Eugene Volokh's Blog, page 47

[Eugene Volokh] FBI Director Kash Patel's Girlfriend Sues Ex-FBI-Agent Online Commentator Over Allegations That She Was an Israeli Spy

From the complaint in Wilkins v. Seraphin (W.D. Tex.), filed yesterday; as always, remember that these are just allegations:

Defendant Kyle M. Seraphin has maliciously lied about Alexis Wilkins, falsely asserting that she—an American-born country singer—is an agent of a foreign government, assigned to manipulate and compromise the Director of the FBI. Defendant, a former FBI special agent himself, who now makes a living as a podcaster and political commentator—profiting on controversy and outrage—is using this fabricated story as self-enriching clickbait and has spread it to his sizable audience that follows his daily broadcasts on X, Rumble, and YouTube. Accordingly, Ms. Wilkins seeks to hold Defendant accountable for his malicious and knowing lies.

The Complaint claims that Seraphin stated this last week on his show:

[FBI Director Kash Patel] has had his own little 'honeypot' issue that's been going on of late, so we're just going to acknowledge it real publicly. He's got a girlfriend that is half his age, who is apparently is both a country music singer, a political commentator on Rumble, a friend of John Rich through Bongino, who also now owns a big chunk of Rumble, and she's also a former Mossad agent in what is like the equivalent of their NSA. But I'm sure that's totally because, like, she's really looking for like a cross-eyed, you know, kind of thickish built, super cool bro who's almost 50 years old who's Indian in America. Like it has nothing to do with the fact that uh we're really close to the Trump administration. Anyway, I'm sure that's totally just like love. That's what real love looks like.

It goes on to argue:

Defendant cannot even claim ignorance or negligence, because he has personally met Ms. Wilkins with Mr. Patel at a conservative political event roughly two years ago, and was specifically aware from that encounter that Ms. Wilkins was in a relationship with Mr. Patel, who was not the FBI director at that time

For more on the earlier iterations of the allegations against Wilkins, see this N.Y. Post article. Should be an interesting case to follow.

The post FBI Director Kash Patel's Girlfriend Sues Ex-FBI-Agent Online Commentator Over Allegations That She Was an Israeli Spy appeared first on Reason.com.

[Ilya Somin] My New The Hill Article: "Abolish ICE and Give the Money to Real Cops"

[It makes the case for abolishing ICE and transferring its funds to state and local police.]

Illustration: Eddie Marshall | ChatGPT

Today, The Hill published my article making the case for abolishing ICE and giving its funds to state and local police. Here is an excerpt:

The Immigration and Customs Enforcement agency has become notorious for its cruelty, abuses of civil liberties and racial profiling. As a result, the agency and the Trump administration's deportation policies generally have become increasingly unpopular.

Yet most Democrats have hesitated to call for its abolition, likely because of fear of seeming to be "soft on crime."

But there is a way out of this dilemma: Abolish ICE and give the money to state and local cops.

ICE's abuses are legion. Its agents routinely detain people with little or no due process, even seizing American citizens and legal permanent residents, as well as illegal migrants…

The ubiquitous use of masks by ICE agents and their refusal to identify themselves and their agency protects them from accountability, ensuring that those targeted often have no way of knowing whether they are being seized by ICE agents, regular law enforcement or common criminals….

The alarming extent of racial and ethnic profiling by ICE is shown by the fact that the agency's arrests in Los Angeles County declined by 66 percent after a federal court order barring the use of these and similar tactics. Conservatives and others who rightly seek a color-blind government must not turn a blind eye to racial discrimination by government agents who have the authority to arrest and detain people….

onditions in ICE detention facilities are often abysmal, featuring overcrowding, inadequate food and denial of needed medical treatment. These conditions are unfit even for the worst imprisoned criminals — and most ICE detainees are far from that. Despite administration claims that ICE is protecting the public against dangerous criminals, 65 percent of people detained as of June had no criminal record, and some 90 percent had no convictions for violent or property crime. Overall, undocumented immigrants have much lower crime rates than native-born Americans….

Growing public awareness of ICE abuses has made the agency very unpopular. Recent survey data indicates that large majorities disapprove of it, and a large minority — almost 40 percent in a recent tracking poll — already wants to abolish it.

Yet most Democrats have hesitated to call for the agency's abolition, probably for fear of seeming to be soft on crime…. But opponents can avoid such accusations by combining abolition of ICE with reallocation of its funds to ordinary police, which would undercut accusations of being pro-criminal or anti-law enforcement. This could greatly expand support for abolition….

In my 2022 book "Free to Move," I proposed dismantling ICE and giving the money to ordinary police, perhaps in the form of federal grants to state and local law enforcement. Recipient agencies should be required to use the funds to target violent and property crime, and abjure ICE-style abuses.

