Eugene Volokh's Blog, page 67

[Jonathan H. Adler] A Supreme Court Course Correction for NEPA

[The significance of the Supreme Court's decision in Seven County Infrastructure Coalition v. Eagle County]

The Supreme Court's decision in Seven County Infrastructure Coalition v. Eagle County was an important step toward reorienting enforcement and implementation of the National Environmental Policy Act (NEPA) in line with the actual text of the statute. As such, it was a rebuke to the expansive lower court interpretations of the statute that had accumulated over the past several decades. I discuss this development, and the significance of the decision, in my latest Civitas Outlook column. It begins:

Congress enacted the National Environmental Policy Act of 1969 (NEPA) to ensure the federal government would consider environmental protection among its priorities. The brief statute imposed a simple requirement that federal agencies consider the environmental impacts of their activities, but imposed no substantive environmental obligations. However modest at its enactment, the burden imposed by NEPA spread like kudzu, fed and watered by expansive court decisions, ensnaring even the most worthwhile projects in years of litigation and delay. Last month, however, the Supreme Court took notice.

In Seven County Infrastructure Coalition v. Eagle County, Colorado (SCIC), the Court concluded that lower courts had overread NEPA's requirements and disregarded federal agency expertise. Writing for the Court, Justice Brett Kavanaugh explained that NEPA, as written, "is a procedural cross-check, not a substantive roadblock" to governmental action or economic development. "The goal of the law is to inform agency decisionmaking, not to paralyze it." Yet, NEPA had become a frequent cause of obstruction and delay for all manner of infrastructure and other projects planned or authorized by the federal government. Observing that this "legislative acorn" had "grown over the years into a judicial oak that has hindered infrastructure development 'under the guise' of just a little more process," the Supreme Court cut NEPA's requirements back down to size. Wrote Kavanaugh: "A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense."

It takes more than a single Supreme Court decision to set things right, but it is a significant step. From the column:

Cutting NEPA's requirements down to size will help facilitate infrastructure and energy development, but Seven County Infrastructure Coalition is no silver bullet. NEPA is but one of many laws deployed against disfavored projects, and unleashing the next wave of energy and infrastructure development will require both administrative reforms and legislative action to lower hurdles and lift road blocks. The courts can only be expected to do so much.

I previously blogged about the decision here and here. Additional recent posts on NEPA nd permitting are here, here, and here.

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[Eugene Volokh] Immigration, Vaccines, and Religion (Oh My)

A confluence of three hot-topic issues, from a Dec. 3, 2024 Department of Homeland Security decision. Note that the claim here is a statutory religious exemption claim, not a constitutional claim under the Free Exercise Clause, though the statute is interpreted in light of the Supreme Court's First Amendment jurisprudence about the kinds of lines courts shouldn't try to draw when it comes to religious beliefs. Note also that this was decided at the end of the Biden Administration, so there's little reason to think that it stems from the Trump Administration's likely more vaccine-objector-friendly position.

Section 212(a)(1)(A)(ii) of the [Immigration and Nationality] Act makes a noncitizen inadmissible to the United States if they fail to present documentation of having received certain vaccinations. Section 212(g)(2) of the Act provides for a waiver of this ground of inadmissibility in certain circumstances, including when the requirement of a vaccination would be contrary to the noncitizen's religious beliefs or moral convictions. USCIS [U.S. Citizenship and Immigration Services] guidance provides that a noncitizen who … seeks [such] a waiver … must demonstrate the following criteria for the waiver to be approved: (1) they are opposed to vaccinations in any form; (2) the objection is based on religious belief or moral convictions; and (3) the religious belief or moral conviction is sincere.

The Applicant, a 13-year-old minor in the physical custody of her father since March 2022, sought adjustment of status to that of a lawful permanent resident …. In support of her application, the Applicant submitted a … Report of Immigration Medical Examination and Vaccination Record, reflecting that she is seeking a waiver of the vaccination requirements based on religious beliefs or moral convictions.

Accordingly, the Applicant … submitted a statement of her custodial parent (father) explaining the basis for objecting to all vaccinations based on, inter alia, their Christian faith, genetic material being in some vaccines, the biblical passage that man was created in God's image, and that biblical references to man being designed perfectly by God. The Applicant's father has not permitted the Applicant to take any vaccinations since he took custody in the United States from the Applicant's mother, who resides in Ukraine, in March 2022.

On appeal, the Applicant presents evidence that she is opposed to all vaccines and that she has not taken any vaccinations since her father became custodian in the United States, including evidence that she withdrew from … High School on account of refusing to take the hepatitis A two-shot series and refusing the chicken pox vaccine. She also presents evidence that she is now home-schooled through an online academy, leaving the high school that required vaccinations.

The Applicant argues that the Director erred in requiring her to prove her faith, state the church or other religion that she is affiliated with, and present scientific evidence or other research supporting the Applicant's conclusion that vaccinations are against her beliefs. She asserts that the Free Exercise Clause of the Constitution does not demand adherence to a tenet or dogma of an established religious sect, relying on Frazee v. Illinois Dep't of Emp. Sec. (1989) ("… we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.") and Thomas v. Rev. Bd. (1981) ("The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner… correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.").

