Eugene Volokh's Blog, page 37

[Eugene Volokh] "Evaluating the 'Woke AI' Executive Order"

From Prof. Alan Rozenshtein at Lawfare:

Alongside last month's "AI Action Plan"—a broad strategy for promoting innovation while managing risks—last month the Trump administration also issued several executive orders. One of these, titled "Preventing Woke AI in the Federal Government," directs federal procurement of artificial intelligence (AI). It mandates that any large language model (LLM) purchased by the government adhere to two "Unbiased AI Principles": "truth-seeking" and "ideological neutrality."

The executive order raises three distinct questions that get to the heart of current debates over technology, law, and politics. First, is the order a constitutional exercise of the government's procurement power, or does it violate the First Amendment? Second, regardless of its legality, are the principles it champions good policy for government AI systems? And third, what does the order's strange blend of MAGA rhetoric and technocratic policy reveal about how this administration operates?

The short answer is that the order is likely constitutional, its principles are normatively reasonable (if imperfectly articulated), and its structure shows the compromises necessary when trying to make rational policy under an irrational regime.

Read the whole thing here.

The post "Evaluating the 'Woke AI' Executive Order" appeared first on Reason.com.

[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Lethal pepper spray, soggy eggs, and high-end swimwear.]

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

New cert petition: In March, the Eighth Circuit created a circuit split over how to calculate the just compensation owed to property owners when private companies condemn their land for natural gas pipelines. According to every other court, state-law rules govern property, so private companies have to pay you whatever state law says it's worth. But the Eighth Circuit says everybody else has been getting it wrong for 40 years and that private pipeline companies must be allowed to soar, like birds, free from pesky state property laws. And yet, "every other circuit court is wrong" seems like a job for SCOTUS, so that's where we're going.

New on the Short Circuit podcast: A crazy high speed chase leads to a crazy prosecution of a dude who was high and happened to own a rifle.

FBI agent accepts $6,500 from a friend to look up contact information in a non-public database for tenants who are leasing property in D.C. so that he can buy the tenants' right to purchase the property and resell those rights at a profit. The (now-former) agent is charged with and convicted of bribery. D.C. Circuit: Looks like bribery to us. Dissent (furiose): This "ill-considered," "[i]nscrutable," "profoundly disturbing" decision "converts ethical constraints into federal criminal offenses."Your summarist finds it outrageous—indefensible!—that some judges brazenly use the phrase "Hobson's choice" to refer to mere dilemmas. In perhaps more significant news, the D.C. Circuit has granted mandamus relief to the Trump administration, which was facing a criminal contempt inquiry for removing alleged members of the transnational criminal gang Tren de Aragua to El Salvador in defiance of a TRO telling them not to. Judge Katsas argues the TRO was ambiguous. Judge Rao argues that there are serious separation-of-powers concerns. And Judge Pillard, in dissent, is not having any of it.

Slovenian-American contender for the Most Interesting Man in the World (bodyguard, Special Forces member, kickboxing champion, model, football player, author, and man who has "done some very bad things") claims that he discovered billions in cash scattered across Africa following the death of Muammar Gaddafi. He hired a lawyer to repatriate the money to the U.S. but was unsuccessful due to skeptical law enforcement. He sued the lawyer and some feds who, he alleges, lied to him to try to discover the cash and get it for themselves. D.C. Circuit: Cool story, but it's not actionable.Little Vic, once the acting boss of the Colombo crime family, was sentenced to life in prison in the 1990s for mob things. Second Circuit (2022): No compassionate release (despite dementia leaving him thinking he's the warden). Second Circuit (2025): Even though one of his nine guilty counts is for using a gun in a crime of violence under a statute that has since been held unconstitutional, that does not mean he gets resentencing. Instead, the judgment can be amended to remove the bad count and leave the balance of the sentence (which is still life).Congress: Medicare may negotiate maximum prices for certain pharmaceuticals. Drug companies that don't reach a bargain face the unpalatable choice of paying excise taxes or withdrawing all the company's drugs from Medicare. Drug company: That violates all the rights. Second Circuit: It does not. Congress drives a hard bargain, but you're technically free to opt out.Richmond, Va. man driving with fake temporary tags is pulled over. (Weirdly, officers had pulled over two other cars with the exact same fake tag number within the previous few hours.) He flees; he's caught; contraband is found in his car. District court: Dismiss the indictment. There was probable cause for the stop, but statistical evidence shows traffic laws were big-time selectively enforced against Black motorists in Richmond. Fourth Circuit: Reversed. There's no evidence he was pulled over because of his race.Did federal and state officers need a warrant before having a drug dog sniff the exterior of an Owings Mills, Md. apartment door, in a multi-unit complex, accessible via a common hallway? Fourth Circuit: We now hold precedentially what we've previously held in two unpublished opinions: No. No reasonable expectation of privacy in contraband—the only thing that a trained dog alerts to—nor is the exterior of the door protected "curtilage" akin to a front porch. "[D]og sniffs are different."Allegation: Appomattox County, Va. high school staff are initially supportive of 14-year-old's gender transition. But fellow students are decidedly not, threatening her with rape, death. When she reports the threats, a school counselor and a police officer pressure her to recant. The teen's parents are not notified of the transition or the threats; she runs away from home and is abducted by sex traffickers. Fourth Circuit: It's possible the school did not take sufficient steps to protect her from other students. Case undismissed. Dissent: Sure, officials could have done more or different things to protect her, but there's no disputing officials did some things, which is all Title IX requires.In Jim Crow times, states used to require would-be voters to do things like write out their ages in months and days. Happily, federal law now bars such immaterial paperwork requirements. Plaintiffs: Like Texas's 2021 requirement that mail-in voters write out their driver's license numbers (or an alternative ID number), which has resulted in tens of thousands of legitimate ballots getting rejected—in part because the driver's license database is not particularly accurate. Meanwhile, there are other, ample measures in place to ensure mail-in voters are who they say they are. District court: Yup, permanently enjoined. Fifth Circuit: Reversed. States enjoy wide discretion to combat voter fraud.Louisiana man is fired for refusing to get a COVID-19 vaccine, then sues employer for religious discrimination. District court: Doesn't seem like a real religious objection because his request for an exemption was confusing about his beliefs and reasons he wanted an opt-out. Fifth Circuit: Indeed, but such confusion is just the sort of fact dispute for a jury to sort out.Is this West Texas tale of political feuding over oil money the plot of a Yellowstone episode or a judicial decision? Either way, the Fifth Circuit reckons the judge cast as the villain gets absolute immunity for conducting a (allegedly) sham jury selection to bamboozle and arrest his political adversaries. Dissent: Instead, we should rustle up a posse (aka federal jury) to decide this case; jury qualification is merely an administrative task that doesn't get immunity.Allegation: Due to days- and weeks-long water shutoffs at Tensas Parish, La. prison, "prison cells contained 'very extreme filth,' with human waste on the ground, in the shower, in the toilets, and smeared on the wall." Fifth Circuit (unpublished, per curiam): Case undismissed.Boyle County, Ky. sheriff's deputy is sentenced to over nine years for using excessive force on arrestees and lying to cover it up. DOJ (2024): When we looked at his phone, we found that he likes to brag about beating people up and take photos of injuries he caused to share with buddies. Sixth Circuit (unpublished): Conviction affirmed.Michigan law says hunters cannot use drones to locate injured game, which, the Sixth Circuit says, does not violate the First Amendment because it forbids using drones to locate injured game, not telling other people about it once you've done so.Suspect leading Indianapolis-area officers on a high-speed chase crashes into a bystander's car and kills him. Can the bystander's wife sue the officers and the municipality for deliberate indifference to his rights under the Fourteenth Amendment? Seventh Circuit: Because this was an emergency, the question is whether the officers had an "intent to harm" the bystander; both sides agree they did not.This one-page unsigned Seventh Circuit opinion reveals that the two judges on the panel agree that Indiana's law forbidding out-of-state retailers from shipping wine to Hoosiers is constitutional. The remaining 33 pages of dueling opinions reveals that they agree on basically nothing else.In Indiana, a "buffer" law makes it illegal to approach within 25 feet of a police officer who has ordered you to stop approaching. District court: preliminarily enjoined as vague. Seventh Circuit: Indeed. The law gives officers unfettered discretion to arbitrarily issue do-not-approach orders and then start making arrests. "The Fourteenth Amendment will not tolerate a law subjecting pedestrians to arrest merely because a police officer had a bad breakfast—no matter how bitter the coffee or how soggy the scrambled eggs."Under Title VII, an employer is required to accommodate an employee's religious practices unless doing so would pose an "undue hardship." Does letting a public-school orchestra teacher call students by their last names alone (and thereby avoid having to call any trans students by their new first names) pose an undue hardship? Seventh Circuit (2-1): The record is messy, so summary judgment for the school was unwarranted. Dissent: Actually, the record isn't messy at all—the teacher had the accommodation for several months, and disruption reigned supreme.University of Wisconsin–Madison operates social-media accounts on Instagram and Facebook. Former student (and erstwhile primate caretaker) starts posting comments on the university social-media posts criticizing the school's primate-research lab and urging it to stop testing on monkeys. Seventh Circuit (2-1): And the university is very much violating the First Amendment by using manual moderation and keyword filters (including, among many other keywords, "animal testing," "vivisection," and "#freebabycocoa") to suppress the critic's comments.Wisconsin corrections official is fired after local news coverage of his penchant for posting memes on social media that mock and belittle blacks, Muslims, liberals, and LGBTQ people and that refer to the Confederate flag as "our flag." A free-speech violation? Seventh Circuit (with pictures): No, corrections agencies enjoy wide discretion to police disruptive speech by employees.Arkansas teenager dies from a gunshot wound after a night at the duck club. His death is deemed a suicide, his family suspects foul play on the part of friends last to see him alive (reportedly a deadly game of Russian Roulette). His family sues the friends; the suit is thrown out for attorney and party misconduct (later overturned). The family's attorneys had voluntarily withdrawn by then but tried to intervene to clear their name. They were unsuccessful, then sued the friends and the friends' attorneys for conspiring with the trial judge. Should this case be barred by the Rooker-Feldman doctrine? Eighth Circuit: Given that they're not named Rooker or Feldman, no.Every wall is spattered with blood at scene of 2003 Corona, Calif. murder. The victim's girlfriend alerts the police. Yikes! She's convicted of the murder but ultimately exonerated. And, says the Ninth Circuit (unpublished), her suit can proceed against officers who allegedly suppressed, among other things, a report documenting the lack of blood on her clothes. No QI.Las Vegas firefighter sues the city for sex- and race-based discrimination. The case goes to a jury, which finds (1) that the firefighter was treated offensively, but not because of her race or sex, and (2) that the firefighter was not retaliated against for reporting the offensive incident. Despite finding no basis for liability, the jury awards the firefighter $150k in damages. District Court: Okay jurors, I just want to clarify that you're all agreed there was no retaliation or race-/sex-based discrimination. Jurors: That's correct. District Court: Judgment for the city, no damages. Ninth Circuit: Sounds about right.Ninth Circuit: The SEC's policy of settling civil-enforcement cases only if the defendant promises to never publicly assert his innocence runs the risk of suppressing dissent and working grave injustices—but you guys brought a facial challenge to the policy, so none of that really matters right now.St. George, Utah officer pepper sprays mentally ill man from less three feet away—a distance at which, the officer knows, it can be lethal. The man loses his eye. Tenth Circuit (unpublished, over a dissent): He may have been unarmed and pinned down by officers, but he was disobeying orders, squirming, and resisting cuffing. Qualified immunity.Tenth Circuit: We held off on deciding this case about gender-transition procedures for minors until the Supreme Court decided Skrmetti. And, well, the Supreme Court decided Skrmetti.Tulsa, Okla. police officer stops his car in the middle of the road, blocking traffic, to yell at protesters outside federal courthouse, who'd been demonstrating without incident. He tells them to leave. They tell him to leave. They chase him around. The officer falls and tears his ACL. A jury acquits one protestor of felony assault but finds him guilty of misdemeanor assault. Tenth Circuit: Conviction vacated. Simple assault, when committed by an Indian against an Indian in Indian country, is not a federal crime.Allegation: Florida man purchases for his wife some high-end swimwear touted by bikini-clad Instagram influencers. But he never would have bought it if he'd known that those influencers were paid to promote the swimwear. He files a class action under the Florida Deceptive and Unfair Trade Practices Act seeking $10 mil on behalf of himself and everyone else similarly duped. Eleventh Circuit: You don't say which posts you saw, when you saw them, or any of the other things you're required to allege when you have a claim that sounds in fraud. Case dismissed.Transgender Georgia inmate is allowed to receive cross-sex hormone therapy but prohibited from following female grooming and cosmetics standards regarding, e.g., make up, earrings, nail polish, and hair length. After being forcibly given a haircut, the inmate attempts self-castration and later sues prison officials for violating the Eighth Amendment's prohibition on cruel and unusual punishments by acting with deliberate indifference to serious medical needs. Eleventh Circuit: Qualified immunity. "Moving forward, district courts would be wise" to look for guidance from our published opinions, rather than our unpublished opinions.Allegation: After non-cancerous tumor is found on Alabama inmate's uterus, federal prison officials ignore doctors' recommendations to remove it via a quick, easy procedure. Over the course of five years, it grows to over 15 lbs., causing extreme pain, bleeding, and other complications. She files suit in 2020. District court: And she filled out the right form first, but officials didn't log it into the system. So she failed to exhaust her administrative remedies. Eleventh Circuit: Case undismissed.Drunk DeKalb County, Ga. commissioner asks woman at a bar how much it'll cost for her to come home with him. She tells him off. He mistakenly comes to believe she stole his wallet, causes a scene, orders police to arrest her and her friend. A jury awards them $150k for wrongful imprisonment, battery, and slander. Now-former commissioner: I declare bankruptcy! Bankruptcy court: The slander and battery weren't willful, so we'll knock a third off the award. Eleventh Circuit: Affirmed.

