must be viewed in the context of Trump's broader effort to usurp the power of taxation from Congress with respect to international trade. He has also tried to illegally use the International Emergency Economic Powers Act of 1977 (IEEPA)—a law that does not even mention tariffs—to impose the most extensive tariffs since the Great Depression, potentially costing Americans trillions of dollars in tax payments…

Blocking the executive from usurping the power of taxation was a major concern of the Framers of the Constitution, who recalled the "Ship Money" abuses of King Charles I, which helped precipitate the English Civil War. Like King Charles, Trump is abusing emergency and national security powers to try to impose massive taxes unauthorized by the legislature, except that in the case pf Trump's export taxes, the written Constitution explicitly forbids his taxes. In that respect, Trump is even more abusive than King Charles was…

Unlike in the case of the IEEPA tariffs, Trump's illegal export tax may not be challenged in court, at least not in the near future. To file a lawsuit, plaintiffs must have "standing." Among other things, that requires them to demonstrate that they have been "injured" by the defendants' illegal actions. The most obvious injured parties in this case are the two chip exporters. But they appear to have decided to accept the "deal" offered by the administration rather than risk again being barred from exporting chips to China entirely.

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[Eugene Volokh] No Emotional Distress Liability for Science Camp Exposing Fifth-Graders to "Gender Identity Related Discussions"

From Sandoval v. Pali Institute, Inc., decided Wednesday by California Court of Appeal Judges Thomas Delaney, Joanne Motoike, and Maurice Sanchez:

After returning home from a multiday overnight science camp run by defendant Pali Institute, Inc. (Pali) and organized by their public school district, plaintiffs sued Pali and the school district for intentional infliction of emotional distress and negligent infliction of emotional distress based, in part, on their exposure to gender identity related discussions while at the camp….

While in fifth grade, at 10 and 11 years old, plaintiffs attended an overnight science camp arranged by their public school district and run by Pali. After returning from the four-day camp, plaintiffs sued the school district and Pali for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).

The complaint alleges plaintiffs "were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns.' They further asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity." It further alleges plaintiffs had to sleep in a dormitory with only one camp counselor and that counselor identified with they/them pronouns. When they allegedly asked to call their parents to discuss these matters, camp counselors did not let them due to a Pali policy prohibiting students from calling home while at camp.

{[Plaintiffs'] declaration set forth a more detailed account of what the daughter said occurred at camp. According to the declaration, the counselors "aggressively introduced themselves with their preferred pronouns and threatened the children with disciplinary action if they failed to use the[ ] pronouns correctly."

The daughter felt scared and asked to call home, but that request was denied repeatedly. In doing so, the counselor "belittled" the daughter's feelings as "'stupid.'" When peers tried to comfort her, the counselor "scolded" them and sent them back to bed, "further exacerbating [her] feelings of isolation and fear." The daughter was later denied some "privileges granted to the other campers," such as being able to drink soda. When the daughter returned home, the mother observed "the negative effects of the camp experience on [her]," such as developing a phobia of being alone and not wanting to sleep alone. For these reasons, the daughter started professional therapy with her grandfather.}

As part of their IIED cause of action, plaintiffs allege Pali's actions "were intentional, extreme, and … done with the intent to cause emotional distress or with reckless disregard of the probability of causing plaintiffs emotional distress." And as part of their NIED cause of action, they allege Pali owed them a duty of care "to ensure [they] were not exposed to foreseeable harms." Both causes of action allege Pali's conduct caused them severe emotional distress.

The court concluded that the part of the claims based on the gender identity discussions and preferred pronouns should be dismissed under the California "anti-SLAPP" statute, which provides for early dismissal of claims based on speech on matters of public concern (to oversimplify). The claims based on "Pali's policy of not allowing students to call home while at camp," "allegations concerning sleeping arrangements and the failure to disclose information about camp counselors," and "harassment of the daughter" "unconnected to the subject matter of anything that took place at camp" were apparently not subject to the anti-SLAPP challenge and may still go forward. An excerpt from the analysis:

IIED has three elements: "'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; [and] (3) … actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'"

Here, the IIED cause of action is generically pled, incorporating by reference factual allegations stated elsewhere in the complaint to supply, for example, the acts which plaintiffs claim were extreme and outrageous and caused severe emotional distress. Those allegations include the following: "[p]arents were in no way informed that sexual matters or LGBTQ issues would be taught at Pali and their consent was not obtained"; "[w]hile present at Pali, … [plaintiffs] were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns'"; the counselors "asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity, all of which were of an age-inappropriate character, were not consented to by plaintiffs' parents and/or guardians and would not have been consented to, had parents been informed"; plaintiffs "requested to call their parents to discuss what had happened but were prohibited [by] camp personnel from doing so"; "Pali's policy prohibited students from calling home while at Pali."

The focus of these allegations is the counselors' actions involving the gender identity subject matter, meaning those actions are at least part of the allegedly outrageous behavior on which the IIED cause of action is based…. [Likewise], the complaint's introduction … states plaintiffs' parents sent them to camp "based on the representation and belief that they would receive education consistent with the Western values with which they were raised at home," and says Pali "pulled a bait-and-switch[ ] [by] instead subjecting [plaintiffs] to instruction of a sexual character, focused on LGBTU [sic] issues with which [they] were unfamiliar and psychologically unprepared to process." …

Although a fair interpretation of the complaint leads us to conclude there are IIED claims which arise from the gender identity related protected activity, it simultaneously confirms plaintiffs also appear to seek to impose IIED liability based on Pali's alleged policy of not letting students call their parents. Plaintiffs expressly represent that claim has no connection to gender identity related matters. And although not in the complaint itself, the mother's declaration raises the specter of harassment of the daughter. To the extent these claims—including any alleged emotional distress—are unconnected to the subject matter of anything that took place at camp, they do not arise from protected activity. Thus, they may not be stricken pursuant to the anti-SLAPP statue. Whether such claims are legally viable and, if so, whether plaintiffs will be able to demonstrate liability, are matters not before us and properly left for another day….