Upon de novo review, we agree that the Director misapplied the requirements for a waiver under … the Act. In addition, the record on appeal now includes new evidence clarifying the Applicant's religious opposition to all vaccinations, directly addressing the deficiency noted by the Director, and specifically showing that the Applicant has not been vaccinated since coming into her father's custody and entering the United States in 2022.

We note that USCIS must assess the Applicant's current circumstances and beliefs to determine if she is presently opposed to all vaccines in any form. The fact that she may have received vaccines as a minor when under her mother's custody and care does not render her ineligible for a waiver … the Act, as we must assess the present sincerity of the beliefs that have led to her declining all vaccines since residing under her father's custody as of March 2022.

Here the decision cited a USCIS policy manual section that provides,

The applicant's objection to the vaccination requirement on account of religious belief or moral conviction may be established through the applicant's sworn statement. In this statement, the applicant should state the exact nature of those religious beliefs or moral convictions and establish how such beliefs would be violated or compromised by complying with the vaccination requirements.

Additional corroborating evidence supporting the background for the religious belief or moral conviction, if available and credible, should also be submitted by the applicant and considered by the officer. For example, regular participation in a congregation can be established by submitting affidavits from other members in the congregation, or evidence of regular volunteer work.

The officer should consider all evidence submitted by the applicant.

The decision then concluded:

The Director has not reviewed the new evidence, which may have an impact on the Applicant's eligibility for a waiver …. As such, we find it appropriate to remand the matter for the Director to consider the new evidence and determine if the Applicant has established that she is currently opposed to vaccinations in any form based on sincere religious beliefs or moral convictions….

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[Stephen Halbrook] Second Amendment Roundup: The Facial vs. As-Applied Quagmire

[Public park bans should be held susceptible to facial challenges.]

The issue has arisen in recent Second Amendment litigation of whether plaintiffs' challenges to restrictions are cognizable facially or only as-applied.  On June 25, the question arose at the Second Circuit's oral argument in Christian v. James, 25-384-cv, an appeal of the district court's upholding of New York's ban on firearms in public parks.  Referring to a prior precedent, the district court wrote: "In Antonyuk, the Second Circuit rejected the plaintiffs' facial challenge on the parks' issue, but recognized a potential distinction between urban and rural parks – to be decided, presumably, on an as-applied challenge."

Like other jurisdictions, New York relies on the Supreme Court's statement in United States v. Salerno (1987) that "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."  Tony Salerno was the "boss" of the Genovese crime family who participated in murder conspiracies.  He thus couldn't exactly challenge the Bail Reform Act as applied himself.

In Christian, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application. But the question is whether the law at issue, not some other actual or theoretical law, can be constitutionally applied based upon the historical record supplied by the government. Indeed, that is the principle that synthesizes the Supreme Court's decisions in Heller and Rahimi.

In Heller, the Supreme Court held that the District of Columbia's ban on possession of handguns was facially unconstitutional under the Second Amendment. The Supreme Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a "facial challenge[ ]." And Heller declared D.C.'s ban facially unconstitutional despite the Court's dicta that a ban on possession of machine guns—presumably including fully automatic handguns—would be permissible. The Court did not reject Mr. Heller's facial claim because D.C. may have been able to ban a subset of handguns through a more targeted statute.

Under Heller, then, the fact that New York (for the sake of argument) may be able constitutionally to ban the possession of firearms in urban parks does not save from facial invalidity New York's ban on the possession of firearms in all parks, any more than D.C.'s presumed ability to ban fully automatic handguns saved from facial invalidity its attempt to ban all handguns.

Rahimi superficially appears to complicate the analysis, as there the Supreme Court invoked Salerno and held that the federal statute banning possession of firearms by a person subject to a domestic violence restraining order is constitutional at least with respect to persons who were determined to pose a threat of physical violence to another and therefore is not facially unconstitutional. But, critically, the statute at issue in Rahimi, 18 U.S.C. § 922(g)(8)(C), did not just happen to sweep up persons against whom such findings had been made, but instead specifically applied to persons subject to two different types of orders: (i) those including "a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child," as well as (ii) those that simply "explicitly prohibit[ ] the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury." As Rahimi held, "the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others." Thus, since subparagraph (i) was consistent with this principle, the Court could uphold Section 922(g)(8) facially without determining whether the statute would be constitutional as applied to orders that satisfied only subparagraph (ii).

Rahimi does not support the facial validity of New York's park ban, because in no circumstance would the government be required to prove as an element of the offense that a person possessed a firearm in an urban park – in other words, there is no separate subsection of the statute that applies specifically to urban parks. For Rahimi to support New York, the state's law would have to say something like, "firearms are prohibited in (a) urban parks, and (b) all other parks." But New York did not adopt that statute, and its general ban on guns in parks is therefore facially unconstitutional.

This exact same issue came up in LaFave v. Fairfax County, which I argued in the Fourth Circuit on May 7.  Fairfax County's public parks consist of mostly woodlands twice the acreage of Manhattan.  The County argued "not invalid in all circumstances" because tiny parts are used for schools and playgrounds.  But the County banned guns in all of the public parks, not in discrete segments it deemed "sensitive."  Not to mention that guns are separately banned in schools by laws specifically on point.