Putting more ordinary police on the streets is an effective way to reduce crime rates, according to a long line of studies….

Focusing on undocumented immigrants is a poor use of law enforcement resources…. Transferring ICE funds to state and local police would allow a greater focus on violent and property crime, regardless of the perpetrators' background….

Abolishing ICE would not end all deportations. State and local authorities could still, in many cases, turn illegal migrants over to the federal government for removal… But abolishing ICE would make deportation much more dependent on state and local cooperation and would empower jurisdictions to make their own choices.

Leaving immigration restrictions more to the states would bring us closer to the Constitution's original meaning. The Constitution does not explicitly grant immigration authority to the federal government, and Founding Fathers such as James Madison and Thomas Jefferson rightly argued that it did not have any general power to bar migrants…..

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] Calling Man with Sex Offense Conviction for Having Sex (When 27) with 15-Year-Old-Girl "Pedo" Is Substantially True

From Baird v. Reyes, decided yesterday by Judge Andrea Wood (N.D. Ill.):

Baird's three-page handwritten complaint … alleges that, on February 14, 2024, Reyes posted on his Facebook page an image of Baird with the text: "If anyone sees this fucking pedo with my kid and baby momma, let me know immediately." …

Here, the Court finds that the facts surrounding his conviction reveal that Baird, as an adult, had a sexual relationship with a minor, and such conduct is commonly associated with the term pedophile. As Baird himself acknowledges, his [1999] conviction for Aggravated Criminal Sexual Abuse arose from his year-and-a-half sexual relationship with a 15-year-old girl when he was 27 years old. As a result of that conviction, he is classified under Illinois law as a "child sex offender." Accordingly, Baird is required to register as a sex offender in Illinois. And the public registry on which Baird is listed is labeled "Child Sex Offender Information." Finally, Reyes's post referring to Baird as a "pedo" was commenting on and included a screenshot of that registration.

{In assessing the substantial truth of an allegedly defamatory statement, the relevant inquiry is whether the "gist" or "sting" of the statement is true. "[I]f the gist of a defamatory statement is true, if in other words the statement is substantially true, error in detail is not actionable."} Viewing all these facts together, the Court concludes that the "gist" or "sting" of Reyes's use of a slang term for pedophile was substantially true….

Baird disputes the substantial truth of Reyes's "pedo" accusation, arguing that he had only a single relationship with a minor teenager who he mistakenly believed to be over the age of 18. Essentially, Baird claims that the specific circumstances underlying his conviction establish that he does not meet the criteria of a pedophile—i.e., an adult with an inherent attraction to children. However, substantial truth in this case does not demand that Baird exactly match the clinical or technical definition of the term.

It is enough that the public would generally understand the term to refer broadly to adults who engage in sexual conduct with minors, with "minor" not limited to just prepubescent children but encompassing anybody under 18 years old. Nor does Baird's subjective but mistaken belief regarding the minor's age change the nature of the conduct established by his conviction or the fact that, based on that conviction alone, Illinois law classifies him as a "child sex offender."

Ultimately, Reyes's use of the word "pedo" reflected Baird's Aggravated Criminal Sexual Abuse conviction and his lifetime registration as a "child sex offender." And Reyes used the word in a post that included a screenshot of Baird's child-sex-offender registration. Those judicially noticeable facts establish the substantial truth of Reyes's statement….

I think this is basically correct. I'm not sure whether, as a psychiatric matter, being sexually attracted to a presumably post-pubescent 15-year-old would quite count as "pedophilia" in the sense of an aberrant psychological condition. Adult men having sex with 15-year-old girls is generally wrong, I think (even though it's actually legal in many European countries and was apparently legal until the late 1800s in many American states, which suggests that there is difference of opinion on the subject even within our general culture). But that's not because it's a sign of psychological abnormality—indeed,  I expect that finding post-pubescent but underage women sexually attractive is quite normal, just as wanting to punch people who say things that offend you is normal or wanting to steal valuable goods is normal: The problem with the behavior is ethical, not psychological. But in the context of characterizing a man's sex offense conviction, I agree that "pedo" is close enough to be substantially true.

UPDAT 8/27/25 10:53 am: Very sorry: Due to an editing error, I had originally said "not to be substantially true" rather than than "to be substantially true" in the last sentence; I corrected that. Thanks to reader Mike Hansberry for pointing this out.]

The post Calling Man with Sex Offense Conviction for Having Sex (When 27) with 15-Year-Old-Girl "Pedo" Is Substantially True appeared first on Reason.com.

[Josh Blackman] Did Collins v. Yellen Lead Trump To Fire Lisa Cook?

[Bill Pulte, the director of the FHFA, could investigate the Federal Reserve because Trump could fire the holdover Biden appointee.]

