Eugene Volokh's Blog, page 33

[Josh Blackman] Would Jimmy Kimmel Have Standing To Bring a Jawboning Claim Under Murthy?

[Whatever standing rule applies to the red team should apply to the blue team.]

Eugene has written a few posts about how the Jimmy Kimmel incident would be analyzed under NRA v. Vullo. I think another relevant precedent to consider is Murthy v. Missouri. In this case, Justice Barrett found that no one had standing to challenge the Biden Administration's "jawboning" of social media companies, despite an overwhelming evidentiary record.

First, here is the test Barrett put forward:

Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

I'm not sure that Jimmy Kimmel could meet this test were he to sue FCC Commissioner Brenden Carr. First, unlike with Vullo, there was no actual state action taken against Kimmel. At most, Carr made some statements on a podcast about what might happen in the future. Seems speculative. By contrast, in Vullo, the New York government had taken discrete acts against the NRA

Second, consider the traceability prong. It would be difficult to show that ABC's suspension of Kimmel could be traced to Carr's statements. As I understand the facts, several prominent affiliates made the decision to preempt coverage of Kimmel's show due to his statements about Charlie Kirk. ABC, a business entity, may have decided that airing Kimmel's show would be bad for business, and not worth the headache. Relatedly, Comedy Central took a show that mocked Kirk out of the broadcast rotation. Indeed, in light of the cancellation of Colbert's show, ABC may use this suspension as an excuse to cut the costs of a non-profitable late-night show. Again, more business decisions.

Justice Alito's Murthy dissent criticized Justice Barrett's demanding standard for traceability:

What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook's rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.

Barrett responded:

By acknowledging the real possibility that Facebook acted independently in suppressing Hines' content, we are not applying a "new and heightened standard," as the dissent claims. . . . Nor is our analysis inconsistent with Department of Commerce v. New York, 588 U. S. 752 (2019).

Here, there is a "real possibility" that ABC "acted independently" in taking Kimmel's show off the air. That would seem to be a valid business interest, in ways that suppressing COVID posts was not. I do not see any "ironclad links."

Third, let's turn to redressability. How can a lawsuit against Brendan Carr put Jimmy Kimmel back on the air? Barrett writes:

Far from holding plaintiffs to a "certainty" standard, ibid., we simply conclude that an injunction against the Government defendants is unlikely to stop the platforms from suppressing the plaintiffs' speech. . . . Facebook might continue to remove Hines' posts under a policy that it adopted at the White House's behest (thus satisfying traceability). But if the White House officials have already abandoned their pressure campaign, enjoining them is unlikely to prompt Facebook to stop enforcing the policy (thus failing redressability).

An injunction would not help Kimmel, therefore, there is no obvious redressability.

I don't see how Kimmel would clear the standing bar in Murthy.

To be clear, I vigorously disagree with Murthy. Whatever good that Justice Barrett did in CASA does not come close to making up for her analysis in Murthy. But whatever standing rule applies to the red team should apply to the blue team.

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[Stuart Benjamin] The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel

[And Trump's much more extreme one.]

On Monday Jimmy Kimmel said:

We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. In between the finger-pointing, there was, uh, grieving on Friday − the White House flew the flags at half-staff, which got some criticism, but on a human level, you can see how hard the president is taking this. Yes, he's at the fourth stage of grief: construction. Demolition, construction. This is not how an adult grieves the murder of someone he called a friend; this is how a four-year-old mourns a goldfish, OK? And it didn't just happen once. And then we installed the most beautiful chandelier. Responses you wouldn't believe. Who thinks like that, and why are we building a $200 million chandelier in the White House? Is it possible that he's doing it intentionally so he can be bad about that instead of the Jeffrey Epstein list?

Yesterday, FCC Chair Brendan Carr said:

Public interest means you can't be running a narrow partisan circus and still meeting your public interest obligations. That means you can't be engaging in a pattern of news distortion.

It appears to be some of the sickest conduct possible. In some quarters, there's a very concerted effort to try to lie to the American people about the nature of one of the most significant, newsworthy, public interest acts that we've seen in a long time.

Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there's going to be additional work for the F.C.C. ahead.

A few hours after Carr's remarks, ABC indefinitely suspended Kimmel's show.

And this evening, Donald Trump said of broadcasters:

They give me only bad publicity or press. I mean, they're getting a license. I would think maybe their license should be taken away.

What Is the FCC's Statutory Authority?

47 U.S.C. 301 grants the FCC control over the radio spectrum and directs the FCC to grant licenses to use specified frequencies for a specified number of years. So wireless broadband providers, satellite television providers, local broadcast stations, etc. must obtain FCC licenses. Licenses are generally very valuable (broadband auctions for initial licenses have yielded more than $200 billion to the Treasury), and a licensee really wants to be able to renew its license and to sell it to someone else who will then be able to renew it (otherwise, the buyer would not pay very much). This creates two principal levers the FCC uses to control licensees.

First, under 47 U.S.C. 310 the FCC must approve any proposed transfer of a license as long as it finds that "the public interest, convenience, and necessity will be served thereby." This was the source of the FCC's leverage with respect to the CBS/Skydance transaction: CBS wanted to transfer the licenses for the local TV stations it owned, and the FCC had to approve. As readers know, the FCC did approve that transfer after (in the words of the FCC press release) Skydance committed not to have any DEI policies, to "ensur[e] that the new company's array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum," and to invest new capital. And of course the FCC approved the transfer shortly after Stephen Colbert's show was cancelled – at a minimum creating an appearance problem (or an opportunity, for those who want future transferees to fear the FCC).

The second key source of authority is 47 U.S.C. 309, which specifies that the FCC can similarly deny renewal of a license if the FCC does not find that the licensee "has served the public interest, convenience, and necessity."

Is This Consistent with the First Amendment?

At this point a key question may occur to you: how can it be consistent with the First Amendment for any FCC renewal or transfer decisions to turn in any way on the content, much less the viewpoint, of a licensee's speech? Content-based regulation of cable television providers (whose systems often require rights-of-way from a government) or websites that transmit content via wireless frequencies would be subject to strict scrutiny, which is nearly always fatal, and viewpoint-based regulation is always invalidated. Indeed, even without the use of any rights-of-way or frequencies (which the Court never mentioned in its cable and internet cases), the Court would apply strict scrutiny. (And by the way, the Court has invalidated the regulation of knowingly false speech -- indeed, particularly offensive false speech, in the form of lying about receiving military medals.)

So how can the FCC look at content under sections 309 and 310?

The answer in the case law has been that in FCC v. Pacifica Foundation the Supreme Court held that broadcasting is subject to less rigorous First Amendment scrutiny primarily because it is uniquely pervasive, and secondarily because it is uniquely accessible to children. And in Red Lion Broadcasting Co. v. FCC, the Court allowed mandates that broadcasters host speech the government deemed valuable, based largely on spectrum scarcity. (Red Lion does not suggest that scarcity justifies restricting harmful speech, but rather justifies requiring broadcasters to air valuable speech.)