The second step of the anti-SLAPP analysis [once it is shown that the claim is brought based on speech on matters of public concern] requires evaluating whether a plaintiff has met its burden of demonstrating the claims which arise from protected activity are legally sufficient and factually substantiated….

The tort of IIED applies only to outrageous conduct. "Outrageous conduct has been defined as conduct that is 'so extreme as to exceed all bounds of that usually tolerated in a civilized community' [citation] and 'so extreme and outrageous "as to go beyond all possible bonds [sic] of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."'"

Whether conduct qualifies as outrageous is usually a question of fact, but a court may determine in the first instance whether, as a matter of law, alleged conduct may reasonably be regarded as so extreme and outrageous as to allow the matter to proceed to a trier of fact. And, in the negligence context, the question of duty is a threshold issue of law for the court.

Based on our protected activity analysis, the alleged conduct which we must evaluate here is the exposure of 10 and 11 year olds to gender identity related discussions in a public school setting and the provision of such exposure without parents first being informed. Plaintiffs provide no argument or legal authority explaining how such conduct could be sufficiently outrageous to support an IIED cause of action …. In contrast, we find existing California public policy precludes such potential liability….

As Pali points out, the California legislature has made clear its position that gender identity is a characteristic to be protected and safeguarded, and discrimination based on it should not be tolerated in schools or otherwise. Construing conduct which consists of engaging in gender identity discussions aimed at establishing a more inclusive school environment as outrageous or a breach of a duty of care would run directly counter to that established state policy.

Because the claims arising from the gender identity related protected activity are neither factually substantiated nor legally sufficient, they must be stricken from the complaint….

For similar reasons, the court threw out the negligent infliction of emotional distress claim as well (again, to oversimplify).

Justice Delaney added:

Having authored the majority opinion, I also write separately to express additional thoughts concerning the legal sufficiency of plaintiffs' intentional and negligent infliction of emotional distress claims that arise from gender identity related protected activity. I believe the liability they seek to impose is legally unavailable for reasons beyond a mere conflict with state legislative policy.

As aptly stated by another court in declining to allow a winemaker's defamation claim grounded in a comedian's alleged insinuation that the winemaker's wines were popular with African Americans, "[c]ourts will not condone theories of recovery which promote or effectuate discriminatory conduct." Stated differently, "the law cannot, directly or indirectly, give [private biases] effect."

Opening the door to emotional distress tort liability based on school setting discussions of gender identity aimed at establishing a more inclusive school environment would cast a dark shadow over a matter through which people seek to express their subjective, deep-core sense of self. It would convey a message of intolerance of those perceived as different, and it would work to foster discriminatory attitudes towards them.

As history teaches us, even though such biases may nevertheless persist in society, the law simply cannot give effect to them. (See, e.g., Palmore v. Sidoti (1984) [potential pressures and stress on minor child from living with stepparent of different race due to private racial and ethnic biases may not factor into custody determination]; Shelley v. Kraemer (1948) [declaring judicial enforcement of real property racially restrictive covenants unconstitutional]; Castaneda v. Olsher (Cal. 2007) [refusing to recognize tort based duty of landlord because doing so would likely result in arbitrary discrimination on basis of various protected characteristics]; Polygram Records, Inc. v. Superior Court (Cal. App. 1985) [refusing to recognize defamation theory that would effectively promote racially discriminatory ideas]; Simmons v. American Media, Inc. (Super. Ct. L.A. County, 2017) [concluding mislabeling person as transgender cannot constitute libel per se and refusing to validate private prejudices against transgender individuals by legally recognizing them]; Greenly v. Sara Lee Corp. (E.D. Cal. 2008) [statements wrongly labeling coworker as homosexual cannot be defamatory per se and concluding otherwise would demean lives of homosexual persons]; Albright v. Morton (D. Mass. 2004) [analogizing evolution of societal views of homosexuality with that of race and concluding wrongfully identifying someone as homosexual cannot be defamatory per se].)

The importance of adhering to this fundamental principle, which courts across the country have applied for the greater part of a century, cannot be underscored enough under the circumstances. "[F]oster[ing] an environment of inclusivity, acceptance, and tolerance … serve[s] an important educational function for [all] students. When a school promotes diversity and inclusion, 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting [because] the students have the greatest possible variety of backgrounds.' Students in diverse learning environments have higher academic achievement leading to better outcomes for all students…. [A]nd[,] inclusive classrooms reduce prejudices and promote diverse relationships which later benefit students in the workplace and in their communities."

I would find plaintiffs' claims arising from protected activity to be legally nonviable for this additional, critically important reason….

My view: The court erred, I think, in focusing on the particular views being promoted and concluding that they are endorsed by California public policy and therefore actionable; that suggests that the relevant torts are viewpoint-based speech restrictions, allowing liability for some viewpoints (ones that are seen as "outrageous" and aren't endorsed by California public policy) but forbidding liability for other viewpoints. Rather, the court should have just relied on Snyder v. Phelps (2011), which holds that the First Amendment protects the expression of opinions on matters of public concern, even when they are seen as outrageous and severely emotionally distressing. And I think that principle—and especially its viewpoint neutrality requirement—generally applies to speech to children and students as well as speech to adults.

Disclosure: I knew Andy Wexler, the founder of the Pali Institute (who I assume still owns it) socially, when I lived in the Pacific Palisades; but I haven't discussed this case with him, and in general haven't been in touch with him for more than five years (and likely closer to ten).

