Eugene Volokh's Blog, page 38

[Keith E. Whittington] On the Politics of University Autonomy

[My new paper thinking through the political calculus of independent universities]

Public and private universities are currently being scrutinized by politicians and political activists in ways that they have not been in many years. Moreover, government officials at both the state and federal level are intervening in the internal affairs of universities in ways that are nearly unprecedented.

These political interventions were predictable (indeed, I was among those predicting them), but they pose extraordinary challenges to traditional ways in which universities have operated and to the future of higher education in America. The normative and public policy questions surrounding greater political supervision of universities are difficult and real.

In a new paper I take a more empirical and positive political theory approach to our current situation. There is an extensive literature on the politics of "independent" government institutions, from the judiciary to bureaucracies to central banks to international organizations. The conceptual apparatus and logic of those models can be turned toward thinking about the political conditions and political boundaries of university autonomy from government interventions.

This paper on "The Bounded Independence of American Universities" is, I believe, the first effort to develop an empirical model of university independence. It emphasizes that the lessons from other contexts apply to universities as well. No matter how normatively attractive an independent judiciary or an independent university might be, institutional independence is a political construct and must be maintained through political effort. And "independent" institutions are always politically vulnerable to being rendered less independent if they become too politically costly. Strategic university leaders should recognize that university autonomy is politically contingent and cannot simply be assumed. Unfortunately, university faculty and administrators have become forgetful that university independence, like judicial independence, rests on political foundations.

From the abstract:

State universities are agents of the state. As such, they are subject to the same political dynamics as other state institutions. There are normative reasons for preferring that some state institutions enjoy a substantial degree of independence from ordinary political forces, but there are significant political challenges to achieving such independence. Universities are no different. Achieving and preserving some degree of independence from political control for universities is an ongoing political task, and the independence of universities from political influence and intervention is bounded and contingent.

And from the conclusion:

The fact that university autonomy is politically bounded and conditional does not mean that independence is not real. It just means that there are limits. Those limits are not themselves fixed, but they are not necessarily under the control of the university. Universities can do what they can to demonstrate their societal value. They can persuade critical stakeholders that continued autonomy is important to generating that societal value. Like all agents, they must convince their principals that they are faithful agents whose interests largely align with those of the principals and who exercise their discretion in a prudential fashion. They must cultivate allies who share an interest in the relative autonomy of universities and can exert political pressure on their behalf. The conditions for university autonomy must be cultivated over time, and sometimes the terms of institutional independence have to be renegotiated to better conform to the political environment within which universities operate.

Read the whole thing here.

The post On the Politics of University Autonomy appeared first on Reason.com.

[Eugene Volokh] Kash Patel Awarded $100K Compensatory + $100K Punitive Damages Default Judgment in Libel Suit Against Substacker Jim Stewartson (Filed in 2023)

Back in June 2023, now-FBI-Director Kash Patel sued Jim Stewartson for libel, alleging that Stewartson had falsely claimed that Patel "attempted to overthrow the government," "planned 1/6," was "guilty of sedition," was a "Kremlin asset," and paid people to "lie to congress"; some of the allegations were also about Patel's Kash Foundation. Stewartson didn't appear to defend himself, so eventually, in March 2025, Patel moved for default judgment.Yesterday, Judge Andrew Gordon (D. Nev.) granted the motion:

As a result of the entry of default [triggered by Stewartson's failure to defend himself], "the factual allegations of the complaint, except those relating to the amount of damages, [are] taken as true." Stewartson's statements are defamatory as to Kashyap Patel. And the complaint alleges that at least one of these statements was impliedly directed at the Kash Foundation, Inc. and "directly and proximately caused the Kash Foundation significant damages …." Thus, liability is established.

The plaintiffs' motion offers scant evidence of harm or damages to either plaintiff. Even if damages are presumed, there must be some evidence to support a monetary award. The plaintiffs' expert report offers only conclusory statements about reputational damage and lost Foundation donors, with almost no reference to specific instances to support those. For example, the reports states that Mr. Patel's "image has been deeply hurt by the defamation accusing him of working against the government, corruption, and crime. Apart from the business already lost, this impacts future opportunities and relationships." But the report offers no examples of "business already lost" and how Mr. Patel's image was hurt by the defamatory statements themselves, as opposed to the myriad non-defamatory attacks Mr. Patel has suffered as a result of being a public figure.

To the contrary, after the defamatory statements, Mr. Patel was confirmed by the United States Senate as Director of the F.B.I. Clearly his reputation was not significantly sullied by the defamatory statements. Thus, minimal, if any, reputational rehabilitation damages are needed.

Nevertheless, Stewartson's statements were defamatory and caused presumed damages. Falsely stating as fact that a public figure "attempted to overthrow the government," planned the January 6 insurrection, was a "Kremlin asset," and paid people to "lie to [C]ongress" inflicts real injuries, personally and professionally. I award Mr. Patel $100,000 in compensatory damages.

Likewise, there is almost no concrete evidence of harm or damages suffered by the Foundation. All of the defamatory statements were directed at Mr. Patel individually. The Foundation contends it was harmed "by implication." The plaintiffs' expert states that Mr. Patel's "reputational damage has affected the ability of Kash Foundation to continue carrying out its social impact and affected donor and client relationships." But there is only proffer of a possible harm to the Foundation: according to Andrew Ollis (whose affiliation with the Foundation is not described) "[a]t [l]east 7 donors, with a total donation/gift of $25,000+ have stopped giving since the incident, with the defamation being a highly probable cause of the same because the narrative directly contradicts the benevolence of donating to a charitable cause." There is no indication which "incident" (i.e., which defamatory statement) is referenced and why that statement (or the series of statements) is "a highly probable cause" of the lost donations, as opposed to other reasons. Nor does the report explain why those seven donors account for "$25,000+" in lost donations when the average donation to the Foundation is $47.

Nevertheless, I will accept the $25,000 figure as a reasonable estimate of the harm to the Foundation, given that there is no other evidence of any affected donor or relationship or any impact on the Foundation's ability to carry out its mission. I award the Foundation $25,000 in compensatory damages.

The plaintiffs also request an award of punitive damages. Such an award is appropriate here, in part to deter Stewartson and others from engaging in defamation. Factual criticism of, and opinions about, public figures are protected speech and must be tolerated. This nation was founded on "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

But defamatory falsehoods made with actual malice are not protected, even if directed at public officials. The complaint and the motion adequately demonstrate Stewartson acted with malice.