Denying a renewal or transfer based on viewpoint goes beyond Pacifica and Red Lion, and there is a reasonable argument that neither decision extends that far. Even if they did, it would not follow that the Supreme Court would permit such actions.

Pacifica and Red Lion have been subject to persuasive criticism for years. As to Pacifica, broadcasting is just another medium of communication. The government powerfully argued in cases involving cable television, the internet, and telephones, (all of which Congress chose to regulate) that those other media are just as pervasive, and just as available to children, as broadcasting, and in each case the Supreme Court rejected the government's argument and invalidated the regulation under strict scrutiny, making it harder and harder to defend Pacifica.

Regarding Red Lion, to quote from my Internet & Telecommunications Regulation casebook, "almost all resources —e.g., wires, labor, steel, land, and investment capital —are scarce in that (a) if given away at no charge people would request more of them than is available and (b) if we could create more of them, that additional increment could also be put to productive use." Indeed, in some respects radio frequencies are less scarce than land: the range of usable frequencies has increased more than 10-fold in the last 50 years – as if we had discovered 10 new usable Earths. And the Court declined the opportunity to apply Red Lion in later cases like Miami Herald v. Tornillo (newspapers) and Moody v. NetChoice (social media), making it harder and harder to defend Red Lion.

As Justice Thomas noted in FCC v. Fox,

Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.[Internal quotation marks omitted.]

FCC commissioners and staff are aware of the First Amendment problems with content-based FCC decisionmaking, and the broader governance concerns raised when government wields so much power. Indeed, the FCC repealed the Fairness Doctrine (whose legal hook was the threat of non-renewal) and later (after much prodding from the D.C. Circuit) the Personal Attack and Political Editorial rules (which were similarly predicated on the threat of non-renewal) on First Amendment grounds. And see the final block quote below. Many people (myself included) expect that if the Supreme Court squarely confronted Pacifica and/or Red Lion, it would overrule them.

But the costs for a licensee to challenge a non-renewal or transfer denial are very high. The Court has made it clear that only it can overrule its cases, so a licensee would face months if not years of delay on a transfer (often fatal to transfer deals) or on a renewal, with no guarantee of success. The obvious incentive is for the private party to do what the government wants. That is why Trump had leverage over ABC, leading it to settle a very weak lawsuit. That's how things work in lots of countries we don't want to emulate.

Would This Be an Ordinary Application of FCC Standards?

First things first: Trump said the quiet part out loud tonight – he thinks that broadcasters have been too critical of him and thus maybe their licenses should be taken away. That has never happened, and here's hoping it never will.

Now to Carr's stated focus – news distortion. First, it has been applied only to news shows. Second, the FCC has created guardrails around it. As the FCC stated in rejecting a news distortion complaint against a Fox television station in 2007:

In evaluating whether an allegation of news distortion impacts the licensee's ability to serve the public interest, the Commission analyzes both the "substantiality" and "materiality" of the allegation. An allegation is "material" only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. An allegation of news distortion is "substantial" if it meets two conditions: it is deliberately intended to slant or mislead; and it involves a significant event and not merely a minor or incidental aspect of the news report. It is sufficient for a petitioner to raise a "substantial and material question of fact" as to intent, and the Commission cannot require a petitioner to demonstrate "intent." However, the Commission determines in the first instance whether the evidence submitted raises a substantial question of fact.

Section 326 of the Act prohibits the Commission from censoring radio communications, and the First Amendment to the Constitution strictly limits the Commission's authority to interfere with the programming decisions of licensees. In light of these limitations, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment's Free Press guarantee, "the Commission's policy makes its investigation of an allegation of news distortion 'extremely limited in scope.'" In showing an intent to distort, "[i]t is not enough to dispute the accuracy of a news report…or to question the legitimate editorial decisions of the broadcaster." Allegations of deliberate distortion must be supported by extrinsic evidence "such as written or oral instructions from station management, outtakes, or evidence of bribery." With respect to a report's accuracy in particular, the Commission has stated that it possesses "neither the expertise nor the desire to look over the shoulder of broadcast journalists and inquire why a particular piece of information was reported or not reported." To do otherwise "would involve the Commission deeply and improperly in the journalistic functions of broadcasters."

In the Matter of TVT License, Inc., 22 F.C.C. Rcd. 13591, 13592 (2007).

Third, the FCC has found distortion in only eight cases since 1969, and just once since 1982. Fourth, in none of those cases did the FCC revoke the license based on the distortion. A representative example involved a "letter of admonishment" that had no impact on the licensee (and proved to have no impact on its future renewals) despite the FCC

finding "repeated instances of deceptive programming broadcast by the station" in five different news programs over a two-year period. Deceptions included staff members concocting letters and phone calls that were presented on the air as having been issued from viewers, supposedly spontaneous questions by members of studio audiences which were prepared by staff members and fictitious interviews with various people misidentified as members of the public.

The only finding of news distortion since 1982 was a similar letter of admonishment in 1993 for NBC

staging a segment of a "Dateline NBC" report on unsafe gas tanks in General Motors trucks. The report showed video of what it called an "unscientific" test crash in which a GM truck exploded into flames after being hit from the side. GM's investigation found that NBC producers had rigged the test by attaching incendiary devices to the truck's gas tank.

The most recent attempts at news distortions were A) a claim, piggybacking on the state court determination in Dominion Voting System's suit against Fox News, that a Fox television station disseminated false statements about Dominion, and B) claims that CBS distorted the news by airing different footage of Kamala Harris's response to the same question on 60 Minutes and Face the Nation. The FCC rejected all these challenges shortly before Trump took office without holding any hearings, as it should have. It began all the orders by stating:

The freedom of speech and the press is enshrined in the First Amendment of the United States Constitution, and is necessary to promote the vigorous dialogue necessary in a representative democracy. When the government — including Congress, the Courts, and the Executive Branch (and States and local government) — seeks to curtail the freedom of expression on ""matters of valid public interest," doing so implicates the very heart of speech that the First Amendment is meant to protect. Accordingly, for nearly a century since the Commission's inception in 1934, the Communications Act has expressly prohibited the Commission from engaging in the "power of censorship," or issuing regulations or conditions that "interfere with the right of free speech." It has instead plainly recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited." Moreover, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism."

In the Matter of Preserving the First Amendment, Application of Fox Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pa (Jan. 16, 2025).

(By the way, that last quotation was from a 2020 order rejecting a challenge to the airing of allegedly false statements about Covid-19 by President Trump and others.)