President Trump purported to fire Lisa Cook, a member of the Federal Reserve Board, for cause. Here, at least, Trump is not asserting an absolute removal power over the Fed. Wilcox said in dicta the Fed was different than the FTC. And I think under the Solicitor General's position in CASA, the federal government would bind itself to the Supreme Court's holdings, as well as reasoning. I'm not sure how that analysis maps on the flag-burning executive order, but that is a topic for another time.

There is an angle of Cook's firing that has not gotten much attention. The alleged cause to remove Cook is that she falsified terms on a mortgage. And who made that allegation? Bill Pulte. Who is Bill Pulte you might ask? The Director of the Federal Housing Finance Agency (FHFA).

That agency should sound familiar. The FHFA was headed by a single director who served a five year term, and could only be removed for cause. Collins v. Yellen (2021) held that the structure of the FHFA was unconstitutional.

Collins was decided on June 23, 2021. That day, President Biden fired Mark Calabria, who was President Trump's appointee to that position. Biden replaced Calabria with Sandra Thompson, who began her five-year term in 2022. Thompson resigned on the eve of the inauguration.

Do you see the connection? Had the Supreme Court upheld the structure of the FHFA, President Biden's nominee would still be in office, serving out her five-year term. And I suspect she would not be investigating potential mortgage fraud for Lisa Cook. But, in reality, President Trump has his own nominee at the head of the FHFA. And Pulte is using his authority to investigate the Federal Reserve.

One Supreme Court case on the unitary executive begets another Supreme Court case on the unitary executive.

Then again, if the Court had upheld the structure of the FHFA, the road to overruling Humphrey's Executor would have been cut short.

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[Paul Cassell] The Ninth Circuit Appoints Berkeley Law Dean Erwin Chemerinsky to Defend a Police Officer's Excessive Force Conviction …

[... and also allows victim's attorney Caree Harper and me to defend the conviction.]

I've previously blogged about the Justice Department's effort to vacate a LA County sheriff's deputy's federal civil rights conviction for using excessive force. After District Judge Wilson of the Central District of California rejected that effort to vacate, both the officer and the Justice Department appealed. And yesterday, the Ninth Circuit appointed UC Berkeley Law Dean Erwin Chemerinsky to defend the judgment below—while also allowing me and co-counsel Caree Harper to file an amicus brief on behalf of the victim supporting the judgment below. The Ninth Circuit's order sets up judicial review of the important issue of whether federal prosecutors have unconstrained power to dismiss federal charges at any time for any reason.

I've previously described the facts of the case, involving a police officer's take-down of bystander, J.H. When she began recording the officer making an arrest on her phone, the officer responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But later Judge Wilson rejected the Department's request for a probationary sentence as too lenient. Instead, he imposed a four-month prison sentence, in light of the officer's clear betrayal of the public trust. Unhappy with that sentence, the Department then moved to dismiss the entire case under Fed. R. Crim. P. 48(a). On behalf of J.H., Ms. Harper and I  objected. And Judge Wilson agreed with our position, denying the the motion to dismiss:

The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all charges—ensuring Defendant serves no time at all. Put simply, the Government disagrees with the Court's sentencing decision and is using Rule 48(a) to erase it. It has even acknowledged that this is its reason for seeking dismissal.

Both the Justice Department and the officer (Trevor Kirk) appealed to the Ninth Circuit, challenging the Judge Wilson's refusal to allow the Department to dismiss the case. Because of the unusual procedural posture with both the appellant and appellee on the same side, no party was defending the judgment below. Ms. Harper and I moved to be appointed as an amicus to defend the judgment below. And yesterday, the Ninth Circuit granted our motion in part.

Relying on the case cited in our brief, United States v. Arpaio, 887 F.3d 979, 982 (9th Cir. 2018), the Circuit noted that an appellate court has "inherent authority to appoint disinterested counsel to represent the position taken by the United States below when the United States refuses to defend its prior position." But rather than appointing us, the Ninth Circuit appointed Erwin Chemerinsky—a well-known constitutional law scholar and Dean of Berkeley Law—to defend the judgment below as the specific Court-appointed amicus.

Presumably the Circuit was concerned that we were not "disinterested" in the judgment below. We represent the victim, who supported a prison sentence for the officer. So, at the same time as it appointed Dean Chemerinsky, the Ninth Circuit also "granted in part" our motion to be appointed amicus curiae to defend the judgment below. The Circuit allowed us to also file an appropriate amicus brief defending the judgment and sentence.

The Ninth Circuit set up a briefing schedule, under which the opening briefs by the Justice Department and Kirk—challenging the final judgment and post-judgment refusal to dismiss—are due on November 5, 2025. The answering brief by amicus curiae Dean Chemerinsky—defending the judgment and order—is due December 5, 2025. My amicus brief for crime victim J.H. is due seven days later. And then Kirk and the Government can reply.

