Eugene Volokh's Blog, page 54

[Jonathan H. Adler] Maryland Can Tax Internet Advertising, But It Cannot Prevent Advertisers from Disclosing Cost of Tax

[The U.S. Court of Appeals for the Fourth Circuit rejects Maryland's attempt to hide the consequences of its internet advertising tax.]

On Friday, in Chamber of Commerce v. Lierman,the U.S. Court of Appeals for the Fourth Circuit concluded that Maryland's law barring internet advertisers from disclosing the costs of Maryland's internet advertising tax to their customers, or passing through those costs, violates the First Amendment. Judge Richardson wrote for the court, joined by Judges Floyd and Heytens.

Judge Richardson's opinion begins:

In 1765, the British Parliament imposed a novel tax on the fledgling colonies in North America. The Stamp Act was reviled because it taxed most everything written on paper, from playing cards to newspapers. This not only cost people money but jeopardized their ability to speak on matters of public concern. John Adams roused Massachusetts against the tax, calling it an "enormous Engine . . . for battering down all the Rights and Liberties of America." 1 The Adams Papers 263 (L.H. Butterfield ed., 1961). Thousands of citizens protested when the dreaded stamps arrived in Charleston harbor, besieging the stamp officers in Fort Johnson for nine days. D.D. Wallace, Constitutional History of South Carolina From 1725 To 1775 at 32–33 (1899). And across the colonies, outrage about the tax prompted the colonists to begin developing the arguments that would later form the Declaration of Independence. See generally Daniel Dulany, Considerations on the Propriety of Imposing Taxes in the British Colonies (1765). In more ways than one, the Stamp Act and other taxes like it ignited revolution.

Two and a half centuries later, the State of Maryland imposed another tax—not on those who print pamphlets but their internet-age successors. This tax applies to the money made by advertising on the internet. But as some things have changed, others have remained the same. It is no less true today than centuries ago that "the power to tax involves the power to destroy." M'Culloch v. Maryland, 17 U.S. (4 Wheat) 316, 431 (1819). And complaining about taxes remains a grand American political tradition.

Perhaps fearing such complaints, Maryland paired its tax with another rule. Companies that make money advertising on the internet must not only pay the tax but avoid 3 telling their customers how it affects pricing: No line items, no surcharges, no fees. If companies pass on the cost of the tax, they must do so in silence—keeping customers in the dark about why prices have gone up and thereby insulating Maryland from political responsibility.

That provision is the subject of this appeal. Plaintiffs, a group of trade associations, challenge Maryland's rule on grounds that it abridges their freedom to speak. They say Maryland has no reason, other than insulating themselves from criticism and political accountability, to forbid them to explain the tax to their customers. We agree. As much today as 250 years ago, criticizing the government—for taxes or anything else—is important discourse in a democratic society. The First Amendment forbids Maryland to suppress it.

Key to the court's analysis is its conclusion that, in operation, the Maryland law regulates speech--what companies tell their customers about the prices they charge--more than conduct. The court does not resolve whether the law regulates purely commercial speech, but concludes that such an analysis is unnecessary because the law could not survive intermediate scrutiny.

The opinion concludes:

The states are free to make controversial policy. That is part of our federalist bargain. See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). But with that freedom comes constraint. States may not forbid regulated parties to talk about their regulations unless they withstand First Amendment scrutiny. Maryland's pass-through provision does not.

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[Jonathan H. Adler] Goldsmith's Sense and Edsall's Nonsense about the Supreme Court (Updated)

[A New York Times column on the Supreme Court offers a misleading picture and errant analysis.]

Last week, Thomas Edsall penned a column for the New York Times, "The Supreme Court Has Finally Found a President It Likes," arguing that the Supreme Court's conservative majority "has become a key enabler of President Trump's agenda." The column repeated (albeit in somewhat exaggerated form) common critiques of how the Supreme Court has handled requests for extraordinary relief from the Trump Administration, and in the process painted quite a distorted picture of the Court and its actions. (For my prior take on these questions, see here and here.)

Harvard law professor Jack Goldsmith, in his latest Executive Functions post, "Sense and Nonsense about the Supreme Court Interim Orders," takes aim at the Edsall piece, and some of its most severe distortions. As Goldsmith notes, Edsall frames his entire piece with Adam Bonica's claim that the Supreme Court is in "open conflict with the lower courts," siding with the Trump Administration in 93.7 percent of cases while district courts ruled against the administration 94.3 percent of cases. Nonsense.

"There are many things wrong with these numbers," Goldsmith notes. For starters, Bonica cherry-picks numbers, looking at different time periods and sets of cases to calculate the numbers. Further, Bonica takes no account of the fact that neither set of cases is neutral; both are the result of strategic choices by the litigants. As Goldsmith notes, the Trump Administration has only sought Supreme Court review of a small fraction of adverse district court orders.

the Supreme Court is ruling only on cases where the Solicitor General thinks (among other variables) that the lower court reasoning is relatively weak. When Bonica says that the Supreme Court "reverses almost automatically," he is ignoring the crucial fact that the Court sees only a fraction of lower court rulings, and then only ones that are skewed for likely government success.

The real percentage of district court orders reversed by the Supreme Court remains in single digits. "This is not open conflict."

If one wants to fairly assess the extent to which the Supreme Court is at odds with lower courts, one also has to account for forum shopping in the district courts. Just as the Trump Administration is carefully choosing which orders to challenge, those challenging the Trump Administration have been very selective about where to file suit. Thus it is no accident that the vast majority of nationwide injunctions entered against the administration were issued from just five judicial districts. Writes Goldsmith:

Bonica and the New York Times are committing a variant of the empirical analysis sin of "testing on the dependent variable": they draw sweeping conclusions from a subset of cases that is small, highly unrepresentative, and unexplained.

Things do not get better when Edsall tries to attribute the Supreme Court's behavior to an unprincipled and inconsistent application of unitary executive theory. As Goldsmith notes, Edsall uncritically swallows Professor Joseph Fishkin's (false) claim that President Trump is the first President to try and fire the head of an independent agency.

We are not in uncharted waters. And the Trump administration is not "the only modern president to really try" to fire heads of independent agencies. The Biden administration did so too, and first. The Biden administration did not, as Fishkin says, "respect[] the laws Congress passed in this area." As I wrote in the Times in May: "Mr. Biden extended the Supreme Court's unitary executive case law to fire the statutorily protected commissioner of the Social Security Administration." Biden also fired other for-cause-protected agency members in disregard of congressional statutes and in reliance on Supreme Court unitary executive decisions.

Edsall's discussion of the unitary executive theory is also a bit confused insofar as he applies it to the debate over nationwide injunctions in cases that concern the scope of executive power, and the scope of courts' equitable authority, and do not directly implicate the extent to which the Executive Branch is unitary. The extent to which executive power (whatever its scope) must ultimately be subject to the President's direction and control has relatively little to do with whether district courts have the equitable power to issue universal injunctions and grant relief to parties not before the court.