The only remotely analogous FCC action was Carr's decision, upon becoming chair, to reopen the challenges to CBS's handling of Kamala Harris's answers (but not to Fox's statements about Dominion). But it would take chutzpah for Carr to claim that his Kimmel comments are not unprecedented simply because he did something roughly analogous nine months ago.

The bottom line: treating Kimmel's statement as news distortion would be unprecedented. Indeed, that understates the point. The idea that his statement resembles anything the FCC has punished as news distortion is somewhere between strained and frivolous.

The post The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel appeared first on Reason.com.

[Ilya Somin] Abolish the FCC

[The Trump Administration's recent abuses of the agencies powers lend weight to longstanding libertarian arguments for abolishing it, going back to Nobel Prize-winning economist Ronald Coase's classic 1959 article. ]

FCC

The Trump Administration Federal Communications Commission's (FCC) recent efforts to intimidate broadcasters into taking anti-Trump comedians off the air are blatant violations of the First Amendment. They also lend weight to longstanding libertarian arguments for abolishing the FCC.

FCC Chair Brendan Carr threatened to pull ABC's broadcast license unless it stopped broadcasting comedian Jimmy Kimmel's show (which ABC quickly did). Earlier, the FCC similarly threatened CBS, which then canceled Stephen Colbert's show (Colbert is another anti-Trump comedian). Trump now threatens to use similar tactics against other broadcasters who air shows that attack him. Even if there were good market or quality-control reasons to get rid of Colbert or Kimmel, the government has no business trying to coerce such decisions.

Robert Corn-Revere,  First Amendment and media expert at FIRE, has a helpful analysis of the reasons why such coercion is unconstitutional. As he notes, just last year, in NRA v. Vullo, the Supreme Court unanimously reiterated the principle that "the First Amendment prohibits government officials from relying on the threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression of disfavored speech."[quotations omitted]. In Vullo, the Supreme Court struck New York officials efforts to coerce the NRA into curbing its pro-gun rights speech, at the behest of liberal Democratic Gov. Andrew Cuomo. That reasoning applies to Trump and Carr, as well. If anything, their unconstitutional motives are even more blatant than Cuomo's were.

If the Trump FCC targets more broadcasters, hopefully they will sue and win. But there is a deeper problem here: an agency that has broad power to grand or deny licenses to broadcasters is an inherent danger to freedom of speech. That's especially true officials hides their unconstitutional motives more carefully hidden than Trump and Carr have done.

This is not a new problem. Only a few years after the establishment of the FCC in 1934, Franklin D. Roosevelt used the agency to target conservative broadcasters opposed to his New Deal. Later John F. Kennedy and Lyndon Johnson used the "Fairness Doctrine" - developed by the FCC as part of its regulatory authority - to target critics of their policies. The Fairness Doctrine continued to be as a tool to restrict speech until the Reagan FCC got rid of it in 1987.

Until now, recent presidents have not used the FCC as abusively as FDR, JFK, and LBJ did.  But the danger remained, and Trump is now exploiting it. Even if open attempts at censorship are struck down the courts, the FCC can still intimidate broadcasters by using its powers to deny and grant licenses, restrict mergers, and the like, citing seemingly neutral pretexts. Fear of such action may be why ABC and CBS have - so far - chosen not to go to court.

In his classic 1959 article, "The Federal Communications Commission," the great libertarian economist Ronald Coase warned of this danger, and advocated the abolition of the FCC (Coase later won the Nobel Prize in Economics in part for this work):

The situation in the American broadcasting industry is not essentially different in character from that which would be found if a commission appointed by the federal government had the task of selecting those who were to be allowed to publish newspapers and periodicals in each city, town, and village of the United States. A proposal to do this would, of course, be rejected out of hand as inconsistent with the doctrine of freedom of the press. But the broadcasting industry is a source of news and opinion of comparable importance with newspapers or books and, in fact, nowadays is commonly included with the press, so far as the doctrine of freedom of the press is concerned.

If newspapers and magazines had to be licensed by the government before being allowed to publish, there would be obvious opportunities for favoritism and abuse. The exact same danger exists with broadcast licensing.

The standard rationale for broadcast licensing by the state is that broadcast frequencies are scarce resources that government must protect from "interference." If two networks try to broadcast on the same frequency, chaos might ensue and neither would be effectively transmitted. But the same is true of traditional media. Printing presses, ink, and other production supplies are also valuable scarce goods. Two newspapers cannot use the same printing press at the same time, or print their publications on the same pieces of paper. Yet rightly rely on markets and private property rights, not government licensing and central planning, to allocate these resources.

As Coase explained, the same system of property rights can work with broadcast frequencies. Let private broadcasters own individual frequencies, and let free exchange and market competition decide who uses which one.

This solution is even better with the rise of cable television and then internet broadcasting. No longer is it plausible to argue that a fully private system would be dominated by just a handful of major networks, as was perhaps true in the pre-cable age. Owners of individual broadcast networks, radio stations, and websites can decide what viewpoints they want to platform. Market forces will incentivize new entrants to promote viewpoints that incumbents neglect, but audiences might like to see. We have seen how right-wing networks like Fox and Newsmax arose to challenge more liberal traditional media. More recently, there is no shortage of websites (including social media sites) espousing a range of different ideologies. Elon Musk's generally right-wing Twitter/X site, for example, contrasts with more left-wing Bluesky (among others). I am one of many users who have accounts on both.

I oppose Musk's politics and disapprove of  many of his policies for managing X. I don't always love everything that goes on at Bluesky either. But I support both sites' rights to manage the speech on their property without government interference.

This market system isn't perfect. I myself have long argued that consumers do a poor job of acquiring and processing political information, in part because they have bad incentives. That applies to our consumption of both traditional broadcast media, and more recent internet and social media products. But market competition and private property are far preferable to allowing the FCC to decided who gets a license, and to intimidate critics of the incumbent president into submission or self-censorship.

Elsewhere, I have assessed a number of possible approaches to dealing with the problems of misinformation and political ignorance. There is no easy answer, though some options are potentially promising. Letting the FCC intimidate and coerce broadcasters isn't one of them. It's long past time to recognize that Ronald Coase was right, and the FCC should be abolished.

 

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[Eugene Volokh] Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Settled for $1M

From the N.Y. Times (Katie Robertson), published Friday:

The Atlantic quietly agreed to pay more than $1 million early this summer to settle a lawsuit by the writer Ruth Shalit Barrett, who had accused the magazine of defamation after it took the rare step of retracting an article she had written and replacing it with an editor's note, according to a person with knowledge of the settlement….

The lengthy article, "The Mad, Mad World of Niche Sports," published online in October 2020 and in the November 2020 print issue, explored how wealthy parents were pushing their children into extreme training in sports like fencing and lacrosse as a pathway into Ivy League colleges.