This briefing will address the important question of whether the Government can properly move to dismiss a criminal case—even after the trial judge has imposed a prison sentence. In the district court, the Government advanced the breathtakingly sweeping claim that the public interest is "what the government says is the public interest in this courtroom." Judge Wilson responded: "The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear." Judge Wilson then recounted that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a "leave of court" requirement was imposed for any prosecutor motion to dismiss charges specifically to ensure that the public interest—as determined by a judge—is protected.

Under the Ninth Circuit's order, Dean Chemerinsky as well as Ms. Harper and I will file briefs defending Judge Wilson's decision in December. The issues are important. If the Justice Department prevails, it will have the power to dismiss not only the charge in this case but more broadly any criminal charge whenever it disagrees with the trial judge's sentence. That would dramatically shift sentencing power away from the Judicial Branch to the Executive. I look forward to joining Dean Chemerinsky and explaining why, in cases like this one, judges have an appropriate role to play in reviewing motions to dismiss and ensuring that the public interest is protected.

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[Ilya Somin] Trump's Unconstitutional Plan to Penalize States that Allow Cashless Bail

[His executive order directs the Justice Department to deny federal funds to jurisdictions that use cashless bail for suspects for many types of crimes. The plan is another assault on federalism and separation of powers.]

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President Trump recently issued an executive order directing the Justice Department to penalize jurisdictions that allow cashless bail, by withholding federal funds from them:

On Monday, President Donald Trump, who has called cashless bail a "government-backed crime spree," signed an executive order to end the policy nationwide. The order restricts the allocation of "Federal policies and resources" to jurisdictions and states with cashless bail policies for "crimes that pose a clear threat to public safety and order." It tasks Attorney General Pam Bondi with creating a list of such jurisdictions within 30 days, at which point the federal funds of these jurisdictions may be suspended or terminated.

Like a number of other Trump policies, this is simultaneously an attack on federalism and an attempt to usurp Congress' spending power. Supreme Court precedent - most of it authored by conservative justices - holds that only Congress can impose conditions on state and local governments receiving federal grants, and those conditions must be clearly stated in the statutes allocating the funds. There are a number of other constitutional constraints on grant conditions, as well.

This issue has come up most often with Trump's efforts to use grant conditions to coerce sanctuary cities, which limit state and local law enforcement assistance to federal immigration enforcement operations.  See my Texas Law Review article on the numerous defeats Trump suffered in his first term, on this issue. That has continued with several court decisions ruling against similar attempts to coerce sanctuary cities in his second term (see my analyses here, here, and here).

As noted in my November 2024 post on sanctuary cities and conditional grants,  longstanding Supreme Court precedent holds that conditions on federal grants must 1) be enacted and clearly indicated by Congress (the executive cannot impose its own grant conditions), 2) be related to the purposes of the grant in question, and 3) they must not be "coercive."

All of these constraints apply to Trump's attack on cashless bail, as well. Few, if any, federal grants have congressionally enacted conditions restricting cashless bail. And if we are talking about grants that are not closely linked to law enforcement purposes, imposing such conditions would violate the relatedness requirement. And if Trump wants to pull all or most grants from such jurisdictions, that is likely to violate the admittedly vague "coercion" constraint.

In addition, this is an attempt to insert the federal government in a core traditional area of state and local authority. Few powers are more central to state and local autonomy than control over state criminal law enforcement. I'm old enough to remember a time when conservatives cared about limiting federal intrusion on areas of state autonomy. This is a pretty blatant example.

This order should also be seen in the context of Trump's broader assault on Congress's fiscal authority. The Constitution clearly gives Congress, not the executive, power over taxation and spending. Yet Trump has sought to impose unilateral executive conditions on grants, withheld funds allocated by Congress,  usurped authority over tariffs on a massive scale, and imposed unconstitutional export taxes. This bail measure is yet another usurpation.

The Framers of the Constitution rightly wanted to avoid giving power or taxation and spending to any one man. They remembered the abuses of monarchs such as Charles I. We would do well to heed that wisdom, too.

The courts have, in many cases, curbed Trump's fiscal power grabs. But Congress should also act. Sadly, the GOP congressional leadership has largely either ignored Trump's usurpation of legislative authority or actively applauded them.

Unlike in the case of sanctuary cities, which I have long defended on a variety of grounds, I don't have much in the way of strong views on bail policy, and am not an expert on the subject. But the issue of when to grant bail or deny it is one the Constitution generally leaves to the states, at least when it comes to state crimes. The exception is the Eighth Amendment ban on "excessive" bail, which the Supreme Court construes relatively narrowly.

