Eugene Volokh's Blog, page 58

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

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

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

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

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

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

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

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

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

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

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

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

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

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

whether it was false ….'"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Judge Katsas raised the Donziger problem.

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

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

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

From Prof. Alan Rozenshtein at Lawfare:

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

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

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

Read the whole thing here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is how Judge Katsas sees the issues:

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

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

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

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

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

Here is how Judge Rao sees the issues:

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

The Wall Street Journal (Joseph De Avila) reports:

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

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

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

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

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

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

[* * *]

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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