In his Executive Functions essay, Goldsmith also addresses the claims that the Court is enabling the Trump Administration "to do destructive things" and should do more to explain its interim orders. On the first point, Goldsmith thinks "it is too early to say where the Court will come down on the scope of the president's unitary executive powers in Trump 2.0," and notes that some decisions (such as Braidwood) do not fit the pattern, but also acknowledges that some of the Court's decisions have "enabled Trump to change the reality on the ground in the executive branch in ways that will not be easily reversible, if at all, no matter what the Court does later." I largely agree, though I do not fault the Court for this so much as I fault Congress, as it is legislative inaction and obeisance, more than anything in the judiciary, that is empowering the Trump Administration.

On whether the Court should do more to explain its interim orders, I largely agree with Goldsmith's take, which is more nuanced than that presented by Edsall.

 There is nothing illegitimate or new about the Court not explaining interim orders, even important ones. Interim orders are not final judgments. They resolve the "interim status of the law" during the months or years of adjudication in a case until final disposition by the Supreme Court. More explanation on interim rulings can help the Court convince the public that it is properly applying law to fact (though the explanations of its application of the interim order test often fail to persuade simply because the test is so indeterminate).

But I doubt the critics would be pleased with the more elaborate explanation for rulings they do not like. And there are tradeoffs. Mainly: the more the Justices write, the more they prematurely lock themselves in on the merits down the road, and the more they handcuff the lower courts via vertical precedent.

Edsall's column might have been better had he considered the views of a wider range of academics  and commentators (and perhaps considered that a survey of like-minded views from academic echo chambers is not always the best way to reach an informed judgment). Though to be fair, I was among those from whom Edsall solicited input before writing the column. I noted some of the above points, directed him to my prior writing on the subject, and (at his request) recommended that he reach out to others like Goldsmith to inform his take on the subject. Edsall may not have found my comments persuasive, or my recommendations helpful, but taking account of them might have helped him avoid some of the mistakes and misrepresentations in his column.

UPDATE: Over at Election Law Blog, Professor Richard Pildes notes the Edsall article embraces a "flatly wrong" and "disturbingly incorrect" claim made by Bonica about how the Court has approached the unitary executive theory in recent years. Notes Pildes, "the Roberts Court has had a clear commitment on the unitary executive branch theory for many years and it's been consistent about that – for better or worse."

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

[Cruise ships, sham interviews, and our nation's commitment to a government of laws.]

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

New cert petition: In 2015, NYC purportedly issued a citation to IJ client Serafim Katergaris for a code violation (a missing boiler inspection report) committed by the prior owner of his house in Harlem, a violation that did not show up in the title search. Serafim would like to argue that the city's code-enforcement system, which makes it impossible to challenge fines like his, violates due process. But he never received the 2015 citation and didn't find out about it until years later—too late to sue, according to the Second Circuit. In a holding that departs from other circuits, the court treated the federal common law "mailbox rule" not so much as a rebuttable presumption of receipt but as an ironclad one. We're asking SCOTUS to bring harmony back to the circuits.

New on the Short Circuit podcast: Sixth Circuit dissental drama.