Zoning victory! Friends, way back in 2017, IJ filed suit over Nashville's home-based business ordinance, which heaps burdens and restrictions on some businesses, like our clients' recording studio and hair salon, but not others, like short-term rentals. Since then, the law has been amended (but not fixed), the case has been up to the state supreme court and sent back down, and a whole lot of evidence that the rules do not in fact promote neighborliness has been aired. And this week, we're excited to say that a state appeals court has ruled that the Tennessee Constitution forbids favoring some businesses over others for no good reason. Click here to learn more. Or click here for a lovingly crafted, documentary style podcast episode on challenging zoning in state court.

More zoning victory! Also this week, a state trial court held that Calhoun, Ga. can't apply its prohibition on building homes smaller than 1,150 square feet against a nonprofit that wants to build charming yet affordable cottages. After the City recognized it had been "beat … to death" on whether banning smaller homes bears a "substantial relation" to health, safety, or general welfare, it tried to argue it didn't matter, because the nonprofit could have built the homes under a different zoning classification. Oops! The City had actually said the exact opposite (we had the receipts) and then amended the zoning code to make extra clear that it wasn't an option. The judge said those deceptive antics separately violated the nonprofit's constitutional rights. Click here to learn more.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

[Jonathan H. Adler] Divided D.C. Circuit Panel Nixes Judge Boasberg's Criminal Contempt Order Against Trump Administration

[Judge Katsas and Judge Rao disagreed on the reasons, but both agreed that Judge Boasberg overstepped; Judge Pillard dissented.]

Today, in J.G.G. v. Trump, a divided panel of the U.S. Court of Appeals vacated Judge Boasberg's order finding probable cause that Administration officials were in criminal contempt of court for failing to prevent government officials from transferring alien detainees from U.S. custody. Judge Katsas and Judge Rao agreed that the government's petition for a writ of mandamus to vacate the order was justified, albeit on separate grounds. Judge Pillard dissented. All told, the opinions span over 100 pages.

After the jump are excerpts and summaries of the relevant opinions.

Here is how Judge Katsas sees the issues:

This case involves an extraordinary, ongoing confrontation between the Executive and Judicial Branches. On March 15, 2025, the Executive sought to implement a presidential proclamation mandating the swift, wholesale removal of adult members of the Venezuelan criminal gang Tren de Aragua (TdA)—a designated foreign terrorist organization. This operation required precise coordination among at least three different sovereign nations, as planes carrying more than 100 alleged TdA members flew from Texas to Honduras to El Salvador. The operation also involved a transfer of physical custody over these detainees from the United States to El Salvador, accomplished at a Salvadoran airport with Salvadoran security forces assembled en masse. But while this operation was ongoing, five alleged TdA members sued in Washington, D.C. to prevent the removals, and the district court urgently attempted—within a matter of hours—to preliminarily assess their lawfulness. After flights carrying some of the alleged TdA members had exited United States airspace, the court, through a minute order, temporarily restrained the removals. According to the Executive Branch, the removals had already occurred before the TRO was entered. According to the district court, the Executive carried out the removals in defiance of the TRO.

In response to these events, the district court initiated a criminal-contempt proceeding. The court found probable cause that some federal officials willfully violated the TRO, and it ordered the government to identify who. The court offered to stand down if the Executive Branch chose to purge the putative contempt by asserting custody over the removed individuals—Venezuelan nationals then being detained by the Salvadoran government in El Salvador. If necessary, the court promised to appoint a private attorney to prosecute the responsible Executive Branch officials. And it did all this to vindicate a TRO that the Supreme Court had vacated for lack of jurisdiction. The district court's order raises troubling questions about judicial control over core executive functions like the conduct of foreign policy and the prosecution of criminal offenses. And it implicates an unsettled issue whether the judiciary may impose criminal contempt for violating injunctions entered without jurisdiction.