The bottom line: The Supreme Court in Heller held that D.C.'s ban on handguns was facially unconstitutional despite the fact that the District may have been able to draft a valid, narrower statute that outlawed only a subset of handguns (i.e., fully automatic handguns). Similarly, the Second Circuit in Christian should hold that New York's parks ban is facially unconstitutional, even if the State may have been able to draft a valid, narrower statute that outlawed firearms in only a subset of parks (i.e., urban parks).

And note that this is in no way inconsistent with Salerno: because a general ban on firearms in parks is unsupported by history, such a ban is invalid in all of its applications, just as a general ban on handguns is invalid in all of its applications. Of course, I disagree with the premise that history does support banning firearms in urban parks, but for the reasons explained here the Second Circuit need not reach that question to hold the State's ban on guns in all parks facially unconstitutional.

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[Eugene Volokh] Jewish Professor's and Students' Lawsuit Against USC Dismissed

The plaintiffs just withdrew the case, though their counsel reports that they plan to refile in the next two weeks with additional allegations. For now, I thought I'd post about the March opinion in the case by Judge Fernando L. Aenlle-Rocha, in Doe Jewish USC Faculty Member 2004 v. USC, which dismissed an earlier version of the Complaint:

Plaintiffs … bring claims relating to protests on Defendant's campus … regarding the Israel-Hamas war. Plaintiffs … allege Defemdant "invited, encouraged, aided, abetted, permitted, allowed, and subsequently appeased, enabled and negotiated with violent, sword and other weapon-wielding, Jew-hating Hamas-supporting campus terrorists antisemites … who infiltrated and overtook its Los Angeles campus … setting up tents and occupying [Defendant's] property under the [Defendant]'s watchful eyes."

Plaintiff Faculty Member brings this action in an "individual capacity as a Jewish USC Professor who suffered damages and harm as a result of [Defendant]'s conduct and as a representative on behalf of all other similarly situated Jewish Professors."  Plaintiff Student sues "individually and on behalf of all others similarly situated."

The court rejected all of plaintiffs' claims:

Violation of Bane Act (Cal. Civ. Code § 52.1)[:] Plaintiffs allege Defendant violated the Bane Act by interfering with their right to practice freely their religion while on the USC campus. The Bane Act provides a civil cause of action against anyone who "interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of [California][.]"

Further, the plaintiff "must show the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts. Speech is insufficient to establish the requisite threat unless it includes a threat of violence." Additionally, a defendant must have the "specific intent to violate a constitutional right." …

Here, Plaintiffs do not allege plausibly a violation of the Bane Act, as they do not allege Defendant threatened, intimidated, or coerced Plaintiffs into believing that, if Plaintiffs practiced their religion on the USC campus, Defendant would commit violence against them. To the contrary, Plaintiffs allege the protestors threatened them and Plaintiffs reasonably believed the protestors would commit violence against Plaintiffs if Plaintiffs exercised their faith.

While Plaintiffs allege Defendant aided and abetted the protestors through various acts, these acts do not constitute plausibly threats, intimidation, or coercion from which Plaintiffs could believe reasonably Defendant would commit violence against Plaintiffs. Specifically, first, Defendant's act of permitting protestors on campus cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs if they practiced their faith on campus. Second, Defendant's act of telling Plaintiffs "to work remotely from home, or remain in their offices or dorms for their 'own safety'" cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs if they did not work remotely from home—indeed, the opposite appears true, i.e., Defendant was attempting to protect Plaintiffs from potential harm.

Third, Defendant's act of inviting the valedictorian to give a graduation speech cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs. [The allegation about the valedictorian, from the complaint, was that "The level or antisemitism rose to unprecedented levels in April 2024, when USC President Carole Folt announced the nomination of Muslim student Asna Tabbasum ('Tabassum') as the USC valedictorian. Defendant University knew or certainly should have known that Tabassum's social media was replete with anti-Israel propaganda and violent hate speech when an email was sent out by Provost Guzman to keep her as valedictorian yet not allow her to speak. That was the turning point that led to the creation of campus anti-Israel encampments and a level of open antisemitic vitriol that I have never previously experienced. Encampments calling for 'death to Israel, death to America' and even 'death to Jews' were growing in numbers and I could not get to my office without being accosted by protestors asking me 'Are you a Zionist'?? 'Do you support the Israeli death war machine???' I endured this for about three (3) weeks before deciding that I would not return to campus again until this came to an end. What is all the more disturbing is the number of faculty members who openly protest with the students and some even cancelling their final exams so that the students can protest daily." -EV]

Lastly, even assuming Defendant could be liable for an email sent by one of its professors, an email asking Plaintiff Student to participate in a protest cannot plausibly be considered a threat that Defendant would commit violence against Plaintiff Student. [This allegation apparently refers to this item from the complaint: "On April 17th, I received another email, this time from one of our own professors at the department of Physical Therapy. It asked everyone in the department to sign a petition to allow her to speak. It also attached a message from her to the students of USC and the same picture of her from the original newsletter. She stated in her letter that USC's provost had mis-treated her and didn't give her a complete answer on why they would not allow her to speak. The Provost did explain it was due to security and safety of the community. On April 18th, I received another email from the same professor. It read, 'USC Silent March for Asna. When USC silences Asna, they're silencing all of us. Show up in support of Asna and demand USC let her speak at commencement. Wear a hoodie and mask to symbolize the institutional silencing Asna is experiencing.'" -EV]

Additionally, Plaintiffs fail to state a Bane Act claim because they allege only in conclusory fashion that Defendant had the specific intent to prevent Plaintiffs from practicing freely their religion…. Plaintiffs allege no facts in support of their assertion.