I consider "three guideposts" when evaluating punitive damages: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." … Here, the harm was economic, the plaintiffs were not financially vulnerable, and the conduct involved repeated defamatory statements infused with malice. Considering these factors, I award Mr. Patel $100,000 in punitive damages and the Foundation $25,000 in punitive damages.

The post Kash Patel Awarded $100K Compensatory + $100K Punitive Damages Default Judgment in Libel Suit Against Substacker Jim Stewartson (Filed in 2023) appeared first on Reason.com.

[Eugene Volokh] Alleged "QAnon John"'s Libel Lawsuit Against Anti-Defamation League Settles, ADL Removes Page with Accusations

I wrote last year about Judge Reed O'Connor's opinion in Sabal v. Anti-Defamation League (N.D. Tex.), which declined to dismiss the lawsuit. Friday, the case settled; the Backgrounder: QAnon page and the Lone Star Report page seems to now have Sabal's name removed, and the Glossary of Extremism and Hate entry for Sabal has apparently been deleted. Here's an excerpt from last year's opinion:

Plaintiff John Sabal started his own business, The Patriot Voice, to organize conservative political events. The purpose of these events is to showcase "pertinent and dynamic speakers, whose messages are timely and relevant." These events also "feature speakers of every color and creed, including those of the Jewish faith." … Sabal contends that ADL defamed him….

The first ADL publication at issue is entitled, "Backgrounder: QAnon" (the "Backgrounder"). The Backgrounder includes two references to Sabal. The first states that "several aspects of QAnon lore mirror longstanding antisemitic tropes, and multiple QAnon influencers, including … QAnon John (John Sabal) have been known to peddle antisemitic beliefs." [The Backgrounder specifically refers to "the antisemitic trope of blood libel, the false theory that Jews murder Christian children for ritualistic purposes." -EV] The second states that "[i]n October 2021, several elected officials and candidates spoke at the Patriot Double Down conference hosted in Las Vegas, Nevada by antisemitic QAnon influencer John Sabal (QAnon John)." The words "spoke at the Patriot Double Down conference" link to an article published by the Arizona Mirror reporting on "some extremely antisemitic imagery," such as visuals of Hitler and the Star of David superimposed against a picture of the 9/11 attacks….

The second publication is ADL's "Glossary of Extremism and Hate" ("Glossary"), which "provides an overview of many of the terms and individuals used by or associated with movements and groups that subscribe to and/or promote extremist or hateful ideologies." The Glossary entry at issue here provides that "John Sabal, also known as 'QAnon John,' is a QAnon influencer who runs The Patriot Voice website, which he uses to advertise QAnon-related conferences. These conferences, the first of which was held in May 2021, have showcased the mainstreaming of QAnon and other conspiracy theories." …

The third ADL publication at issue is the report entitled, "Hate in the Lone Star State: Extremism & Antisemitism in Texas" (the "Lone Star Report"), which "explore[d] a range of extremist groups and movements operating in Texas and highlights the key extremist and antisemitic trends and incidents in the state in 2021 and 2022." The Lone Star Report identifies Sabal in connection with a Dallas conference:

Over the last few years, Texas has been at the heart of several notable QAnon events and incidents. The state has been home to multiple QAnon-themed conferences, highlighting the mainstreaming of QAnon and other conspiracies among conservative communities and the GOP. The most notable was "For God & Country: Patriot Roundup," which took place on Memorial Day weekend 2021. Organized by John Sabal, known online as "QAnon John" and "The Patriot Voice," the event featured then-Congressman Louie Gohmert (R-TX), then-Texas GOP chair Allen West, Lt. General Michael Flynn, attorney and conspiracy theorist Sidney Powell and various QAnon influencers. During the event, Michael Flynn seemingly endorsed a Myanmar-style coup in the U.S., although he has since backtracked on his remarks….

The Complaint alleges that the Backgrounder is defamatory by falsely stating that Sabal has been "known to peddle antisemitic beliefs, including the "antisemitic trope of blood libel." … From a review of the Backgrounder, the Complaint plausibly contends that a reasonable reader would view the statement "known to peddle antisemitic beliefs" as a factual assertion about Sabal. True, some courts have found calling a person "antisemitic" to be a non-actionable opinion. However, Texas law makes clear that this determination depends on context, which may reveal that an opinion instead functions as a factual assertion. Bentley v. Bunton (Tex. 2002) (holding that calling someone "corrupt" was actionable defamation based on the challenged publication's context because a reasonable reader could view the statement as an assertion of fact). Taking as true the allegations that Sabal has never expressed or endorsed antisemitic views, ADL's statements seem possible to verify: either Sabal has made such statements or he has not, making ADL's assertions capable of being proven false.

To accept Defendant's argument that a reasonable viewer would not attribute the blood libel conspiracy to Sabal would require the Court to ignore illustrative context in the Backgrounder. Contextual clues plausibly suggest to a reasonable reader that Sabal factually believes and endorses this antisemitic belief. For instance, the Backgrounder's description of the blood libel conspiracy immediately follows the explicit mention of four "QAnon influencers" by name. One of those names is Sabal. ADL identifies these influencers as those who are "known to peddle antisemitic beliefs." The textual proximity of the blood libel theory appears to function as an example of one such antisemitic belief. A reasonable reader could conclude that ADL mentioned Sabal and the other three names to provide examples of people who espouse the specific antisemitic belief of blood libel….

The Complaint also plausibly shows that ADL's statements in the Backgrounder carry defamatory impact…. ADL's accusation that Sabal espouses abhorrent beliefs is plausibly harmful to his reputation and occupation—just like calling someone "corrupt" in certain contexts carries the same potential harm, Bentley—because such allegations do not carry "innocent" meaning….

Viewing the entire context—and not merely the individual statements—the Backgrounder implies "materially true facts from which a defamatory inference can reasonably be drawn." …

Sabal's Complaint next alleges that ADL's inclusion of his name as an entry in the Glossary of Extremism is provably false and defamatory because it implies Sabal "is a dangerous, extremist threat and even a criminal." Published by ADL's Center on Extremism, the entry links to a mission statement advising readers that ADL "track[s] extremist trends, ideologies and groups across the ideological spectrum" and its "staff of investigators, analysts, researchers and technical experts strategically monitor, expose and disrupt extremist threats."

ADL argues that the Glossary entry is not defamatory because it includes entries for many persons beyond Sabal. As such, a description about one person does not necessarily apply to others. But the Glossary has one overarching theme shared by all entries: extremism. The Glossary even states that "many of the terms and individuals used by or associated with movements and groups that subscribe to and/or promote extremist or hateful ideologies." Although ADL contends that calling someone an extremist is not defamatory, the type of extremism featured in the Glossary is of a highly criminal and depraved nature. Combined with the mission statement, the Glossary's context appears convey factual assertions about persons with Glossary entries rather than mere opinion.