The article was published under the byline Ruth S. Barrett. In the 1990s, while writing for The New Republic as Ruth Shalit before she married and was becoming known as a rising star in the journalistic world, the writer was accused of two instances of plagiarism. She said both were inadvertent and apologized. She left the magazine several years later.

Within days of the Atlantic article's publishing, Erik Wemple, then a media critic at The Washington Post, began raising concerns about the article, including the veracity of some details and whether the different byline misled readers….

There's more in the Times article; here's a post of mine from a year ago excerpting a court decision that allowed the claim to go forward (in part).

[* * *]

From Judge Loren L. AliKhan's opinion [Sept. 9, 2024] in Shalit Barrett v. Atlantic Monthly Group LLC:

Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.

In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of  … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.

Twenty years later,

The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.

That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:

Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….

Count One: Accusations that Ms. Barrett acted dishonestly with respect to the article

Ms. Barrett's first claim alleges defamation per se with respect to the following statements made in the Editor's Notes and the Peck Memorandum, specifically, that

Barrett "was complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family;" that her "fabrication" had been "confirmed," and that it was "established" that Ms. Barrett "deceived The Atlantic and its readers";Barrett "lied" to and "misled" the fact-checking department and editors and was "accused of inducing at least one source to lie to our fact-checking department";Sloane's attorney said "[Ms.] Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity"; and"We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article,"

Defendants argue that none of these statements are actionable because the first three are true based on the facts alleged in the complaint and the fourth is a protected statement of opinion. The court agrees ….

Ms. Barrett makes clear in her complaint that she knew before the article's publication that Sloane did not have a son. Ms. Barrett further alleges that she had pitched magazine editors about including such a masking detail, but they declined; that she knew that Sloane planned to tell fact-checkers this fictitious detail and supported it; and that, after the fabrication about Sloane's son was added, she was "aware of the inclusion" and believed it to be "fully justified." This course of events is fully consistent with Defendants' description of Ms. Barrett as "complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family" and related statements. The "gist" of the statement is that Ms. Barrett allowed incorrect information about Sloane's family into the article—and that is substantially true…. The same is true for Defendants' statements that Ms. Barrett "lied" to and "misled" the fact-checking department and editors and had been "accused of inducing at least one source to lie to our fact-checking department." …

Ms. Barrett takes issue with the fact that The Atlantic did not qualify its statements with her motive to protect Sloane's identity, arguing that this omission suggests that she was acting in "bad faith." She suggests that a juror presented with these facts could choose between "two pictures: one of an insidious scammer out to deceive the world for no good reason … and one of a meticulous writer forced to make an impossible choice between absolute accuracy and … confidentiality … to sources." But, as Defendants note, the alleged defamatory statements do not omit this information. In his Memorandum, Mr. Peck states that the reference to a son was added "to make Sloane less identifiable, because she was concerned about maintaining anonymity." The same is true of the Editor's Notes. No matter how noble Ms. Barrett's motives may have been, it does not change that fact that Defendants' description accurately states the events that transpired.

Ms. Barrett also argues that the phrase "at least one" suggests the existence of multiple accusers and that the Third Editor's Note change of language from "at least one source" to "one source" suggests that Defendants were aware of the falsity and walked it back. But this is the type of "slight inaccurac[y] of expression" that is not actionable because the substance as a whole is accurate. At most, the phrase "at least one" suggests a "lack of definitive knowledge about the issue," comparable to a question, which is rarely a successful basis for a defamation claim…

Finally, Defendants argue that their statement in the Second and Third Editor's Notes that "[w]e have decided to retract this article [because w]e cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article" is not actionable because it is protected opinion. The court agrees….

Count Two: Accusations that Ms. Barrett was fired from The New Republic in 1999 for misconduct

Ms. Barrett's second count alleges defamation per se with respect to the following statement made in each Editor's Note and the Peck Memorandum:

In 1999, when Barrett (her married name) was known by Ruth Shalit, she left The New Republic, where she was an associate editor, after plagiarism and inaccurate reporting were discovered in her work.

Defendants again argue that these statements are technically and substantially true. This time, however, the argument fails because it ignores the most likely interpretation of the statement by readers and the context of the speech overall.

Defendants are correct that it is literally true as a matter of timing that Ms. Barrett left The New Republic after the controversy surrounding her work (several years after, in fact)—but that literal truth is a strained reading of the statement in its full context. A defamation-by-implication claim lies where a statement, viewed in context, is capable of defamatory meaning and implies provably false statements of fact. The court considers "both the words themselves and the entire context in which the statement occurs." In Fells, the D.C. Court of Appeals recognized a defamation-by-implication claim based on a statement that the plaintiff had been terminated after an investigation into sexual misconduct "triggered by allegations that another recently ousted executive … was having inappropriate sexual relationships with  subordinates." While the plaintiff had not been terminated for sexual misconduct, the defendant stated that the investigation had "brought to light the serious problems related to [the plaintiff's] abusive behavior towards staff, predominantly female staff." 281 A.3d at 586 (emphasis omitted). The court held that, although the defendant had not explicitly stated that the plaintiff was terminated for sexual misconduct, the defendant's reference to the other executive's departure and the plaintiff's abuse "towards … predominantly female staff" heavily implied that the plaintiff's termination was related to sexual misconduct.

The statement that Ms. Barrett left The New Republic "after plagiarism and inaccurate reporting were discovered in her work" similarly implies a causal relationship between her departure and the alleged infractions. That meaning is further underscored by the statement's placement alongside allegations that Ms. Barrett had been an inappropriate choice to write the story and that her assignment to the story was "a second chance." Like the mention of the sexual misconduct investigation and abuse toward women in Fells, use of the phrase "second chance" strongly suggests that Ms. Barrett had been driven out of the industry due to her past failings and had yet to receive another chance. This is especially the case considering the court's obligation to draw all inferences in Ms. Barrett's favor at this stage in the proceedings.

Defendants point to Ms. Barrett's concessions that she had been accused of plagiarism and other journalistic malfeasance during her tenure at The New RepublicBut that is beside the point—the defamation claim rests on the implication that she was pushed out of her job because of these incidents, not that they did not occur. Because the "gist" and "sting" of the statements addressed in Count Two are capable of defamatory meaning, they survive the motion to dismiss.

Count Three: Statements related to Ms. Barrett's byline

Ms. Barrett's third claim alleges defamation per se with respect to the following statement, made with slight variation in all three Editor's Notes and the Peck Memorandum:

The assignment [to Ms. Barrett] was a mistake. So was the initial byline under which the piece ran. We typically defer to authors on how their byline appears, and originally we referred to Barrett as Ruth S. Barrett at her request. In the interest of transparency to our readers, we should have included the name that she used in her byline in the 1990s. We have changed the byline on this article to Ruth Shalit Barrett.