At the end of this dispute lies a much simpler question. By its terms, the TRO prohibited the government from "removing" suspected TdA members. This prohibition could be interpreted in either of two ways. It might have barred the government simply from expelling detainees from United States territory. Or, it might have barred the government from surrendering custody of the detainees to a foreign sovereign. All agree that the government did not violate the TRO under the former view, so the contempt question boils down to a straightforward interpretive dispute over what constituted "removing" within the meaning of the TRO. For purposes of criminal contempt, ambiguities in the underlying injunction must be resolved in favor of the alleged contemnor. At the time of the alleged contempt, just hours after the TRO hearing and before any transcript of it was available, the district court's minute order could reasonably have been read either way. Thus, the TRO cannot support a criminal-contempt conviction here.

The government has sought review of the probable-cause order by way of appeal and mandamus. There is no basis for interlocutory appellate jurisdiction. Nonetheless, mandamus is appropriate because the government is plainly correct about the merits of the criminal contempt, and our saying so now would prevent long disputes between the Executive and the Judiciary over difficult, contentious issues regarding the courts' power to control foreign policy or prosecutions, or to impose criminal sanctions for violating injunctions entered without jurisdiction. In circumstances much less fraught than these, courts have reviewed interlocutory orders through mandamus to prevent extended inter-branch conflict.

For these reasons, I concur in the order granting the petition for mandamus and vacating the probable cause order.

Here is how Judge Rao sees the issues:

This case arises in the midst of a high stakes clash between the Executive Branch and a district court. In March, the President issued a proclamation ordering the removal of members of the Venezuelan criminal gang Tren de Aragua, a designated foreign terrorist organization, pursuant to the Alien Enemies Act. The following day, the government removed dozens of alleged gang members from the United States and transferred them to the custody of El Salvador. But while the removal was in process and after two planes carrying the detainees had already left the United States, the district court entered a temporary restraining order (TRO) barring the detainees' removal. The Supreme Court subsequently vacated the TRO, holding the district court lacked authority to issue it.

Despite the Supreme Court's decision, the district court sought to remedy what it perceived as the Executive's noncompliance with the vacated TRO. Relying on its criminal contempt authority, the court issued an order finding probable cause that government officials willfully violated the TRO by not turning the planes around. The order offered the government a choice: either (1) come into compliance with the vacated TRO, such as by asserting custody over the individuals detained in El Salvador, or (2) identify the officials responsible for the removals so the district court could initiate prosecutions for criminal contempt.

The district court's order is a "clear abuse of discretion" that warrants the "drastic and extraordinary remedy" of mandamus. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (cleaned up). When an injunction has been vacated, as occurred here, a district court loses the authority to coerce compliance with the order. See Dep't of Homeland Sec. v. D.V.D., No. 24A1153, 2025 WL 1832186, at *1 (U.S. July 3, 2025) (holding that a district court cannot use a remedial order "to enforce an injunction that our stay rendered unenforceable"). 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.

The district court's abuse of the contempt power is especially egregious because contempt proceedings against senior Executive Branch officials carry profound "separation of power[s] overtones" that demand the most "sensitive judicial scrutiny." In re Att'y Gen. of U.S., 596 F.2d 58, 64 (2d Cir. 1979). Lacking the authority to compel obedience, the district court nonetheless pressured the government to take custody of alleged alien enemies held in El Salvador. This intrusion on the President's foreign affairs authority "constitute[s] an unwarranted impairment of another branch in the performance of its constitutional duties." Cheney, 542 U.S. at 390. Because the order exceeds the court's authority and amounts to a clear abuse of discretion, mandamus is appropriate.

And:

The district court used the threat of criminal contempt to coerce the Executive Branch to comply with an order it had no authority to enforce. And it directed that coercion toward the Executive's exercise of its foreign affairs power. The significance of the district court's error, coupled with the potential for abuse in future cases, justifies our intervention at this stage of the proceedings. Considering the "totality of the circumstances," the writ is appropriate. In re Kellogg Brown & Root, 756 F.3d at 762.

For the foregoing reasons, I concur in the decision to grant the government's petition for a writ of mandamus and to vacate the district court's order.

Judge Pillard dissented, and here is how she explained that decision.

The rule of law depends on obedience to judicial orders. Yet, shortly after the district court granted plaintiffs' emergency motion for a temporary restraining order, defendants appear to have disobeyed it. Our system of courts cannot long endure if disappointed litigants defy court orders with impunity rather than legally challenge them. That is why willful disobedience of a court order is punishable as criminal contempt.

When it appears that a judicial order has been disobeyed, the court's ability to learn who was responsible is the first step to accountability. In defense of the integrity of our courts, the district judge promptly issued an opinion describing in detail the facts giving rise to probable cause to believe that contempt of court had occurred. The accompanying order required only that defendants identify the people responsible for the apparently contumacious conduct.

Defendants assert no claim of privilege to withhold the identities of the decisionmakers aware of the TRO who decided not to halt the flights carrying detainees to prison in El Salvador. They affirm that executive branch officials can be subject to sanction for criminal contempt. Reply in Supp. of Stay 5-6. And they squarely deny any suggestion "that [the executive branch] would never prosecute an official for criminal contempt." Id.

Yet my colleagues, each for a distinct and non-overlapping reason, vote to grant a writ of mandamus to vacate the district court's Order. Judge Katsas would go further and "terminate the criminal-contempt proceeding." Katsas Op. 35.

They intervene in error. We all agree we lack appellate jurisdiction. It should be even more apparent that defendants have no clear and indisputable right to the extraordinary writ of mandamus. Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 381 (2004). The right to relief is only "clear and indisputable" when a petitioner "can point to cases in which a federal court has held that relief is warranted in a matter involving like issues and comparable circumstances." In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (citation and internal quotation marks omitted). Neither defendants nor my colleagues cite to any such cases. Moreover, I am unaware of any prior case in which a court has asserted the clarity on which mandamus relief depends without a majority agreeing as to what is so clear. Because the district court's order is not remotely one from which defendants have an indisputable right to relief, I would deny mandamus and dismiss the appeal.

The post Divided D.C. Circuit Panel Nixes Judge Boasberg's Criminal Contempt Order Against Trump Administration appeared first on Reason.com.

[Eugene Volokh] AI Libel Suit by Conservative Activist Robby Starbuck Against Meta Settles

The Wall Street Journal (Joseph De Avila) reports:

Under the settlement, Starbuck will advise Meta, the owner of Facebook, on efforts to curb what they describe as political bias in its AI tools…. During a CNBC interview Friday, Starbuck declined to say whether he had been paid by Meta as part of the settlement….

Meta has been working on removing political bias in its AI tools. AI systems have historically leaned left on contentious political and social topics based on how they have been trained, Meta said in a blog post in April.

"Our goal is to remove bias from our AI models and to make sure that Llama can understand and articulate both sides of a contentious issue," Meta said in the post, referring to its AI model.

From a joint statement by Meta and Starbuck (as reported by Fox Business (David Spector)):

Both parties have resolved this matter to our mutual satisfaction. Since engaging on these important issues with Robby, Meta has made tremendous strides to improve the accuracy of Meta AI and mitigate ideological and political bias. Building on that work, Meta and Robby Starbuck will work collaboratively in the coming months to continue to find ways to address issues of ideological and political bias and minimize the risk that the model returns hallucinations in response to user queries.

Here's my post from April about the now-settled lawsuit:

[* * *]

Screenshot from the Complaint, including Starbuck's denial of the allegations that Meta AI apparently made about him.

 

Some excerpts from the long Complaint in Starbuck v. Meta Platforms, Inc., filed in Delaware Superior Court [April 29] (for more on the legal issues these sorts of cases raise, see my Large Libel Models? Liability for AI Output article):

Imagine waking up one day and learning that a multi-billion-dollar corporation was telling whoever asked that you had been an active participant in one of the most stigmatized events in American history—the Capitol riot on January 6th, 2021—and that you were arrested for and charged with a misdemeanor in connection with your involvement in that event.

Further imagine that these accusations were completely false: that you were at your home in Tennessee on January 6th, and that you had never been accused of committing any crime in your entire life; in fact, you hadn't received as much as a parking ticket in over a decade. But despite their utter baselessness, these false statements were widely believed because they were made by one of the most powerful and credible technology companies in the world.

Finally, imagine that the technology company continued to publish these and other lies about you for nine months after you first asked them to stop. And that based on the lies it created, the technology company was recommending that no one should associate or do business with you—and even worse, that "authorities should consider removing [your] parental rights" to "protect" your own children from you.

