Eugene Volokh's Blog, page 36

[Stephen Halbrook] Second Amendment Roundup: The Zero Tax on NFA Firearms

[The $0 tax on firearms undercuts the constitutional basis of the National Firearms Act.]

The National Firearms Act, chapter 53 of the Internal Revenue Code, finds its basis in U.S. Const. Art. I, § 8, under which "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…."  It imposes special occupational taxes for businesses and making and transfer taxes on individual firearm transactions.  It is unlawful for a person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record," 26 U.S.C. § 5861(d), perhaps the most typical violation.

A "firearm" under the NFA includes eight categories, including short-barreled shotguns and rifles (and weapons made from shotguns and rifles under 26" overall length); "any other weapon" (small guns other than handguns); machineguns, silencers, and destructive devices.  § 5845.  Under H.R.1 – One Big Beautiful Bill Act of 2025, as reported by the Senate Finance Committee on June 16, 2025, § 5845 would have been amended to state: "The term 'firearm' means a machinegun or a destructive device."

As a reconciliation bill, H.R. 1 was subject to the Byrd Rule, under which an amendment is extraneous if it does not produce a change in outlays or revenues.  As I argued here, the bill would have complied because it produced a change in revenues by eliminating certain firearms as taxable.  The Senate parliamentarian opined otherwise.  The final version as passed did not change the definition of "firearm" at all, and instead amended the making and transfer taxes on all NFA firearms except machineguns and destructive devices to $0.

Before the amendment, the making and transfer tax was $200 per firearm (or $5 for "any other weapon").  While the tax is now zero on most firearms, one must still register each firearm and obtain ATF's authorization before making and transferring it.  Without any tax being imposed, the rug has been pulled out from the constitutional basis of the NFA.

In Sonzinsky v. U.S. (1937), the Supreme Court held that the NFA contained "no regulations other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose."  And in Haynes v. U.S. (1968), the Court described the National Firearms Act as "an interrelated statutory system for the taxation of certain classes of firearms."  Upholding Obamacare under the tax power in National Federation of Independent Business v. Sebelius (2012), Chief Justice Roberts cited Sonzinsky, writing that "we have upheld such obviously regulatory measures as taxes on … sawed-off shotguns."

Under H.R. 1, no revenue purpose is left for any of the firearms other than machineguns and destructive devices.  Requiring these other firearms to be registered produces zero in taxes, no different than firearms that are not included in the NFA.  The bill becomes effective on January 1, 2026.  Lacking any jurisdictional hook in the tax power or other constitutional delegation, it will be difficult to prosecute offenses for unregistered firearms (other than machineguns and destructive devices) possessed or transferred on and after that date.

Civil challenges have already commenced.  A complaint filed in the Eastern District of Missouri, Chris Brown v. ATF, challenges the pertinent provisions of the NFA not only on the lack of Congressional power under the revenue clause, but also challenges the restrictions on suppressors and short-barreled rifles under the Second Amendment.  Suppressors and short-barreled rifles pass the Heller test by being arms in common use, and NFA-type restrictions do not pass the Bruen text-history test.  Plaintiffs also include the NRA, Firearms Policy Coalition, Second Amendment Foundation, and American Suppressor Association.

Missouri is in the Eighth Circuit, which in U.S. v. Hall (1999) upheld the NFA under the taxing clause, but rejected an argument that the commerce clause would be a constitutional basis for the NFA.

A second challenge, Silencer Shop Foundation v. ATF, has been filed in the Northern District of Texas.  It is based solely on the lack of Congressional power to require firearm registration without any basis in the tax power.  Gun Owners of America and Firearms Regulatory Accountability Coalition are among its plaintiffs.

As long ago as U.S. v. Matthews (1971), the Fifth Circuit relied on Sonzinsky to uphold NFA provisions.  Not surprisingly, all circuits have rendered similar decisions.

I've covered these issues in detail in my article The Power to Tax, The 2nd Amendment, & the Search for Which "'Gangster' Weapons" To Tax.  From its inception in 1934, the NFA has been justified solely under the power to tax.

Based on the plain text of the constitutional power of Congress "to lay and collect Taxes" and the consistent Supreme Court precedents on the NFA, the Department of Justice should agree with the pertinent allegations of the above complaints and enter into consent decrees with the plaintiffs to the effect that the NFA may not be applied to any firearms other than machineguns and destructive devices, which remain subject to the tax.

Recognition that the NFA restrictions may no longer be applied to firearms (other than machineguns and destructive devices) does not leave these firearms unregulated.  All of them are still covered under Title I of the Gun Control Act, which subjects dealer sales to the NICS background check system, bans possession by felons and other categories of prohibited persons, and otherwise comprehensively regulates firearms.

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[Jonathan H. Adler] D.C. Circuit Orders Trump Administration to Restore Public Database of Federal Expenditures

[Judge Henderson writes a forceful opinion rejecting the Trump Administration's attempt to extent executive authority over federal spending.]