To a reasonable reader, the Glossary may objectively indicate that all persons on this list are similarly dangerous and abhorrent. In his Complaint, Sabal pleads that Defendant wrongly likened him to "murderous Islamic terrorists—such as Nidal Hasan, Khalid Sheikh Mohammad, and ISIS—notable white supremacists—such as David Duke—and racist mass-murderers—such as Dylann Roof (the Charlestown church shooter), Brenton Tarrant (the Christchurch shooter), and Patrick Cruscius (the El Paso Walmart shooter)." In the full context of the Glossary, it was plausibly defamatory to call Sabal an extremist by including him alongside obviously dangerous terrorists and mass murderers. Cf. Bentley (holding that, while the term "corrupt" is normally used as opinion, it can be used as a statement of fact in certain contexts). Further revealing the plausibility of this defamatory implication is the absence of additional information about Sabal in the Glossary to counter the likelihood that a reasonable reader would understand this publication as a factual assertion about Sabal….

Similar to the Glossary and the Backgrounder, the third allegedly defamatory statement is found in the Lone Star Report's reference to Sabal's 2021 "QAnon-themed" event when discussing antisemitic incidents, hate crimes, and terrorist activities in Texas. ADL's sole argument is that most of the statements in this publication are not attributable to Sabal. But a contextual review of the entire Lone Star Report tells a different story. By including Sabal alongside antisemites and extremists in a report highlighting "[h]ate [c]rime [s]tatistics" and "[e]xtremist [p]lots and [m]urders," a reasonable reader could objectively understand the publication's context as making a factual assertion that Sabal's events are associated with such criminal activity. Further evincing this potential factual imputation is the Lone Star Report's hyperlink to Sabal's Glossary entry. As with the publications discussed above, inclusion of Sabal by name in a report about criminal extremism and antisemitism is "obviously hurtful to [his] reputation" in Texas and carries the potential to injure his "office, profession, or occupation."

Therefore, the Court determines that Sabal pleads sufficient facts at this stage to show plausible defamation based on the Lone Star Report because it factually implies Sabal is a particular type of extremist who engages in, or is otherwise responsible for, dangerous criminal activity….

Looking at each [of the above statements], individually and in context, it is plausible that each is provably false. That is not to preliminarily determine that each statement is, in fact, false. Instead, the Court merely recognizes that evidence could be produced to prove the falsity of the challenged statements, which leads to the conclusion at this stage that they are factual assertions rather than opinion. Similarly, these statements plausibly carry defamatory significance due to the lack of innocent meaning that is hurtful to Sabal's business and reputation. Therefore, the Court concludes at this stage that Sabal plausibly alleges defamation based on statements contained in three of the four ADL publications….

The court deferred deciding whether Sabal was a limited-purpose public figure, and thus had to show that the ADL knew that the statements were false or likely false:

The requisite degree of fault that flows from Sabal's status is a question of law for the Court to ultimately decide. In candor, this is a close call. And the chaotic state of case law on limited-purpose public figures only further complicates this question. See, e.g., Berisha v. Lawson (2021) (Gorsuch, J., dissenting from denial of certiorari) (lamenting that "the very categories and test this Court invested and instructed lower courts to use in this area—'pervasively famous,' 'limited purpose public figure'—seem increasingly malleable and even archaic when almost anyone can attract some degree of public notoriety in some media segment"). As a result, the Court determines that it is appropriate to instead evaluate whether Sabal is a limited-purpose public figure at a later stage in these proceedings with the benefit of additional briefing and development of the factual record. Indeed, there are times when "[i]ssues pertaining to [a plaintiff's] defamation claims are better resolved at the summary judgment stage."

But the court rejected a separate part of Sabal's claim, which rested on ADL's Congressional testimony, because testimony is absolutely immune from defamation liability.

The post Alleged "QAnon John"'s Libel Lawsuit Against Anti-Defamation League Settles, ADL Removes Page with Accusations appeared first on Reason.com.

[Eugene Volokh] Columbia Ph.D. Student #TheyLied Libel Suit Over Allegations of Stalking and Abuse Can Go Forward

From Thursday's decision by N.Y. trial judge Dakota Ramseur in Talbert v. Tynes, rejecting defendants' motion to dismiss:

In his complaint, Talbert alleges that Tynes, an acquaintance and former Ph.D. candidate at Columbia University, made various posts to Twitter in November 2021 concerning their interactions as students that accused him of stalking and of being generally abusive and manipulative towards women. More specifically, Tynes' tweets responded to a photograph shared by third party Derecka Purnell, a prominent scholar and author on Black History, that identified Talbert as being "in the tradition of black liberation theology" and as "legendary James Cone's last student." Tynes reposted the image with the caption, "If I speak, Twitter will suspend me," followed by two tweets: "Not the abolitionist [Purnell] with my stalker," and "That man has harmed multiple women and is abusive and manipulative, but congrats on his dissertation, I guess."

Talbert contends that these statements were false, published with actual malice, and caused reputational, emotional, and professional harm.

In support of her … motion to dismiss, Tynes submitted an affidavit describing the context of her prior interactions with him and the alleged basis for her public tweets. In it, she explains that they both attended Columbia University as graduate students between 2017 and 2020, enrolled in a Spring 2018 seminar titled DuBois@150, and participated in a shared study group.

According to her, during the seminar, Talbert would sit across from her, stare at her, and move physically closer without speaking. On or about April 25, 2018, while walking to class, Talbert allegedly followed her, remarked, "that was one of three creepy ways I thought to approach you," and showed her photos he had taken of her walking. Tynes further alleges that Talbert asked where she lived, whether she lived alone, if anyone would notice if she did not come home, whether she drank or used drugs, and then invited her to become inebriated with him.

Around this time, she disclosed her discomfort with Talbert's conduct to their study group and stated that she did not want to be around him. In response, Talbert accused her of bullying, which prompted her to leave the group. The next semester, at a Fall 2018 Welcome Back Mixer, Tynes avers that Talbert made unwanted sexual advances toward her and, after she rejected them, he conspicuously followed her around the event—behavior that, she alleges, was observed by a Columbia University employee.