I will only add that there is a significant civil liberties angle here. In a free society, there should be a strong presumption against detaining or imprisoning people who have not been convicted of any crime. The presumption might be overcome in cases where a suspect poses some grave threat to public safety or cannot otherwise be prevented from fleeing the jurisdiction. But overcoming it should at least require a compelling showing that there is a grave threat or a flight risk. Requiring payment of bail is not as coercive as pretrial detention without bail. But there may be little difference between the two in  cases where the suspect is indigent or does not have ready access to cash.

Trump's executive order defines situations where cashless bail must be banned to include suspects in  custody "for crimes that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism." that covers everything from very serious crimes like murder and rape to very minor ones like public "indecency" and spray-painting an inscription on the side of a building (a type of vandalism).

If the defendant is convicted, time spent in pretrial detention may count against his or her sentence. But that is little consolation if the suspect is acquitted or if they are sentenced to a fine or probation.

In sum, I am not sure what the optimal bail policy is. But there is reason to be wary of sweeping rejection of cashless bail. There is even more reason to be wary of this administration's ongoing assaults on federalism and attempts to usurp Congress's fiscal authority.

UPDATE: I have made a few additions to this post.

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[Eugene Volokh] Can Vanderbilt Student Suspended for Alleged False Accusations Sue Vanderbilt Pseudonymously?

[No, says, a District Court judge.]

From Judge Waverly Crenshaw (M.D. Tenn.) today in Poe v. Lowe, affirming an earlier decision by Magistrate Judge Jeffery Frensley:

[I]n Spring 2022 there were anonymous posts on social media that accused Vanderbilt University student Simon Roe of sexually assaulting women. Roe disputed these accusations and filed a lawsuit for defamation "to 'unmask' those who had posted anonymously about him." Discovery in Roe's lawsuit revealed that fellow Vanderbilt student Poe was one of the posters.

Roe and his father then "demanded Vanderbilt take immediate action" against the posters, and Vanderbilt launched an investigation against Poe for violations of the Student Handbook. Vanderbilt eventually found that Poe violated three provisions of the Student Handbook and other school policies, and the university placed him on academic suspension. Poe challenged Vanderbilt's investigation by suing the university and several Vanderbilt employees ….

[T]he general rule in federal court is that all parties to a lawsuit must use their real names. The Sixth Circuit recognizes that "[u]nder certain circumstances, however, the district court may allow a plaintiff to proceed under a pseudonym[.]" "The key inquiry is whether the [plaintiff's] interest in privacy outweighs the presumption in favor of open judicial proceedings." This standard is difficult to meet, and "[i]t is the exceptional case in which a plaintiff may proceed under a fictitious name." forcing them 'to proceed with insufficient information to present their arguments.'" …

[C]ourts have found that plaintiffs may be compelled to disclose information of the utmost intimacy [which may justify pseudonymity] when they are "victims of sexual assault" or "accused of sexual assault." Those exceptional cases do not apply here, however, because Poe's "claims stem from an allegedly flawed student-misconduct investigation, [and] not from allegations of sexual assault."

There is a meaningful difference between Poe's litigation "position, as the accuser" of a third-party sexual assault, and a case where someone allegedly "had suffered a sexual assault or had been accused of committing sexual assault." Poe "is neither the victim" of sexual assault "nor the accused" in this case, and he "failed to identify a single case where a similarly situated accuser has been permitted to proceed pseudonymously." …

Although the Court does not make light of Poe's history of sexual assault and suicidal ideation, the disclosure of that information alone does not justify his request for anonymity. Indeed, courts have explicitly held that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." The same is true with allegations of attempted suicide. So even if the Court found that Poe's personal experiences with sexual assault and attempted suicide constituted "information of the utmost intimacy," it would still need to conclude that Poe's privacy interests in these matters substantially outweigh the presumption of open judicial proceedings….

Poe next argues that he will face additional psychological harm if he reveals his identity because this case "has already garnered national media attention" and could cast him in a negative light. The Magistrate Judge rejected this argument because "allegations that proceeding publicly would cause [plaintiff] embarrassment and humiliation, standing alone, are not sufficient to justify permitting a plaintiff to proceed under a pseudonym." … [Poe offers] new declarations … that Poe is anxious and fearful that revealing his name may derail his career and life. This emotional stress and anxiety also caused him to suffer negative physical symptoms, such as heart palpitations, rapid breathing, and appearing visibly distressed. The Court has no reason to doubt Poe's symptoms and general fears about associating his real name with his lawsuit, but his concerns about negative publicity do not rise to the level of "psychological trauma … that has prompted courts in other cases to permit litigants to proceed pseudonymously."