On January 20, 2025, President Trump issued an executive order freezing foreign aid spending. Recipients of the aid sued, alleging that the President was unconstitutionally violating the separation of powers by withholding the appropriated funds. District Court: And here are three reasons why I'm preliminarily enjoining the President's actions. D.C. Circuit (over a dissent): And here are three reasons why the plaintiffs don't have a cause of action.The Trump administration has canned over 80 percent of the workforce at the Consumer Financial Protection Bureau and has ordered remaining employees not to do any work that isn't expressly required by statute. D.C. Circuit: And the plaintiffs might have challenged those individual decisions, but instead they chose to challenge the administration "shutting down" the agency, which isn't a final action, so we won't hear it. Dissent: "The notion that courts are powerless to prevent the President from abolishing the agencies of the federal government that he was elected to lead cannot be reconciled with either the constitutional separation of powers or our nation's commitment to a government of laws."Police find spent shell casings and not much else after shooting in D.C. As it happens, a pole camera (part of an unrelated investigation) snagged video of the shooter, who'd fired into the air and stepped back inside a home. A search of the home yields the defendant and copious contraband. D.C. Circuit: No need to suppress the pole-camera evidence. But: "We do not suggest that pole-camera surveillance could never amount to a Fourth Amendment search. In another case, the technology might be used over longer periods, with more cameras, or in combination with other tools—such as facial recognition, automated tracking or artificial intelligence—to build a far more comprehensive portrait of an individual's life."Employing a variety of skeevy artifices, college track coach obtains naked selfies from student athletes, over 50 women in all—images that are now floating around the internet. First Circuit: No reason to disturb his above-guidelines, five-year sentence for cyberstalking and wire and computer fraud, a sentence that is all the more reasonable because he continued to seek nudes while on pretrial release.Et in Acadia … cruise ships? Bar Harbor is a popular tourist destination in Maine and gateway to the majestic Acadia National Park. In the mid-2000s, the town began soliciting cruise ship tourism—too successfully, according to some residents: In 2022, the town enacted an ordinance capping disembarkments at 1,000 passengers/day. Tourism-reliant businesses sue, arguing, inter alia, a Dormant Commerce Clause violation. The district court ruled for the town. First Circuit: That's mostly fine, but on remand, take a harder look at whether burdens on interstate commerce are clearly excessive in relation to the ordinance's putative benefits. Affirmed in part, vacated and remanded in part.New York's adult-use marijuana rollout has been rocky thanks to fights over how to dole out scarce retail licenses. Its first program—limited to N.Y. residents—went up in smoke in 2022 after a court found it likely violated the Dormant Commerce Clause. The follow-up program let out-of-staters apply—but tripled the odds of approval for low-income residents of disproportionately impacted communities who (or whose close family member) had a New York marijuana conviction. Another lawsuit followed. The lower court held that the DCC doesn't apply because marijuana is federally illegal. Second Circuit (over a dissent): The DCC's "familiar rule" banning state protectionism applies even in this "strange circumstance." The lower court must take a clear-eyed and full-hearted look at the injunction request. Vacated and remanded.2019: E. Jean Carroll sues Donald J. Trump for defamation. 2020: Attorney General certifies Trump was acting in official capacity while making defamatory statements, so U.S. should be substituted as defendant. 2023: Following appeals, new AG decides actually Trump wasn't acting in official capacity. 2024: Jury verdict for Carroll, Trump appeals. 2025: New new AG decides first AG was right. Second Circuit: You can't go to trial, lose, and then try this substitution maneuver anew on appeal.The "Rooney Rule" requires NFL teams to interview at least two minority applicants for each coaching position. But what if, allegedly, the interviewer is a "completely disheveled" John Elway who arrives an hour late and seems hungover? Plaintiff, a former NLF coach: Then it's a sham interview, and I have a claim for racial discrimination. NFL: Except under your old employment contract you agreed to arbitrate these claims. Second Circuit: But there needs to be a neutral arbitral forum, and the contract just leaves everything up to the discretion of the NFL Commissioner, which makes it a sham. The case may proceed.Allegation: Prediabetic prisoner in New Jersey federal pen is denied appropriate medication; suffers agonizing pain; develops suppurating sores, ulcers, and eventually an infection that spreads to the bone. His toe has to be amputated. Third Circuit: There exists an administrative remedy process (of "dubious" effectiveness), and that's an end to it. Concurrence: Other circuits allow constitutional claims like this one to proceed, and they have the better approach.In this peculiar case where both sides agree there was no jurisdiction for a federal court to hear this lawsuit in the first place, the Fourth Circuit provides us a treatise on standing and declaratory judgments.American Federation of Teachers challenges executive order giving DOGE access to member information held by the Department of Education and other agencies that the Federation alleges is protected by the Privacy Act. The district court grants a preliminary injunction. Fourth Circuit: Reversed. To show a likelihood of success, Plaintiffs would need to prevail on four separate issues, and even if they're likely to prevail on each issue, when you multiply those probabilities, they're unlikely to prevail overall. This might be called a "multiplicative problem." Dissent: It's hard enough to get a preliminary injunction without bringing math into it.After a trip to the Texas Supreme Court, the Fifth Circuit again approves, over a partial dissent, a San Antonio maintenance plan for 343-acre park that calls for removing trees and deterring cormorants from a 20-by-30-foot area that is sacred to the Lipan-Apache Native American Church—but will cease to be sacred without trees and cormorants.Allegation: Louisiana gerrymandered its 2022 legislative maps to dilute the voting strength of black voters in violation of Section 2 of the Voting Rights Act of 1965. District court: Twenty-five districts were either cracked or packed, so no elections under these maps until they're fixed. Fifth Circuit: Affirmed, as Louisiana did the bad stuff. Moreover, Section 2 has a private right of action, as we've already said (a split from the Eighth Circuit), and it's constitutional.Another week, another unpublished Fifth Circuit undismissal of a prison-conditions case, this one involving allegations of purposeful sleep deprivation, pest infestations, filthy cells, ringworm and scabies, burning-hot (literally) showers, etc. etc.Houston officials: Sure, it would be a taking if we deprived property owners of all economic value in their land, and, yes, our own expert says our rules make it economically impossible to do anything useful with this land right now, but it still has some value because maybe someday, in the future, that could change. Fifth Circuit: These guys are real-estate developers, not Little Orphan Annie. If there's no value today, that' s a taking.Auctioneers speak pretty fast, but not fast enough to render a licensing law that prevents unlicensed people from engaging in a "sales transaction" into a First Amendment violation, says the Sixth Circuit.Family buys isolated, wooded, 40-acre parcel in northern Michigan for family gatherings. In addition to the small cabin already there, they install five prefabricated "mini-cabins" for family members to use. Neighbor gets deeply perturbed, thinking that the family is poised to operate a public campground, and he escorts three gov't officials onto the family's land to peer into the mini-cabins, measure the setbacks, take photographs, and do other generally intrusive things. Sixth Circuit: And at summary judgment, the district court rightly denied the officials qualified immunity for their clearly established Fourth Amendment violations.Did you know there are approximately 175,977 privately, and lawfully, owned machineguns in the Great U.S. of A? Learn that and other machinegun facts from the Sixth Circuit as a guy in Memphis who fired at cops while trying to evade a traffic stop loses his quest to vindicate his Second Amendment rights.What happens when a federal agency issues a regulation, Congress rejects it under the Congressional Review Act, but then later on the agency re-adopts the regulation again? Enjoy the discussion between the Sixth Circuit majority (this particular FCC reg survives) and dissent (the reg is way too much like the old one) as a rare example of CRA jurisprudence.Two Indiana kids have serious medical conditions, requiring around-the-clock care ordinarily provided by healthcare professionals. But their families have been unable to secure in-home nurses, so for several years, the kids' moms have served as their nurses. At first, Indiana reimbursed the moms through Medicaid, including for providing "attendant care services" like assistance in eating, bathing, etc. But then Indiana changes its mind: No more reimbursements for those services. Moms: This change will force us to institutionalize our kids! Seventh Circuit: Under the Americans with Disabilities Act, the district court wasn't wrong to issue a preliminary injunction requiring Indiana to keep paying the moms until in-home nurses are secured.Chicago man spends nearly five years in jail before being acquitted of murder, robbery. Seventh Circuit: If you get acquitted, you can't sue the police for fabricating evidence, at least under the due process clause.Forrest City, Ark. firefighter posts to his personal Facebook page an anti-abortion image that some view as racially offensive. (See for yourself following the second paragraph of the opinion.) Though he deletes it a few weeks later, the mayor fires him for its "egregious nature." Eighth Circuit: A jury gets to decide if the firing was because the image impacted the city's ability to administer public services or because the mayor just didn't like the picture.Eighth Circuit (over a dissent): It probably violates the First Amendment for Minnesota prison officials to bar plaintiff from offering an optional, Bible-based course to inmates about "authentic manhood" where manhood can only be achieved via heterosexual relationships, women are to blame for creating "soft" males, etc. etc. Denial of PI reversed.You learn as a first-year law student that there's no such thing as taxpayer standing in federal court. (Unless you're suing about religion, obvs.) Well, that's true at the federal and state level, but there actually kind of is taxpayer standing at the municipal level, as the Eighth Circuit points out in a case involving a Minnesota school district.Eighth Circuit (en banc): Arkansas's ban on gender-transition procedures for minors is constitutional under Skrmetti. Its ban on referrals for gender-transition procedures for minors doesn't violate the First Amendment, because we're interpreting it to apply only to formal referrals for treatment by in-state providers who are already prohibited from providing that treatment.In which the Ninth Circuit holds that would-be religious day cares lack standing to challenge a California rule prohibiting state-licensed day-care facilities from forcing the tykes under their care to attend religious services to which their guardians object because California regulators have never enforced the rule against an openly religious day care (presumably because parents sending their kids to openly religious day cares are okay with religious services at the openly religious day care).And in en banc news, the Sixth Circuit will not reconsider its decision that a Michigan school did not violate the First Amendment when it told a third grader to remove a hat that said "COME AND TAKE IT" with an AR-15 outline just three months after a mass shooting at a nearby high school. Every judge on the Sixth Circuit agrees that the case should not be heard en banc, and yet they still have quit a lot to say about it.And in more en banc news, the Sixth Circuit will not reconsider its decision allowing a lawsuit to proceed against officials in Benton Harbor, Mich., whom plaintiffs allege covered up problems with lead in the drinking water. One judge dissents from denial of rehearing, prompting another judge to decry the growing prevalence of dissents from denial, causing yet a third judge to point out that the second judge has written plenty of dissents from denials herself.And in further en banc news, the Ninth Circuit will not reconsider its decision approving a $17 mil jury award for back pay to civil detainees at privately run immigration detention center for violations of Washington State minimum-wage requirements. Dissental: "Under this court's decision, any State can impair any federal policy—no matter how central to the federal government—so long as the State regulates federal contractors rather than the federal government itself."