Following the September 2018 mixer, Tynes asked classmates to inform her if Talbert would be attending social events because she did not want to see or speak to him. She also reached out to Columbia University's Sexual Violence Response (hereinafter, "SVR") office, where an unnamed counselor "identified Talbert's actions as stalking/harassing behavior" and advised her to send an email asking him not to contact her anymore. Tynes sent this email on September 20, 2018, in which she wrote: "please do not talk to me or approach me. I'm not interested in being friends or anything more, and it makes me uncomfortable when you comment on my appearance."

The letter notwithstanding, in February 2019, Tynes alleges she encountered Talbert in a nail salon near Columbia University campus, where he stared at her without saying anything until she left. In March 2019, a second counselor in Columbia University's "Student Conduct and Community Standards" Office reached out to Tynes. While the source of its knowledge is unclear, in the letter, the counselor notes that the office "received limited information alleging that you experienced behavior that may meet the definition of Gender-Based Misconduct." Tynes does not allege that she followed up and met with this counselor to discuss the allegations as the letter invites.

Lastly, Tynes alleges that, through conversations with close friends, she "learned that she was not the only Black woman Talbert had harmed. I was informed of additional instances through friends I trusted of him manipulating and acting abusively towards other women." This stand-alone averment does not specify from who she received this knowledge nor precisely the conduct she alleged was manipulative or abusive.

Talbert's affidavit disputes the surrounding context provided by Tynes. He avers that his first conversation with Tynes took place as small talk while both were on their way to the same seminar location and that he did not say "that was one of three creepy ways I thought to approach you" or show her pictures that he had taken of her. As to the allegations of misconduct within their study group, Talbert disputes the very existence of a shared study group.

He also avers (1) his conversation with plaintiff at the 2018 Welcome Back Mixer was limited to pleasantries and lasted but a brief moment and (2) he often frequented the salon near campus but never saw her in February 2019 let alone silently stared at her. In March 2018, around the same time Tynes received her letter from Columbia, Talbert filed a report with the same Student Conduct and Community Standards office, in which he sought Columbia's assistance regarding Tynes' false accusations that she was making to mutual friends and acquaintances. Around this same time, he also sought counsel from Columbia's Department of Counsel and Psychological Services. On December 9, 2021, Talbert's counsel sent a cease-and-desist letter to Columbia's Department of Anthropology. In all, Talbert contends that the tweets were defamatory per se and published with knowledge of thier falsity or reckless disregard for the truth….

The court concludes that Tynes' statements were statements of fact, and could thus form a basis for a defamation claim:

First, on its own, the fact that Tynes' statements were intended to convey her subjective interpretation of Talbert's behavior does not change whether the statements can be construed as conveying facts. Regardless, the term "stalker" is capable of a precise definition, even if the term does not constitute defamation per se. (See New York Penal Law 240.26 [defining the term stalker as "a person who pursues someone obsessively and aggressively to the point of harassment"]; Rivas v Restaurant Assoc., Inc., 223 AD3d 634, 635 [1st Dept 2024] [similar terms such as "pedophile" and "child molester" capable of being true or false and is not subjective in nature].) That "stalker," like these terms, is capable of evoking a specific allegation of criminality is what separates Tynes' statement from those considered in cases such as Farber v Jefferys (103 AD3d 514 [1st Dept 2013] [name calling someone as "no good" and "a criminal" was an opinion and not actionable]), Polish American Immigration Relief Committee Inc. v Relax (189 AD2d 370 [no reasonable person would conclude that actual criminality was charged by the epithets "thieves" and "false do-gooders"]) and Ganske v Mensch (480 F. Supp. 3d 542, 553 [SDNY 2020] [term "xenophobic" not a statement of fact because it is incapable of being proven true]).

Moreover, the surrounding context of the Tynes' tweet does not suggest that it was intended "colloquially" as she asserts. To begin, it is unclear what the purported difference between the "colloquial" sense of "stalker"—which, according to her, refers to Talbert "repeatedly following and pursuing her in a way that made her feel threatened"—and what might be considered an objective, literal usage of the word.

But even assuming a difference, in using the personal pronoun "my" stalker, Tynes suggests a unique, private familiarity with Talbert's conduct, one that, even on Twitter, would imply to the reasonable reader that she had personal knowledge that he engaged in the conduct charged—the specifics of which she chose to withhold in the posts.1 Notably, any qualifying or excessive language that otherwise might negate the impression that she meant "stalker" literally is entirely absent from her posts. And by reposting the "stalker" statement in conjunction with and immediately after "If I speak, Twitter will suspend me," Tynes only highlights the seriousness and sincerity of her allegations, which, in the surrounding context, the potential reader may very well be more inclined to interpret as statements of fact.

The comments that Talbert has "harmed multiple women" and was "abusive and manipulative" are also actionable. Though both have a more nebulous, less precise meaning than "stalker," both support her previous claim that he stalked her without offering the basis or identifying the source of her knowledge. This is especially true as plaintiff admits that she did not personally observe his harming or abusive behavior towards multiple women.

And the court held that Talbert had sufficiently alleged that Tynes' statements were knowingly false (though of course at this point these are just allegations):

In his affidavit, Talbert directly refutes each of Tynes's allegations. He avers that his personal interactions with her were incidental, brief, and never threatening. He denies making inappropriate remarks, following her, taking pictures of her, or engaging in any conduct that could be reasonably construed as stalking or harassment. He also disputes the existence of a shared study group and states that he never made unwanted advances or sent harassing messages. His denials, if true, entirely refute her allegations that is a "stalker" who "harmed multiple women."

Moreover, Talbert's denials are supported by contemporaneous documentary evidence, including a 2019 report he filed with Columbia University's Student Conduct and Community Standards office, in which he sought assistance regarding what he described as false accusations Tynes was spreading to mutual acquaintances. He also engaged with Columbia's Department of Counseling and Psychological Services around the same time, as reflected in a documented appointment confirmation. These records, created over two years before the tweets at issue, bolster the credibility of his version of events and provide the relevant proof that a reasonable mind may accept as adequate to support a finding of both falsity and actual malice.

In finding that Talbert's affidavit and corroborating evidence sufficiently shows a substantial basis for his defamation claim, the Court notes that each party has filed conflicting "self-serving" affidavits, each with some degree of corroborating evidence, though neither party's submissions entirely refute the other's position. With respect to Tynes' evidence, it is worth pointing out that she did not attach affidavits from anyone of her friends from whom she derived the "abusive and manipulative" post, from the counselor in Columbia's SVR office with whom she met to discuss Talbert's conduct, or from the alleged university employee who observed Talbert's behavior at the 2018 mixer. By resting such significant portions of her motion on her factual averments, Tynes' evidence is not so convincing that Talbert's own affidavit cannot serve as an adequate rebuttal….