These new declarations segue into Poe's next objection, which is that the Magistrate Judge should have found persuasive his "argument about harm to his professional reputation and potential economic injury." Although Poe reinforces these factual concerns in his new declarations, he does not cite any legal authority in support of this argument, let alone distinguish or rebut the Magistrate Judge's list of cases holding that "economic harm and scrutiny from current or prospective employers do not involve information 'of the utmost intimacy.'" …

[T]he Court agrees with the Magistrate Judge's ultimate conclusion as follows:

Plaintiff is not a child, is not challenging governmental activity, is not compelled to disclose information of the utmost intimacy, and is not compelled to disclose an intention to violate the law. Furthermore, Plaintiff's true identity has already been revealed in an associated state-court proceeding thus dispelling much of the speculative risk that Plaintiff alleges he will face if his name is made public in the present case. For these reasons, Plaintiff has failed to provide sufficient justification to show that his privacy interests substantially outweigh the presumption of open judicial proceedings….

Lowe, incidentally, is a Vanderbilt professor who issued the decision in Roe's case; though it rhymes with Poe and Roe, Lowe is her real name. Mark A. Baugh, Ryan P. Loofbourrow, and Katelyn R. Dwyer (Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.) represent defendants.

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[Eugene Volokh] Prof. Kurt Lash Responds to Keith Whittington on Birthright Citizenship

Keith posted yesterday "On the Original Meaning of Birthright Citizenship," discussing his new article on the subject; here's the abstract of the article:

The citizenship clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Building on a recent revisionist scholarly literature, President Trump's executive orders have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.

And here's the closing paragraph of his post:

Sometimes the conventional wisdom is simply correct and efforts at revisionist thinking are misguided. To my mind, this is such a case. A living constitutionalist could readily produce a rationale for the Trump administration's position, but I do not think there is a serious originalist case to be made for it.

Prof. Kurt Lash, who has taken a different view, passed along this response, which I'm glad to publish:

Birthright Citizenship: A short assignment for the serious.

Keith Whittington has posted a new paper on the 14thA Citizenship Clause. Although he thinks there is no "serious original case" for the "revisionist" view adopted by the Trump administration, he does not engage the evidence and arguments that I make in my paper forthcoming in the Notre Dame Law Review. That evidence sharply contradicts his account.

Whittington's approach has become standard among those opposing Trump's EO. These scholars argue that the meaning of the citizenship clause is found in antebellum common law and that the framing and ratification debates should be understood in a manner consistent with what they stipulate was the common law approach. My approach is the opposite. I argue that the original understanding of the citizenship clause is clearly articulated in the framing and ratification debates, that it reflected a view not reducible to older common law approaches, and that they understood the text as imposing the dual conditions of birthplace and allegiance.

Although the issue is bouncing around the lower courts, no court has "seriously" engaged recent originalist scholarship on the framing and ratification debates. That will change, I believe, in the coming months. In the meantime, I plan on staying in the game and defending my claim that Trumbull meant exactly what he said when he declared "what do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."

Critics of the allegiance reading insist that Trumbull's statement is an outlier, that his reference to "allegiance" really meant something other than "allegiance," and that "revisionist" reliance on this statement amounts to cherry-picking. To the degree that these claims are meant to dissuade you from actually reading the evidence, they are a transparent dodge. But the proof is in the pudding. Check the sources!

Hesitant to the read the thousands of pages that I and others are writing on this subject? Fair enough. There is a much faster way to get up to speed on the issue.

As the months go by, I predict this debate will increasingly focus on roughly seven pages in the Congressional Globe. On May 30, the Senate publicly debated a proposed addition of a citizenship clause to the joint committee's draft of the Fourteenth Amendment. In this debate, you will find Howard's opening statement, questions directed to Trumbull (reflecting his prior work on the citizenship clause of the Civil Rights Bill), pushback from other senators, and Trumbull's responses and clarifications. The debate (reported in newspapers) includes analysis of the provision's impact on Chinese immigrants, so-called "Gypsies," members of Indian tribes under Tribal government, and tribal members who refused to live under any treaty-recognized tribal government. The pages are found at Cong. Globe, 39th Cong., 1st Sess., 2890 to 2897.

Not too taxing an assignment. I believe those seriously trying to follow the scholarly debate will find them an eye opener. But, wait, don't stop reading quite yet! Just a bit more. You are now in position to compare how Whittington and I differ in our reading of these critical pages. Whittington presents his analysis at pp. 30-33 of his work. My reading can be found in my article at pp. 50-57. My evidence and arguments, by the by, have been posted at SSRN for months.

Finished? Great. Now let the serious originalist debate begin.

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[Eugene Volokh] Delaware S. Ct. Rejects Defamation Claim Brought by Repair Shop Owner Who Provided Hunter Biden Laptop to Media

[It also rejects Hunter Biden's invasion-of-privacy counterclaim, on statute of limitations grounds.]