Lisa Perrochet and Mark A. Kressel (Horvitz & Levy) and Sonali Olson and Sherri Matta (Olson Law Group) represent the Pali Institute.

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[Eugene Volokh] No Sanctions Against Joshua Wright in His Now-Terminated Defamation Lawsuit Against His Sexual Misconduct Accusers

From Tuesday's opinion by Manuel A. Capsalis (Va. Cir. Ct. Fairfax County) in Wright v. Landry (a case that has been covered in several posts on this blog):

Plaintiff Joshua Wright is a former professor at George Mason University Antonin Scalia Law School …. He was distinguished for his scholarship and served as the Executive Director of the Global Antitrust Institute. He also managed a private consulting business, Plaintiff Lodestar Law and Economics …. In the summer of 2023, he resigned from his post at the Law School.

While a professor, he had romantic relationships with students. Allegations of sexual misconduct were brought to light by former students, Defendant Elyse Dorsey and Defendant Angela Landry. They publicly accused him of sexual harassment and sexual misconduct in addition to reporting the allegations to a Title IX investigator.

Wright does not dispute that he had an ongoing sexual relationship with Dorsey and Landry while they were students at the Law School. He claims that the relationships were consensual, lasting far beyond their graduation. Dorsey and Landry disagree with Wright's characterization of the relationship, citing the power imbalance between teachers and students.

Public discussion about this matter ensued. Law360, among other media outlets, published articles. Wright subsequently brought a lawsuit against Defendants. He claimed that their allegations of misconduct were false which tarnished his reputation and caused him substantial financial harm. The lawsuit contained a count of tortious interference, several counts of defamation, and counts of statutory and common law conspiracy. Plaintiffs prayed for a total of $108 million worth of damages in addition to injunctive relief prohibiting the publication or republication of the alleged defamatory statements.

Parties litigated this case extensively until Dorsey settled with Plaintiffs, and a nonsuit was taken on the eve of trial against Landry.

Landry moved for sanctions, basically claiming that the tortious interference claim and its damages demand were frivolous; but the court said no:

A tortious interference with business expectancy or contract claim requires:

(1) the existence of a valid contractual relationship or business expectancy;

(2) knowledge of the relationship or expectancy on the part of the interferor;

(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and

(4) resultant damage to the party whose relationship or expectancy has been disrupted.

In this case, Plaintiffs and their counsel … had a reasonable belief to plead that Landry tortiously interfered.

Prior to any complaint being filed in this case, and before the first media coverage, Parties were embroiled in a Title IX investigation. At the direction of GMU, an investigator interviewed students. University officials questioned Wright. Parties even attended mediation. Throughout this time, Plaintiffs contend that they developed the belief that Landry and Dorsey were acting together.

On August 14, 2023, the Law360 article was published. Featured commentary was provided by Landry and Dorsey. As pleaded, Wright believed that his suspicions were confirmed that Defendants were working together and sharing information with each other. His over a million-dollar portfolio of business dissipated; Plaintiffs then pleaded that both Defendants were to blame…..

A more nuanced basis, independent of Defendants working together, also exists. Defendants individually shared a relationship with Wright that is inextricably intertwined with his business dealings. For example, Dorsey previously worked at Wright's company, Lodestar. Landry also discussed professional matters with Wright. Both Defendants, at one point or another, consulted Wright when making career decisions. The connection between Defendants, Plaintiffs' business, and the losses, provided a means for Plaintiffs to plead tortious interference ….

Whether Plaintiffs may ultimately prove their tortious interference claim against Landry is not for the Court to decide at this time. For the purposes of the present Motion, Landry must show that Plaintiffs and their counsel could not have formed a reasonable belief, after conducting a reasonable inquiry, that the pleadings [were factually and legally well-founded]. Based on the evidence received, this Court finds that Plaintiffs met the standard to allege a tortious interference claim against Landry. …

Landry also argues that… the amount [of damages] sought—$108 million—is unsupportable. The figure, she claims, caused her to needlessly increase the costs of her defense. Plaintiffs, on the other hand, argue that the ad damnum clause is merely to put Defendants on notice of the amount of damages sought. The amount pleaded, Plaintiffs point out, does not guarantee recovery in full; damages are a matter that should be argued at trial.

Plaintiffs are correct. Virginia Supreme Court Rule 3:2(c)(ii) requires the plaintiff to provide "the amount of damages sought." This is to provide the defendant "notice of the size and amount of the claim against her as she is entitled to notice of its nature." The rule, however, does not require a plaintiff to plead more than a lump sum of damages. In any event, a plaintiff may not recover more than the amount pleaded….

Wright testified at the hearing that he spoke with his attorneys about how he believed he was damaged. He stated:

I told, to the best of my recollection, what I told Mr. Cross was that I conferred with my counsel. I described each of the contractual relationships that Lodestar had or that I had individually, what I expected in my experience for those relationships to grow over time or stay the same, the future expectancy with those businesses and the nature of those relationships, how long I expected for those relationships to continue. And then I provided those figures and contracts and that additional qualitative information to my counsel, who put together the complaint.

Wright's testimony indicates that there were pre-filing discussions with counsel and that the damages figure was properly pleaded. Sanctions will not be imposed under these circumstances….

The court also rejected Landry's claim for attorney fees under the Virginia anti-SLAPP statute, which provides for such fees when a tort claim based on speech on matters of public concern is thrown out:

{Landry moved to dismiss the following statements on demurrer:

127. Specifically, in the context of her sexual relationship with Mr. Wright, Defendant Landry falsely stated that he "emotionally abused and manipulated [her] until he got what he wanted."

128. She falsely stated that she "does not believe she would have been in a relationship with him" absent the power dynamics, which is intended to convey that he subjected her to a nonconsensual relationship.