New zoning case: In Albuquerque, N.M., it is illegal to sleep in public spaces, and the city clears thousands of homeless encampments each year. It is also as-good-as illegal to sleep on private property, as red tape makes it nearly impossible for even well-run organizations to provide safe, clean, and dignified overnight shelter. So this week, IJ has gone to court on behalf of bookstore owner Gil Kerley, who was fined for allowing a few homeless people to pitch tents in the back of his parking lot as long as they respected the property, his neighbors, and his customers—an arrangement that has worked just fine since it started during the pandemic. Click here to learn more.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Follow-Up re: Alleged Discrimination at the University of Oregon Law Review

Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this follow-up item to an earlier post. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to get a copy of the investigative report or other related material from the University of Oregon, but have gotten nothing other than a copy of the initial complaint; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.

From Prof. Raban:

As reported here on May 12, in February this year the University of Oregon received a complaint charging unlawful discrimination at the University Oregon Law Review. The Review rejected an article by an Israeli professor—who also teaches in the U.S.—because she is a faculty member at  Tel Aviv University.. The editors' sense of impunity was such that the discriminatory decision was put in writing. When another editor raised the alarm about the legality of the action, a high-ranking member of the law school administration was consulted and then approved the discrimination. Today, six months after the University received the complaint about this discrimination—which allegedly violated a slew of laws and regulations—no known adverse action has been taken against anyone involved, and the high-ranking official is still holding her prominent position at the law school.

Moreover, in response to my most recent inquiry, the University's Office of Investigations and Civil Rights Compliance informed me that the results of the investigation will be kept secret because "The outcome of the process implicates confidential employee information that we are typically prohibited from sharing."

Is that so? In 2016, when the University of Oregon opened an investigation into a blackface episode involving a law school professor (who in fact ineptly advocated for racial equality), the University released the full report of its investigations, issued public condemnations, and publicized its punitive actions against the professor—all while explaining that academic tenure protections prevented her firing.

In sharp contrast, the University of Oregon is presently engaged in a pattern of stonewalling and refusals to address complaints of unlawful anti-Jewish and anti-Israeli harassment and discrimination on campus. This may be unsurprising, given that University of Oregon officials are often themselves the perpetrators of such acts.

As already noted, a high ranking law school official authorized the discrimination at the University of Oregon Law Review; and this year no less than six university departments and centers joined to invite to campus a  speaker who celebrated the October 7 attacks and denies Israel's right to exist.

When a complaint was filed about this officially-organized and sponsored event with an antisemitic speaker who endorses terrorism (when we cut through the speaker's lip service to respectability), the University appointed an examiner who concluded that there was no reason to even open an investigation. Her conclusion relied on the claim that the Jewish and Israeli students who joined the complaint (and reported being ostracized and harassed in their classrooms and dormitories as a result of the university-created atmosphere on campus)—did not actually attend that speaker's event … as if that should matter. (Indeed what Jewish or Israeli student would want to attend such event?)

In the meantime, examples of unaddressed misdeeds by university officials and others continue to accumulate. Materials celebrating the October 7 attacks and calling for the elimination of the Jewish state are distributed on campus from University-owned and -operated office spaces. One such pamphlet decries efforts aimed at at a two-state solution by protesting (in the obscure vernacular typical of such political manifestos):

This effort aims to depoliticize the fighter through the offer of reintegration into the social and economic order administered by the Palestinian Authority. This tactic seeks to erase the space carved out by resistance. The negotiation is premised on unraveling the wager that the fighter has already made—a wager on death, on ethics, on unknown horizons of politics.

Such materials, which echo the position of the terrorist organization Hamas and call for the violent eradication of Israel, are distributed to students from offices at the University of Oregon's principal Student Center—despite repeated complaints about the matter.

As for the attempt to bury the investigation at the Oregon Law Review: The University of Oregon—a public educational institution entrusted, among other things, with educating the next generation of American lawyers—is engaged in a blatant cover-up of seemingly unlawful actions perpetrated by students and administration officials at the law school. What kind of a message does this send to America's future lawyers and judges? What are University of Oregon law students to think when their own university acts lawlessly?

In his recent commencement address, University of Oregon president Karl Scholz sanctimoniously called on the graduating students to "stay true to [their] values." We are left to hope that their values are different than his.

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[Ilya Somin] My New Bulwark Article on Trump's Unconstitutional Export Tax

[The article explains why the policy is unconstitutional, but also why it is unlikely to be challenged in court in the near future.]

Composite image

Today, The Bulwark published my article on Trump's unconstitutional export tax policy. Here is an excerpt:

The Trump administration has imposed a "deal" on chip manufacturers Nvidia and AMD under which they are required to pay the U.S. government 15 percent of revenue earned from computer chip sales to China. Nvidia will do so on sales of its H20 chip, while AMD will be required to pay that percentage of sales of its MI308 chip. This arrangement is likely unconstitutional and sets a dangerous precedent for unilateral executive imposition of taxes without legislative authorization. But it may not be challenged in court anytime soon.

Article I, Section 9 of the Constitution states that "No Tax or Duty shall be laid on Articles exported from any State." The Supreme Court has interpreted this broadly to require "not simply an omission of a tax upon the articles exported, but also a freedom from any tax which directly burdens" exports. Trump's appropriation of 15 percent of the two firms' revenue from chip sales to China surely qualifies as such a tax.

The Supreme Court has held that the Export Clause "does not rule out a 'user fee,' provided that the fee lacks the attributes of a generally applicable tax or duty and is, instead, a charge designed as compensation for government-supplied services, facilities, or benefits." But the payments imposed on the two chip manufacturers pretty obviously aren't user fees, as they are not charges for the use of any government facilities or services…..

The fact that the payments are part of a "deal" with the Trump administration also does not make them constitutional. The executive cannot impose an otherwise unconstitutional tax merely because it has reached an agreement to do so, in this case in exchange for authorizing export licenses. Otherwise, the government could impose taxes in exchange for a variety of discretionary decisions. For example, it could require payment of extra taxes in exchange for providing military protection against foreign attack, law-enforcement protection against criminals violating federal law, and much more. Part of the point of giving the power to tax to the legislature instead of the executive is precisely to prevent this kind of extortion….