The Trump Administration has until Friday to restore a public database tracking the expenditure of appropriated funds. On Saturday, in CREW v. OMB, the U.S. Court of Appeals for the D.C. Circuit rejected the Administration's request for a stay pending appeal of a district court injunction ordering the database's restoration, but said the administration has until August 15 to comply.

Judge Karen Henderson issued a statement respecting the denial of the stay pending appeal, which Judge Wilkins joined. (Judge Garcia apparently joined in the order, but not Judge Henderson's opinion.) The opinion is a powerful rebuke of the Trump Administration's attempt to supplant legislative control over federal spending.

Judge Henderson's statement begins:

Throughout the 1600s, the Stuart monarchs engaged in a titanic struggle with Parliament regarding who would reign supreme over the public purse. That struggle was marked by civil war, regicide and a new wellspring of liberty in the Glorious Revolution of 1688. By the end of the upheaval, Parliament emerged supreme in matters of taxation and spending. Our Constitution followed suit, granting the Congress plenary control over the public fisc. Recently, the Executive has once again locked horns in a struggle for control over the purse strings. Across a slew of cases, recipients of congressional funding have challenged the President's ability to unilaterally freeze or "impound" spending.1 Today's case is but the latest chapter in the ongoing saga.

In 2022, the Congress enacted a statute requiring the Executive to create and maintain a public database to track the expenditure of congressionally appropriated funds. The Executive complied until March of this year when, amidst the burgeoning fight over impoundment, it informed the Congress that it now deemed the statute unconstitutional and would no longer comply with it. Two nonprofit organizations sued to restore the now disabled website and the district court entered a permanent injunction requiring restoration of the withheld data.

The Executive now asks this Court to stay that decision. To hear the Government tell it, the separation of powers hangs in the balance and only this Court can set things right. But when it comes to appropriations, our Constitution has made plain that congressional power is at its zenith. Because the Executive has not made the requisite showing to support its motion for a stay pending appeal, the motion must be denied.

And later in the opinion:

In a Republic, "the people may have an opportunity of judging not only the propriety of . . . appropriations, but of seeing whether their money has actually expended only, in pursuance of the same." St. George Tucker, supra, at 362. Despite their differences, Antifederalists and Federalists agreed that the citizenry had a right to know how the Government manages its money, not a privilege contingent upon the whims of the Executive. Their dispute was only over the wisdom of allowing the legislature to impose reasonable limitations on that right. Congressional power won out. And the Congress, as is its right, has opted to keep the citizenry informed by shedding more light on the appropriations process through the CAAs. The Constitution's text, structure and history uniformly cut against declaring the CAAs unconstitutional. The only question remaining is whether precedent compels a contrary result. It does not. . . .

As the Supreme Court has explained, the "Congress has plenary power to exact any reporting and accounting it considers appropriate." Richardson, 418 U.S. at 178 n.11; see also Harrington v. Bush, 553 F.2d 190, 194–95 (D.C. Cir. 1977) (reasoning that the "Congress has plenary power to give meaning to the" Appropriations Clause). Against that plenary power, the Government asserts that the CAAs risk revealing vaguely defined "sensitive," "deliberative" or "policy" information, thereby chilling OMB's communications. Gov't Br. 19–22. Yet the Government never explains why OMB cannot communicate any privileged information to the relevant agencies outside the apportionment document itself. All it offers is an unhelpful line that doing so would be less "efficient[]." App. 70 ¶ 15. That objection is, as the district court noted, a "policy disagreement with the [CAAs] without a constitutional foundation." CREW, 2025 WL 2025114, at *14.

The current administration is not the first to wince at congressional oversight over spending. "As Alexander Hamilton learned to his dismay, the reporting requirements in the hands of political opponents could be a prodigious mechanism for harassment." Jerry L. Mashaw, Recovering American Administrative Law, 115 Yale L.J. 1256, 1287 (2006). But if the Executive finds disclosure burdensome, it must seek relief from the Congress, not from the unelected judiciary. Our duty is to enforce the law—constitutional and statutory—and, absent an "irreconcilable variance" between the two, we cannot disregard a statute any more than we could the Constitution. The Federalist No. 78, at 467 (A. Hamilton) (C. Rossiter ed., 1961).

For these reasons, the Government has not shown that it is likely to succeed on the merits of its claim that the CAAs are unconstitutional.

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[Jonathan H. Adler] Seventh Circuit Allows Teacher to Pursue Title VII Claim Against School for Requiring Him to Use Chosen First Names of Transgender Students

[This case presents a religious accommodation claim, rather than a free expression claim.]

In 2021, in Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit held that a university professor could pursue First Amendment free expression and free exercise challenges to Shawnee State University's policy that required professors to use students' desired pronouns. Eugene blogged on the case, and I participated in an Academic Freedom Alliance webinar discussing it.