Ms. Barrett further points to an additional statement by an editor at The Atlantic—later included in a Washington Post article—that Ms. Barrett "was hoping to disguise her name in her byline to prevent people from realizing that she had once written articles under her maiden name of Ruth Shalit." Defendants argue that these statements are truthful and that the assertion "we should have included the name that she used in her byline in the 1990s" is an inactionable subjective judgment and statement of opinion. The court disagrees and concludes that these statements are capable of defamatory meaning.

A defamation-by-implication claim survives here because the statements, viewed in context, are capable of defamatory meaning and imply provably false statements of fact. As Defendants note, it is literally true that Ms. Barrett requested the "Ruth S. Barrett" byline. But the context of the statement suggests that Ms. Barrett chose this variation to distance herself from her journalism in the 1990s and to mislead readers. However, Ms. Barrett alleges that this is false—she never intended to conceal her identity, and in fact, she affirmatively chose to use the more identifying "Ruth S. Barrett" as opposed to "Ruth Barrett." She even requested that the magazine link to her personal website, which included articles she had penned under her unmarried "Ruth Shalit" byline. The "gist" of the statements is that Ms. Barrett sought to conceal her identity and distance herself from some nefarious past; that is capable of defamatory meaning.

Defendants argue that these statements are inactionable opinion because they "reflect[] a subjective judgment about what The Atlantic 'should' have done to better promote 'transparency' to its readers." To be sure, that is what the text literally says.

But a reasonable reader could infer two negative narratives, both of which "imply unstated defamatory facts": first, that Ms. Barrett sought to conceal her identity and distance herself from her work in the 1990s; second, that her history was sufficiently unsavory to warrant her doing this. Here, a reader cannot understand that The Atlantic's opinion represents its interpretation of the facts presented because no truthful facts in relation to the byline or Ms. Barrett's professional past are presented.

Accordingly, the reader cannot "draw his or her own conclusions" and is instead led to believe the negative implications of the statements. The key question is whether this statement of opinion has an "implicit factual foundation" that would be "objectively verifiable." In this instance, the implicit factual foundation is that Ms. Barrett tried to use an opaque byline to mislead readers because her maiden name evoked a nefarious history from the 1990s. Those facts can be proven true or false. Accordingly, Count Three survives.

Count Four: Statements suggesting that Ms. Barrett is a dishonest journalist with a history of fabricating facts

As her final defamation claim, Ms. Barrett argues that each of the previously addressed allegedly defamatory statements, taken together and with two additional statements, constitute defamation. The two additional statements are substantially similar to each other. In his Memorandum to The Atlantic staff, Mr. Peck stated

We decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

In each version of the Editor's Note, there were slight variations on the statement that

[The Atlantic] decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

Defendants contend that the newly added statements are inactionable as subjective opinion. As explained in relation to the statements regarding Ms. Barrett's professional past and the byline, Defendants failed to provide the reader with adequate truthful facts from which to infer their own conclusions. Defendants' opinions have "implicit factual foundation[s]" that would be "objectively verifiable"—namely, that Ms. Barrett had committed journalistic malpractice, that she needed a "second chance" as a result of that malpractice, and that her conduct was sufficiently severe that she should not have been afforded the opportunity to write the article.

The question is close with respect to the statements that "[The Atlantic] [was] wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision." These two sentences, standing alone, could be classic statements of opinion. But "[c]ontext is critical … '[to] determin[ing] the way in which the intended audience [would] receive'" these statements. These sentences cannot be separated from the preceding statements. A reader would consider them part of a whole in conveying a defamatory narrative….

Further, this count draws in all the defamatory statements together—the scope now captures the larger narrative. Here, the court concludes that a reasonable juror could infer that the full cadre of statements paints a picture of a serial liar who maliciously set out to deceive editors and readers. There is enough in the complaint to survive this initial stage….

The court also concluded that Barrett was not a public figure, and, separately, rejected Barrett's breach of contract claims.

 

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[Eugene Volokh] Suit Against School District for "Actively Concealing" School's Referring to Girl With "Masculine Name and Pronouns" Can Go Forward

From Mead v. Rockford Public School Dist., decided today by Judge Paul Maloney (W.D. Mich.):

Plaintiffs Dan and Jennifer Mead have a daughter, G.M., who attended a middle school in the Rockford Public School district. G.M. asked the school to refer to her using a masculine name and pronouns. The school followed G.M.'s request but did not inform G.M.'s parents of her request. Plaintiffs ultimately discovered the situation. Plaintiffs filed this lawsuit alleging that the school violated their constitutional rights by actively concealing from them information about their daughter….

The court allowed plaintiffs' Fourteenth Amendment parental rights claim to go forward:

The right of parents to direct their children's upbringing originated from three Supreme Court cases: Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Farrington v. Tokushige (1927)…. The Court affirmed the life of this right in Troxel v. Granville (2000). There, the Court held that "the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interest recognized by this Court." … In addition, parents have a fundamental right to control their child's health. See Parham v. J.R. (1979). "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." So "[s]urely, [a parent's right] includes a 'high duty' to recognize symptoms of illness and to seek and follow medical advice." …

Defendants argue that an unconstitutional infringement of parental rights over their children occurs only when the state requires or prohibits some activity. Defendants cite Doe v. Irwin (6th Cir. 1980) to support its argument. Similar to Doe is Anspach v. City of Phila., Dep't of Pub. Health (3d Cir. 2007). Both cases involved a governmental entity providing minors with contraception without parental knowledge. And both courts found no deprivation of the liberty interests of the parents in not notifying them of their child's voluntary decisions[ b]ecause the government did not compel, coerce, or interfere with the parents' rights to care for control their children….

There's a major distinction between those cases and the present case. Plaintiffs plead that the District intentionally deceived them. Plaintiffs claim that the District went beyond failing to notify them of their child's gender transition. According to the complaint, the District "took affirmative steps to deceive the Meads." Taking complaint in its entirety, Plaintiffs' allegations show some amount of coercion or interference from the District, which implicates Plaintiffs' right to make fundamental decisions for G.M….

G.M. was an East Rockford Middle School student from August 2020 to October 2022. When the relevant events occurred, she was thirteen years old and in the seventh and eighth grades at Rockford. Plaintiffs allege that pursuant to the policy, District officials regularly referred to G.M. by male pronouns and a masculine name despite her biological sex being female.

And according to the policy, the District concealed this information from the Meads. The cover-up went so far as to alter any documents the District sent to the Meads by replacing any references to G.M.'s masculine name and pronouns with G.M.'s female name and biological pronouns. But outside of those meetings the District referred to G.M. by her requested masculine name and male pronouns. And when Plaintiffs raised the issue with the principal and requested that issues like this not be kept secret, the principal couldn't guarantee that.