The imposition of this unconstitutional export tax must be viewed in the context of Trump's broader effort to usurp the power of taxation from Congress with respect to international trade. He has also tried to illegally use the International Emergency Economic Powers Act of 1977 (IEEPA)—a law that does not even mention tariffs—to impose the most extensive tariffs since the Great Depression, potentially costing Americans trillions of dollars in tax payments…

Blocking the executive from usurping the power of taxation was a major concern of the Framers of the Constitution, who recalled the "Ship Money" abuses of King Charles I, which helped precipitate the English Civil War. Like King Charles, Trump is abusing emergency and national security powers to try to impose massive taxes unauthorized by the legislature, except that in the case pf Trump's export taxes, the written Constitution explicitly forbids his taxes. In that respect, Trump is even more abusive than King Charles was…

Unlike in the case of the IEEPA tariffs, Trump's illegal export tax may not be challenged in court, at least not in the near future. To file a lawsuit, plaintiffs must have "standing." Among other things, that requires them to demonstrate that they have been "injured" by the defendants' illegal actions. The most obvious injured parties in this case are the two chip exporters. But they appear to have decided to accept the "deal" offered by the administration rather than risk again being barred from exporting chips to China entirely.

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[Eugene Volokh] No Emotional Distress Liability for Science Camp Exposing Fifth-Graders to "Gender Identity Related Discussions"

From Sandoval v. Pali Institute, Inc., decided Wednesday by California Court of Appeal Judges Thomas Delaney, Joanne Motoike, and Maurice Sanchez:

After returning home from a multiday overnight science camp run by defendant Pali Institute, Inc. (Pali) and organized by their public school district, plaintiffs sued Pali and the school district for intentional infliction of emotional distress and negligent infliction of emotional distress based, in part, on their exposure to gender identity related discussions while at the camp….

While in fifth grade, at 10 and 11 years old, plaintiffs attended an overnight science camp arranged by their public school district and run by Pali. After returning from the four-day camp, plaintiffs sued the school district and Pali for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).

The complaint alleges plaintiffs "were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns.' They further asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity." It further alleges plaintiffs had to sleep in a dormitory with only one camp counselor and that counselor identified with they/them pronouns. When they allegedly asked to call their parents to discuss these matters, camp counselors did not let them due to a Pali policy prohibiting students from calling home while at camp.

{[Plaintiffs'] declaration set forth a more detailed account of what the daughter said occurred at camp. According to the declaration, the counselors "aggressively introduced themselves with their preferred pronouns and threatened the children with disciplinary action if they failed to use the[ ] pronouns correctly."

The daughter felt scared and asked to call home, but that request was denied repeatedly. In doing so, the counselor "belittled" the daughter's feelings as "'stupid.'" When peers tried to comfort her, the counselor "scolded" them and sent them back to bed, "further exacerbating [her] feelings of isolation and fear." The daughter was later denied some "privileges granted to the other campers," such as being able to drink soda. When the daughter returned home, the mother observed "the negative effects of the camp experience on [her]," such as developing a phobia of being alone and not wanting to sleep alone. For these reasons, the daughter started professional therapy with her grandfather.}

As part of their IIED cause of action, plaintiffs allege Pali's actions "were intentional, extreme, and … done with the intent to cause emotional distress or with reckless disregard of the probability of causing plaintiffs emotional distress." And as part of their NIED cause of action, they allege Pali owed them a duty of care "to ensure [they] were not exposed to foreseeable harms." Both causes of action allege Pali's conduct caused them severe emotional distress.

The court concluded that the part of the claims based on the gender identity discussions and preferred pronouns should be dismissed under the California "anti-SLAPP" statute, which provides for early dismissal of claims based on speech on matters of public concern (to oversimplify). The claims based on "Pali's policy of not allowing students to call home while at camp," "allegations concerning sleeping arrangements and the failure to disclose information about camp counselors," and "harassment of the daughter" "unconnected to the subject matter of anything that took place at camp" were apparently not subject to the anti-SLAPP challenge and may still go forward. An excerpt from the analysis:

IIED has three elements: "'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; [and] (3) … actual and proximate causation of the emotional distress by the defendant's outrageous conduct.'"

Here, the IIED cause of action is generically pled, incorporating by reference factual allegations stated elsewhere in the complaint to supply, for example, the acts which plaintiffs claim were extreme and outrageous and caused severe emotional distress. Those allegations include the following: "[p]arents were in no way informed that sexual matters or LGBTQ issues would be taught at Pali and their consent was not obtained"; "[w]hile present at Pali, … [plaintiffs] were introduced to camp counselors of unknown and ambiguous gender who identified themselves with 'they/them' third person pronouns and asked the students in attendance their 'preferred pronouns'"; the counselors "asked students to state their 'preferred pronouns' and taught students various matters pertaining to transgendered identification and sexual identity, all of which were of an age-inappropriate character, were not consented to by plaintiffs' parents and/or guardians and would not have been consented to, had parents been informed"; plaintiffs "requested to call their parents to discuss what had happened but were prohibited [by] camp personnel from doing so"; "Pali's policy prohibited students from calling home while at Pali."

The focus of these allegations is the counselors' actions involving the gender identity subject matter, meaning those actions are at least part of the allegedly outrageous behavior on which the IIED cause of action is based…. [Likewise], the complaint's introduction … states plaintiffs' parents sent them to camp "based on the representation and belief that they would receive education consistent with the Western values with which they were raised at home," and says Pali "pulled a bait-and-switch[ ] [by] instead subjecting [plaintiffs] to instruction of a sexual character, focused on LGBTU [sic] issues with which [they] were unfamiliar and psychologically unprepared to process." …

Although a fair interpretation of the complaint leads us to conclude there are IIED claims which arise from the gender identity related protected activity, it simultaneously confirms plaintiffs also appear to seek to impose IIED liability based on Pali's alleged policy of not letting students call their parents. Plaintiffs expressly represent that claim has no connection to gender identity related matters. And although not in the complaint itself, the mother's declaration raises the specter of harassment of the daughter. To the extent these claims—including any alleged emotional distress—are unconnected to the subject matter of anything that took place at camp, they do not arise from protected activity. Thus, they may not be stricken pursuant to the anti-SLAPP statue. Whether such claims are legally viable and, if so, whether plaintiffs will be able to demonstrate liability, are matters not before us and properly left for another day….

The second step of the anti-SLAPP analysis [once it is shown that the claim is brought based on speech on matters of public concern] requires evaluating whether a plaintiff has met its burden of demonstrating the claims which arise from protected activity are legally sufficient and factually substantiated….

The tort of IIED applies only to outrageous conduct. "Outrageous conduct has been defined as conduct that is 'so extreme as to exceed all bounds of that usually tolerated in a civilized community' [citation] and 'so extreme and outrageous "as to go beyond all possible bonds [sic] of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."'"