This past week, the U.S. Court of Appeals for the Seventh Circuit considered some similar claims in Kluge v. Brownsburg Community School Corp. As with Meriwether, Kluge concerned a teacher's challenge to his school's policy as it relates to how teachers should refer to transgender students, but there are also some significant differences.

First, the claim in Kluge is that the school is violating Title VII by failing to accommodate Kluge's religious beliefs. In Meriwether, by contrast, the claims were largely constitutional.

Second, whereas Meriwether involved pronouns, Kluge involves names. The policy at issue requires teachers to refer to students by their chose first names (as opposed to by their last names). Kluge objects to this policy because he believes referring to a student by a first name that conflicts with their biological sex violates his religious commitments. he was initially granted an accommodation under which he could refer to students by their last names, but the school ultimately decided this accommodation was not reasonable and rescinded it.

Third, Kluge arose in a high school, not a university. This is potentially significant both because academic freedom interests are less pronounced in a high-school setting and because accommodations that might be reasonable in a university setting might not be reasonable in a grade school.

As in Meriwhether, the appeals court is allowing the objecting teacher's case to go forward, here for a jury determination as to whether accommodating Kluge would produce an "undue hardship" on the school.

Judge Brennan wrote the majority opinion, joined by Judge St. Eve. Judge Rovner dissented.

Here is how Judge Brennan summarized the issues and the case:

Brownsburg High School instituted a policy mandating teachers call students by their first names as they appeared in its database. For transgender students who had changed their first names, the database listed their new ones.

John Kluge was a teacher at Brownsburg. He repeatedly objected to the school's name policy on religious grounds. Kluge believed that calling transgender students names that conflicted with their biological sex encouraged their transgender identities—a sin, in his view. So, he requested an accommodation, which the school granted. Kluge was allowed to call students by only their last names—"like a sports coach," he said.

After one year, a handful of students and teachers, as well as one student's parents, complained to Brownsburg about Kluge's practice. The school rescinded the accommodation, giving Kluge the chance to either call all students by their first names or face termination. Confronted with this choice, he resigned. Kluge then sued the school under Title VII for failing to accommodate his religion.

An employer is required to accommodate an employee's religious practices unless doing so would impose an "undue hardship" on its business. 42 U.S.C. § 2000e(j). At issue is whether the impacts caused by Brownsburg's accommodation of Kluge rise to the level of an undue hardship under Groff v. DeJoy, 600 U.S. 447 (2023). Because material factual disputes exist, we reverse the district court's grant of summary
judgment to the school on Kluge's accommodation claim and remand for further proceedings.

And from the body of the opinion:

Brownsburg has not carried its burden to show undisputed facts of a serious disruption to the learning environment. Although two performing arts teachers, whose testimony is not in the record, had spoken to the administration about students "having discussions about the uncomfortableness" in other classes, there is no hint that those discussions interfered with students' education or the teachers' duties. These two teachers also claimed that the accommodation caused "tension" that interfered with "the overall functioning of the performing arts department." But Kluge expressly disputed that "tension" existed within the department. He instead said that he "g[o]t along great" with those same performing arts faculty who purportedly complained, and he "did not witness any … animosity" from them.

We must also keep in mind that Kluge is entitled to all reasonable inferences at this stage. McDaniel, 115 F.4th at 822. It is true that three other teachers—whose testimony is also not in the record—similarly complained to Craig Lee that the accommodation was "harming students," both Sucec and Willis, and "students in general who would potentially be in" Kluge's class. Yet there is no evidence that the three non-performing arts teachers complained to the school's administration, only to Lee. One would expect that if there was a serious disruption to the learning environment, those teachers would elevate concerns to the school administration, rather than complain only to a colleague with no authority to reprimand Kluge or control his actions.

In sum, the record contains material factual disputes about whether the accommodation disrupted Brownsburg's learning environment, precluding summary judgment to the school.

Judge Rovner's dissent begins:

Why won't he just say your name? This was the question Aidyn Sucec's music stand
partner posed to him one day in John Kluge's orchestra class. Sucec felt compelled to answer: it was because he was transgender. R. 22-3 ¶ 13.

This exchange epitomizes the problem that confronted Brownsburg. Brownsburg had agreed to let Kluge implement the last-names-only practice as an accommodation to Kluge's professed religious beliefs. From the start, the accommodation as implemented by Kluge was fraught with problems.

Although the last-names-only practice was neutral in the abstract, students quickly figured out that the practice was occasioned by the presence of transgender students in Kluge's classroom. The result was that transgender students felt stigmatized, their allies were frustrated and concerned, other teachers repeatedly fielded questions and concerns about the policy, and parents believed that both their decision-making and their children were not being respected. It is undisputed that complaints from all of these quarters were conveyed to Brownsburg. From the school district's point of view, then, the accommodation was harming transgender students and disrupting the learning environment for them, their fellow students, and for teachers. Given the lack of a dispute as to the concerns that were reported to school and district officials, Brownsburg reasonably concluded that the accommodation was a failure and that allowing it to continue presented the risk of legal liability.