The Court overruled the demurrer as to paragraph 127 and dismissed paragraph 128 with prejudice.} …

Colloquially known as the Virginia Anti-SLAPP Statute, Virginia Code Section 8.01-223.2 was enacted to "weed out and deter lawsuits brought for the improper purpose of harassing individuals who are exercising their protected right to freedom of speech." …

In this case, the Court cannot impose Anti-SLAPP fees for four reasons: (1) the defamation count survived demurrer; (2) the statement was not dismissed pursuant to the statute because it was not even raised on demurrer; (3) this Court cannot now impose an additional ground of dismissal when two motions addressing the issue were already adjudicated; and (4) dismissal of any part of the lawsuit pursuant to the immunity is now moot…. A nonsuit ends the litigation. The day Plaintiffs exercised their statutory right to voluntarily dismiss the case, Landry filed the instant Motion. To the extent that the Motion requests that the immunity apply now, the Court will deny the Motion as moot. The litigation has ended. No finding of immunity can be made….

Jason C. Greaves, Stephen B. French, Lindsay R. McKasson, Benjamin North, and Parker Bowman (Binnall Law Group) and Jennifer Little (Jennifer Little Law) represent plaintiffs.

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[Eugene Volokh] Lawsuit by Hunter Biden's Lawyer Kevin Morris Against Conservative Activist Garrett Ziegler Can Go Forward

[The remaining claims are for impersonation and portraying Morris in a false light by quoting out of context.]

In yesterday's California Court of Appeal decision in Morris v. Ziegler, written by Justice Judish Ashmann-Gerst, joined by Justices Elwood Lui and Victor Chavez:

Morris's claims arise from allegations that defendants impersonated a Democratic fundraiser to obtain personal information about Morris's client, Hunter Biden (Biden), and the then-emerging political and legal controversy surrounding his laptop (the Biden laptop)….

Ziegler worked as a political aide and White House staff member during President Donald Trump's first administration. In 2020, Ziegler transitioned to a private-sector career as an activist, publishing online exposés about President Trump's political opponents and their associates.

In July 2021, Ziegler founded Marco Polo, which he describes as "a research group whose mission is to expose corruption and blackmail." Ziegler distributes his exposés through Marco Polo's Web site, as well as its associated pages on various social media platforms.

Morris is an attorney. In 2019, he began representing Biden, the son of then-President Joseph Biden….

In May 2022, several news outlets reported that Morris was financially supporting Biden. On May 19, 2022, Ziegler—using the name of a major fundraiser for the Democratic party, Jon Cooper (Cooper)—began texting Morris for information about Biden. Believing that "Cooper" wanted to help Biden, Morris gave him "information and analyses" about the Biden laptop.

On May 29, 2022, "Cooper" texted an image of a cartoon purple squid perched atop planet Earth, circled by the words "Marco Polo" and "NOTHING IS BEYOND OUR REACH." He then texted that Morris "ha[d] given us plenty. Thank you!" Morris immediately began referring to "Cooper" as "Garrett[,]" apparently realizing that he was actually communicating with Ziegler.

Morris and Ziegler then began antagonizing each other over text. At this point, Ziegler demanded that Morris "immediately cease and desist any and all further threats and/or harassing messages, communications and [similar] activities of any kind[,]" and informed Morris that he would "document[] all communications for potential civil, criminal, and historical purposes."

Morris responded with a series of insults and invectives, including the following threat of legal action: "We have 8 [Southern District of New York (SDNY)] prosecutors on our team. [¶] All this took was a phone call. [¶] 8 lawyers with 10 + years as [Assistant United States Attorneys] in SDNY… . [¶] … [¶] You're going to prison and we're going to get all of the money your family has and you will work for us for the rest of your life. [¶] You'll come to my house everyday and wash my car. [¶] … [¶] … We will follow you to the ends of the earth." …

Within roughly 75 minutes of sending the initial "Marco Polo" image to Morris on May 29, 2022, Ziegler posted a screenshot of the message on social media.

The following day, Ziegler posted additional portions of his text message conversation with Morris on Truth Social, saying that he "[j]ust got threatened by … Biden's attorney and fixer, … Morris."

Ziegler also distributed Morris's address and phone number to his social media followers; shortly after telling his followers about "MPolo's first move[,]" Ziegler said that "[w]e will be sending our Report" on the Biden laptop "to Morris at his home[,]" and solicited people to hand out flyers about Morris near his home. On the internet messaging service Telegram, users in Ziegler's feed suggested that they could help by calling and texting Morris en masse, and driving to his home. A few said that they had already begun calling him.

In October 2022, Marco Polo published a 644-page report about the Biden laptop. The report, which was widely reported on, included excerpts of Ziegler and Morris's text exchange, as well as photos of Morris and his family members.

Morris alleged that after these publications, he was "continually harassed via phone calls by numerous different people[,]" and feared people "driving past his houses."

The court rejected Morris's claims for violation of the California criminal doxing statute, on the grounds that this particular statute doesn't provide a civil remedy. (There's now a civil doxing statute in California, but it only became effective Jan. 1, 2025.) The court likewise rejected Morris's tort claims for civil harassment, on the grounds that the California harassment statute provides only a special form of injunctive relief, and not damages. But the court allowed Morris's claim for impersonation to go forward:

As relevant here, section 529 of the Penal Code provides criminal liability for "[e]very person who falsely personates another in either his … private or official capacity, and in that assumed character" "[d]oes any other act whereby, if done by the person falsely personated, he might … become liable to any suit or prosecution … or whereby any benefit might accrue to the party personating, or to any other person."

Morris met his burden of demonstrating minimal merit on this claim. Morris alleged—and provided text messages to support—that Ziegler contacted him, pretended to be Cooper, and used that guise to obtain private information….