Whether conduct qualifies as outrageous is usually a question of fact, but a court may determine in the first instance whether, as a matter of law, alleged conduct may reasonably be regarded as so extreme and outrageous as to allow the matter to proceed to a trier of fact. And, in the negligence context, the question of duty is a threshold issue of law for the court.

Based on our protected activity analysis, the alleged conduct which we must evaluate here is the exposure of 10 and 11 year olds to gender identity related discussions in a public school setting and the provision of such exposure without parents first being informed. Plaintiffs provide no argument or legal authority explaining how such conduct could be sufficiently outrageous to support an IIED cause of action …. In contrast, we find existing California public policy precludes such potential liability….

As Pali points out, the California legislature has made clear its position that gender identity is a characteristic to be protected and safeguarded, and discrimination based on it should not be tolerated in schools or otherwise. Construing conduct which consists of engaging in gender identity discussions aimed at establishing a more inclusive school environment as outrageous or a breach of a duty of care would run directly counter to that established state policy.

Because the claims arising from the gender identity related protected activity are neither factually substantiated nor legally sufficient, they must be stricken from the complaint….

For similar reasons, the court threw out the negligent infliction of emotional distress claim as well (again, to oversimplify).

Justice Delaney added:

Having authored the majority opinion, I also write separately to express additional thoughts concerning the legal sufficiency of plaintiffs' intentional and negligent infliction of emotional distress claims that arise from gender identity related protected activity. I believe the liability they seek to impose is legally unavailable for reasons beyond a mere conflict with state legislative policy.

As aptly stated by another court in declining to allow a winemaker's defamation claim grounded in a comedian's alleged insinuation that the winemaker's wines were popular with African Americans, "[c]ourts will not condone theories of recovery which promote or effectuate discriminatory conduct." Stated differently, "the law cannot, directly or indirectly, give [private biases] effect."

Opening the door to emotional distress tort liability based on school setting discussions of gender identity aimed at establishing a more inclusive school environment would cast a dark shadow over a matter through which people seek to express their subjective, deep-core sense of self. It would convey a message of intolerance of those perceived as different, and it would work to foster discriminatory attitudes towards them.

As history teaches us, even though such biases may nevertheless persist in society, the law simply cannot give effect to them. (See, e.g., Palmore v. Sidoti (1984) [potential pressures and stress on minor child from living with stepparent of different race due to private racial and ethnic biases may not factor into custody determination]; Shelley v. Kraemer (1948) [declaring judicial enforcement of real property racially restrictive covenants unconstitutional]; Castaneda v. Olsher (Cal. 2007) [refusing to recognize tort based duty of landlord because doing so would likely result in arbitrary discrimination on basis of various protected characteristics]; Polygram Records, Inc. v. Superior Court (Cal. App. 1985) [refusing to recognize defamation theory that would effectively promote racially discriminatory ideas]; Simmons v. American Media, Inc. (Super. Ct. L.A. County, 2017) [concluding mislabeling person as transgender cannot constitute libel per se and refusing to validate private prejudices against transgender individuals by legally recognizing them]; Greenly v. Sara Lee Corp. (E.D. Cal. 2008) [statements wrongly labeling coworker as homosexual cannot be defamatory per se and concluding otherwise would demean lives of homosexual persons]; Albright v. Morton (D. Mass. 2004) [analogizing evolution of societal views of homosexuality with that of race and concluding wrongfully identifying someone as homosexual cannot be defamatory per se].)

The importance of adhering to this fundamental principle, which courts across the country have applied for the greater part of a century, cannot be underscored enough under the circumstances. "[F]oster[ing] an environment of inclusivity, acceptance, and tolerance … serve[s] an important educational function for [all] students. When a school promotes diversity and inclusion, 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting [because] the students have the greatest possible variety of backgrounds.' Students in diverse learning environments have higher academic achievement leading to better outcomes for all students…. [A]nd[,] inclusive classrooms reduce prejudices and promote diverse relationships which later benefit students in the workplace and in their communities."

I would find plaintiffs' claims arising from protected activity to be legally nonviable for this additional, critically important reason….

My view: The court erred, I think, in focusing on the particular views being promoted and concluding that they are endorsed by California public policy and therefore actionable; that suggests that the relevant torts are viewpoint-based speech restrictions, allowing liability for some viewpoints (ones that are seen as "outrageous" and aren't endorsed by California public policy) but forbidding liability for other viewpoints. Rather, the court should have just relied on Snyder v. Phelps (2011), which holds that the First Amendment protects the expression of opinions on matters of public concern, even when they are seen as outrageous and severely emotionally distressing. And I think that principle—and especially its viewpoint neutrality requirement—generally applies to speech to children and students as well as speech to adults.

Disclosure: I knew Andy Wexler, the founder of the Pali Institute (who I assume still owns it) socially, when I lived in the Pacific Palisades; but I haven't discussed this case with him, and in general haven't been in touch with him for more than five years (and likely closer to ten).

Lisa Perrochet and Mark A. Kressel (Horvitz & Levy) and Sonali Olson and Sherri Matta (Olson Law Group) represent the Pali Institute.

The post No Emotional Distress Liability for Science Camp Exposing Fifth-Graders to "Gender Identity Related Discussions" appeared first on Reason.com.

[Eugene Volokh] No Sanctions Against Joshua Wright in His Now-Terminated Defamation Lawsuit Against His Sexual Misconduct Accusers

From Tuesday's opinion by Manuel A. Capsalis (Va. Cir. Ct. Fairfax County) in Wright v. Landry (a case that has been covered in several posts on this blog):

Plaintiff Joshua Wright is a former professor at George Mason University Antonin Scalia Law School …. He was distinguished for his scholarship and served as the Executive Director of the Global Antitrust Institute. He also managed a private consulting business, Plaintiff Lodestar Law and Economics …. In the summer of 2023, he resigned from his post at the Law School.

While a professor, he had romantic relationships with students. Allegations of sexual misconduct were brought to light by former students, Defendant Elyse Dorsey and Defendant Angela Landry. They publicly accused him of sexual harassment and sexual misconduct in addition to reporting the allegations to a Title IX investigator.

Wright does not dispute that he had an ongoing sexual relationship with Dorsey and Landry while they were students at the Law School. He claims that the relationships were consensual, lasting far beyond their graduation. Dorsey and Landry disagree with Wright's characterization of the relationship, citing the power imbalance between teachers and students.

Public discussion about this matter ensued. Law360, among other media outlets, published articles. Wright subsequently brought a lawsuit against Defendants. He claimed that their allegations of misconduct were false which tarnished his reputation and caused him substantial financial harm. The lawsuit contained a count of tortious interference, several counts of defamation, and counts of statutory and common law conspiracy. Plaintiffs prayed for a total of $108 million worth of damages in addition to injunctive relief prohibiting the publication or republication of the alleged defamatory statements.