In remanding the case for a trial at which the jury will be invited to reassess de novo the evidence that confronted Brownsburg and to decide for itself how credible the concerns reported to Brownsburg were, the court is setting a perilous precedent for employers. Until today, when confronted with a Title VII employment discrimination claim, we have deferred to an employer's good-faith assessment of how an employee performed in the workplace. Without exception, we have always said that an employer's honest, non-discriminatory assessment of its worker's performance will carry the day, even if it strikes us as wrong-headed. Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer's good-faith reasoning. In
making employment decisions, at least in the religious-accommodation context, employers will now have to consider not only how successfully an employee is performing his job as modified by a religious accommodation, but how a jury
might second-guess its assessment in litigation years down the line. This is an untenable restraint on employers' decisionmaking.

Today's decision also burdens employers in a second important respect. Brownsburg successfully argued below that Kluge's accommodation proved inconsistent with its mission, which is to provide a supportive learning environment for all of its students. Although the majority accepts this mission for present purposes, it also suggests that evidence of an employer's mission must be limited to policies that are formally
documented and adopted prior to any litigation. I think many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court.

Employers may also be surprised to learn that when an employee's religious accommodation has reportedly caused emotional distress or psychological injuries to one or more coworkers or customers, the employer cannot be confident that its undisputed, good-faith understanding of that harm will be given any deference; rather, it may be left to jurors to judge for themselves whether the injuries are objectively serious enough to be recognized in the Groff analysis. Groff v DeJoy, 600 U.S. 447 (2023).

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[Keith E. Whittington] Justice Sotomayor on Supreme Court Term Limits

[A bit of cold water on a popular Court "reform" from a justice on the left-wing of the Court]

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court -- a leading advocate of radical Court "reform" -- seems to want to spin Sotomayor's comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "?" Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there's always Court-packing, which I'm sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission's discussion of judicial term limits in its report here.

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[Jonathan H. Adler] Sixth Circuit Rejects Associational Standing in Medicare Drug Pricing Challenge

[An easy way to avoid the merits in the latest high-stake health care litigation.]

The Inflation Reduction Act (IRA) authorized the federal government to force prescription drug manufacturers to "negotiate" drug prices for Medicaid. In a large number of lawsuits, drug makers allege the negotiations are coercive and potentially unconstitutional. Among the claims made in the various suits are that the IRA's rules violate due process, impose unconstitutional conditions, result in regulatory takings or excessive fines, and compel speech, among other things. Most of the cases are in district courts or focusing on preliminary matters, though the U.S. Court of Appeals for the Third Circuit rejected one suit on the merits. [Update: As did the U.S. Court of Appeals for the Second Circuit just this week.]

This past week a panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of one of these cases on standing grounds in Dayton Area Chamber of Commerce v. Kennedy. Specifically, the Court concluded that because the lawsuit was not "germane to the Dayton Chamber's purposes," venue in the Southern District Court of Ohio was improper. Basically, the Court concluded that prescription drug makers, located elsewhere, could not use the Dayton Chamber to file suit in the Southern District of Ohio.

From the opinion:

An association may sue on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). "[T]he doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others." Int'l Union, UAW v. Brock, 477 U.S. 274, 290 (1986). Requiring that an "association plaintiff be organized for a purpose germane to the subject of its member's claim raises an assurance that the association's litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary." United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 555–56 (1996). As explained by the Second Circuit in Building & Construction Trades Council of Buffalo v. Downtown Development, Inc., 448 F.3d 138, 149 (2d Cir. 2006), the subject matter of the suit must "bear[] a reasonable connection to the association's knowledge and experience." . . .

Whether the interests at stake in this case (which the complaint describes as stopping the government from "depriving Plaintiffs' members of their constitutional rights, making it more difficult for them to operate their businesses, and stifling healthcare innovations that all of us depend on") are germane to the purpose of the Dayton Chamber (which it describes as "improv[ing] the region's business climate and overall standard of living" and "providing networking and training opportunities for its members") is far from obvious. One could argue, in fact, that the overall standard of living in the Dayton area would actually improve with lower drug prices for its citizenry. And at best, any possible relation between Pharmacyclics's and AbbVie's interests in this lawsuit and the Dayton Chamber's purposes exists at only a sky-high
level of generality. This is especially so because Pharmacyclics and AbbVie have no facilities in the Dayton area or indeed in the entire state of Ohio.

The Dayton Chamber itself acknowledges that its primary purpose is to advocate for a business-friendly environment in the Dayton region. And although Plaintiffs collectively argue that they have a broader purpose of safeguarding the principles of free enterprise and advocating for a business-friendly legislative and regulatory environment, the interests that they aim to protect are greatly attenuated from the regional interests of the Dayton Chamber. . . .