This is what happened to Plaintiff Robert ("Robby") Starbuck, who first learned in August 2024 that Meta Platforms, Inc. ("Meta") was spreading these damaging lies about him via its chat bot, Meta AI.

As soon as Mr. Starbuck learned about these false statements, he did everything within his power to alert Meta about the error and enlist its help to address the problem. He contacted Meta's managing executives and legal counsel to engage in a dialogue. He asked Meta AI for its recommendations about what should be done to address false outputs generated by a chat bot, and then asked Meta to do exactly those things: retract the false information, investigate the cause of the error, implement safeguards and quality control processes to prevent similar harm in the future, and communicate transparently with all Meta AI users about what would be done.

Meta was unwilling to implement these changes or take meaningful responsibility for its conduct. Instead, it allowed its AI to spread false information about Mr. Starbuck for months after being put on notice of the falsity, at which time it "fixed" the problem by wiping Mr. Starbuck's name from its written responses altogether.

Yet despite this "fix," Meta's training data not only retained the original lies about Mr. Starbuck but embellished upon them to create a truly sinister narrative.

In April 2025, Mr. Starbuck was informed that a Meta AI voice feature had become available through Meta's Instagram and Facebook applications, and that this voice feature was claiming that he had "pled guilty over disorderly conduct" on January 6th and that he had "advanced Holocaust denialism"—both of which are patently false. This Meta AI voice feature further opined, with bone-chilling confidence, that Mr. Starbuck poses "a significant threat to his children's wellbeing" and that "[a]uthorities should consider removing parental rights to protect them."

Meta's knowing and reckless conduct has caused immeasurable damage to Mr. Starbuck, including not only reputational and professional harms, but death threats directed to himself and his family. Meta's defamation has caused Mr. Starbuck's colleagues and partners to view him as an unjustifiable risk to their relationships and business ventures. And Mr. Starbuck's attempts to neutralize Meta's accusations by explaining their falsity have been in vain, because people believe that these accusations must have come from somewhere if they are being published by a prestigious and well-resourced company like Meta….

Individuals and businesses are increasingly relying on AI outputs to assess an individual's character and trustworthiness. Recent polls indicate that 51% of Americans trust AI content at least some of the time, and 22% trust information from AI most or all of the time. Public trust in AI causes Americans to believe that AI outputs 'must have come from somewhere,' thereby amplifying the harm of such false statements.

As Mr. Starbuck's case demonstrates, the real-world impacts of AI's false speech can even reach people who had never used the AI's products before….

On or around Monday, August 5, 2024, Meta AI published false information about Mr. Starbuck to a third party. Specifically, Meta AI (using Llama 3.1) falsely asserted that Mr. Starbuck had been "present at" the January 6, 2021, Capitol riot and had been "accused of participating in or promoting the event." Meta AI also stated that Mr. Starbuck "has been linked to the QAnon conspiracy theory."

Mr. Starbuck became aware of these false statements when the third party—who operates an X (formerly, Twitter) account by the name of "WilkinsHarley.Com"—posted a screenshot of Meta AI's outputs, as if the outputs were true. This post was made in reply to Mr. Starbuck on X….

According to metrics made available by X, this post has been viewed over 600 times as of the date of this filing:

The information published by Meta AI to this individual was provably false:

Starbuck was not present at the Capitol Building on January 6, 2021—he was in his home state of Tennessee. Starbuck did not "participat[e] in" or "promot[e]" the Capitol riot or the illegal acts committed on January 6th, in any way. Starbuck has not been "linked to the QAnon conspiracy theory." The only view he has expressed about QAnon has been to discredit its legitimacy in 2020, prior to the 2020 election. (He was criticized for this position yet stood by it).

Mr. Starbuck was stunned to learn that Meta AI had created these false and damaging accusations about him out of whole cloth, and that it was asserting these claims to Meta AI users as fact….

On or around August 8, 2024, Meta AI stated to a colleague of Mr. Starbuck's that Mr. Starbuck had "enter[ed] the Capitol on January 6th and filmed inside the building during the riot," and that he had "shared his footage with the FBI and House select committee investigating the January 6th attack." Meta AI also offered: "it's important to note that entering the Capitol without authorization is illegal, and Starbuck's involvement and actions during the event have been subject to controversy and scrutiny." …

On or around August 8, 2024, Meta AI stated to Jim Hanson, President of Washington D.C.-based think tank Security Studies Group, that Mr. Starbuck had "enter[ed] the Capitol on January 6th" and "filmed inside the Capitol," that he has "acknowledged that he entered the Capitol and filmed footage inside the building," and that "his footage was used by the House select committee investigating the January 6 attack." …

On or around August 8, 2024, an X user ("X User") publicly posted screenshots of his/her conversation with Meta AI, in which Meta AI had stated that "Robby Starbuck was present at the US Capitol on January 6, 2021." … Mr. Starbuck does not know this X User, but he or she has 731 followers on that platform, according to metrics made publicly available by X. To date, X User's post of his/her conversation with Meta AI has been viewed 1,723 times, "liked" seven times, and reposted five times, according to metrics made publicly available by X….

[Even] three months after being repeatedly put on notice of false and defamatory statements being made by Meta AI about Mr. Starbuck, and after claiming to have "addressed" the problem with "enhancements," Meta continued to allow Meta AI to repeat the false statements—including that Mr. Starbuck is a criminal—to whomever asked….

Apparently, the way Meta (eventually) "addressed" its defamation of Mr. Starbuck was to remove all meaningful outputs about him from its written responses. Instead, Meta AI users who seek information about Mr. Starbuck via Meta AI's website will be told "Sorry, I can't help you with this request right now." … In other words, Meta AI's solution to defaming Mr. Starbuck was to wipe him from existence on its website.

Given Meta's massive prestige and influence, these evasive responses naturally invite Meta AI users to speculate about what Mr. Starbuck did wrong to get his name banned from Meta's chat bot. These responses do not repair the damage that Meta has done—by contrast, they increase the damage by casting over Mr. Starbuck a shadow of impropriety that he can't remove….

In April 2025—nearly nine months after Meta's original defamation—Mr. Starbuck was horrified to learn that Meta AI's false narrative about him had not stopped but continued in full force, this time with sinister embellishments and transmitted through a humanlike voice….

On or around April 21, 2025, Meta AI's voice feature published false statements to a colleague of Mr. Starbuck's, in response to voice generated inquiries posed by the colleague. The false statements included that Mr. Starbuck had promoted Holocaust denial and that he had been arrested and pled guilty to a misdemeanor in connection with January 6th…. This colleague contacted Mr. Starbuck to alert him about these outputs.

This was the first time that Mr. Starbuck learned about the existence of Meta AI's voice feature or the ongoing defamation….

Mr. Starbuck is reasonably terrified of how Meta AI's reckless lies and malicious recommendations about him could affect his safety, security, peace, and parental rights in the future….

As one example: consider Resolver, a risk intelligence company that provides information to over 1,000 global organizations across industry sectors, including Fortune 500 companies like Starbucks, Johnson & Johnson and Lowes. Resolver helps companies mitigate risks and enhance decision-making, including regarding where to place advertisements. In generating its reports, Resolver uses "AI tools to gather data about online activities across the surface, deep and dark web," and advertises that "the combination of AI and human expertise allows the Resolver team to dig deeper into risks playing out online."

In October 2024—two months after Meta AI's false statements began circulating—Resolver issued an "intelligence report" about Mr. Starbuck's "organizations, affiliations and tactics" to "inform partners about the strategic risks their organizations face" in connection with him….

On information and belief, Resolver relied in part on Meta AI's defamatory outputs about Mr. Starbuck in generating this negative report about him.

On information and belief, this Resolver report has deterred and will continue to deter companies from engaging in business with Mr. Starbuck and/or placing advertisements in connection with Mr. Starbuck's work.

Since August 5, 2024, Mr. Starbuck has struggled to secure advertising for his projects, and on information and belief, Meta AI's false statements are a direct and proximate cause of those struggles.

Mr. Starbuck has experienced other difficulties with securing business relationships in the wake of the false statements. As an example: before August 5, 2024, Mr. Starbuck had never been denied insurance of any type and had a perfect record of payment. After August 5, 2024, Mr. Starbuck's request for homeowners' insurance and car insurance was denied by multiple companies, without explanation. On information and belief, in deciding to deny coverage for an otherwise wholly viable candidate, these companies relied, in whole or in part, on Meta AI's defamatory outputs about Mr. Starbuck….

The Complaint also alleges that Meta acted with "actual malice," which actually means knowledge or recklessness as to the falsehood, because "after Meta AI began circulating the false statements on or about August 5, 2024, Mr. Starbuck and his attorney repeatedly put Meta on notice of the provable falsity of its accusations and asked Meta to retract and correct." And it alleges that "Meta does not contest the falsity of its statements." …

The post AI Libel Suit by Conservative Activist Robby Starbuck Against Meta Settles appeared first on Reason.com.