The post Columbia Ph.D. Student #TheyLied Libel Suit Over Allegations of Stalking and Abuse Can Go Forward appeared first on Reason.com.

[Luke Goodrich] Religious Hiring and Church Autonomy

[Does the church-autonomy doctrine extend to hiring decisions outside the ministerial exception?]

Can a religious group legally fire a non-minister employee (like a secretary or janitor) for violating the group's beliefs about sex or marriage? As I've explained, this is an urgent question likely to reach the Supreme Court soon. And the most straightforward answer is to apply the plain text of Title VII's religious exemption—which says religious groups may limit employment to individuals who adhere to their particular religious beliefs, observances, or practices.

But Title VII's religious exemption won't resolve the question entirely. That's because employees can sue under state law, and some states have recently gutted their state-law religious exemptions. Thus, as I explain in my article, Religious Hiring Beyond the Ministerial Exception, courts will eventually have to decide if religious hiring decisions are also protected by the Constitution.

My article analyzes three potential constitutional protections: (1) the church-autonomy doctrine, (2) the freedom of expressive association, and (3) the Free Exercise Clause. Today, I'll focus on the first: church autonomy.

The Scope of Church Autonomy

Church autonomy is a hot topic. Multiple appellate judges have gone out of their way to write about it. Justices Alito and Thomas have, too. What is it?

The church-autonomy doctrine is a legal principle rooted in "the understanding that church and state are 'two rightful authorities,' each supreme in its own sphere." While this doesn't mean religious institutions are immune from civil laws, it does mean the First Amendment protects a certain sphere of autonomy in which the government is not permitted to intrude. This sphere is often described as encompassing the right of religious institutions to "decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The protection for "faith" and "doctrine" means civil courts cannot decide religious questions or make legal decisions based on religious doctrine.

The protection for "church government" means religious institutions have freedom to make and enforce rules for their internal governance. This includes deciding who can lead a religious organization, teach its doctrine, and perform its religious functions, all of which are protected under the ministerial exception. But the ministerial exception is only one "component" of protection for church government. Also protected are other "internal management decisions that are essential to the institution's central mission," such as decisions about "church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them."

The right to make and enforce rules for church membership is particularly longstanding and robust. Since 1872, the Supreme Court has held that civil courts "have no power to revise or question ordinary acts of church discipline, or of excision from membership." This means religious groups get to set qualifications for church membership and judge "the conformity of the members of the church to the standard of morals required of them." It also means disaffected members typically cannot sue for defamation or other torts based on acts of church discipline or statements made during church discipline. In short, the government cannot interfere in a church's decision about who is qualified to be a member.

Employment of Non-Ministers

My article argues that what is true of ordinary members is even more true of individuals employed to further a church's mission. The Supreme Court unanimously agreed this is true for employment of ministers. But other Supreme Court cases also extend this principle to non-ministers.

In Catholic Bishop, for example, the Supreme Court denied the National Labor Relations Board jurisdiction over "lay teachers" (non-ordained teachers of secular subjects like "physical education") in church-run high schools, reasoning that the Board's exercise of jurisdiction "would implicate the guarantees of the Religion Clauses." Similarly, in Amos, the Supreme Court allowed application of Title VII's religious exemption to a maintenance worker in a church-run gymnasium, noting that the exemption "alleviate[s] significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Justice Brennan concurred, emphasizing that the "[c]oncern for the autonomy of religious organizations" requires respect for their right to "[d]etermin[e] that certain activities are in furtherance of an organization's religious mission, and that only those committed to that mission should conduct them."

In keeping with these decisions, several lower courts (see footnote 240) have applied the church-autonomy doctrine to bar employment lawsuits by non-ministers who were dismissed for violating church teaching.

 

 

The principle that emerges from these cases is the same as that in Catholic Bishop and Amos: Church autonomy protects a religious group's freedom to decide what activities are part of its religious mission and who is religiously qualified to undertake those activities—including as a non-minister. And if an employment-discrimination lawsuit would prevent a religious organization from requiring adherence to its religious occupational qualifications—whether the qualification is based on religious belief (you must be a Christian; you must be an Orthodox Jew) or religious conduct (you must refrain from sex outside marriage; you must refrain from non-kosher food)—it is barred by the church-autonomy doctrine.

Objections

There are two main counterarguments to this understanding of church autonomy. First, some courts have said that applying church autonomy to religious occupational qualifications for non-ministers "would render the ministerial exception superfluous."

But this objection misunderstands the relationship between the ministerial exception and the protection for religious occupational qualifications. The ministerial exception applies to only a narrow set of employees (ministers), but protects a broad range of employment decisions—including decisions not "made for a religious reason." The religious-occupational-qualification protection is different: It applies to a broader group of employees (including non-ministers), but a much narrower set of employment decisions—only those based on religious qualifications for employment. Thus, while the doctrines can sometimes overlap, they still have different scopes and perform different functions.

The second objection is that there are no principled, workable limits on this religious-occupation-qualification protection. I address this objection more fully in my article. But in a nutshell, I argue that the limits of this constitutional protection are similar to the limits of Title VII's religion exemption. First, the protection is limited to religious organizations. There is ample caselaw drawing a line between religious and nonreligious organizations in various contexts—such as under the ministerial exception, Title VII's religious exemption, and federal and state tax law. This caselaw tells us, among other things, that for-profit businesses likely don't count as religious.

Second, the protection is limited to employment decisions based on sincere, religious occupational qualifications. That means insincere (i.e., "faked") qualifications aren't a protected basis for an employment decision. Nor are qualifications invoked as a pretext to mask a different, discriminatory reason for the decision. Although there are constitutional limitations on a court's inquiry into sincerity and pretext, those issues are not completely off limits, and courts regularly address them in a variety of religious contexts.

Finally, having considered the outer limits of this protection, it is also important to consider heartland cases. Suppose, for example, Congress repealed Title VII's religious exemption—making it illegal for religious groups to hire employees based on "religion." Under this regime, the government could force a Baptist church, for example, to hire an atheist church secretary. Would such a regime violate church autonomy?

Of course it would. As the Supreme Court has said, church autonomy protects "internal management decisions that are essential to the institution's central mission." This includes defining the mission, deciding what activities advance the mission, and deciding that "only members of its community" can "perform those activities." If the government could force a Baptist church to hire atheists, the First Amendment would be slender reed indeed.