While Plaintiffs allege certain acts by the protestors from which the court might be able to infer the protestors' intent, the court cannot infer Defendant's intent from the protestors' acts. Rather, Plaintiffs' allegations actually support Defendant did not have the requisite intent, as they suggest Defendant and the protestors had adverse interests. See FAC ¶¶ 26 (alleging the protestors were protesting Defendant's investments in Israel), 86 (alleging Defendant called the Los Angeles Police Department to remove the protestors' encampment)….

Violation of Unruh Act (Cal. Civ. Code §§ 51, 52)[:] The Unruh Act states in relevant part:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Cal. Civ. Code § 51(b); see also id. § 52(a) ("Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense ….")….

Plaintiff Faculty Member's Unruh Act claim fails because Plaintiff Faculty Member is Defendant's employee and "the Unruh Act does not apply to an employer-employee relationship." …

Plaintiff Student alleges she and other Jewish students "were so fearful for their lives and safety that they could not appear in [USC]'s 'town square' or anywhere else on campus without being verbally or physically assaulted … Plaintiffs [and Jewish students] were touched without their consent and spat on by the Campus terrorists if they dared to cross into the Encampment." Plaintiff Student further alleges Defendant permitted this conduct to continue "for weeks on end before finally taking steps of remediation." Plaintiff Student, thus, alleges plausibly Defendant "aided or incited a denial of full and equal access" to one or more portions of the USC campus….

[But] Plaintiff Student does not allege plausibly Defendant specifically intended to deprive Plaintiff Student's right to equal accommodations because of Plaintiff Student's race, religion, or national origin….  As described regarding the Bane Act claim, Plaintiff Student cannot allege Defendant's intent based on the protestors' conduct. The court cannot reasonably infer "a substantial motivating reason for Defendant's conduct" was Plaintiff Student's race, religion, or national origin….

Violation of Ralph Act (Cal. Civ. Code § 51.7)[:] Under the Ralph Act, "[a]ll persons within [California] have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.["] …

Plaintiff Student alleges plausibly a "reasonable person, standing in [her] shoes" would have been intimidated and perceived a threat of violence. Plaintiffs' Ralph Act claims, however, ultimately fail for the same reasons discussed above regarding the Bane and Unruh Acts. Plaintiffs do not allege plausibly that a "substantial motivating reason" for Defendant's conduct was Plaintiffs' race or religion….

Tort Claims[:] Plaintiff Faculty Member's tort claims for negligence, assault, and battery are barred by the exclusivity provisions of the California Workers' Compensation Act….

"[W]ithout any physical harm alleged, the Student Plaintiff's negligence claim [] is actually a claim for negligent infliction of emotional distress." … Plaintiff Student, thus, cannot recover any damages on her negligence claim….

Breach of Contract[:] Defendant argues Plaintiff Student has failed to allege "at least three required elements" of a breach of contract claim: the contract; breach; and result damages. Defendant argues a contract's terms must be "sufficiently definite" and Plaintiff Student "merely asserts that she had a contract with the University requiring a 'safe and sane environment' for study." Defendant further contends Plaintiff Student does not allege damages. Plaintiff Student does not respond to these arguments and, thus, concedes them….

Battery[:] Plaintiff Student does not allege harmful or offensive contact. Plaintiff Student does not respond to this argument and, thus, concedes it….

Assault[:] … Plaintiff Student alleges she believed the protestors "were about to touch [her] in a harmful or offensive manner and in fact threatened to touch [her] in a harmful manner[.]" Plaintiff Student, however, does not allege Defendant "acted with intent to cause harmful or offensive contact, or threatened to touch [her] in a harmful or offensive manner." Rather, Defendant allegedly "encouraged" the protestors' conduct. This is insufficient.

Plaintiff Student does not allege an aiding and abetting theory, and, in any case, the allegations are insufficient to support such a theory because they do not demonstrate Defendant "gave substantial assistance or encouragement" to the protestors. Plaintiff Student alleges Defendant permitted the protestors to be on campus, she does not allege Defendant gave substantial assistance or encouragement to the protestors to assault Plaintiff Student.

Lastly, even were Plaintiff Student to allege an aiding and abetting theory, she alleges insufficiently the protestors assaulted her. She alleges she was threatened by the protestors' slogans and oral statements. This is insufficient, as "mere words, however threatening, will not amount to an assault." …

The court also rejected the plaintiffs' class action claims:

Defendant argues Plaintiffs "have made no attempt to plead the existence of any of the requirements for class certification, including that their claims are typical of the alleged class, that they are adequate representatives, that common issues exist, or that common issues predominate." Defendant further argues that, "to the extent that Plaintiffs purport to allege a class of all USC faculty and students who identify as Jewish, such a class would include countless individuals with no possible claim, including Jewish faculty and students who were not present on campus during the protests, who were not harmed by the protests, and, importantly, who supported or chose to participate in the protests."