Defendants also argue that Morris's criminal impersonation claim should fail for the same reason as his doxing claim—namely, that the claim is based on a violation of a penal statute that does not provide a private right of action. However, defendants did not raise this argument below. And their arguments on appeal are conclusory, comprising roughly six sentences across the appellate briefs and lacking any analysis of the statute's text or legislative history.

The court also allowed Morris's false light claim to go forward (together with Morris' related intentional infliction of emotional distress claim); a false light claim essentially requires knowingly or recklessly false statements that are highly offensive to a reasonable person:

Morris alleges that defendants selectively published his text messages to create the false impression that Morris baselessly harassed defendants to chill their scrutiny of him and his powerful political associates. To that end, Morris submitted screenshots of multiple social media posts; in these posts, Ziegler accused Morris of threatening him and published a handful of Morris's text messages without context (i.e., that Ziegler provoked Morris's outbursts by impersonating Cooper for weeks to obtain confidential information)….

The bombastic text messages are highly offensive, as is the implication that Morris improperly wielded his money and influence to silence political opponents. And because defendants both participated in the original text thread (as described above), they knew—or, at the very least, recklessly disregarded—the false impression that would be created by publishing the messages without context.

These facts sufficiently establish that Morris's false light claim has the minimal merit required to survive an anti-SLAPP challenge….

Defendants only challenge Morris's IIED [intentional infliction of emotional distress] claim by reprising their unsuccessful false light arguments, contending that Morris failed to show actual malice. (See Reader's Digest Assn. v. Superior Court (Cal. 1984) [if "based upon the same facts as [a] cause of action for libel[,]" IIED claim against a public figure requires a showing of actual malice].) For the same reasons described above, their IIED argument fails….

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[Josh Blackman] What Matters On The Shadow Docket? The Merits or the Equities?

[Justice Kavanaugh thought NetChoice would win on the merits, but "the balance of harms and equities" did not favor allowing the injunction to go into effect.]

In CASA v. Trump and Labrador v. Poe, Justice Kavanaugh explained that the most important element in emergency applications is whether the movant is likely to succeed on the merits.

But in NetChoice v. Fitch, Justice Kavanaugh found that an injunction was not proper, even though he thought NetChoice would prevail on the merits.

I concur in the Court's denial of NetChoice's application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. See Response in Opposition 37–39. To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members' First Amendment rights under this Court's precedents. . . . In short, under this Court's case law as it currently stands, the Mississippi law is likely unconstitutional.Nonetheless, because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court's denial of the application for interim relief.

How can these cases be reconciled? Perhaps NetChoice simply isn't as important as the issue in CASA. This case involves a state law, rather than a "major new federal statute[] or executive action[]." And because this is a state law, there are no concerns about national uniformity for the "interim before the interim." (Sort of like the shirt before the shirt.) In other words the state has an interest in enforcing, at least for now, what Kavanaugh sees as an unconstitutional speech restriction. I suppose if Mississippi takes any enforcement action, tech companies can rest assured they will prevail on appeal. Then again, Labrador was also a state case. I should remind everyone, once again, that the Fifth Circuit is to the right of the Supreme Court.

Like in CASA, I appreciate that Justice Kavanaugh is breaking the fourth wall, and explaining to us why the Court is doing what it is doing. I don't know that I fully understand the distinctions. And there is no actual discussion of the equities--just a citation to a few pages of the response brief. But that is more analysis than the other members of the Court are providing. And would it really burden Justice Kagan to write something short about her decision after complaining about unreasoned emergency docket orders?

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[Josh Blackman] President Trump Will Nominate Rebecca Taibleson to the Wisconsin Seat in the Seventh Circuit

President Trump has nominated Rebecca Taibleson for the Seventh Circuit seat in Wisconsin that was previously held by Judge Diane Sykes. This is yet another home run pick for President Trump. And, I think we are seeing something of a pattern. Trump's nominee to the Sixth Circuit, Whitney Hermendorfer, clerked for Judge Kavanaugh, and then Justices Alito and Barrett. Trump's nominee to the Third Circuit, Jenn Mascott, clerked for Judge Kavanaugh and Justice Thomas. Trump's nominee to the Ninth Circuit, Eric Tung clerked for Judge Gorsuch, and Justices Scalia and Gorsuch. And now Trump's nominee to the Seventh Circuit, Taibleson, clerked for Judge Kavanaugh and Justice Scalia. Of Trump's six circuit nominees this year, four started their careers with a Justice that Trump appointed.

More judges fit this mold from the first administration. D.C. Circuit Judge Justin Walker clerked for Judge Kavanaugh and Justice Kennedy. Fourth Circuit Judge Allison Jones Rushing clerked for Judges Gorsuch and Sentelle, and Justice Thomas. Judge Sarah Pitlyk (Eastern District of Missouri) clerked for Judge Kavanuagh. (I'm sure I'm missing others--let me know who I forgot.) If you want to see who Trump will pick, look who they clerked for.

I've known Rebecca since 2008, in an indirect way. Rebecca's father, Michael Krauss, was one of my favorite professors of all time. He taught Torts, Legal Ethics, Jurisprudence, Products Liability, and many and other classes at George Mason Law School. I took him twice, voluntarily, knowing that it would not be an easy grade. Michael was a rock of principle who pushed me in ways that inspired me as a person, lawyer, and a professor. He was a proud conservative. I used to be a hardcore Randian, and Michael (thankfully) knocked it out of me. He was utterly unafraid of being cancelled (a term that didn't exist in those years). As a law student, I hosted Michael for talks about the latest conflict in Israel and other controversial topics. He never flinched.