Conclusion

In short, church autonomy is not limited to the ministerial exception. It also includes the freedom of religious groups to establish and maintain religious qualifications for employment—including for non-ministers. This means that when religious groups face post-Bostock claims of sex discrimination by non-ministers, they can invoke not only Title VII's religious exemption but also the First Amendment's church-autonomy doctrine.

But the church-autonomy doctrine is not the only potential constitutional protection. Tomorrow's post will explore another: the First Amendment right of expressive association.

 

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Josh Blackman] Where Are the October And November Sitting Calendars?

[Last year, the calendars were posted by the end of July. ]

As of August 5, 2025, the Supreme Court has not yet posted the argument calendars for the October and November sittings.

For OT 2024, the October and November calendars were posted on July 26, 2024.

For OT 2023, the October calendar was posted on July 14, 2023.

The Court is behind schedule.

The Justices are so busy with the emergency docket, perhaps they are neglecting the merits docket!

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[Eugene Volokh] Finding That Defendant Had Yanked on Israeli Flag Plaintiff Had Tied Around Neck, Choking Her, Leads to 3-Yard Stay-Away Order Against Defendant

From Monday's decision by Judge Trevor McFadden (D.D.C.) in Sumrall v. Ali:

Plaintiff Kimmara Sumrall and Defendant Janine Ali frequently attend protests about the war in Gaza. The problem is that they are on opposite sides. Last fall, Sumrall proudly displayed her Jewish heritage at a protest by tying an Israeli flag around her neck. She alleges that Ali approached her from behind and yanked it, choking her. "If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly." Sumrall asks for a modest stay-away order against Ali so that she feels comfortable continuing to attend pro-Israel protests and counter-protests. The Court grants her preliminary injunction request….

Sumrall has shown that she is likely to succeed on the merits of her 42 U.S.C. § 1981 claim. The statute declares:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens …." …

The parties contest (1) whether Ali purposefully discriminated against Sumrall and (2) whether that action deprived her of the "equal benefit of all laws" "for the security of persons." Neither side questions whether Sumrall is part of a racial minority within the meaning of the statute. See Shaare Tefila Congregation v. Cobb (1987) (holding that Jews are a racial minority protected by § 1981). The Court takes each dispute in turn.

First, Sumrall has sufficiently shown that Ali purposefully discriminated against her on the basis of race. A preponderance of the evidence reveals that Ali likely committed the battery. Officer Bonney's testimony described the event in detail, how Ali committed it, and that Sumrall reacted strongly, clearly, and immediately. He testified that Ali confessed her behavior as he arrested her. Having considered Officer Bonney's demeanor and responses at the recent hearing, the Court finds him to be a highly credible witness. He was the only truly neutral witness who appeared in the criminal trial or at the preliminary injunction hearing.

Meredith Wallace, who testified for the defense at the criminal trial, attended the November protest to support Code Pink. To credit Ali's version of events, the Court would have to assume that both Officer Bonney and Sumrall were committing perjury, even though they have no prior association and Officer Bonney was unconnected to either side.

Granted, as Ali argues, the Superior Court acquitted Ali of simple assault because the evidence did not rise beyond a reasonable doubt. But this Court evaluates a civil preliminary injunction using a lower preponderance standard. After weighing all the evidence before it, the Court discredits Ali's evidence that contradicts Officer Bonney's testimony. So the Court finds that Ali likely committed battery against Sumrall, an "intentional harmful or offensive touching or use of force upon the physical person of another." The evidence shows at minimum an offensive touching—that is, when Ali briefly choked Sumrall by yanking on the flag tied around her neck….

Next, that battery was direct evidence of discrimination that likely would not have occurred but for racial animus…. Purposefully yanking on an Israeli flag tied around a Jewish person's neck to choke them is direct evidence of racial discrimination. The Star of David—emblazoned upon the Israeli flag—symbolizes the Jewish race. Battery, particularly involving a racial symbol, is strong evidence of racial discrimination. It is more severe than "[r]acial slurs or statements" that constitute direct evidence. And targeting the Star of David is as racially motivated as "the highly offensive racial slur, 'n*****,'" which "constitutes direct evidence."

Ali has proffered no "benign" interpretation whatsoever for choking Sumrall and it is hard to imagine one. Her closest argument contends that the Israeli flag represents the state of Israel rather than the Jewish race, so her action is merely anti-Israel, not antisemitic. But it is quite a stretch to say that yanking on a flag tied around someone's neck is an objection to state policies; battery is not a legitimate form of protest.

Ali did not have reason to think Sumrall was herself affiliated with the Israeli government. Rather, it is much more likely that she was intentionally attacking a Jewish person wearing a Jewish flag as a symbol of her racial heritage. As Sumrall's counsel contended at the preliminary injunction hearing, if yanking on a flag emblazoned with the Star of David tied around a Jewish person's neck at a pro-Israel protest is not discrimination, "I don't know what is."

Finally, Ali contests that Sumrall's pleading of a state tort is not enough to show a deprivation of the "equal benefit of all laws" "for the security of persons." But Ali's cited cases both explicitly state that § 1981 "provide[s] remedies for a broad range of actions that could be characterized as various state torts." Phillip v. Univ. of Rochester (2d Cir. 2003) ("[T]here is no persuasive reason why racially motivated torts that deprive a plaintiff of the equal benefit of laws or proceedings for the security of persons and property should be outside the ambit of federal authority …."). Sumrall has shown that Ali committed at least one state tort, battery, against her that would not have occurred but for racial discrimination….

Sumrall also has shown that absent narrowly tailored preliminary relief, she will be irreparably harmed…. The Court has already found that Ali likely engaged in assaultive, discriminatory conduct. She has shown no remorse or taken accountability for her battery. More, the parties agree that Sumrall and Ali will be at the same protests again. So the discriminatory harm has a high risk of recurrence. The two women will likely again be in close proximity at emotionally charged events. Sumrall's evidence suggests she will likely endure racially discriminatory comments during a future anti-Israeli protest given Code Pink's extreme rhetoric; and but for a stay away, Ali will be in a position to again assault her.

Allegations of "physical threats" and "stalking behavior" also have supported irreparable harm findings. Sumrall essentially seeks a civil protection order, so the Court finds persuasive the D.C. Court of Appeals' standards governing them…. The D.C. Court of Appeals requires plaintiffs seeking civil protection orders to (1) allege "good cause," or facts showing a "cognizable danger of a recurrent violation" after considering the "entire mosaic of the case"; and (2) "balance the potential harms to the parties," including "[s]afety, and resulting peace of mind." Issuing stay-away orders may be appropriate where one party "has engaged in assaultive or threatening conduct."