Plaintiffs also allege that the District's actions amount to medical health treatment. They plead that the District engaged G.M. in a "psychosocial intervention for gender dysphoria." Viewing the complaint in a light most favorable to the Meads, Rockford's "psychosocial intervention for [G.M.'s] gender dysphoria" can be seen when Ms. Slater engaged in a confidential evaluation on G.M.: "Ms. Slater's file on G.M. closed on November 14, 2022, with a handwritten note labeled 'Confidential File' at the top memorializing that '[e]vaul. Was not completed due to parent withdrew student to be homeschooled.'"

Plaintiffs plead this "intervention" began when school officials referred to G.M. by a masculine name and male pronouns for G.M.'s social and gender transition. Gender dysphoria, they assert "is complex" and proper "diagnosis very commonly suffer[s] from other clinical mental health conditions, such as Autism Spectrum Disorder, Generalized Anxiety Disorder, and Major Depressive Disorder," three disorders G.M. allegedly suffers from. The District's policy and practice allowed school officials to deceive the child's parents, which undermined their ability to choose appropriate medical treatment for their child (a third-party therapist or psychologist). The District's policy and practice "undermines a meaningful role for parents if the child decides his or her biological gender is not preferential."

In sum, when viewing the complaint in a light most favorable to Plaintiffs, the allegations make plausible that the District's actions infringed upon Plaintiffs' fundamental parental rights in directing G.M.'s medical treatment, and G.M.'s upbringing and choice of education….

Defendants contend they have a compelling interest in "ensuring the safety of its students" [that would overcome the parental rights claim -EV]. That interest, however, does not give school districts carte blanche to tell a child's parents nothing about their child's gender transition. Defendants do not suggest that G.M. faced harm from her parents if the District were to have informed the parents about G.M.'s request. Defendants have not met their burden to show how concealing a child's gender transition from its parents promotes that child's safety.

Defendants also argue they have a compelling interest in promoting student privacy. But school employees did not keep G.M.'s gender transition private. School employees used G.M. by her preferred masculine name openly and publicly at school….

But the court rejected Plaintiffs' Free Exercise Clause claim, chiefly because

[T]he District's policy and practice does not compel students (or their parents) to believe or do anything. G.M. requested the school use a different name and pronouns when referring to her. The District's policy and practice merely directs how District employees act when Defendants receive such a request. The District did not compel[] G.M. to use a different name or pronouns. Nor did the District compel Plaintiffs to use a different name or pronoun.

David Andrew Cortman, John J. Bursch, Katherine L. Anderson, and Vincent M. Wagner (Alliance Defending Freedom) represent plaintiffs.

The post appeared first on Reason.com.

[Eugene Volokh] "Trump's FCC Head Went Too Far When He Threatened Disney over Jimmy Kimmel's Charlie Kirk-Related Comments"

From Paul Mirengoff (Ringside at the Reckoning); much worth reading. Mirengoff and his coauthor Bill Otis are my go-to people for hardheaded, pragmatic, but principled conservative views. They tend to be somewhat more conservative than I am, but I always find their work interesting (and well-written). An excerpt:

ABC pulled Kimmel off the air shortly after Carr's remark. However, the suspension also followed media giants Nexstar and Sinclair saying they would no longer carry Kimmel's show on their affiliates.

Thus, one can argue that Carr's statement did not cause the suspension of Kimmel's show. Maybe it was just Nexstar and Sinclair that caused it. And maybe Nexstar, which like Disney and Sinclair, has business before the FCC (such as seeking approval to acquire Tegna, another media company, in a $6.2 billion dollar deal), wasn't influenced by what Carr said. Maybe Kimmel's weak rating caught up with him.

But even if the decision to suspend Kimmel's show was based purely on market considerations and nothing Carr said, the head of the FCC had no proper business saying what he did. The government shouldn't threaten to use its licensing and other powers for the purpose of coercing TV networks into taking action against hosts who say things the government doesn't like….

For those who genuinely believe in free speech, it follows that television hosts should be free to level such insults — including stupid ones — without the government threatening consequences for their network if the network doesn't take action against the speaker.

In his statement, Carr relied on the obligation of networks "to operate in the public interest." But it is counter to the strong public interest in free speech for the government to make threats against outlets that present speech it doesn't like….

Highly offensive or not, the government shouldn't have threatened consequences for Disney if it didn't take action against Kimmel. If his comments made him too toxic for the network or affiliates to carry him, let market forces work. The government shouldn't put its thumb on the scale. The government should stay out of it.

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[Eugene Volokh] David Cole Said It Would Be Like This: The ACLU's Smart Move in Representing the NRA in NRA v. Vullo

[The right would likewise be smart in protecting speech on the left today.]

Back in 2023, the U.S. Supreme Court agreed to hear NRA v. Vullo, where the National Rifle Association alleged that New York government officials violated the First Amendment by pressuring financial intermediaries to cut off or reduce their business ties to the NRA. At that point, the ACLU and its then-National Legal Director David Cole agreed to represent the NRA before the Supreme Court; indeed, Cole argued the case (extremely effectively, I thought).

This decision was controversial within the ACLU; indeed, the New York affiliate of the ACLU (the NYCLU) put out a public statement "strongly disagree[ing]" with the ACLU's decision to represent the NRA. The ACLU of New Mexico likewise dissented. But the ACLU leadership went ahead with the representation, presenting what I thought was a powerful Left-Right coalition before the Court.

And I take it that the ACLU's rationale wasn't just that the NRA deserved to have its rights vindicated; I assume that they also recognized that what New York was doing to a conservative speaker, conservative states (or a conservative federal government) could do to liberal speakers. First Amendment precedents protecting (or restricting) speakers on the left have long been later used to protect (or restrict) speakers on the right, and vice versa. For an explicit statement by Cole along these lines in a different NRA case brought by the New York AG, see here: "If the New York attorney general can do this to the NRA, why couldn't the attorney general of a red state take similar action against the ACLU, the AFL-CIO, Common Cause, or Everytown for Gun Safety?"

Boy, the ACLU sure called that one. NRA v. Vullo is now a staple of arguments against similarly coercive actions by the Trump Administration. It's being talked about now with regard to the Kimmel show suspension, but it has also been relied on by courts in  a challenge to the cancellation of federal grants to Harvard, a challenge to the Department of Education's actions related to DEI programs, challenges to the sanctions imposed by the Administration on various law firms, and more. And of course conservative speakers will be able to take advantage of it as well in future cases, too.

It is trite, but it is true: "[T]he freedoms … guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Wise people, left and right, have long recognized this. The national ACLU recognized it in NRA v. Vullo. I hope people on the right likewise recognize it today.

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[Josh Blackman] What It Means To Be A (Politically) Conservative Jew

[Rebecca Taibleson stated it plainly: "If you were Jewish and conservative, you had to really mean it, and we did."]