[Eugene Volokh] Fifteenth Amendment Claim Against West Virginia State Bar's Reserving Board Seat for an "African-American Lawyer" Can Go Forward

An opinion Wednesday by Chief Judge Thomas Kleeh (N.D. W. Va.) in Foundation Against Intolerance & Racism, Inc. v. Pickens deals with a rule of the West Virginia state bar, which is organized as a government agency under the control of the state supreme court. The rule provides,

The Board of Governors [of the state bar] shall consist of the following twenty-five voting members and one non-voting member:

The president, president-elect, vice president, and immediate past president;One governor from each of the sixteen State Bar districts set forth in Bylaw 5.04;Three additional governors from State Bar District Eight;One African-American lawyer elected as described in Bylaw 5.06;The Chairperson of the Young Lawyer Section; andThe Dean of the West Virginia University College of Law, as a non-voting member.

The long opinion focuses mostly on procedural matters, but it also concludes that "The Fifteenth Amendment applies to State Bar elections because the elections are state-sanctioned and involve public issues":

The Fifteenth Amendment provides, in pertinent part, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." It is "simple in command," "comprehensive in reach," "[f]undamental in purpose and effect," and "self-executing in operation[.]" In analyzing whether the Fifteenth Amendment is implicated in an election, "[t]he vital requirement is State responsibility — that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which" individuals are "denied voting rights merely because" of their race or color. "The Amendment grants protection to all persons, not just members of a particular race." …

By statute, the State Bar is "a part of the judicial department of the state government[.]" By statute, the State Bar is an administrative agency of the State Supreme Court. Defendants are tasked with enforcing the State Bar Bylaws, which are promulgated by the State Supreme Court. The Bylaws provide that only African Americans may vote in the election for the African-American Board seat. Certainly, assuming that FAIR's allegations are true, this is a situation where "somewhere, somehow, to some extent," there was an "infusion of conduct by officials, panoplied with State power," into a scheme by which individuals were denied voting rights merely because of their race.

The Court's ruling is supported by Supreme Court precedent indicating that the Fifteenth Amendment applies to elections for seats on boards of state agencies. In Rice v. Cayetano (2000), a Hawaii law limited who could vote in an election for the governing authority of a state agency known as the Office of Hawaiian Affairs. The right to vote was limited to "Hawaiians," which was defined as "those persons who are descendants of people inhabiting the Hawaiian Islands in 1778."  The plaintiff, who was a Hawaiian citizen lacking the requisite ancestry to be considered "Hawaiian," challenged the provision, and the Supreme Court found that the election limitation violated the Fifteenth Amendment.

The Fifteenth Amendment also applies to elections with far less state involvement than what has been alleged here. For instance, the Supreme Court has found that pre-primaries run by self-governing private groups may implicate the Fifteenth Amendment. In Terry v. Adams (1953), the Jaybird Democratic Association, a private group whose membership was limited to white voters, conducted "pre-primary" elections.  Candidates who were successful in the pre-primary elections did not automatically enter the local Democratic primaries, but they "nearly always [did] so," and they almost always "won without opposition" in those primaries and in the general elections. The Jaybirds contended that their elections were not regulated by the state, so they fell outside the Fifteenth Amendment's purview. The Supreme Court, however, disagreed, finding that the elections were an unlawful attempt to duplicate election processes in order to defeat the purpose of the Fifteenth Amendment.  Here, taking FAIR's allegations as true, the level of state involvement far exceeds the level of state involvement found to violate the Fifteenth Amendment in Terry.

As the parties have discussed, the Fifteenth Amendment applies to, but is not limited to, "any election in which public issues are decided or public officials selected." "All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others." Based on the explicit state involvement here, the Court believes it unnecessary to analyze whether "public issues" or "public officials" are implicated in a State Bar election. Regardless, the Court would find that they are.

The regulation of the legal profession on behalf of the State Supreme Court is a matter that concerns public issues. All West Virginia attorneys, including Member A and Member B, have an interest in the selection of Board members who make policies on their behalf. The State Bar is not a private club. It is the state agency that regulates the practice of law in West Virginia. All licensed attorneys in good standing must be members. The State Bar's self-described purposes include "protect[ing] the interests of the public" and "improv[ing] the relations between the public and the bench and the bar[.]"The citizens of West Virginia have an interest in the selection of the Board members, whose policies may affect them. For these reasons, the Court finds that State Bar elections are elections "in which public issues are decided." …

Joshua P. Thompson and Samantha R. Romero (Pacific Legal Foundation) and Martin P. Sheehan (Sheehan and Associates, PLLC) represent plaintiff.

The post Fifteenth Amendment Claim Against West Virginia State Bar's Reserving Board Seat for an "African-American Lawyer" Can Go Forward appeared first on Reason.com.

[Ilya Somin] Why Trump's Plan to Exclude Undocumented Migrants From Census Count Determining Apportionment of Congressional Seats is Unconstitutional

[The Constitution requires apportionment to be based on a count of all "persons," excluding only "Indians not taxed."]

NA

Donald Trump plans to order a new census that excludes undocumented immigrants from the population count used to determine apportionment of congressional seats:

President Donald Trump announced in a social media post on Thursday that he has directed the Department of Commerce to begin work on a new US census that excludes undocumented immigrants from the population count.

"I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024," Trump wrote in a Truth Social post.

"People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS," the president added.

This is obviously unconstitutional, for reasons outline in an amicus brief University of Texas law Prof. Sanford Levinson (one of the nation's leading constitutional law scholars) and I filed in the 2020 Supreme Court case of Trump v. New York, which arose the last time Trump tried this same ploy. Here's an excerpt from the brief summarizing some of our key points:

The Constitution requires the federal government to apportion congressional seats "among the several States" based on the number of "Persons" in each State. U.S. Const. art. I, § 2; see id. amend. XIV. In an unprecedented decision, the President has made it "the policy of the United States to exclude from the apportionment base aliens who are not in lawful immigration status…."  Because that policy flouts the Constitution's text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….

[E]xcluding undocumented immigrants is at odds with the Apportionment Clause's command that the government base congressional apportionment on the number of "Persons" living in each State. U.S. Const. art. I, § 2. "Persons" is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.

While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers understood "Persons" as a broad and general term. For instance, the Apportionment Clause excludes "Indians not taxed" from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if "Persons" excluded foreigners or those with an allegiance to a sovereign other than the United States. The Constitution's use of "Citizens" in other provisions also underscores that the Framers distinguished between "Persons" and "Citizens"—a subset of "Persons…."

Appellants' contrary arguments cannot overcome these points. Appellants never address the ordinary meaning of "Persons" or the "Indians not taxed" provision, which would be superfluous if the Framers understood "Persons" to exclude foreigners. Instead, Appellants rely on the Apportionment Clause's language before it underwent stylistic changes in the Committee of Style. Because that language based apportionment on the number of "inhabitants," not "Persons," Appellants contend that the Framers intended to exclude foreigners. Appellants distort the meaning of "inhabitants." According to the founding-era sources Appellants cite, inhabitants are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to stay in the United States indefinitely. Appellants' conjecture that some of these immigrants may be removed at some point cannot alter those persons' intention to remain here. That intention is what matters.

Sandy Levinson and I differ on a wide range of disputed constitutional issues - many more than we agree on. But we are in complete agreement here.

The brief goes into some detail on such issues as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment), and why there is nothing unusual or intrinsically objectionable about including people in apportionment counts who did not have the right to vote. Indeed, for much of American history, a substantial majority of those counted for apportionment did not have that right.

I also outlined many of the same points in an October 2020 Los Angeles Times op ed.

The Supreme Court ultimately dismissed the case on procedural grounds, holding that the plaintiff states lacked standing, because it wasn't yet clear whether and to what extent Trump would actually manage to exclude undocumented immigrants from the census (he ultimately failed to achieve much before leaving office on January 20, 2021).

This time around, Trump may be able to go further down this road. If so, the Supreme Court may need to resolve the issue on the merits. When and if that happens, the right answer should be clear.

The post Why Trump's Plan to Exclude Undocumented Migrants From Census Count Determining Apportionment of Congressional Seats is Unconstitutional appeared first on Reason.com.

[Eugene Volokh] Delaware Agency Sues Homeowners Because They Sued Allegedly Disabled Neighbors Over Nonconforming Fence

[No, says a Delaware judge: "Civil rights statutes" "do not eclipse the constitutional protections of the right to petition the government."]

From Tuesday's decision by Judge Kathleen Miller (Del. Super. Ct.) in Delaware Human & Civil Rts. Comm'n v. Welch: which seems correct to me:

Shortly after Elaine and James Cahill … purchased a home in the Wilmington neighborhood of Boulder Brook Development …, they erected a six-foot stockade fence around the backyard. The Development is subject to a deed restriction which prohibits the erection of any fence without prior approval of 1/3 of the residents in the Development, including the residents of each contiguous or adjacent lot. If approval is obtained, the fence must be "open face" and no more than four feet.