The "entire mosaic" of the case includes a battery and, after the civil hearing in Superior Court, a threatening phone call, allegations of unidentified men threatening Sumrall on the street, and idling cars outside her house late at night that fled when she approached. Compl. ¶¶ 39–41 (alleging that a man wrapped in a keffiyeh approached her in the street to say, "I would stab you and leave you dead in the street if I could"). Since these events, Sumrall has "installed upgraded security cameras on her property." Most of these incidents have not been attributed to Ali and, to be clear, the Court is not finding that they are. But Sumrall's allegations betray a reasonable sense of fear for her safety and "peace of mind" that would be assuaged with a modest, three-yard stay away order, at least as to one source of concern. And, again, the parties have agreed that there is a "cognizable danger" that Ali will attend the same protests as Sumrall again….

[T]he history of battery favors an order against Ali; its narrowness ensures both women can still be present at the same event. The parties are "in violent agreement" that they both have First Amendment rights to speak their minds about the war in Gaza. This three-yard order will accomplish that. There is no history of Sumrall seeking out Ali to repel her from events, though a Superior Court five-yard stay-away order has been in place for several months.

The public interest also favors an injunction. Sumrall has alleged that her fear of repeated battery has "chill[ed her] freedom to express herself under the First Amendment in support of Israel." There is a "public interest" in the "promotion of free expression and robust debate." …

Ali contends that Sumrall's expression has not been chilled whatsoever. She proffered a witness and video evidence showing that Sumrall has protested an event at least once since the battery. But a plaintiff need only be "deterred [from] at least some political activity" to show expressive harm. "That the [plaintiff] continued to engage in some political activity does not foreclose their contention that they were deterred from engaging in other activities. A loss is a loss …." Here, too, it is of no moment that Sumrall participated in some protest activity after the battery—and the Superior Court civil stay-away order then in place made her feel safe to protest. A narrowly tailored, three-yard stay away order will preserve the public interest in both parties' expression….

The terms of the stay-away order against Janine Ali are as follows:

Stay at least three yards away from Kimmara Sumrall;Stay at least 100 yards away from Kimmara Sumrall's home and place of employment {Counsel confirmed Ali is familiar with the relevant addresses for Sumrall's home and place of employment, though they are not on the public docket};Have no contact with Kimmara Sumrall by any means whatsoever;Do not communicate or attempt to communicate with Kimmara Sumrall, either directly or through any other person by telephone, written message, electronic message, or any form of social media or otherwise ….

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[Eugene Volokh] Sharp Words from Judge in Google AI Copyright Case

From today's Order Amending Case Schedule by Judge Eumi Lee (N.D. Cal.) in In re Google Generative AI Copyright Litigation:

The parties in this case have helped themselves to more judicial resources than necessary, given the experienced counsel representing each side. Lawyers should vigorously advocate on their client's behalf. But lawyers should also be problem-solvers. Unfortunately, a good deal of the problem-solving work in this case has been shifted to the Court. The latest example of this trend is the parties' inability to compromise on a reasonable extension of the case schedule. See Mot. to Extend, ECF No. 173. The Court did not need six briefs to decide whether to amend the case schedule, but that is what the Court received. See ECF Nos. 173, 182, 189, 193, 195-1, 196. Having reviewed all these papers, the Court GRANTS the motion in part, albeit reluctantly.

"A schedule may be modified only for good cause and with the judge's consent." The good cause inquiry "primarily considers the diligence of the party seeking the amendment." "Good cause will be shown if a scheduling order's deadline 'cannot reasonably be met despite the diligence of the party seeking the extension.'" But "[i]f that party was not diligent, the inquiry should end."

The primary motivation for Plaintiffs' motion to amend the case schedule is the fast- approaching August 8 deadline to move for class certification, which Plaintiffs wish to extend by three months. In many respects, Plaintiffs have not acted diligently to meet this deadline. At the December 18, 2024 case management conference, the Court instructed Plaintiffs to focus their initial discovery efforts on information that is necessary for class certification. The Court set the August deadline as a compromise between the approaches proposed by the parties. If Plaintiffs had focused their efforts, there was enough time to complete class certification discovery in the past eight months. {The Court notes that the plaintiffs in Bartz v. Anthropic PBC, No. 3:24-cv-05417-WHA, moved for class certification less than six months after the initial case management conference.}

Unfortunately, Plaintiffs have wasted time on distractions. First, Plaintiffs improperly amended the class definition to create a fail-safe class, triggering avoidable litigation. In its April 21 order on that issue, the Court warned Plaintiffs that it would "not find good cause for an extension [of class certification deadlines] if the record reflects Plaintiffs' failure to prioritize and diligently advance discovery on issues relevant to class certification." Second, since April, Plaintiffs have wasted time seeking overbroad discovery, failing to prioritize issues relevant to class certification. Remarkably, Plaintiffs now say they would use an extension in part to "negotiate or litigate additional [discovery] disputes"—including disputes over "privilege claims, 30(b)(1) witnesses, production, [and] corporate witness preparedness." More discovery litigation is not good cause for an extension of class certification deadlines.

However, the Court finds good cause for a 45-day extension of Plaintiffs' deadline to move for class certification. This extension provides Plaintiffs additional time to review discovery that Google has produced in the past six weeks, including training data and custodial productions. It appears that Plaintiffs first accessed Google's training data for the generative AI models at issue in early July, and Plaintiffs report some lingering issues. Review of the training data, at least, is plausibly relevant to class certification, and the current schedule does not afford Plaintiffs sufficient time to review that material, given its recent production.

However, the Court does not accept Plaintiffs' representation that a three-month extension is needed. Plaintiffs' request for three months includes time to litigate discovery issues unrelated to class certification, which the Court does not approve. And Plaintiffs could have used the time available to prioritize training data, instead of engaging in discovery skirmishes on ancillary issues. The amended class certification schedule is reflected below.

It is unclear why compromise seems to be so difficult in this case. One potential issue is that Plaintiffs have lacked focus, which is essential to a putative class action of this magnitude. Another potential issue is that Google has been somewhat intransigent in discovery, perhaps due to its view that a class will never be certified.

The Court welcomes creative proposals as to how the Court might align incentives and encourage compromise going forward. The Court is not keen to issue a middle-ground ruling on every dispute presented, which would only incentivize both sides to take extreme positions from the outset.

The Court would prefer not to issue orders like this one. The parties have been told several times that they need to make greater efforts to compromise, yet disputes persist and proliferate. Access to the courts is a public good, and time spent on issues like this one detracts from other important work—including other work in this case.