Plaintiffs do not respond to these arguments and, thus, concede them….

The court therefore dismissed the claims, though it granted plaintiffs leave to amend some of their claims, and in particular to assert a negligent infliction of emotional distress claim (a claim that is quite narrowly defined under California law). Plaintiffs did file an amended complaint, but have now dropped the case; plaintiffs' counsel, as I mentioned, states that they will refile a further revised version shortly.

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[Eugene Volokh] Journal of Free Speech Law: Publish Your Article in 2½ Months

I'd like to again solicit submissions to our peer-reviewed Journal of Free Speech Law, and mention one of our great advantages: We can publish quickly (by the standards of academic journals), if that's what you'd like.

Our most recent article, for instance, was submitted to us April 8. We require submissions that are exclusive to us, but we promise an answer within 14 days; in this instance, we accepted it on April 16, and passed along the reviewer comments to the author. (We offer such comments whether the article is accepted or rejected, and I understand they can be helpful to authors regardless of our decision.)

We ask our authors to have the articles cite-checked by their own research assistants (though if the author doesn't have access to an RA, we are generally able to help with that), and we give authors time to polish up the article some more, if they'd like. Here, the author took a bit over a month to do that—no problem from our perspective—and gave us a revised draft May 22. We then got the author an edit from one of our Executive Editors; the author got the edit back to us; we got the author a proofread from our proofreader; the author got that back to us; and then we did a final proofread, which the author got back to us in turn.

On June 24, we published the article, basically 2½ months after we received it. (Some articles might take longer, for various reasons, but this was 40 pages, a roughly average-length article.) And we could have published it even earlier, if the author had wanted to, since more than a month of the time was on the author's end. Of course, there's nothing wrong with the author taking some time to polish up the piece—the point is simply that we are equipped to publish quickly, if the author wants.

To my knowledge, many top student-edited journals are shut down for the Summer, and won't review manuscripts until August. That means the manuscripts probably wouldn't be published until next May, or even later. But if you submit to us now, and want to publish quickly, you can have the article out this September, or possibly even earlier.

Some more details: The journal is now four years old, and has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 11 court cases, over 325 articles, and at least 100 briefs. And note that all the articles have only had four years or less to attract these citations.

Please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it's the first article to discuss how case X and doctrine Y interact), please let us know.Please submit articles single-spaced, in a proportionally spaced font.Please make sure that the Introduction quickly and clearly explains the main claims you are making.Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).Each article should be as short as possible, and as long as necessary.Like everyone else, we like simple, clear, engaging writing.We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

We publish:

Articles that say something we don't already know.Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.Articles dealing with speech, press, assembly, petition, or expression more broadly.Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations' speech regulations.Articles about U.S. law, foreign law, comparative law, or international law.Both big, ambitious work and narrower material.Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).Articles arguing for broader speech protection, narrower speech protection, or anything else.

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[Eugene Volokh] Volokh v. Williamson County Challenges Tennessee's Restriction on Non-Tennesseeans Accessing Court Records

From our motion for a preliminary injunction, filed today by my lawyers, Susan L. Kay, Jennifer Safstrom, and Ryan Riedmueller of the Vanderbilt Law School Stanton Foundation First Amendment Clinic:

American citizens enjoy a First Amendment right of access to judicial records that state and local governments may not restrict unless the restriction withstands constitutional scrutiny. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002). The Tennessee Public Records Act ("TPRA") includes a provision that restricts access to public records, including judicial records, to residents of Tennessee. Tenn. Code Ann. § 10-7-503(a)(2)(A). The First Amendment is a fundamental right enjoyed by all Americans and cannot be abridged by a state statute based on an individual's state citizenship.

Additionally, the Privileges and Immunities Clause of the United State constitution prohibits states from burdening a fundamental right  on the basis of state citizenship. Because the TPRA restricts rights guaranteed by the United States Constitution on the basis of state citizenship, it is unconstitutional.

On February 5 and March 5, 2025, Plaintiff Eugene Volokh, a California resident, was impermissibly denied access to public judicial records by Defendants because of his residency status. {Mr. Volokh [had] submitted a request … via email for records filed in Garramone v. Curtsinger, No. 22-CV-602, a case in Williamson County Circuit Court.} {In this case, one party requested an order of protection from the court against the opposing party based on activities the opposing party claimed were protected by the First Amendment. As a leading First Amendment scholar, especially within the context of harassment, Mr. Volokh requested documents from this case to assist his research.} …

Our motion argues that the right of access to judicial records is a First Amendment right; the Sixth Circuit had already recognized this in Detroit Free Press, but we go through the Supreme-Court-prescribed analysis in any event:

To determine if the First Amendment right of public access attaches to "government information," the information in question must satisfy the "experience and logic" test established by the United States Supreme Court in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980). See Detroit Free Press, 303 F.3d at 700.