Today, Rebecca Taibleson had her confirmation hearing. Despite some opposition from conservative groups, I did not see any indication that a single Republican Senator would oppose her nomination. She should be confirmed easily. Though, following up on my post yesterday about Rebecca's faith, I did want to flag one exchange with Senator Cruz that the WSJ picked up:

"I have had people reach out to me on this nomination more than any other judicial nomination in the second Trump term," Sen. Ted Cruz said Wednesday at a hearing for Ms. Taibleson, a 42-year-old Wisconsin federal prosecutor. The anxieties on the right, Mr. Cruz added, "boil down to a concern that you're secretly a closet liberal, and that you'd be an activist on the bench."

Ms. Taibleson replied ably. "I was raised by a very conservative law professor," she said. "It has stuck." (Her father is George Mason University's Michael Krauss.) Growing up, "it felt like we were the only conservatives at our Jewish day school in the 1990s," she added. "Especially back then, if you were Jewish and conservative, you had to really mean it, and we did."

Sen. Cruz gave Taibleson an opportunity to respond to her critics. I've been at this for a while and I don't think I've ever seen an answer quite like it. pic.twitter.com/OKDjduzDlH

— Mike Fragoso (@mike_frags) September 17, 2025

To start, I give Senator Cruz some credit. He walked a tightrope here. It was obvious he was responding to concerns raised by various conservative groups that he respects. At the same time, he recognized that Rebecca should be able to address concerns about her own political views. I've seen Senator Cruz destroy nominees from the dais. This was not Cruz's mission today. She was given space. Mike Fragoso aptly observed, "I've been at this for a while and I don't think I've ever seen an answer quite like it." Cruz was respectful, but probing.

Rebecca's answer was perfect in ways that most people will not understand. And I can relate as a Jew, and a conservative. At least since the New Deal, the experience of the American Jew was to be a Democrat. Period. Growing up, there was not a single member of my extended Jewish family who was a registered Republican. I heard stories that my late grandmother voted for Nixon in 1972--a 49 state landslide--and she was still mocked for it. My family managed to vote against Reagan, twice. In 1998, then Representative Chuck Schumer spoke to my Hebrew school class while campaigning for the Senate. In 2000, I advocated for Al Gore and Joe Lieberman! This was the default rule for Jewish people.

After 9/11, I started my journey to the political right. And I felt the backlash. Conversations at the Passover table were unpleasant. My grandfather wanted to ban all guns and could not understand why I owned one. My family could not understand how I could back President George W. Bush. They could not fathom why I would oppose President Obama. And once President Trump came on the scene, I was ostracized. My family was at the Woman's March! It got to the point where I simply would not talk about politics with my family. If they ever asked me about something political, I would smile and try to change the topic. It drove my late mother crazy, but I used the pivot as a defense mechanism. This approach was essential to preserve shalom bayit (peace in the house). My silence infuriated them even more since I would express my views publicly on TV and radio. One of my last conversations with my mom was about the Dobbs case. I ducked it. I would have just made her upset, which I didn't want to do.

To quote Rebecca, to be a politically conservative Jew, you really had to mean it. You have to be willing to express your views, even in a community where you will be shunned. I have to imagine that being a conservative Jew might be something like being a conservative black person: liberals looks at you like a traitor for abandoning the cause. And it takes some fortitude to push back against those liberal orthodoxies. (I attended a fascinating conference at Heritage today, titled "Black Family Blueprint," which I would recommend to everyone.) This is the point that Rebecca was conveying, and it is a message that should resonate with anyone who read Justice Thomas's biography.

In my initial post on Rebecca, I focused a lot on her father, Professor Michael Krauss. And I did so quite deliberately. If a person was raised in a politically conservative Jewish family, it will be very hard to avoid absorbing those values. And if a person's father was Michael Krauss, the most influential professor I've ever had, it would be damn near impossible. To be sure, conservatives can arise from a liberal Jewish family (see me). But the opposite is much more unlikely.

Thankfully, the number of conservative Jews is on the rise. Look to President Trump's judicial nominees: David Stras, Neomi Rao, Steve Menashi, Dan Bress, Robert Luck, Roy Altman, Lee Rudofsky, Matt Solomson, Steve Schwartz, and others. Now, there is Rebecca Taibleson. If you consider the percentage of Trump's Jewish judicial nominees against the percentage of Jews in America, we are punching way above our weight class. Plus, the Trump Administration is stacked with Jewish people. A friend remarked that he recently had dinner with about ten Orthodox Jews who work in the administration.

In popular culture, I can look to Mark Levin and Ben Shapiro, who are leading conservative talk radio hosts. I recently spoke at NatCon 25, which is led by Yoram Hazony, an Orthodox Jew from Israel. I've never been at a conference with so many Jewish people. I was nudged to join a Whatapp group to organize minyans for daily prayers. In the legal sphere, friends like Josh Hammer and Ilya Shapiro demonstrate that there is a place for Jews on the right. The Federalist Society and the Israel Legal Fellowship are taking bold steps to forge relations to Jewish lawyers in Israel.

I hope that our public advocacy, as proud Jews, gives space to other right-curious Jews to speak up. I also hope that more conservatives come to understand Jews as natural and capable allies.

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[Stuart Benjamin] Trump's Complaint Against the New York Times: A Long Press Release that Mangles "Actual Malice"

[It’s mainly praise for Trump: “President Trump secured the greatest personal and political achievement in American history.”]

The complaint for Donald Trump against the New York Times reads like a long press release. It says little to show the falsity of the factual statements it identifies, and mainly praises Trump. Among the many examples: in its second paragraph it states that in the 2024 election "President Trump secured the greatest personal and political achievement in American history." Or from paragraph 12:

Thanks solely to President Trump's sui generis charisma and unique business acumen, "The Apprentice" generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. "The Apprentice" represented the cultural magnitude of President Trump's singular brilliance, which captured the zeitgeist of our time.

Beyond that, what jumped out at me is the complaint's repeated references to the subjective "malice" that the complaint says the defendants have toward Trump. As every law student who has taken a First Amendment class knows, "actual malice" in New York Times v. Sullivan is a term of art – the Court has repeatedly made clear that it is an objective standard that focuses on whether the defendant was reckless about the possible falsity of a factual claim, and not on the defendant's hatred, ill will, or enmity. But the complaint's references to actual malice focus on subjective hostility to Trump. For example, paragraph 117 begins:

Defendants' actual malice manifested in numerous ways. Defendants launched investigations into President Trump, his family, and his businesses for the express purpose of harming all three.

In the claims for relief, the complaint says that the defendants were aware of falsity but emphasize subjective dislike of Trump. Paragraphs 139 and 153 both say:

The statements were published by Defendants with actual malice, as part of a long term pattern, with oppression and fraud in that they were aware at the time of the falsity of the publication and thus, made said publications in bad faith, out of hatred and ill-will directed towards President Trump without any regard for the truth.