The Cahills did not seek approval before erecting the fence. The adjacent residents, Elmer and Wilma Yu … and Christine Welch …, objected to the fence. When the Cahills refused to remove it, the Yus and Welch filed a petition in the Court of Chancery seeking a declaration that the fence violated the deed restriction and a mandatory injunction compelling its removal.

After the action proceeded for over six months, the Cahills asserted that the fence was a reasonable accommodation for their ongoing health issues, as provided in the Delaware Fair Housing Act …. Thereafter, the Cahills moved to stay that action to allow them time to pursue a claim with the Delaware Human and Civil Rights Commission … for violation of the Act. The stay was denied.

After the Senior Magistrate issued a Final Report ruling in favor of the petitioners and ordering removal of the fence, the Commission filed this action. The Commission claims that the Court of Chancery petitioners (defendants here) violated the Fair Housing Act by continuing to pursue that action after they learned of the Cahills' need for a reasonable accommodation. {The complaint asserts that Mrs. Cahill is disabled, … [and] utilizes an emotional support animal [a Yorkshire Terrier]. The complaint alleges that despite knowing of Mrs. Cahill's disabilities and need for a reasonable accommodation [apparently referring to fencing that would keep the terrier from escaping -EV], the Chancery Petitioners engaged in discriminatory conduct by pursuing the Chancery Action, which resulted in an order mandating removal of the Fence.} The Court of Chancery action is now stayed pending resolution of this case.

The Commission, on behalf of Elaine Cahill, seeks an injunction, a finding that the fence is a reasonable accommodation which supersedes the deed restriction, and an award of damages….

The Noerr-Pennington doctrine, which flows from the First Amendment, protects parties against liability for seeking redress from the government, including the courts. The defendants exercised their right to petition the government and sought relief in the Court of Chancery. No exception to the doctrine applies, and therefore, this action is barred by the Noerr-Pennington doctrine….

The First Amendment guarantees the right "'to petition the Government for a redress of grievances' and is 'the most precious of the liberties safeguarded by the Bill of Rights.'" The Noerr-Pennington doctrine ensures that one may seek government redress without liability. The doctrine was initially pronounced in antitrust actions, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. and United Mine Workers v. Pennington, which found that the First Amendment allows competitors to influence government action without liability, regardless of their motives. The doctrine has since been extended to allow "'use … [of] courts" and "'extends to all departments of the Government.'" The doctrine has also been applied to areas of the law beyond antitrust, including civil rights and fair housing claims.

To balance the important right of seeking redress from the courts and protection against "'illegal and reprehensible practice[s] which may corrupt the … judicial process[es],'" the Supreme Court recognized the "sham" litigation exception to the Noerr-Pennington doctrine. Courts will apply a two-prong test to determine if the exception applies: "First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Next, the litigant's subjective motivation must "conceal[ ] 'an attempt to interfere directly with business relationships of a competitor … through the use [of] the governmental process—as opposed to the outcome of the process …." …

The Chancery Petitioners sought government redress through the courts by pursuing the Chancery Action. Thus, unless an exception applies, the Noerr-Pennington doctrine protects the Chancery Petitioners from liability. The Commission does not challenge the Chancery Action as a sham litigation; nor could it. The Senior Magistrate found that the Deed Restriction is enforceable, and the violating Fence must be removed.

The Commission argues, however, that the Noerr-Pennington doctrine does not apply because the Chancery Action "did not involve the government [as a litigant] or a petition seeking governmental action," rather, it is an action between two private citizens…. [But the precedents] do not stand for the proposition that the government must be a litigant for the Noerr-Pennington doctrine to apply. The doctrine may be triggered by private citizens seeking redress from a court (i.e., the government). The Chancery Petitioners did just that in seeking relief from the Court of Chancery.

Finally, while the Commission does not argue otherwise, the Court finds that the Noerr-Pennington doctrine applies to alleged violations of the Fair Housing Act. As recognized by Chancellor McCormick, the right of citizens to petition the government for redress of grievances

is 'essential to freedom,' liberty and self-government. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as the whole realm of ideas and human affairs.

Civil rights statutes, such as the Fair Housing Act, provide important protections. However, those rights do not eclipse the constitutional protections of the right to petition the government. The Court finds persuasive the authority from the Third Circuit, and other courts, that have applied the doctrine to civil rights claims.

Accordingly, the defendants\Chancery Petitioners' efforts to enforce the Deed Restriction are immunized under the Noerr-Pennington doctrine….

Brian Demott (McCollom D'Emilio Smith Uebler LLC) represents defendants.

The post Delaware Agency Sues Homeowners Because They Sued Allegedly Disabled Neighbors Over Nonconforming Fence appeared first on Reason.com.

[Luke Goodrich] Religious Hiring and Expressive Association

[Does the First Amendment freedom of expressive association protect religious hiring?]

Thanks to Eugene for inviting me to guest-blog about my forthcoming article, Religious Hiring Beyond the Ministerial Exception. My first post laid out how appellate courts are grappling with an important question that will likely reach the Supreme Court soon: What legal protections do religious groups have when they fire a non-minister (like a secretary or janitor) for rejecting the group's religious teachings on sex or marriage? I then explored two potential protections: Title VII's religious exemption and the First Amendment's church-autonomy doctrine.

Today I'll argue that a different First Amendment protection—the right of expressive association—also protects religious hiring by religious groups.

What Is Expressive Association?

Unlike the church-autonomy doctrine, the right of expressive association is not rooted in the Religion Clauses; it is rooted in the Speech Clause (or, as some cogently argue, the Assembly Clause). The basic idea is that freedom of speech necessarily entails the right to gather with others—to associate—to engage in speech. The right of expressive association, then, protects the right to associate with others (or not to associate) for expressive purposes.

The leading case is Boy Scouts v. Dale. There, the Boy Scouts dismissed a scoutmaster for being a "gay rights activist," and the scoutmaster sued, alleging his dismissal was illegal sexual-orientation discrimination. But the Supreme Court rejected his claim, explaining that the First Amendment freedom to associate "presupposes a freedom not to associate," and that requiring the Scouts to retain the scoutmaster would unconstitutionally "force the [Scouts] to send a message … that [it] accepts homosexual conduct as a legitimate form of behavior."

Dale requires courts to address two questions when considering an expressive-association defense: (1) whether the group "engage[s] in some form of expression," and (2) "whether the forced inclusion" of the individual "would significantly affect the [group's] ability to advocate public or private viewpoints." And if the answer to both questions is yes, the First Amendment prohibits the forced association, absent proof that the forced association satisfies strict scrutiny—i.e., serves "compelling state interests" that cannot be achieved through "significantly less restrictive" means.

Expressive Association for Religious Groups

Dale provides a strong framework for protecting religious groups. Suppose, for example, a religious school dismisses its math teacher for entering a same-sex marriage. Under Dale's first prong, a religious school, of course, "engage[s] in some form of expression": teaching and propagating a religious faith, including (often) views on marriage.

Second, forcing a religious school to employ a teacher who violates its view of marriage would "significantly affect the [school's] ability" to instill that view in its students. As the Second Circuit explained: "'It would be difficult,' to say the least, for an organization 'to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time it must accept members who engage in that conduct."

Another Second Circuit panel tried to cut back on this ruling, suggesting that forcing religious groups to hire dissenters doesn't significantly inhibit their expression unless propagating a particular viewpoint is the "very mission" of the organization. But this argument stands in tension with Dale. There, opposing homosexuality wasn't the "very mission" of the Boy Scouts; indeed, the Boy Scouts' "central tenets" arguably did not "say[] the slightest thing about homosexuality."  Yet the Court held that "associations do not have to associate for the 'purpose' of disseminating a certain message in order to be entitled to the protections of the First Amendment." Instead, courts must "give deference" to an association's view of "the nature of its expression" and "what would impair [that] expression."

Under Dale, then, our hypothetical teacher's employment-discrimination claim would likely be barred unless it satisfied strict scrutiny.

Counterarguments

Some courts have ruled that forcing religious groups to employ dissenters does satisfy strict scrutiny—that it advances a compelling interest in eradicating discrimination, and there is no less-restrictive means of accomplishing this interest absent forced association.

But this argument faces several hurdles. First, it contradicts the strict-scrutiny analysis in Dale. There, the Court likewise considered if the government's interest in eliminating discrimination was sufficiently compelling to justify forced association with the scoutmaster. And it rejected the strict-scrutiny defense. The Court said that however "compelling" the government's "interest in eliminating discrimination" based on "sexual orientation," that interest "d[id] not justify such a severe intrusion on … freedom of expressive association." So too with religious groups.