The experience prong asks whether there is a "tradition of accessibility" that "implies the favorable judgment of experience." Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982)). The Sixth Circuit has noted that "the open courtroom has been a fundamental feature of the American judicial system," acknowledging the long history and experience of public access American citizens have enjoyed and come to expect from the judiciary. See Brown & Williamson Tobacco Corp., 710 F.2d at 1177. The Sixth Circuit held that shorter periods would be acceptable under sufficiently compelling logical reasons. See Detroit Free Press, 303 F.3d at 701.

The "logic" prong asks "whether public access plays a significant positive role in the function of the particular process." Id. at 703 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (hereinafter Press-Enterprise II)). To evaluate this prong, the Sixth Circuit has asked if public access "enhances the quality" of the government function in question. See id. at 703 (holding that "public access undoubtedly enhances the quality of deportation proceedings"); see also Brown & Williamson Tobacco Corp., 710 F.2d at 1179 (holding Richmond Newspapers' policy considerations apply to civil trials).

Here, experience and logic both support a finding that the First Amendment right of public access attaches to civil judicial records.

First, because the open courtroom is regarded as a "fundamental feature" of the American judicial system, the experience prong is satisfied. See Brown & Williamson Tobacco Corp., 710 F.2d at 1177. The right to access records of public proceedings can be found as far back as 1372 when the English Parliament granted a statutory right to inspect court records. 46 Edw. 3 (1372); 2 Eng. Stat. at Large 191, 196-97 (1341-1411). The American colonies continued this practice as evidenced by the Massachusetts Body of Liberties of 1641, which declared "[e]very inhabitant of the Country shall have free liberty to search and review any rolls, records or registers of any Court or office." art. 48. This common-law right of access to judicial proceedings was embraced by the Founders and early American courts. Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978) ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents."). {The Supreme Court in McBurney v. Young held there was not a common-law right of access to executive records. 569 U.S. 221, 233 (2013). However, the common law right of judicial records is well-established.}

Second, public access to judicial records in civil proceedings "plays a significant positive role" and "enhances the quality" of judicial proceedings thus satisfying the "logic" prong. See Detroit Free Press, 303 F.3d at 703–04. The public right of access to civil court documents fosters legitimacy in the courts because "justice cannot function in the dark." Brown & Williamson Tobacco Corp., 710 F.2d at 1178 (quoting Richmond Newspapers, 448 U.S. at 571) (internal quotations omitted). Without access to the judicial record, the public cannot "provide[] a check on courts" by analyzing and critiquing courts' reasoning. Id. Public access to court proceedings and records promotes "'true and accurate fact finding.'" Id. (quoting Richmond Newspapers, 448 U.S. at 596). Although the Supreme Court has not explicitly stated the First Amendment right of access applies to civil judicial proceedings and records, every circuit to consider the issue has concluded the right applies to both civil and criminal proceedings, including the Sixth Circuit. See Courthouse News Serv. v. Planet, 947 F.3d 581, 591 (9th Cir. 2020); see also Courthouse News Serv. v. Brown, 908 F.3d 1063, 1069 (7th Cir. 2018), cert. denied, 140 S. Ct. 384 (2019) (mem.); see also Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984); see also Brown & Williamson Tobacco Corp., 710 F.2d at 1179. The government information Mr. Volokh seeks therefore enjoys a First Amendment right of public access because it satisfies both the experience and logic prongs of the Richmond Newspapers test.

Once the First Amendment right of public access attaches, denial of access must be "necessitated by a compelling governmental interest, and [be] narrowly tailored to serve that interest." Detroit Free Press, 303 F.3d at 705 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)) (internal quotations omitted) . The presumption of openness in the First Amendment right of public access "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values." Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984) (hereinafter Press-Enterprise I). Exceptions to the right of access in the context of courts include "the defendant's right to a fair trial, … privacy rights of participants or third parties, trade secrets and national security." Brown & Williamson Tobacco Corp., 710 F.2d at 1179. Moreover, the interest articulated must be accompanied by "findings specific enough" so that a reviewing court can determine if access was properly denied. Detroit Free Press, 303 F.3d at 705 (citing Press-Enterprise II, 478 U.S. at 10). Regarding the narrowly tailored prong, the government will be hard-pressed to justify blanket or categorical rules. See id., 303 F.3d at 707.

With these requirements in mind, TPRA's residency requirement applied in the context of civil court records cannot survive strict scrutiny. Withholding the requested documents from Mr. Volokh based on his residency status does not serve a compelling government interest, and even if it did, the residency requirement is not narrowly tailored to serve any compelling interest. See Detroit Free Press, 303 F.3d at 705 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)) (internal quotations omitted). The only interest Plaintiff can glean from TPRA's citizenship requirement is to limit the expenditure of government resources and to provide Tennessee citizens with requested documents in a timely fashion and with lower costs. Even if true, administrative convenience does not fall within the Sixth Circuit's permissible compelling interests for restricting public access to court records, see Brown & Williamson Tobacco Corp., 710 F.2d at 1179, and "the First Amendment does not permit the State to sacrifice speech for efficiency." Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 795 (1988). Nor can the Defendants assert a privacy interest on behalf of the parties in the underlying case—Garramone v. Curtsinger. See Brown & Williamson Tobacco Corp., 710 F.2d at 1179. Any articulation of the parties' privacy interest would be undercut by allowing Tennessee citizens—possibly the parties' neighbors—to obtain the same information. Therefore, TPRA's citizenship requirement fails strict scrutiny. See Detroit Free Press, 303 F.3d at 705.