The present case is closer to those holding that an association lacked standing to sue. As in those cases, there is little reason to believe that the Dayton Chamber has any particular knowledge or experience in the subject matter of the lawsuit. It instead appears to be more of a "stalking horse" for Pharmacyclics and AbbVie in seeking a perceived favorable venue that Pharmacyclics and AbbVie could not obtain on their own. The district court reached the same conclusion, reasoning as follows:

Pharmacyclics and AbbVie are large pharmaceutical companies that could have
sued on their own in a federal court in a different state. Instead, Plaintiffs have
attempted to manipulate the system and manufacture standing to obtain a
favorable venue. If the Court found the Dayton Area Chamber of Commerce had
standing in this case, it would open the door for any individual or company to
bypass venue rules by becoming a member of any association remotely related to
a challenged law or regulation. The Court will not adopt a loose interpretation of
the standing requirement for the purpose of forum shopping.

We find this reasoning persuasive

This decision is interesting because it adopts a fairly stingy approach to associational standing--a controversial aspect of standing doctrine insofar as it may facilitate cause-based litigation by those without a concrete stake in the underlying issues (as the court suggested was occurring here).

Some, such as Justice Thomas, have raised questions about the scope of associational standing. Others, such as Michael Morley and Andrew Hessick, would argue associational standing should not exist at all. If the justices wanted a case to revisit the doctrine, this might be a case in which to do it--assuming the drug makers seek certiorari.

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[Jonathan H. Adler] Seventh Circuit Upholds Indiana Alcohol Laws Without a Majority Opinion

[After one judge died, the two remaining judges could not agree on why the state should prevail.]

This week, in Chicago Wine Co. v. Braun, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision rejecting a constitutional challenge to an Indiana law barring out-of-state retailers from shipping wine to customers in Indiana. Yet there is no majority opinion of the court.

The case was initially heard by a panel consisting of Judges Kanne, Eaterbrook, and Scudder. After Judge Kanne's death, Judges Easterbrook and Scudder could not agree on why the state should prevail, so the court issued a per curiam noting that the district court was affirmed, and each judge issued an opinion explaining his reasons why that should be.

Dormant commerce clause doctrine is not known for its clarity (nor, some would say, its consistency). This judgment by the Seventh Circuit would seem to support that opinion.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Libel Lawsuit Over "Billionaire's 'Baby Project' Story" Dismissed

[The sub-title of defendant Bloomberg Businessweek's article stated, "Disgraced tycoon Greg Lindberg built a network of egg donors and surrogates. Several say he conned them—and that the US fertility clinics helped him do it."]

From Judge Steven Merryday's decision yesterday in Lindberg v. Weinberg (M.D. Fla.):

Alleging that a December 2, 2024 Bloomberg Businessweek article titled How A Billionaire's "Baby Project" Ensnared Dozens of Women contains three false and defamatory statements, Greg Lindberg sues Bloomberg, L.P., and three Bloomberg employees …. Lindberg moves for an "emergency preliminary injunction" to stop Bloomberg from publishing an allegedly defamatory podcast based on the article.

Bloomberg's article details Lindberg's "baby project," an effort to use egg donors and surrogates to enlarge Lindberg's family. The sub-title of the article states, "Disgraced tycoon Greg Lindberg built a network of egg donors and surrogates. Several say he conned them—and that the US fertility clinics helped him do it." To substantiate the information in the article, the defendants "reviewed independently sourced legal, medical and financial records, and conducted dozens of interviews with [Lindberg's] former employees, clinic workers, ex-girlfriends, egg donors and surrogates." …

Lindberg alleges in Count V [which seeks injunctive relief based on the allegedly defamatory statements] that three statements in the article are defamatory[:] (1) that "Lindberg's selection of egg donors was based exclusively on eye color," (2) that "the statement characterizing Lindberg's family planning decisions as 'off' and 'jarring,'" and (3) that "Lindberg 'conned' women into donating eggs to him." The general allegations of the complaint include only allegations of the "eye color" statement and the "family planning" statement.

Under Section 770.01, Florida Statutes, before a plaintiff sues a "news media" defendant, the plaintiff must give "pre-suit" notice to the author. In an action against a reporter, a plaintiff who gives notice to the publishing corporation and not to the individual reporter fails to satisfy Section 770.01. Absent "pre-suit" notice, dismissal is proper. No allegation appears in the complaint that Lindberg served each defendant with "pre-suit" notice under Section 770.01.

Count I asserts a claim for defamation per se. [To quote the definition from another Florida case, "Generally, a publication is libelous per se if, when considered alone without innuendo, it tends to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or profession, or if it imputes to another conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office.  Words which amount to libel per se import damages and malice and are actionable in and of themselves without allegations or proof of special damages." -EV] Count I includes no allegation of a statement in the article that is defamatory per se. Although Count I includes a conclusory allegation that the "[d]efendants made false and defamatory statements concerning [the] [p]laintiff, both orally and in writing," Count I neither quotes nor describes the allegedly defamatory statements. Also, Count I states the elements of a defamation claim, but contains no factual allegations that if true would support a finding of defamation per se. Count I fails to state a claim under Florida law for defamation per se.