Second, to satisfy strict scrutiny, it is not enough to assert a "broadly formulated" interest in "ensuring equal treatment" based on sexual orientation.  Instead, the government must show a specific, compelling interest in denying a religious exemption to "particular religious claimants." The Supreme Court has never found this standard satisfied when a religious claimant has sought an exemption from a sexual-orientation discrimination law. Rather, all five cases presenting the issue (Hurley, Dale, Masterpiece, Fulton, and 303 Creative) came out in favor of a religious exemption.

Third, Title VII's ban on sex discrimination is particularly unlikely to satisfy this analysis, because it is shot through with other exemptions. Most notably, among others, it includes an exemption for every employer with fewer than fifteen employees—which exempts approximately 80% of all private employers nationwide, employing tens of millions of Americans. The government cannot have a compelling interest in forcing religious groups to hire religious dissenters, when it allows millions of secular businesses to discriminate for any reason with impunity.

Given the shaky strict-scrutiny defense, some courts have floated another idea: the right of expressive association doesn't apply to employment disputes at all. But this argument fails as a matter of both precedent and principle.

The leading precedent invoked for this argument is Hishon v. King & Spalding, which held that a large law firm lacked an expressive-association right to exclude women from partnership. But Hishon doesn't say expressive association is categorically inapplicable to employment disputes. Rather, Hishon addressed and rejected an expressive-association defense on the merits, reasoning that the large law firm there had not shown "how its ability" to express "ideas and beliefs" would be "inhibited" by letting a woman make partner. If anything, that suggests employers that can make such a showing would be protected—and many lower courts since Hishon have so held.

Nor would excluding employment from the right of expressive association make sense as a matter of constitutional principle. The Supreme Court routinely applies First Amendment defenses to employment relationships and other commercial disputes—e.g., the ministerial exception applies to employment suits by ministers; church autonomy applies to collective bargaining over employment in religious schools; the Free Exercise Clause applies to antidiscrimination lawsuits against for-profit businesses; the Free Speech Clause applies to antidiscrimination lawsuits against commercial web designers, the sale of violent video games to minors, and the placement of paid, commercial ads in newspapers. There is no reason that expressive association, alone among First Amendment rights, would be categorically inapplicable to employment.

Conclusion

In short, expressive association offers another potential defense for religiously motivated hiring practices. Under Dale, the defense turns primarily on whether a religious group "engage[s] in some form of expression," and whether forced inclusion of a religious dissenter "would significantly affect the [group's] ability to advocate public or private viewpoints." And many religious groups will be able to make that showing—particularly given Dale's admonition that courts must "give deference" to an association's view of "the nature of its expression" and "what would impair [that] expression."

With several potential defenses available, however, how should courts handle these claims? Should one defense be preferred over others? If so, which one and why? Tomorrow's post (the final one!) will attempt to sketch out an answer to these questions.

The post Religious Hiring and Expressive Association appeared first on Reason.com.

[Eugene Volokh] Ban on Gender Transition Procedures for Minors Doesn't Violate Parental Rights

From Poe v. Drummond, decided today by the Tenth Circuit (Judge Joel Carson, joined by Judges Harris Hartz and Gregory Phillips), upholding an Oklahoma statute that "prohibits healthcare providers from 'provid[ing] gender transition procedures' to anyone under eighteen."

Parent Plaintiffs assert a substantive Due Process claim arguing that SB 613 impinges on their fundamental right to make medical decisions for their minor children….

Parents have the right "to make decisions concerning the care, custody, and control of their children," which includes "to some extent, a more specific right to make decisions about the child's medical care," But we and the Supreme Court have held that parents do not have an absolute "right to direct a child's medical care." …

We … have consistently held that individuals do not have an affirmative right to specific medical treatments the government reasonably prohibits. We have held that although patients have a fundamental right to refuse treatment, the "selection of a particular treatment … is within the area of governmental interest in protecting public health." Thus, the government has the "authority to limit the patient's choice of medication," whether the patient is an adult or a child.

The parent-child relationship does not change our reasoning, and to conclude otherwise would allow parents to "veto legislative and regulatory polices about drugs and surgeries permitted for children." LAlthough parents have authority over their children's medical care, no case law "support[s] the extension of this right to a right of parents to demand that the State make available a particular form of treatment." In fact, the state's interest in a child's health may "constrain[] a parent's liberty interest in the custody, care, and management of her children." So our Nation does not have a deeply rooted history of affirmative access to medical treatment the government reasonably prohibited, regardless of the parent-child relationship….

As for gender transition procedures specifically, healthcare providers onlyrecently began providing gender transition procedures for minors. The medical community traditionally limited gender transition treatments to adults.In 1979, the World Professional Association for Transgender Health ("WPATH") published the first standard of care ("Standard") for treating gender dysphoria and recommended that healthcare providers only administer hormone and surgical procedures on legal adults.In 1998, WPATH revised their Standard to include puberty blockers and hormones to those older than 16 if the patient met certain criteria but still recommended that "the administration of hormones to adolescents younger than age 18 should rarely be done."

Not until 2001 did WPATH revise their Standard to allow for puberty blockers as soon as pubertal changes began but still recommended that hormone therapy not occur until the age of 16. In 2012, WPATH revised their Standards to permit puberty blockers and hormonal therapy from the early stages of puberty. This recent development in the medical field regarding gender transition procedures for minors shows that our Nation does not have a deeply rooted tradition in providing gender transition procedures to minors….

Seems correct to me; here's what I wrote about the subject June 30, quoting a Sixth Circuit decision that reached the same result:

Some people have asked: Why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti (which the Supreme Court just declined to review):

There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.

Washington v. Glucksberg puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….

Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. As these "terminally ill patients and their supporters" saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country's long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play….

As in these cases, so in this one, indeed more so in this one. "The state's authority over children's activities is broader than over like actions of adults." A parent's right to make decisions for a child does not sweep more broadly than an adult's right to make decisions for herself….

Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. Plaintiffs counter that, as parents, they have a substantive due process right "to make decisions concerning the care, custody, and control of their children." At one level of generality, they are right. Parents usually do know what's best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18. But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support. Level of generality is everything in constitutional law, which is why the Court requires "a 'careful description' of the asserted fundamental liberty interest."

So described, no such tradition exists. The government has the power to reasonably limit the use of drugs, as just shown. If that's true for adults, it's assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process. Any other approach would not work. If parents could veto legislative and regulatory policies about drugs and surgeries permitted for children, every such regulation—there must be thousands—would come with a springing easement: It would be good law until one parent in the country opposed it. At that point, either the parent would take charge of the regulation or the courts would. And all of this in an arena—the care of our children—where sound medical policies are indispensable and most in need of responsiveness to the democratic process.

I have argued that there should be a constitutional right to choose certain medical treatments for oneself in narrow circumstances (basically when the person is terminally ill, and seeks a possibly life-saving though unproven treatment). But even if I'm right, that would be quite a narrow right; and in any event, the Abigail Alliance en banc opinion, described in the excerpt above, rejected even that narrow argument.

Zach West, Audrey A. Weaver, and Will Flanagan of the Oklahoma Attorney General's office represent the state in the Tenth Circuit case.

The post Ban on Gender Transition Procedures for Minors Doesn't Violate Parental Rights appeared first on Reason.com.

[Eugene Volokh] Vulgar Signs Condemning City Official, ~1200 Feet from Official's Home, Constitutionally Protected

One of the signs (from the court opinion).

 

Some excerpts from today's long decision by Judge Stacey D. Neumann in Roussel v. Mayo (D. Me.):

Plaintiff Joseph F. Roussel sued the city manager of Old Town, Maine, various Old Town police officers, and the Piscataquis County Sheriff for allegedly violating his First Amendment rights. This case began as a disagreement over the masking policy at the Old Town City Hall during the COVID-19 pandemic. But it developed into an acrimonious dispute, and the situation deteriorated further when Mr. Roussel did two things that are the subject of this Order: First, while passing by the city manager's lakefront house on his friend's boat, Mr. Roussel shouted expletives at the city manager. Second, Mr. Roussel posted strongly worded and expletive-laden signs on the side of the private road leading to the city manager's house. In response, the city manager enlisted Piscataquis County Sheriff Robert Young to serve Mr. Roussel with a cease harassment notice.

The court largely allowed Roussel's First Amendment claim to go forward:

Mr. Roussel was with his friends—who lived in the area—on their boat on Schoodic Lake, in Lake View Plantation, Maine. As they happened to pass by a particular house on the lakeshore, one of Mr. Roussel's friends told him that Mr. Mayo lived there. Mr. Roussel saw two people seated on the porch near the lakeshore at Mr. Mayo's home, and he assumed that one of them was Mr. Mayo. Mr. Roussel shouted at the people on Mr. Mayo's porch, "fuck you, try trespassing me from here you tyrant piece of shit," referencing the City Hall trespass warning from the previous fall [related to the disagreement about masks].