An excerpt from yesterday's 24K-word Delaware Supreme Court decision in Mac Isaac v. Politico LLC, written by Justice Gary Traynor:

This is an appeal from a Superior Court opinion and order that dismissed a computer-repair-shop owner's defamation claims against a customer, various news outlets, and a political campaign committee, as well as counterclaims brought by the customer against the shop owner. For the reasons that follow, we have concluded that the Superior Court did not err when it held that the allegedly defamatory statements did not concern the plaintiff shop owner and thus were not actionable….

In the Superior Court, Mac Isaac conceded that the October 19 Politico article was "substantially true," but argued that its headline, which stated that the "Hunter Biden story IS Russian disinformation," was false and defamatory. This decoupling of the headline from the substance of the article was consistent with Mac Isaac's complaint, in which he highlighted that "[s]tudies have shown that many readers browse headlines and do not read the actual underlying article." ….

[But] the article's headline, which is the only part of the publication identified by Mac Isaac as false and defamatory, does not mention Mac Isaac or provide any information from which a reader might think that Mac Isaac was a participant in a "Russian information operation." And the only statement in the article below the headline "of and concerning" Mac Isaac was that he initiated the chain of events that led to the laptop landing in the hands of Rudy Guiliani. That statement was true, and Mac Isaac concedes as much…. No matter how often Mac Isaac claims that the Politico headline "implicated him as being part of a Russian disinformation operation," the text of the headline is not reasonably read in that fashion. To the extent that the headline and the article together concerned Mac Isaac at all, it did so in an accurate and nondefamatory way.

{Our dissenting colleague concludes that allegations concerning earlier publications in the operative complaint "support a reasonable inference that someone following the presidential election and the Hunter Biden laptop story, which was widely reported upon as soon as the story broke, would know that Mac Isaac was the source of the laptop." We note preliminarily that Mac Isaac did not frame his argument in this Court in that way. Instead, in his remarkably short treatment of the Politico article in his opening brief, Mac Isaac cabined his argument to the Politico headline itself and only begrudgingly acknowledged that the body of the Politico article was relevant. He argued: "Plaintiff was damaged by the headline that was published which, as argued throughout the proceedings, implicated him as being part of a Russian disinformation operation. He is referenced in the article but the article itself, while accurate, is tainted by its headline." The first sentence is plainly incorrect; the headline itself did not implicate Mac Isaac at all.

More relevant, however, is whether a reasonable reader who might have identified Mac Isaac as the source of the laptop could reasonably conclude that he was the author of the Russian disinformation. That is the inference we in the majority are not prepared to draw. In our view, it is no more likely that a laptop-repair shop owner is the originator of data found on laptops entrusted to his care than it is that a used-book-store owner is the author of the text in the books on his shelves.} …

We grant that the headline could be read to mean that the former intelligence officials had concluded that the "Hunter Biden story" was in fact Russian disinformation, which they had not so concluded. But a false statement is not defamatory when it does not concern the plaintiff. For the headline to prompt a reader to connect Mac Isaac to the putatively false statement, the reader would have to consult the body of the article, which contains the admittedly accurate statement that "Rudy Guiliani … said he got [the laptop] from a Mac shop owner in Delaware who also alerted the FBI."

Herein lies the fatal inconsistency in Mac Isaac's argument: He has argued throughout this litigation that the headline must be read in isolation, and yet he concedes that the only way readers would know that the headline was "of and concerning" him is if they read the article below, which makes a passing reference to a "Mac shop owner in Delaware who also alerted the FBI." What his argument fails to account for, however, is that to find the reference to Mac Isaac, a reader must delve into the article below, which accurately reports the facts and provides non-defamatory context for the headline….

Mac Isaac's defamation claim against [Hunter] Biden suffers from the same fundamental flaw as his claims against Politico—the statements made by Biden during the CBS interview simply do not bear the defamatory meaning that Mac Isaac ascribes to them…. To summarize, upon questioning that included a brief description of the New York Post article, Biden expressed doubts concerning his ownership of the laptop. But he also posited that the laptop might belong to him. He then offered the possibilities that it was "stolen," "hacked," "or could be that it is Russian intelligence." He did not mention Mac Isaac, though in her questions, the interviewer mentioned that the New York Post article had reported that Biden had "left [it] in a Delaware repair shop in 2019."

Mac Isaac now contends—as he did in the Superior Court—that, by answering the CBS interview questions as he did, Biden "imputed that [he] was involved in one or more crimes, including stealing [Biden's] laptop, hacking [Biden's] laptop, and being part of a plot by Russian intelligence." Even though Biden does not mention him by name or otherwise in the interview, Mac Isaac claims that these statements are nonetheless "of and concerning" him. He contends that, by the time Biden gave the interview in April 2021, he had "become so intertwined with the Hunter Biden laptop story" that a reasonable person could conclude that the statements were "of and concerning" him. We disagree….