Count II fails to state a claim for defamation per quod. [Under Florida law, statements are defamatory per quod if they aren't defamatory per se; they can still be actionable, but only if the plaintiff can prove "special damages," which is to say specifically identifiable losses stemming from the damage to reputation. -EV] Count II neither quotes nor describes the allegedly defamatory statements. Also, Count II alleges no particular "extrinsic evidence" that would "reveal [the statement's] defamatory meaning." The conclusory allegations in Count II fail to state a claim for defamation per quod.

Although the complaint puts each word in quotation marks, a review of the article reveals that the article does not contain the statements that Lindberg's family planning decisions were "off" and "jarring," and does not use the word "exclusively" to describe Lindberg's selection of egg donors. Lindberg's complaint fails to "identify[] the allegedly defamatory statements with sufficient particular[ity]."

Lindberg argues that the statement (from the article's sub-heading) that "[s]everal [egg donors and surrogates] say [Lindberg] conned them" is not an "opinion" and is provably false. "Under Florida law, a defendant publishes a 'pure opinion' when the defendant makes a comment or opinion based on facts which are set forth in the publication or which are otherwise known or available to the reader or listener as a member of the public." "Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the publication or assumed to exist by the parties to the communication."

The American Heritage Dictionary defines "con" as "[t]o swindle (a victim) by first winning the victim's confidence; dupe." The article states that "[s]everal egg donors and at least one surrogate never received the full payment they were promised, according to interviews, contracts and financial records." The article's "conned" statement is supported by factual assertions in the article. The complaint fails to allege which of those factual assertions (that support the "conned" statement) are false.

Though not entirely clear, Lindberg seems to argue that the three statements in the article "convey a false and defamatory impression." Under Florida law, a plaintiff may assert a claim for "the tort of defamation by implication." However, Lindberg's complaint fails to assert a claim for "defamation by implication."

Lindberg's defamation claims suffer from an additional deficiency. The defendants argue, and Lindberg agrees, that Lindberg is a "public figure." "Because of the expressive freedom guaranteed by the First Amendment, a defendant may not be held liable for defaming a public figure about a matter of public concern unless he is shown to have acted with actual malice." "To plead actual malice" Lindberg "must allege facts sufficient to give rise to a reasonable inference that the false statement was made 'with knowledge that it was false or with reckless disregard of

whether it was false ….'"

Lindberg argues that the complaint sufficiently alleges "actual malice" for several reasons. First, the complaint alleges that "Bloomberg reporters gained access to Lindberg under false pretenses, misrepresenting the purpose of their interview," and that "[t]his deceptive conduct supports an inference that Bloomberg was not engaged in good-faith journalism but rather in a predetermined attack." Second, Lindberg argues that the defendants "ignored extensive corrective information provided by Lindberg's legal team before publication." Third, the defendants "relied exclusively on anonymous and biased sources while disregarding credible contradictory evidence."

Each of Lindberg's arguments is unpersuasive. The defendant's misrepresentations of the purpose of an interview is insufficient to allege "actual malice." Although ignoring "extensive corrective information" given to the defendants could support a finding of "actual malice," the complaint fails to allege what specific information was provided to the defendants. The conclusory allegation that "corrective information" was provided to the defendants is insufficient to allege "actual malice." Similarly, alleging reliance on a biased source is not the same as alleging that the defendants knew or should have known that the biased source's information was false. The complaint fails to sufficiently allege that the defendants had "actual malice."

Because Lindberg fails to state a claim for defamation, Lindberg's claim for injunctive relief also fails….

Count IV asserts a claim for "false light invasion of privacy." Inexplicably, Count IV cites Jews for Jesus to support the assertion that "Florida law recognizes false light invasion of privacy as a distinct cause of action." However, Jews For Jesus "decline[s] to recognize a cause of action for false light invasion of privacy." 997 So. 2d 1098, 1114 (Fla. 2008). Count IV warrants dismissal.

The court also dismissed Lindberg's claims of tortious interference with business relationships.

Carol Jean LoCicero and Linda R. Norbut (Thomas & LoCicero PL) represent defendants.

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[Eugene Volokh] President Trump Loses Bid to Have U.S. Substituted in His Place in Carroll v. Trump Libel Case

From Carroll v. Trump, handed down today by Judges Denny Chin, Sarah Merriam, and Maria Araújo Kahn:

On April 11, 2025, after this appeal was fully briefed, defendant-appellant President Donald J. Trump and the government ("the Movants") jointly moved to substitute the United States as a party to this appeal pursuant to the Westfall Act, 28 U.S.C. § 2679(d). Attached to the motion was an April 11, 2025, certification by a delegate of the Attorney General that Trump was acting in the scope of his office or employment at the time he made the statements underlying this defamation action….

On June 18, 2025, this Court denied the motion. We write now to articulate our reasoning for that denial. Specifically, we denied the motion for three independent reasons. First, the motion is statutorily barred by the text of the Westfall Act. Second, even assuming it was not statutorily barred, both Trump and the government waived any right to now move for substitution by failing to request substitution after the case returned to the District Court following earlier appellate proceedings. Finally, and in any event, principles of equity counsel in favor of denying the belated motion….