Mr. Mayo was, in fact, sitting on his porch with a friend when Mr. Roussel passed by Mr. Mayo heard someone shouting at him but did not recognize who it was….

A week later, … Mr. Roussel drove to Lake View Plantation to meet with friends who lived there. Mr. Roussel spoke with them about posting signs on the roads nearby. After he left his friends' house, he posted … signs near Mr. Mayo's home, along Hancock Road and Railroad Bed Road. The signs displayed the following language in all capital letters:

FUCK YOU WILLIAM MAYO WILLIAM MAYO HATES FREE SPEECH RIGHTS AND LAWS MATTER MORE THAN YOUR FEELINGS SUCK IT SOMETIMES WHEN YOUR A TYRANT AT WORK THEY FIGURE OUT WHERE YOU LIVE AND SCOTT WILCOX CANT HELP WILLIAM MAYO SUPPORTS BIDEN ANOTHER SHIT BAG THAT HATES FREEDOM THE CONSTITUTION MATTERS MORE THAN YOUR LIMP DICK FREEDOM OF SPEECH MATTERS MOST WHEN YOU DONT LIKE IT FUCK YOU WILLIAM MAYO EAT A BAG OF DICKS

The closest sign was located approximately 1,200 feet from Mr. Mayo's house, posted on a utility pole near the primary entrance into the subdivision. None of the signs were posted on the final access road to Mr. Mayo's property. Mr. Roussel himself never went closer than within 1,000 feet of Mr. Mayo's home when he posted the signs.  Nor did Mr. Roussel confront—or even see—Mr. Mayo in person when he posted the signs….

The court held that Roussel's speech was constitutionally protected:

When Mr. Roussel passed by Mr. Mayo's home on the lake, he shouted at Mr. Mayo's porch, "fuck you, try trespassing me from here you tyrant piece of shit." That speech does not fall into any of the "well-defined and narrowly limited classes" of exceptions to the First Amendment's strong free speech guarantee. Although the language used is crass and derogatory, it does not constitute incitement, defamation, or obscenity. Nor is it a true threat of violence. Indeed, the Supreme Court has held that the First Amendment protects the right to shout at public officials, City of Houston, Tex. v. Hill (1987), and to use profanity, see Cohen v. California (1971) (jacket bearing the words 'Fuck the Draft' was protected speech); Hess v. Indiana (1973) (shouting "we'll take the fucking street again" while police were attempting to clear a protest was protected). Accordingly, the content of Mr. Roussel's speech on the lake is protected.

Sheriff Young argues Mr. Roussel's speech on the lake is unprotected because it was "one-to-one" speech between Mr. Roussel and Mr. Mayo. In Sheriff Young's view, speech directed from one person at another in private lacks First Amendment protection. As an initial matter, there is no such categorical exception for one-to-one speech. Sheriff Young relies exclusively on a case in which the court denied habeas relief to a petitioner convicted for violating a domestic protection order. McCurdy v. Maine (D. Me. 2020). As the court recognized in that case, the Supreme Court has not "squarely addressed the issue." See also Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, Circuit Judge) ("There is no categorical 'harassment exception' to the First Amendment's free speech clause.").

In any event, I need not decide the issue here as undisputed facts in the record demonstrate that Mr. Roussel did not engage in one-to-one speech. Mr. Roussel was on the boat with at least one other friend, and Mr. Mayo was on the shore with at least one other person….

As with the language shouted from the boat, albeit crude and offensive, the speech on Mr. Roussel's signs does not constitute incitement, defamation, obscenity, or any other type of speech outside the scope of First Amendment protection.

Sheriff Young briefly suggests that the sign stating, "SOMETIMES WHEN YOUR A TYRANT AT WORK THEY FIGURE OUT WHERE YOU LIVE AND SCOTT WILCOX CANT HELP" could be considered a true threat. However, Sheriff Young does not sufficiently develop this argument in his motion. He does not cite to any case law supporting his argument, explain how the signs are threatening, or demonstrate that Mr. Roussel subjectively understood the threatening nature of his speech. While both Sheriff Young and Mr. Roussel discuss Mr. Roussel's subjective intent in their depositions, Sheriff Young does not develop this testimony into a legal argument in his briefs. Therefore, because Sheriff Young does not make any reasoned argument as to whether the content of Mr. Roussel's signs constitutes an unprotected true threat, I consider that argument waived.

The court concluded that "a reasonable jury could find that Sheriff Young's decision to issue a cease harassment notice was content based":

First, Sheriff Young testified at his deposition that he explained over the phone to Mr. Roussel that he issued the cease harassment notice "because of the signs, the nature of the signs, the language that was used, the fact that he went on private property and posted it when he didn't have permission to do so." When asked whether his concerns were mostly about the language used in the signs, Sheriff Young responded, "The language was of concern, yes." Second, Sheriff Young testified that he would not have issued any order to Mr. Roussel over the language in some of the signs, but the language in others prompted him to do so. As to one sign, he testified, "I would not issue a summons just for that sign." When asked if one of the other signs would constitute disorderly conduct on Mr. Roussel's part, and thereby justify the cease harassment notice, Sheriff Young testified "I think it could be." Third, Sheriff Young testified about his interpretation of one of Mr. Roussel's signs: "Well, my sense of that … is that he was trying to convey to Mr. Mayo that he was in a place now where the chief of police in Old Town can't help him …."

Additional facts in the record, "if believed, could lead a reasonable jury to conclude" Sheriff Young issued the cease harassment order "because of disagreement with [Mr. Roussel's] message." There were other signs on the same roads, but none prompted Sheriff Young to take any action. For example, there were multiple non- political signs concerning the road's use. ECF No. 72-8 (signs reading "Caution"; "25 MPH Please Slow Down"; "Ride Right on Pavement"; "ATVs Please Slow Down or Lose the Privilege of Using this Road"; and numerous directional signs with arrows pointing to snowmobile trails, and food and lodging nearby). In Reed, the Supreme Court held that a town ordinance distinguishing between "Temporary Directional Signs," "Political Signs," and "Ideological Signs" was facially content based. That holding applies here, too. The distinction between non-political signs (like those directing traffic) and political signs (like Mr. Roussel's coarse criticism of Mr. Mayo) is content based….

And the court concluded that the restriction on Roussel's speech likely couldn't be justified under the "strict scrutiny" applicable to content-based restrictions:

Sheriff Young hints at the governmental interest in residential privacy. In his view, Mr. Roussel placed his signs on the roads close enough to Mr. Mayo's home to infringe on Mr. Mayo's privacy. Sheriff Young cites to Frisby v. Schultz (1988), in which the Supreme Court upheld a content-neutral ban on targeted residential picketing, to support his argument. There, anti-abortion protestors staged pickets directly in front of the home of a doctor who performed abortions.  The Court held that picketing in front of a private residence infringes on the resident's privacy interest; therefore, the government can regulate such speech in a content-neutral manner because the captive audience "cannot avoid the objectionable speech."  That such speech "inherently and offensively" intrudes on the special privacy of the home justifies regulation.

Frisby is distinguishable in two ways. First, its reasoning is limited to content- neutral regulations. As the Court explained, "[t]he ordinance also leaves open ample alternative channels of communication and is content neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail." Here, by contrast, where a reasonable jury could conclude Sheriff Young's conduct was content based, Frisby's reasoning does not apply by its own terms. Second, while the parties here disagree as to the precise location of the signs on the roadside, the undisputed record demonstrates Mr. Roussel did not post any signs directly outside Mr. Mayo's home. The closest sign was approximately 1,200 feet from Mr. Mayo's house. Mr. Roussel himself never went closer than 1,000 feet to Mr. Mayo's home when he posted the signs.  Nor did he confront—or even see—Mr. Mayo in person when he posted the signs.  Based on these undisputed facts, the signs did not inherently intrude on Mr. Mayo's privacy in his home. Treating Frisby as permitting the government to restrict speech beyond the home's immediate surroundings would be inconsistent with its focus on picketing "narrowly directed at the household."

Additionally, while there is certainly a government interest in "protecting the well-being, tranquility, and privacy of the home," the Supreme Court has held only that it rises to a "significant government interest." That is a lower standard than the compelling interest required to justify a content-based restriction on speech. Therefore, when considering the state interest in protecting residential privacy beyond the limited context of Frisby's facts, the Supreme Court has held that content-based restrictions on protests are unconstitutional. Because a content-based speech restriction "cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based … distinction has any bearing whatsoever on privacy," and a reasonable jury resolving disputed facts could find Sheriff Young issued a content-based speech restriction, summary judgment is inappropriate.

The court thus allowed the case to go forward.

The post Vulgar Signs Condemning City Official, ~1200 Feet from Official's Home, Constitutionally Protected appeared first on Reason.com.