And we also argue that the access restriction violates the Privileges and Immunities Clause:

The Privileges and Immunities Clause states, "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV. Claims under the Privileges and Immunities Clause undergo "a two-step inquiry." Sup. Ct. of Va. v. Friedman, 487 U.S. 59, 64 (1988). "First, the activity in question must be sufficiently basic to the livelihood of the Nation … as to fall within the purview of the Privileges and Immunities Clause." Id. (internal quotation marks and citations omitted). "Second, if the challenged restriction deprives nonresidents of a protected privilege, [courts] will invalidate it only if [courts] conclude that the restriction is not closely related to the advancement of a substantial state interest." Id. at 65. Mr. Volokh is likely to satisfy both requirements.

The Supreme Court has held the Privileges and Immunities Clause protects rights that are "fundamental." Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 383 (1978). The First Amendment safeguard liberties that "lie[] at the foundation of free government." Marsh v. State of Ala., 326 U.S. 501, 509 (1946). Permitting a state to restrict a First Amendment right on the basis of citizenship necessarily burdens a fundamental right and, as a result, implicates the Privileges and Immunities Clause.

This case is distinguishable from McBurney v. Young, where the Supreme Court held that the provision of Virginia's Freedom of Information Act restricting access to state records to citizens did not violate the Privileges and Immunities Clause. McBurney v. Young, 569 U.S. 221, 229 (2013). There, the Court noted that the plaintiff had sought executive records. Id. The Court's historical analysis found "only those persons who had a personal interest in non-judicial records were permitted to access them." See id. at 233 (emphasis added). In addition, the plaintiffs obtained the majority of the requested information through other statutory means, so the citizenship requirement constituted only an incidental burden. McBurney, 569 U.S. at 224. Moreover, Virginia's Freedom of Information Act "gives citizens and noncitizens alike access to judicial records," rendering McBurney and the Court's analysis inapplicable. Id. at 232 (citing Va. Code Ann. § 17.1-208; Shenandoah Publ'g House, Inc. v. Fanning, 235 Va. 253, 258 (Va. 1988)).

This claim is sufficiently distinguishable to proceed in spite of McBurney. Unlike the records request at issue in McBurney, the records requested here implicate access to the courts—a right that falls squarely within the Privileges and Immunities Clause. See McBurney, 569 U.S. at 231. And unlike the plaintiffs in McBurney, who could access most of the requested records through another statute, Tennessee does not offer a similar alternative means that would allow Mr. Volokh to access the requested documents. See id. at 224. Furthermore, because the denial of the requested records implicates the First Amendment right to access judicial records and the First Amendment is fundamental to a free government, the Privileges and Immunities Clause prevents the TPRA from burdening that fundamental right based on citizenship. Marsh, 326 U.S. at 509.  ;see Part IV(A)(1). Taken together, Mr. Volokh has demonstrated a likelihood of success on the first prong of the inquiry.

Next, it is clear that TPRA's residency requirement "is not closely related to the advancement of a substantial state interest." Supreme Ct. of Va., 487 U.S. at 65. Here, the state's restriction must bear a substantial relationship to the state's objectives and the statute's purpose. Id. In other constitutional contexts, administrative convenience does not justify differential treatment. Frontiero v. Richardson, 411 U.S. 677, 691 (1973). In Toomer, the Supreme Court invalidated a South Carolina statute that imposed higher boat licensing fees and taxes on non-resident shrimpers for the purpose of conserving the state's shrimp supply. 334 U.S. at 396–99. In its analysis, the Court noted that South Carolina failed to produce evidence that non-citizens' fishing methods imposed a greater threat to the shrimp population or that the cost of enforcing shrimping laws was "appreciably greater" for non-citizens than it was for citizens. Id. at 398. The Court concluded that South Carolina could pass non-discriminatory regulations to address shrimp conservation concerns. Id. at 399.

For reasons similar to those in Toomer, denying Mr. Volokh access to civil court records based on his state residency violates the Privileges and Immunities Clause. See id. at 396–99. Any justification for TPRA's citizenship requirement that relies on administrative convenience is not a "substantial reason" that withstands constitutional scrutiny. Frontiero, 411 U.S. at 691. Moreover, TPRA's citizenship requirement lacks a "substantial relation" to the statute's purpose. Sup. Ct. of Va., 487 U.S. at 65. Like South Carolina in Toomer, Tennessee cannot produce evidence that non-citizen public records requests represent a greater burden on taxpayers than requests made by Tennessee citizens or that other means could not be used to address administrative concerns in a non-discriminatory fashion. Toomer, 334 U.S. at 396–99. Indeed, the TPRA already contains a constitutionally compliant, nondiscriminatory provision like the hypothetical regulation contemplated by the Toomer court. See Toomer, 334 U.S. at 399; see Tenn. Code Ann. § 10-7-503(a)(7)(C). If a person is making a request with the intent to disrupt government operations, the records custodian can petition a court to enjoin the person from making a records request. Id. § 10-7-503(a)(7)(C)(i). Consequentially, TPRA's citizenship requirement is not substantially related to any conceivable administrative interest. See Toomer, 334 U.S. at 398–99….