But beyond the law, Michael's greatest joy in life was his family. He always bragged about his wife Cynthia, and his kids, Rebecca and Josh. As I've talked to Michael over the years, he would always tell me what was new with his kiddos. Josh Krauss became a Captain in the Marines. And Rebecca was an Assistant United States Attorney, who spent time in the U.S. Solicitor General's Office. I firmly believe that you can learn a lot about a person by studying who their parents are. And in my book, the daughter of Michael and Cynthia Krauss had the principled upbringing that would serve a federal judge well.

I've keep in touch with Rebecca over the years. I would usually see her at the annual gala dinner at the Federalist Society Convention, and at other events in DC. She was very active during Justice Kavanaugh's nomination. In 2020, Rebecca was gracious enough to serve as a guest judge for the Harlan Institute Moot Court competition. That year, we mooted Torres v. Madrid. Rebecca had argued that case as an Assistant Solicitor General. During that argument, there was a funny bit where Justice Kavanaugh asked her whether Justice Scalia was correct about an originalist issue.

Given that both Wisconsin senators recommended Rebecca, I think her confirmation process should be smooth. And she is already receiving praise from Mike Davis and others.

My Statement on President Trump's Nomination of Rebecca Taibleson for the 7th Circuit

"President Trump continues to deliver on his promise to appoint bold and fearless judges who will defend the Constitution and uphold the rule of law. His latest nomination of Rebecca Taibleson…

— ???????? Mike Davis ???????? (@mrddmia) August 14, 2025

Finally, I think this excellent nomination should calm any judges who are apprehensive about taking senior status because of the Emil Bove nomination. In candor, I think these unnamed judges are likely suffering from a variant of TDS that has afflicted Mike Luttig and others. Every one of these judges could (quietly) hand-pick their successor. But instead, they complain to the press.

The reality is that these judges would be scorned in polite company for surrendering their seat to Trump, so they won't do it.

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[Eugene Volokh] First Amendment Claim Over Muting of Parent's Comments at School Board Meeting Can Go Forward

More from today's long decision by Judge Eric Melgren (D. Kan.) in Schmidt v. Huff (and read this post for the analysis of a separate First Amendment claim that Schmidt also brought):

Plaintiff Carrie Schmidt is the mother of two students who attend Gardner-Edgerton High School…. In 2022, Plaintiff started to speak at [school district] meetings, reading aloud to the Board words, phrases, and descriptions contained in the District's educational curriculum and library.

On May 4, 2023, Plaintiff became a member of the District Educational Services Advisory Committee. The Committee investigates and reviews the District curriculum, instruction, and assessment topics, and it also examines the accreditation process, progress, curriculum standards, and federal programs. The Committee makes recommendations to the School Board and Superintendent Brian Huff about these matters….

At an August 2024 District school board meeting, Plaintiff was the only individual signed up to speak. Immediately after Board President Tom Reddin announced that it was time for "hearing and requests and suggestions" from the public, Defendant Gregg Chapman, a Board Member, interjected, asking Reddin if he could speak first. As Plaintiff was walking up to the microphone, Defendant Chapman started his pre-written speech. He said the following:

I assume I know what the speaker is going to talk about …. Ms. Schmidt has made all kinds of allegations about our district and board of education…. She also has a misunderstanding of library books which are for enjoyment versus instructional materials, assigned books/materials…. It is entirely disingenuous to almost single-handedly bog down a transparent system with up to fourteen years' worth of reviews and then shout from the podium that we are taking too long and not doing anything about it….

I used to believe in the power of one voice, but this process has made it clear that one voice without understanding or discernment can cause more damage to a noble cause than an individual who just wants the issue resolved and working alongside the team.

It seems like she just gets pleasure from reading books with questionable content to this audience where there are minors listening.  it just feels like she wants the shock attention that is caused by reading the out of context sexual clips to the minors and adults in the audience…. [H]ow it's being handled is costing this community valuable time, effort and unfortunately valuable people who didn't cause the issue but have been drug through the mud by this continued and disingenuous rhetoric.

Members of the public who wish to speak during the "hearing and requests and suggestions" phase of the meeting are only allowed three minutes. Plaintiff had already prepared a three-minute speech that day, but after hearing Chapman's five-minute speech, she asked if she could respond. Chapman replied, "nope, you get your minutes." Thus, Plaintiff gave her pre- prepared three-minute speech. Like her speeches at previous Board Meetings, the content contained the language used in the books available at the District's library. Half-way through her speech, Reddin interrupted Plaintiff stating, "for anybody who has kids at home watching this, please pause it for a minute while she puts on her performance." The District added 15 seconds to Plaintiff's speech time for this interruption. However, throughout the duration of Plaintiff's speech, her microphone was muted until approximately the last 20 seconds of her speech.

Afterwards, Plaintiff approached Assistant Superintendent Ben Boothe and asked to repeat her speech so that viewers watching from home could hear it. Boothe denied the request, informing Plaintiff that the volume on the District's YouTube page would be increased and that viewers could instead read her remarks through closed captions. However, the District's YouTube page did not display closed captions for the portions of Plaintiff's speech during which the microphone had been muted.

The court rejected Schmidt's claim as to Chapman's critical remarks about her:

Defendant Chapman claims he is entitled to qualified immunity because his statements at the School Board Meeting constituted protected speech under the First Amendment and did not violate any clearly established constitutional right….

Plaintiff suffered no penalties for speaking at the board meeting such as a threat of violence, jail time, or a monetary fine. Instead, she claims that when Chapman accused her of getting "pleasure from reading books with questionable content to … minors listening," she suffered slander, shame, and ridicule. If Chapman's statements only served to damage Plaintiff's reputation, then they are insufficient to establish an injury within the meaning of a First Amendment retaliation claim. As such, Chapman did not unconstitutionally retaliate against Plaintiff, and so the Court dismisses this claim against him….