On November 4, 2019, Carroll filed this action in New York state court, asserting a single count of defamation per se against Trump in his individual capacity, based on statements he made in June 2019 during his first term as President of the United States. The litigation proceeded in state court until September 2020 when then-Attorney General William Barr, through his delegate, certified that Trump had been acting within the scope of his employment when he made the statements, removed the case to the United States District Court, and filed a motion pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), seeking to substitute the United States as the defendant. Certification is conclusive for purposes of the removal to federal court, but the question of substitution is subject to judicial review. Upon such review, the District Court denied the motion to substitute.

Trump filed an interlocutory appeal from that ruling, and on September 27, 2022, a divided panel of this Court reversed in part, vacated in part, and certified a question to the D.C. Court of Appeals. Specifically, this Court (1) reversed the District Court's finding that Trump was not an "employee of the Government" under the Westfall Act; (2) vacated the District Court's determination that Trump was not acting within the scope of his employment when he made the statements at issue; and (3) certified the scope-of-employment question to the D.C. Court of Appeals.

On April 13, 2023, the D.C. Court of Appeals clarified the scope of the doctrine of respondeat superior under District of Columbia law but declined to resolve the ultimate question of whether Trump was acting within the scope of his employment when he made the statements underlying Carroll's defamation claim. We then remanded this matter to the District Court with instructions for it to apply the clarified D.C. law to the facts of this case.

On remand, the government filed a letter contending: "[T]he prior certification and motion to substitute have been overtaken by events. The Attorney General should therefore be given the opportunity to decide anew whether to certify that Mr. Trump was acting within the scope of his office as President at the time of the incidents out of which the plaintiff's claim arose, and to do so with respect to the allegations that are set forth in the operative complaint." On June 13, 2023, the District Court granted this request:
In all the circumstances, any further submission by the United States (including any new or amended certification and/or motion to substitute) and/or the defendant with respect to substitution of the United States for the defendant shall be served and filed no later than July 13, 2023.

In response, on July 11, 2023, the government notified the District Court:
[I]n light of the D.C. Court of Appeals' clarification of the standard for respondeat superior liability under D.C. law, see Trump v. Carroll, 292 A.3d 220 (D.C. 2023), as well as new factual developments, the Department of Justice is declining to certify under the Westfall Act, 28 U.S.C. § 2679(d), that defendant Donald J. Trump was acting within the scope of his office and employment as President of the United States when he made the statements that form the basis of the defamation claims in plaintiff's Amended Complaint in this action.

No further action was taken in the District Court by Trump or the government regarding Westfall Act substitution. The case proceeded to trial, and in January 2024, the jury rendered a verdict in Carroll's favor.

Trump appealed. On January 20, 2025, Trump was sworn into office for his second term as President. On April 11, 2025—when Trump had been President for nearly three months and this appeal had been fully briefed for nearly two months—Trump and the government jointly moved in this Court to substitute the United States as a party under the Westfall Act. We issued an order on June 18, 2025, in advance of oral argument, denying the motion. We write to explain the bases for that decision….

There's a lot more, but here's an excerpt:

But Trump—the "employee" under this language—waived his right to petition for certification under that subsection…. On July 11, 2023, the Attorney General declined to certify that Trump was acting within the scope of his employment at the time the statements were made. Trump could have moved, at that time, under § 2679(d)(3). He declined to do so. Indeed, at no time after the remand did Trump file anything regarding substitution in the District Court. By declining to seek such relief, Trump waived his right to now bring this motion.

Roberta A. Kaplan, D. Brandon Trice, Maximilian T. Crema, Thomas A. Lloyd, and Avita Anand (Kaplan Martin LLP) represent Carroll.

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[Josh Blackman] Does Judge Boasberg Still Have Jurisdiction To Pursue Criminal Contempt Proceedings?

[Judge Katsas says no, Judge Rao leaves open the possibility. ]

Back in April, Judge Boasberg all but announced that he would appoint a special counsel to bring criminal contempt proceedings against Trump Administration officials. I wrote about those orders here, here, and here. A divided D.C. Circuit panel granted a stay (Katsas and Rao), with Judge Pillard in dissent. Today, the panel issued a divided opinion. Judges Katsas and Rao granted the government's mandamus petition, while Judge Pillard would have denied it. Judges Katsas and Rao agree on the bottom line, but they disagree on the reasoning. One particular point of disagreement has some significance for future proceedings.

Judge Katsas found that Judge Boasberg lacks jurisdiction to initiate any further proceedings, since the Supreme Court found that this case belongs in Texas, not D.C.