Parties litigated this case extensively until Dorsey settled with Plaintiffs, and a nonsuit was taken on the eve of trial against Landry.

Landry moved for sanctions, basically claiming that the tortious interference claim and its damages demand were frivolous; but the court said no:

A tortious interference with business expectancy or contract claim requires:

(1) the existence of a valid contractual relationship or business expectancy;

(2) knowledge of the relationship or expectancy on the part of the interferor;

(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and

(4) resultant damage to the party whose relationship or expectancy has been disrupted.

In this case, Plaintiffs and their counsel … had a reasonable belief to plead that Landry tortiously interfered.

Prior to any complaint being filed in this case, and before the first media coverage, Parties were embroiled in a Title IX investigation. At the direction of GMU, an investigator interviewed students. University officials questioned Wright. Parties even attended mediation. Throughout this time, Plaintiffs contend that they developed the belief that Landry and Dorsey were acting together.

On August 14, 2023, the Law360 article was published. Featured commentary was provided by Landry and Dorsey. As pleaded, Wright believed that his suspicions were confirmed that Defendants were working together and sharing information with each other. His over a million-dollar portfolio of business dissipated; Plaintiffs then pleaded that both Defendants were to blame…..

A more nuanced basis, independent of Defendants working together, also exists. Defendants individually shared a relationship with Wright that is inextricably intertwined with his business dealings. For example, Dorsey previously worked at Wright's company, Lodestar. Landry also discussed professional matters with Wright. Both Defendants, at one point or another, consulted Wright when making career decisions. The connection between Defendants, Plaintiffs' business, and the losses, provided a means for Plaintiffs to plead tortious interference ….

Whether Plaintiffs may ultimately prove their tortious interference claim against Landry is not for the Court to decide at this time. For the purposes of the present Motion, Landry must show that Plaintiffs and their counsel could not have formed a reasonable belief, after conducting a reasonable inquiry, that the pleadings [were factually and legally well-founded]. Based on the evidence received, this Court finds that Plaintiffs met the standard to allege a tortious interference claim against Landry. …

Landry also argues that… the amount [of damages] sought—$108 million—is unsupportable. The figure, she claims, caused her to needlessly increase the costs of her defense. Plaintiffs, on the other hand, argue that the ad damnum clause is merely to put Defendants on notice of the amount of damages sought. The amount pleaded, Plaintiffs point out, does not guarantee recovery in full; damages are a matter that should be argued at trial.

Plaintiffs are correct. Virginia Supreme Court Rule 3:2(c)(ii) requires the plaintiff to provide "the amount of damages sought." This is to provide the defendant "notice of the size and amount of the claim against her as she is entitled to notice of its nature." The rule, however, does not require a plaintiff to plead more than a lump sum of damages. In any event, a plaintiff may not recover more than the amount pleaded….

Wright testified at the hearing that he spoke with his attorneys about how he believed he was damaged. He stated:

I told, to the best of my recollection, what I told Mr. Cross was that I conferred with my counsel. I described each of the contractual relationships that Lodestar had or that I had individually, what I expected in my experience for those relationships to grow over time or stay the same, the future expectancy with those businesses and the nature of those relationships, how long I expected for those relationships to continue. And then I provided those figures and contracts and that additional qualitative information to my counsel, who put together the complaint.

Wright's testimony indicates that there were pre-filing discussions with counsel and that the damages figure was properly pleaded. Sanctions will not be imposed under these circumstances….

The court also rejected Landry's claim for attorney fees under the Virginia anti-SLAPP statute, which provides for such fees when a tort claim based on speech on matters of public concern is thrown out:

{Landry moved to dismiss the following statements on demurrer:

127. Specifically, in the context of her sexual relationship with Mr. Wright, Defendant Landry falsely stated that he "emotionally abused and manipulated [her] until he got what he wanted."

128. She falsely stated that she "does not believe she would have been in a relationship with him" absent the power dynamics, which is intended to convey that he subjected her to a nonconsensual relationship.

The Court overruled the demurrer as to paragraph 127 and dismissed paragraph 128 with prejudice.} …

Colloquially known as the Virginia Anti-SLAPP Statute, Virginia Code Section 8.01-223.2 was enacted to "weed out and deter lawsuits brought for the improper purpose of harassing individuals who are exercising their protected right to freedom of speech." …

In this case, the Court cannot impose Anti-SLAPP fees for four reasons: (1) the defamation count survived demurrer; (2) the statement was not dismissed pursuant to the statute because it was not even raised on demurrer; (3) this Court cannot now impose an additional ground of dismissal when two motions addressing the issue were already adjudicated; and (4) dismissal of any part of the lawsuit pursuant to the immunity is now moot…. A nonsuit ends the litigation. The day Plaintiffs exercised their statutory right to voluntarily dismiss the case, Landry filed the instant Motion. To the extent that the Motion requests that the immunity apply now, the Court will deny the Motion as moot. The litigation has ended. No finding of immunity can be made….

Jason C. Greaves, Stephen B. French, Lindsay R. McKasson, Benjamin North, and Parker Bowman (Binnall Law Group) and Jennifer Little (Jennifer Little Law) represent plaintiffs.

The post No Sanctions Against Joshua Wright in His Now-Terminated Defamation Lawsuit Against His Sexual Misconduct Accusers appeared first on Reason.com.

[Eugene Volokh] Lawsuit by Hunter Biden's Lawyer Kevin Morris Against Conservative Activist Garrett Ziegler Can Go Forward

[The remaining claims are for impersonation and portraying Morris in a false light by quoting out of context.]

In yesterday's California Court of Appeal decision in Morris v. Ziegler, written by Justice Judish Ashmann-Gerst, joined by Justices Elwood Lui and Victor Chavez:

Morris's claims arise from allegations that defendants impersonated a Democratic fundraiser to obtain personal information about Morris's client, Hunter Biden (Biden), and the then-emerging political and legal controversy surrounding his laptop (the Biden laptop)….

Ziegler worked as a political aide and White House staff member during President Donald Trump's first administration. In 2020, Ziegler transitioned to a private-sector career as an activist, publishing online exposés about President Trump's political opponents and their associates.

In July 2021, Ziegler founded Marco Polo, which he describes as "a research group whose mission is to expose corruption and blackmail." Ziegler distributes his exposés through Marco Polo's Web site, as well as its associated pages on various social media platforms.

Morris is an attorney. In 2019, he began representing Biden, the son of then-President Joseph Biden….

In May 2022, several news outlets reported that Morris was financially supporting Biden. On May 19, 2022, Ziegler—using the name of a major fundraiser for the Democratic party, Jon Cooper (Cooper)—began texting Morris for information about Biden. Believing that "Cooper" wanted to help Biden, Morris gave him "information and analyses" about the Biden laptop.