But it allowed her claim over the allegedly viewpoint-based muting of the microphone to go forward:

Plaintiff claims that she was targeted by Chapman for reading parts of books contained in the District's curriculum, when others were not. Specifically, she names Erika Sheets, and other individuals associated with the activist group, Moms for Liberty, who have brought complaints before the Board without facing similar treatment. Plaintiff claims that she alone had her microphone muted during her speech, was denied the chance to repeat it after the Board restored her microphone, her speech was not closed-captioned on the Board's YouTube channel, and others were not subjected to similar targeted opposition without an opportunity to respond before giving their prepared remarks.

Moreover, Plaintiff claims that Chapman's comments and subsequent actions towards her clearly show that he was targeting her based on his opposition to her viewpoint. For example, Chapman prefaced his remarks with the assumption that he knew what Plaintiff would be talking about before characterizing her criticisms as being "entirely disingenuous," "without understanding or discernment," and "damag[ing]." Additionally, Chapman trivialized Plaintiff's concerns about the Board's book review process by accusing Plaintiff of getting "pleasure from reading books with questionable content to this audience where there are minors listening" and seeking the "shock attention that is caused by reading the out of context sexual clips to the minors and adults in the audience." Plaintiff claims that the proximity between Chapman's remarks and the subsequent silencing she experienced establishes that her opinion or perspective was the rationale for the restriction.

Taking the facts in Plaintiff's Complaint as true, the Court agrees that Chapman engaged in viewpoint discrimination against Plaintiff. Although Plaintiff was still able to speak for three minutes, her speech was rendered ineffective because it could not be heard by viewers. Plaintiff's microphone was muted, and closed captioning was unavailable on the District's YouTube page. Moreover, Chapman's remarks demonstrate that he disagreed with Plaintiff's views and, likely due to those views, he subjected Plaintiff to less favorable treatment than other speakers….

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[Eugene Volokh] Parent Submits Photo of School Postings to LibsOfTikTok, Gets Restricted from Accessing School Property or Events

[The court has allowed plaintiff's First Amendment claim against School District decisionmakers based on this to go forward.]

Some excerpts from today's long decision by Judge Eric Melgren (D. Kan.) in Schmidt v. Huff (see also this post for the analysis of a separate First Amendment claim that Schmidt also brought):

On February 3, 2025, Plaintiff visited [Gardner-Edgerton High School] in the evening to prepare snack bags for the next day [in her capacity as volunteer for her son's wrestling team]…. After she finished, Plaintiff went upstairs to the second floor and found the room number associated with a promotional poster for the Gay Straight Alliance Club. The classroom's lights were already on, and the door was open. Plaintiff took pictures of the classroom door, posters displayed on the classroom walls, and books stacked on the classroom bookshelves. The classroom door had multiple posters and stickers on it, including the teacher's last name.

"Libs of TikTok" is a popular social media account known for posting photos and videos of individuals or organizations that often express progressive or liberal views, especially those surrounding topics like LGBTQ+ rights, education, and identity. The account typically collects its content by browsing public posts on social media and reposting them, or by directly posting submissions from followers who send in content they believe aligns with the account's focus. Although named Libs of TikTok on all platforms, the account is active on multiple social media networks, including Instagram, X (formerly Twitter), Facebook, and TikTok.

Plaintiff sent the Libs of TikTok X account the pictures she took at the school. Plaintiff had no control over whether Libs of TikTok saw her photos, decided to post them, picked which ones to post, or would notify her when it did post her photos. On February 7, 2025, at 10:26 a.m., Libs of TikTok posted the photo of the classroom door that Plaintiff had submitted. The post's caption read, "School in Gardner, Kansas (@GEHSBlazers) Strip them of their funding immediately." …

That same afternoon, … [School District] Superintendent Huff confronted Plaintiff about taking pictures and sending them to Libs of TikTok. Defendant Huff told Plaintiff that her actions disrupted the school day because the teacher whose name was posted on the classroom door was so distraught by the online comments that she asked to leave for the rest of the school day.

On February 11, 2025, Defendant Huff emailed Plaintiff a letter on official District letterhead (the "Letter"). The Letter stated the following:

The purpose of this letter is to address certain actions taken by you in violation of Board policy and state law that have resulted in threats, intimidation, abuse and harassment directed at school district personnel and students which has caused a material disruption to the school environment. Specifically, during your visit to the high school on Monday February 3, 2025, you entered into and took several pictures of classrooms, offices and other areas in the school building to include a picture of the classroom door of a teacher, which was then posted on social media. The taking and posting of this picture was done without the permission and consent of the teacher or the school district and is in contravention of Board policies including Board Policy KGB [Concealed Observations], KBC [Media Relations], KGD [Disruptive Acts at School or School Activities], KGDA [Public Conduct on School Property], KFD [School Volunteers] & KM [Visitors to the School] and state law….

[B]ased on your conduct, you are no longer to serve on the ED Services committee. In addition, for the balance of this school year (through June 30, 2025), you are no longer welcome to be on school district property or attend school events or activities without express written permission from building administration. Your presence on school district grounds or at school events or activities, both home and away, without express written permission from building administration will be considered to be and enforced as a trespass.

That same day, Superintendent Huff instructed Assistant Superintendent Ben Boothe to contact the Gardner Police Department and file an incident report. The report detailed that Boothe "wished to trespass [Plaintiff] due to an incident on the evening February 3rd where she was observed walking through the school taking pictures of classrooms and entering some of the classrooms." Specifically, the incident involved "a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." Boothe stated that Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo."

Boothe informed the officer that he would send Plaintiff a certified letter detailing her trespass from District property and providing the Gardner Police Department case number documenting the incident. The officer requested a copy of the Letter on February 13, 2025. The Letter was provided to the officer on February 20, 2025, which was uploaded into evidence.com along with the associated case number.