The impact of jurisdictional defects in subsequent criminal-contempt proceedings is unclear. Many cases hold that a court may not impose criminal contempt for violation of an order that it lacked jurisdiction to enter. The Supreme Court explained: "When … a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void." Ex parte Fisk, 113 U.S. 713, 718 (1885); see, e.g., Ex parte Burrus, 136 U.S. 586, 597 (1890); In re Sawyer, 124 U.S. 200, 221–22 (1888); Ex parte Ayers, 123 U.S. 443, 485 (1887); Ex parte Rowland, 104 U.S. 604, 612–13 (1881). Two subsequent cases arguably weakened this rule, though neither purported to overrule these precedents. United States v. United Mine Workers of Am., 330 U.S. 258, 289–95 (1947); United States v. USCA Case #25-5124 Document #2129262 Filed: 08/08/2025 Page 36 of 110 Shipp, 203 U.S. 563, 573–75 (1906). Accordingly, as late as 1991, several circuits still recognized the traditional rule. See, e.g., In re Novak, 932 F.2d 1397, 1401 (11th Cir. 1991); In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 726–27 (9th Cir. 1989). In rejecting this view, the district court rested primarily on Willy v. Coastal Corporation, 503 U.S. 131 (1992), which held that courts may impose Rule 11 sanctions even in cases where they lack subject-matter jurisdiction. See id. at 137–39; Mem. Op. at 19–20. But in Willy, the Supreme Court reasoned that sanctions are collateral to the merits, so judges may require "those practicing before the courts to conduct themselves in compliance with the applicable procedural rules" while a case remains pending. 503 U.S. at 139. This rationale has no obvious application to injunctions restricting the primary conduct of parties outside of court, as opposed to the secondary conduct of parties in litigation. Indeed, the matter at issue in Willy—a monetary sanction of counsel's "careless pleading," id. at 133—is leagues apart from an injunction restricting the Executive Branch from carrying out a significant, cross-border, national-security operation.

As I read Katsas, the matter would end here, and Judge Boasberg can do no more with this case. That was my take back in April.

But based on my quick read, I'm not sure that Judge Rao agrees with that position. She finds that Judge Boasberg erred by using the threat of criminal contempt to obtain compliance with the initial TRO. The so-called "purge" option was an impermissible blending of civil and criminal contempt.

The purpose and effect of this preliminary order is to compel the government to exercise its foreign affairs powers to assert custody of the removed gang members. Id. at *20. The district court acknowledged that it can no longer coerce this action through civil contempt because its order was vacated by the Supreme Court. See id. at *8 (invoking the collateral-bar rule, which is available only in criminal contempt). Lacking the power to coerce the government, the district court nonetheless sought to achieve the same result with the threat of criminal contempt. Dangling this sword of Damocles to compel the Executive to exercise its foreign affairs powers exceeds the court's authority and is an abuse of discretion.

But Judge Rao did not rule out criminal contempt, in the abstract. Rao wrote:

Punishment through criminal contempt might still be available in these circumstances, but the district court cannot use the threat of such punishment as a backdoor to obtain compliance with a vacated and therefore unenforceable TRO.

A lot hangs on the word "might" (emphasis in the original).

Judge Pillard, in dissent, read Rao's opinion as saying the proceedings can continue. She wrote:

If we accept that the district court has jurisdiction to consider criminal contempt as a standalone matter, which Judge Rao does not appear to question, the inclusion of a "purge" option that defendants are entirely free to pretermit makes the order, if anything, less onerous.

If I'm reading the opinions correctly, Judge Boasberg on remand would have jurisdiction to proceed with some form of criminal contempt, minus the "purge" option that Judge Rao objected to.

Finally, Judge Katsas raised the Donziger problem.

Then the district court "will" appoint a private attorney to prosecute the Executive Branch, Mem. Op. at 44, which presents its own difficulties. The Supreme Court has held that courts "possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987). But that holding is hard to reconcile with that Court's more recent insistence that "[t]he Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States." United States v. Texas, 599 U.S. 670, 678–79 (2023); see also Donziger v. United States, 143 S. Ct. 868, 868–70 (2023) (Gorsuch, J., dissenting from denial of certiorari). In any event, Young itself acknowledged that the prosecutor must be "disinterested," and decisions regarding the prosecution must therefore be "all made outside the supervision of the court." 481 U.S. at 807. But then who would supervise such a prosecutor? If nobody did, the prosecutor would be an unconstitutionally appointed principal officer. See United States v. Arthrex, Inc., 594 U.S. 1, 18–19 (2021); United States v. Donziger, 38 F.4th 290, 296 (2d Cir. 2022). And if court-appointed prosecutors must be subject to supervision by the Attorney General, as the Second Circuit held in Donziger, see 38 F.4th at 299–300, then the private-prosecutor route will be as futile as it is provocative. Finally, the district court

Allowing Judge Boasberg to appoint a special counsel that is not supervised by anyone, and could not be removed, would be like a chimera between Alexia Morrison, Jack Smith, and Chief Judge Kimberly Moore--an unchecked prosecutor with absolute power, accountable to no one, assigned to take down a coordinate branch of government. What can go wrong?

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