For the foregoing reasons, the following unexpired deadlines in the Case Management and Scheduling Order, ECF No. 88, are AMENDED as shown below. By August 13, 2025, the parties shall submit a proposed order to amend the other case deadlines through trial, consistent with the amended class certification deadlines below. This is not an invitation to relitigate the general structure of the case schedule or to substantially extend the close of fact discovery. The Court will not consider competing proposals….

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[Eugene Volokh] TRO Orders Removal of Allegations of DMCA Takedown Fraud and of Forged Court Order Submission—but …

[... there had seemingly indeed been suspicious DMCA takedown requests targeting criticism of plaintiffs, though it's not clear whether they were submitted with the plaintiffs' approval.]

The Complaint in Goldstone Financial Group, LLC v. FInanceScam.com alleges that defendant was "actively engaged in a targeted false and defamatory campaign against Plaintiffs, as well as other financial industry professionals. Under the guise of journalism, FinanceScam floods the internet with Artificial Intelligence (AI)-generated defamatory content incorporating Plaintiffs' federally registered trademarks, which it then charges its victims to remove." Here are details on one part of the allegedly defamatory content:

On information and belief, in May of 2025 FinanceScam escalated its campaign against Plaintiffs by beginning to falsely assert that "Anthony Pellegrino and his Reputation Managers are blatantly committing serious crimes in trying to censor information on Google." These accusations are false, disturbing, and are actively and irreparably damaging Goldstone's business and Mr. Pellegrino's reputation.FinanceScam's false criminal accusations against Plaintiffs fall into the "4 methods" it accuses "Reputation Management companies" of using to improperly remove content from the Network."Forging a Court Order." First, FinanceScam falsely asserts that on "13th April, 17th April and 28th April" Mr. Pellegrino "and his reputation managers" "sent a Forged Court Order to our Hosting Company AlexHost), hoping to con them into thinking that a US Court has declared content published at FinanceScam.com and IntelligenceLine.com as Defamatory": [Screenshot of the alleged forged order.]"Using Fake DMCA Notice" and "Hacking our Website." Second, under the heading "Fake Copyright Takedown Notices by Anthony Pellegrino", FinanceScam falsely claims "Anthony Pellegrino paid hackers to hack [Network websites] and remove his negatiev [sic] content . . . . While most were removed after hacking, some remained. To remove the remaining articles from Google Search, he asked the reputation agencies to file fraudulent copyright takedown notices." …

On the strength of this complaint and the motion for a TRO, Judge Sunil Harjani (N.D. Ill.) ordered the removal of the allegations:

Plaintiffs have shown a likelihood of success on the merits of their claims for cybersquatting, trademark infringement, false advertising, defamation per se, false light, and trade libel; …

It is hereby ORDERED that:

[1.] Defendant FinanceScam.com, its officers, agents, servants, employees, attorneys, and all persons acting for, with, by, through, under or in active concert with it be temporarily enjoined and restrained from:

[a.] registering and using any internet domain or social media channel that incorporates Plaintiffs' Marks or any reproductions, counterfeit copies or colorable imitations thereof; …

[c.] publishing, republishing, maintaining, or operating any website, identified in [1-1], that contains statements falsely impugning Plaintiffs' professional integrity or character, or falsely implying or stating they have undertaken illegal, unlawful, unethical, immoral, or otherwise improper conduct; …

Defendant shall, within 2 days of receiving notice of this Order:

[a.] Remove the identified infringing, false, and defamatory content and statements from any domain or website under its control, identified in [1- 1].

[b.] Refrain from re-posting or otherwise republishing such statements.

Yet it does appear that there have been many DMCA takedown requests submitted to Google seeking the deindexing of material about Goldstone Financial. DMCA requests like that claim that a certain site infringes the copyright in a work owned by the submitter. But reviewing the specific requests suggests that in many of them there was no foundation for the copyright claim: In some, for instance, the original URL contains text that seems entirely unrelated to the supposedly infringing text (see, e.g., this DMCA notice, which claims that a FinanceScam page about the plaintiffs infringed a completely different page, https://deathpenaltyinfo.org/federal-judge-orders-jury-trial-on-claim-that-kentucky-exoneree-who-was-threatened-with-death-penalty-was-framed-for-murder). In some others, the targeted URL that the notice sought to vanish is a court filing on PacerMonitor.com or an article in the Cook County Record, a Chicago legal newspaper—also not likely to be infringements of the supposedly infringed items.

As to the alleged court order that was allegedly sent to FinanceScam's hosting company, I checked the relevant court records and it indeed does seem not to be a real order. That doesn't prove that it was indeed sent to the hosting company; I e-mailed the hosting company, and was told that they can't comment on my query. I e-mailed FinanceScam.com, and they stated that they had indeed received the order, and forwarded me details on it, but I appreciate that this is just one litigant's statement.

I e-mailed plaintiffs' lawyer twice about this, plus plaintiff Global Capital (cc'ing the lawyer) once, and got no response. And the fact that someone was apparently submitting unfounded DMCA requests that seemed aimed at vanishing material that reflected negatively on the plaintiffs makes more credible that there was also a forged order sent aimed at doing the same. (For more on such forged orders, of which I've seen over a hundred by now, see Part II of my Shenanigans (Internet Takedown Edition).)

The FinanceScam people also sent me copies of what appeared to be their correspondence with plaintiffs' lawyer. As I understand it from that correspondence, the plaintiffs' position is that they weren't the ones who sent the DMCA takedown requests or the court order, and didn't authorize anyone to do so. ("Goldstone was not involved, associated, or aware of" the order, and "has no knowing affiliation with" any submitter of the DMCA requests.) And FinanceScam apparently isn't intending to spend the money, time, and effort needed to fight the case, so I don't expert there will be any discovery here that would yield further information.

Still, I think this highlights the potential dangers of courts quickly ordering the deletion of allegations that may well have some truth to them. Someone appears to have submitted (from 2023 to 2025) dozens of seemingly unfounded DMCA requests aimed at vanishing material seemingly critical of Goldstone Financial. That someone might have been just some prankster, or perhaps even an enemy trying to frame plaintiffs (though this would have been a long campaign for that). But the submitter might also have been a "reputation management company" hired by plaintiffs, whether or not the plaintiffs were aware of the precise tactics the company was going to use. At least that seems like a plausible opinion for defendants to have formed based on what they could see of the DMCA requests.

Finally, I should note that plaintiffs' allegations that defendants have behaved badly in other ways may well be correct. My concern here is simply about the order removing the DMCA / court order allegations.

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