Principal Frank Bell was tasked with receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. Bell informed Plaintiff that she could attend her son's Senior Night at the high school on February 13, 2025. However, she was only allowed to access the "PE wing," as "all other parts of our building are off-limits." Beyond Senior Night, Bell informed Plaintiff that she was required to obtain permission from "GEHS building administration for permission to be anywhere on our campus."

When Plaintiff asked about whether she could attend her son's Graduation Commencement Ceremony, Bell responded, "I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received. I made a good faith effort on your behalf, and advocated for you to be able to attend Thursday's Senior Night without receiving a request directly from you." He added:

Candidly, it will take some time and healthy civic behavior on your part, to earn the school's trust once again. Your recent choices have created a major disruption at Gardner-Edgerton High School. Regretfully, I read nothing in your email response that even acknowledged any of that, or that you had any remorse. Even so, our hope is that time and good behavior will heal what has been done, and we can enjoy a productive parent-school partnership for the betterment of all students.

When Plaintiff again asked about the graduation ceremony, Bell replied, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony." Additionally, Bell informed Plaintiff that she must schedule and attend all teacher conferences over Zoom or telephone….

Schmitd sued, and the court allowed her claims to go forward against the school officials:

[B]y banning Plaintiff from school property and events based on [the Libs Of Tik Tok] X post, Huff not only banned Plaintiff for her own speech, but also banned her for others' speech. Following the ban notice, Huff instructed Boothe to file a police report and issue a no-trespassing order, which carried with it legal penalties. This measure constitutes an injury sufficient to chill a person of ordinary firmness from continuing to speak.

Moreover, the ban was substantially motivated as a response to Plaintiff's speech. The Letter makes clear that Plaintiff's conduct—taking pictures later posted to social media—was the reason she was "no longer welcome to be on school district property or attend school events or activities without express written permission from building administration." Despite Huff's arguments that he never denied Plaintiff's request to attend an event, the fact that Plaintiff faced more administrative burdens than other parents because of her unpopular speech constitutes retaliation.

Lastly, the ban was overbroad and not narrowly tailored to address the specific "threat" Plaintiff posed. The ban effectively prevented Plaintiff from speaking at school board meetings, associating with her children and other parents, and attending church services without express written permission from building administration because all these events were held on school property….[R]egardless of whether Plaintiff chose to participate in these publicly available activities or whether her requests to participate were granted, requiring her to seek permission, when others were not required to do so, imposes a burden substantially greater than necessary to further the government's interests.

This is especially true when Huff has not identified a legitimate governmental interest. As this Court ruled in its last order for injunctive relief [see this post -EV], based on the plain language of the school policies cited to justify the ban, Plaintiff did not violate any of those policies. Additionally, even though Huff accused Plaintiff of violating state law, he did not cite any specific law in the Letter. Still, throughout this case, Huff has been unable to articulate how Plaintiff violated any state law. As such, Huff unconstitutionally retaliated against Plaintiff, and violated her First Amendment rights to speech, association, and religion in the process….

Defendant Boothe is primarily alleged to have filed a police report, at Huff's direction, to enforce the no trespass order against Plaintiff. Based on the information Boothe provided to the officer in the police report, the Court concludes that Boothe assisted Huff in retaliating against Plaintiff due to her opposing viewpoint. Specifically, Boothe told the officer that "there was a photo shared of room 401 to a group called 'libs of tiktok' on 02/07/2025 at approximately 1026 hours." He stated Plaintiff "was on school video taking pictures of the outside of the door to room 401 then entered the room after taking the photo." Specifically, Boothe "wished to trespass [Plaintiff] from all USD231 properties due the incident and previous incidents involving [Plaintiff]."

From this information, it is clear that Boothe's reason for filing a trespass report was substantially motivated as a response to Plaintiff's constitutionally protected speech. As previously stated, the legal penalties that flow from a violation such as trespass, constitute an action that would chill a person of ordinary firmness from continuing to engage in that activity….

Defendant Bell is primarily alleged to have been assigned the responsibility of receiving Plaintiff's requests to be on school property or attend school events and determine whether they should be granted. However, Bell's writings to Plaintiff demonstrate retaliation. For example, he reiterated that Plaintiff was "not to attend any events, home or away." He explained that this was because Plaintiff needed to "earn the school's trust once again." Specifically, Bell cited Plaintiff's "recent choices"—i.e., the Libs of TikTok incident—as having "created a major disruption at Gardner-Edgerton High School" that he hopes Plaintiff will acknowledge with remorse or at least "heal what has been done" through "time and good behavior."

Following this conversation, Plaintiff asked if she could attend her son's Graduation Commencement Ceremony. Bell responded, "Regarding our Graduation Commencement Ceremony, I would hope that with time, you would demonstrate proper civic behavior to our high school community, and honor the expectations of the letter you received." When Plaintiff again asked about the graduation ceremony, Bell stated, "you do not have our permission to attend any future GEHS functions, home or away, including our Graduation Commencement Ceremony."

Bell's statements are a clear indication of retaliation. Plaintiff's, or rather Libs of TikTok's, social media post was constitutionally protected speech. Blanketly banning a parent from all school property and events—both home and away—absent approval from the school principal would chill a person of ordinary firmness from continuing to engage in that activity.

This is especially true when the principal has denied the parent's request to attend important events in the life of her son, like graduation. Lastly, the ban on Plaintiff's ability to attend events was substantially motivated as a response to her speech. As such, because retaliation against Plaintiff for exercising her constitutional rights is a clearly established violation, Bell is not entitled to qualified immunity, so the Court denies his Motion….

Linus Baker represents plaintiff.

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