On May 29, 2022, "Cooper" texted an image of a cartoon purple squid perched atop planet Earth, circled by the words "Marco Polo" and "NOTHING IS BEYOND OUR REACH." He then texted that Morris "ha[d] given us plenty. Thank you!" Morris immediately began referring to "Cooper" as "Garrett[,]" apparently realizing that he was actually communicating with Ziegler.

Morris and Ziegler then began antagonizing each other over text. At this point, Ziegler demanded that Morris "immediately cease and desist any and all further threats and/or harassing messages, communications and [similar] activities of any kind[,]" and informed Morris that he would "document[] all communications for potential civil, criminal, and historical purposes."

Morris responded with a series of insults and invectives, including the following threat of legal action: "We have 8 [Southern District of New York (SDNY)] prosecutors on our team. [¶] All this took was a phone call. [¶] 8 lawyers with 10 + years as [Assistant United States Attorneys] in SDNY… . [¶] … [¶] You're going to prison and we're going to get all of the money your family has and you will work for us for the rest of your life. [¶] You'll come to my house everyday and wash my car. [¶] … [¶] … We will follow you to the ends of the earth." …

Within roughly 75 minutes of sending the initial "Marco Polo" image to Morris on May 29, 2022, Ziegler posted a screenshot of the message on social media.

The following day, Ziegler posted additional portions of his text message conversation with Morris on Truth Social, saying that he "[j]ust got threatened by … Biden's attorney and fixer, … Morris."

Ziegler also distributed Morris's address and phone number to his social media followers; shortly after telling his followers about "MPolo's first move[,]" Ziegler said that "[w]e will be sending our Report" on the Biden laptop "to Morris at his home[,]" and solicited people to hand out flyers about Morris near his home. On the internet messaging service Telegram, users in Ziegler's feed suggested that they could help by calling and texting Morris en masse, and driving to his home. A few said that they had already begun calling him.

In October 2022, Marco Polo published a 644-page report about the Biden laptop. The report, which was widely reported on, included excerpts of Ziegler and Morris's text exchange, as well as photos of Morris and his family members.

Morris alleged that after these publications, he was "continually harassed via phone calls by numerous different people[,]" and feared people "driving past his houses."

The court rejected Morris's claims for violation of the California criminal doxing statute, on the grounds that this particular statute doesn't provide a civil remedy. (There's now a civil doxing statute in California, but it only became effective Jan. 1, 2025.) The court likewise rejected Morris's tort claims for civil harassment, on the grounds that the California harassment statute provides only a special form of injunctive relief, and not damages. But the court allowed Morris's claim for impersonation to go forward:

As relevant here, section 529 of the Penal Code provides criminal liability for "[e]very person who falsely personates another in either his … private or official capacity, and in that assumed character" "[d]oes any other act whereby, if done by the person falsely personated, he might … become liable to any suit or prosecution … or whereby any benefit might accrue to the party personating, or to any other person."

Morris met his burden of demonstrating minimal merit on this claim. Morris alleged—and provided text messages to support—that Ziegler contacted him, pretended to be Cooper, and used that guise to obtain private information….

Defendants also argue that Morris's criminal impersonation claim should fail for the same reason as his doxing claim—namely, that the claim is based on a violation of a penal statute that does not provide a private right of action. However, defendants did not raise this argument below. And their arguments on appeal are conclusory, comprising roughly six sentences across the appellate briefs and lacking any analysis of the statute's text or legislative history.

The court also allowed Morris's false light claim to go forward (together with Morris' related intentional infliction of emotional distress claim); a false light claim essentially requires knowingly or recklessly false statements that are highly offensive to a reasonable person:

Morris alleges that defendants selectively published his text messages to create the false impression that Morris baselessly harassed defendants to chill their scrutiny of him and his powerful political associates. To that end, Morris submitted screenshots of multiple social media posts; in these posts, Ziegler accused Morris of threatening him and published a handful of Morris's text messages without context (i.e., that Ziegler provoked Morris's outbursts by impersonating Cooper for weeks to obtain confidential information)….

The bombastic text messages are highly offensive, as is the implication that Morris improperly wielded his money and influence to silence political opponents. And because defendants both participated in the original text thread (as described above), they knew—or, at the very least, recklessly disregarded—the false impression that would be created by publishing the messages without context.

These facts sufficiently establish that Morris's false light claim has the minimal merit required to survive an anti-SLAPP challenge….

Defendants only challenge Morris's IIED [intentional infliction of emotional distress] claim by reprising their unsuccessful false light arguments, contending that Morris failed to show actual malice. (See Reader's Digest Assn. v. Superior Court (Cal. 1984) [if "based upon the same facts as [a] cause of action for libel[,]" IIED claim against a public figure requires a showing of actual malice].) For the same reasons described above, their IIED argument fails….

The post Lawsuit by Hunter Biden's Lawyer Kevin Morris Against Conservative Activist Garrett Ziegler Can Go Forward appeared first on Reason.com.

[Josh Blackman] What Matters On The Shadow Docket? The Merits or the Equities?

[Justice Kavanaugh thought NetChoice would win on the merits, but "the balance of harms and equities" did not favor allowing the injunction to go into effect.]

In CASA v. Trump and Labrador v. Poe, Justice Kavanaugh explained that the most important element in emergency applications is whether the movant is likely to succeed on the merits.

But in NetChoice v. Fitch, Justice Kavanaugh found that an injunction was not proper, even though he thought NetChoice would prevail on the merits.

I concur in the Court's denial of NetChoice's application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. See Response in Opposition 37–39. To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members' First Amendment rights under this Court's precedents. . . . In short, under this Court's case law as it currently stands, the Mississippi law is likely unconstitutional.Nonetheless, because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court's denial of the application for interim relief.

How can these cases be reconciled? Perhaps NetChoice simply isn't as important as the issue in CASA. This case involves a state law, rather than a "major new federal statute[] or executive action[]." And because this is a state law, there are no concerns about national uniformity for the "interim before the interim." (Sort of like the shirt before the shirt.) In other words the state has an interest in enforcing, at least for now, what Kavanaugh sees as an unconstitutional speech restriction. I suppose if Mississippi takes any enforcement action, tech companies can rest assured they will prevail on appeal. Then again, Labrador was also a state case. I should remind everyone, once again, that the Fifth Circuit is to the right of the Supreme Court.

Like in CASA, I appreciate that Justice Kavanaugh is breaking the fourth wall, and explaining to us why the Court is doing what it is doing. I don't know that I fully understand the distinctions. And there is no actual discussion of the equities--just a citation to a few pages of the response brief. But that is more analysis than the other members of the Court are providing. And would it really burden Justice Kagan to write something short about her decision after complaining about unreasoned emergency docket orders?

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