I assume that the lawyers know that judges who care about the law will focus on the objective standard as laid out by the Supreme Court. So why the focus on hatred and ill will? It's possible they think this will help persuade the public, but it's hard to imagine that many members of the public (other than Volokh Conspiracy readers!) will learn anything about this complaint, much less care. Maybe they believe that the judge who will hear this case is likely to be a political hack who will like the invocations of ill will, but even then an ordinary complaint seems like the smarter move, as it would give a political hack more cover to be political. Maybe they think this will persuade journalists, but journalists who are not ardent Trump supporters will likely call lawyers or law professors and be told that actual malice is an objective standard.

My guess is that the answer is tied to the lavish praise of Trump I noted at the beginning of this post: I think the complaint centrally has an audience of one (Trump), and more broadly his hardest core supporters. It's not written to persuade, but instead to affirm – that Trump is the greatest and that his opponents are deranged (from paragraph 107: "Defendants baselessly hate President Trump in a deranged way"). So maybe it reads like a press release because it is a press release – to the most devoted devoted sliver of his base.

[Edit: I initially used the term "brief" to avoid having readers think I was talking about a complaint in the ordinary sense rather than the legal sense, but a user comment led me to conclude otherwise, so I changed it "complaint."]

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[Eugene Volokh] String-Instruments-Only City Rule for Restaurant's Outdoor Music Is Unconstitutional Content-Based Restriction

From Red, White & Booze, LLC v. City of St. Pete Beach, decided yesterday by Judge Kathryn Kimball Mizelle (M.D. Fla.):

A city-issued permit allows a restaurant to play outdoor music using only string instruments and allows amplified music for only a few hours each weekend…. Because I conclude that the permit's prohibition of certain kinds of instruments is a content-based restriction on First Amendment-protected expression and the city fails to show that the conditions survive strict scrutiny, I preliminarily enjoin the city from enforcing parts of the permit….

Some excerpts from the court's long analysis:

[1.] The First Amendment protects music, including instrumental music…. [I]nstrumental music can be communicative in at least two ways apart from lyrics ….

First, instrumental music can communicate by association. Certain tunes or musical arrangements, even those without words, can become associated with a concept or message such that the music itself carries that message independent of any verbal accompaniment. For example, John Phillips Sousa's "Stars and Stripes Forever," usually performed without its little-known lyrics, conveys a sense of American national pride through long association with patriotic occasions, even in listeners who may not know the song's patriotic name….

Second, and perhaps more fundamentally, instrumental music is expressive in its own right. It can lift up or cast down the spirit, raise the mind to heaven or distract with terrestrial matters, and stir the human soul to heroic or base deeds, all of which prove instrumental music's power to communicate. Music can evoke these responses in a hearer "completely disassociated from titles, linguistic signals, and other forms of art."

The inherent power of instrumental music to communicate has been recognized for millennia and by many. See, e.g., Plato, The Republic l. 401d (Allan Bloom trans.) ("[R]hythm and harmony most of all insinuate themselves into the inmost part of the soul."); St. Thomas Aquinas, Summa Theologica Pt. II-II, Q. 91, Art. 2 (Fathers of the English Dominican Province trans.) ("[It] is evident that the human soul is moved in various ways according to various melodies of sound.")….

[2.] Music is "[t]he art or science of combining vocal or instrumental sounds to produce beauty of form, harmony, melody, rhythm, [and] expressive content." Music's content, then, is the way in which different sounds are combined to create a particular expressive musical work. Thus, a regulation that prohibits certain musical combinations of sounds is content based, while a regulation that may be justified without reference to how sounds are combined to create instrumental music is not….

For example, the regulation in Ward v. Rock Against Racism (1989) was content neutral because it did not regulate which sounds may be used or how they may be arranged. In Ward, the Supreme Court upheld a New York City regulation requiring private parties renting a Central Park bandshell to use a city-provided technician and sound equipment to control noise. Because "the city require[d] its sound technician to defer to the wishes of event sponsors concerning sound mix" and the policy otherwise limited only noise levels, not what kinds of music the performers could play, the Court concluded that the regulation had "nothing to do with content." …

Ordinances that restrict which instruments may be used, on the other hand, distinguish based on a musical work or performance's content. One of the "large array of elements" that makes up a musical composition or performance is "timbre." "Timbre," also known as "tone color," is the "quality of sound characteristic of a particular type of instrument or voice, as opposed to its register or pitch." For example, while Beethoven's Moonlight Sonata (originally for piano) may be arranged for classical guitar, the piece's content is altered by the change in instrumentation. And one would be hard pressed to claim that Disturbed's heavy-metal cover of The Sound of Silence left unaltered the content of Simon & Garfunkel's original acoustic version….

While the City does not address it, instrument-based regulations pose a real risk of "excising certain ideas or viewpoints from the public dialogue." Regulations of instruments (or other components of music) might have the effect—or be enacted for the purpose—of suppressing musical expression that depends on those instruments. In the case of New York City's cabaret laws, for example, a city regulation "permit[ed] only a piano, organ, accordi[o]n, guitar or string instrument" in jazz clubs and coffeehouses. Though these regulations spoke in "a lingua franca of zoning policy," they were at least arguably motivated by "racism, the contempt for vernacular arts, [and] the fear of what is oppositional or bohemian," including the desire to suppress jazz music. A New York court ultimately refused to enforce the instrument-based restriction, and the city removed it.

To be sure, there is no allegation here that any impermissible purpose motivated the City. Based on the record that the parties submitted, noise reduction, particularly near residential areas, seems to be the goal. Yet "[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based [rule], as future government officials may one day wield such statutes to suppress disfavored" expression. Instruments are central to music's communicative content, and instrument-based regulations, even if enacted for a content-neutral purpose, risk suppressing musical expression based on "its message, its ideas, its subject matter, or its content." …

[3.] Because the City contends that intermediate scrutiny applies, the City does not argue that the permit survives strict scrutiny [the test for content-based speech restrictions -EV]. Accepting that the City has a compelling interest in limiting excessive noise, nothing in the record shows why a total ban on non-string instruments and bass and a capacious limitation on amplification is "the least restrictive means of" doing so. That conclusion is hardly surprising, given that the Supreme Court has only once held that a law triggered yet survived strict scrutiny in the First Amendment context. Free Speech Coalition v. Paxton (2025) (citing Holder v. Humanitarian L. Project (2010)). The Restaurant has therefore made a substantial showing that the permit violates its First Amendment right to free speech and that it is likely to succeed on the merits….

Kyle David Bass and Timothy W. Treble Weber (Weber, Crabb & Wein, PA) represent the restaurant.

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