The court rejected Mac Isaac's claim against the Biden For President Campaign Committee on procedural grounds. And it rejected Biden's cross-appeal against Mac Isaac for allegedly invading Biden's privacy; the claim was brought too late and therefore barred by the statute of limitations.

Justice Karen Valihura dissented as to the claim against Politico:

Mac Isaac adequately alleged that the Politico headline was a defamatory statement, in other words, that it tended "to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Mac Isaac alleged that the "50 former senior intelligence officials did not state that the Hunter Biden story IS Russian disinformation – that was POLITICO." He alleged that "POLITICO knowingly published the article with a false headline stated as fact about [Mac Isaac] and others involved in releasing the information about the laptop." He alleged that the Politico headline included "allegations that the information published by the NY Post, which POLITICO clearly identifies the information as coming from Plaintiff, was part of a Russian disinformation campaign, thereby directly implying that the Plaintiff [was] part of a Russian disinformation campaign and/or, more specifically, a Russian agent." He alleged that "[f]ormer Director of National Intelligence James Clapper, one of the former senior intelligence officers who signed the public statement, said Politico's October 19, 2020 article 'deliberately distorted' what was said."

He pled that the headline "alleges that Plaintiff committed crimes including (but not limited to) working with Russians to spread 'disinformation' relating to the son of Democratic Party nominee, now President, Joseph Biden, thereby implicating Plaintiff in the commission of a treasonous act by being part of an attempt to undermine American democracy and the 2020 Presidential election." He similarly alleged that "POLITICO's publication of false statements imply that Plaintiff has committed an infamous crime, i.e., treason and/or other crimes against the United States of America by participating in a Russian attempt to undermine American democracy and the 2020 Presidential election." …

These well-pled facts, accepted as true for the purposes of reviewing a Rule 12(b)(6) motion to dismiss, make it reasonably conceivable that Politico's headline that the "Hunter Biden story is Russian disinfo" would damage the reputation and community standing of anyone alleged to have been part of a Russian disinformation campaign to interfere with a presidential election. It is reasonably conceivable that as a publicly known source of Hunter Biden's laptop, and thus the source of the "story" at issue in the headline, the Politico headline implied that Mac Isaac was part of a Russian disinformation campaign. It is reasonably conceivable that being accused of being part of a Russian disinformation campaign would damage Mac Isaac's reputation and subject him to distrust, scorn, ridicule, hatred, and contempt in his community, as well as the loss of his business. In short, Mac Isaac adequately alleged that Politico's headline was defamatory.

[And] Mac Isaac adequately alleged that the Politico headline was "of and concerning" him. Admittedly, this is a close issue. Mac Isaac alleged that the Politico headline included "allegations that the information published by the NY Post, which POLITICO clearly identifies the information as coming from Plaintiff, was part of a Russian disinformation campaign, thereby directly implying that the Plaintiff [was] part of a Russian disinformation campaign and/or, more specifically, a Russian agent."

The Majority views this allegation as a concession that the only way readers would know that the headline was "of and concerning" him is if they read the entire article, which makes a passing reference to a "Mac shop owner in Delaware who also alerted the FBI." But Mac Isaac's acknowledgment that the Politico article identified him as the source of the information was not a concession that he could only be identified through the article's identification of him. Rather, Mac Isaac also alleged that the original New York Post article notified "the public and the media" that the laptop had originated from his computer repair shop. Further, he alleged that later the same day that the article was published, "subsequent to the NY POST's disclosure of [his] identity," other media outlets did identify him, interview him, and write articles about him. These allegations, which should be accepted as true for the purposes of this appeal, support a reasonable inference that someone following the presidential election and the Hunter Biden laptop story, which was widely reported upon as soon as the story broke, would know that Mac Isaac was the source of the laptop.

In view of this reality, Mac Isaac plausibly argues that he "may not have been specifically named in the defamatory statements/publications, but he had become so intertwined with the Hunter Biden laptop story that a common mind, especially a person familiar with Mac Isaac, would find the defamatory statements/publications by the Defendants 'of and concerning' the Plaintiff." {The Majority states that Mac Isaac did not frame his argument in this Court this way. I disagree. [Details omitted. -EV]} Thus, I agree with Mac Isaac that a reasonable reader would have connected these dots even without the identification of Mac Isaac within the body of the October 19, 2020, Politico story—a fact rigidly relied upon on by the Majority.

{I do not think the Majority's analogy of Mac Isaac's computer repair shop to a used bookstore is apt, and Mac Isaac's allegations refute such a notion. Bookstore owners do not take apart books and repair, recover and transfer the contents of the books to hard drives.}

David J. Margules, Lauren R. Russell, and Kaitlin M. Gurney (Ballard Spahr LLP) represent Politico. Joseph M. Turk (Biden for President Campaign Committee) and David J. Burman and John M. Devaney (Perkins Coie LLP) represent the Committee.

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