The post Volokh v. Williamson County Challenges Tennessee's Restriction on Non-Tennesseeans Accessing Court Records appeared first on Reason.com.

[Eugene Volokh] "The Crisis of the Media Environment"

My essay on the subject, initially presented in late March at a conference at Yale Law School, is now up at Balkinization, together with various other essays from the same conference. Unfortunately, the footnote links don't work with Balkinization's posting software, so I thought I'd include it below; note that I've posted earlier versions of this essay here before.

[* * *]

The Crisis of the Media Environment
Eugene Volokh
Senior Fellow, Hoover Institution, Stanford; Professor of Law Emeritus, UCLA

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: "How can and should the media system be reformed?"

I'm speaking, of course, of the campaign to conceal President Biden's mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement's attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump. Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. "Democracy Dies in Darkness," the Washington Post tells us. It appears that the Democratic Party's prospects died in this particular darkness.

The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this was a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.

When, for instance, Trump and Vance spread unfounded rumors of Haitian immigrants eating cats and dogs, the media rightly blew the whistle. But when some media outlets tried to point out the evidence of Biden's likely incapacity, others didn't pick up on the investigation—and, indeed, sometimes pooh-poohed the investigation.

As late as mid-June 2024, the White House and many of its supporters characterized videos of Biden apparently freezing up and seeming confused as "cheap fake" disinformation created by his enemies. Indeed, as Nate Silver has noted, "some coverage endorsed the White House party line, particularly in its tendency to characterize claims about Biden's acuity as 'misinformation.'" Only Biden's televised debate performance on June 27, 2024 made it impossible to deny there was something badly wrong. It seems likely that many of the supposed "cheap fakes" actually accurately captured Biden's cognitive slippage, especially since the slippage apparently went back a good deal before the debate.

And even if some particular videos had indeed been disinformation from his enemies, the fact remains that the media failed to adequately identify the disinformation from his friends. Isn't it shocking that so many White House reporters appear to have learned of Biden's decline thanks only to the nationally televised debate and not to their investigative journalism?

Of course, reaching the truth on this question wasn't easy. Biden insiders apparently tried hard to conceal the facts (that's the disinformation part). And indeed it's not surprising that people who are both personally loyal to a President and rely on the President's success for their ongoing careers would want to conceal such facts. In our fallen world, we can't expect much candor from political insiders. And I expect most journalists sincerely believed the reassurances they were getting from the insiders.

But getting sincerely duped isn't a great professional mark for a journalist. Their job was to dig and find out—before things became evident, not after (and indeed some indications of Biden's decline were indeed evident for some time before the debate). Alex Thompson, the coauthor of Original Sin, elaborated on this problem:

"I had one conversation with someone, this was after the election, while we were reporting this book, and this person said, 'Listen, yes, we deserve blame for X, Y, Z. We were hiding him. We were.' But this person also sort of got in my face, and they said, 'Listen, the media deserves some blame, too.' Like we were sort of amazed at some of the stuff we were able to spin and get on," he said.

Thompson admitted there was truth to what the person was saying about the media and its lack of skepticism about Biden's administration.

"They're just like, 'You guys should not have believed us so easily.' And I thought that was like a really interesting, but I also think that's true," he said. "I think the media, . . . in a lot of ways, was not skeptical enough and did not remember the less[on] that, they do it to different degrees, but every White House lies."

Indeed, to the extent that the media's credibility has declined over recent years, such failures of investigation seem likely to only exacerbate this decline:

Undoubtedly, the White House wanted to keep this fact [of Biden's decline] under wraps until Biden was safely over the finish line in November. But media organizations that participated, even unwittingly, in this farce have not only made a subsequent Democratic administration far less likely—they have profoundly undermined their own integrity.

* * *

How could this happen? I hope we will learn more about this in the years to come. But at this point, at least a first cut—informed by our shared knowledge of human nature—is that many in the media likely didn't dig hard because they didn't really wanted to uncover things. It isn't controversial, I think, that most in the mainstream media much preferred President Biden over his challenger, Donald Trump. Indeed, I agree they had good reason to dislike Trump. Certainly Trump himself had done much to stoke that hostility.

"Biden is cognitively impaired" was a standard talking point on the Right. So long as Biden was the nominee, that impairment, if demonstrated, would help Trump. (As I've argued, if knowing of the impairment helped Democrats replace Biden with a better candidate, the knowledge might have hurt Trump, but that would have been a less direct chain of causation.) It's human nature to accept stories that fit one's political preferences than to challenge them. A thought experiment: If the sitting President in 2024 had been a Republican—whether Trump or, say, an older Ron DeSantis—would the media have acted the same way they did? Or would they have worked harder, dug deeper, and uncovered the truth earlier?

Yet of course institutions should be designed to counteract the flaws generated by human nature while working within the constraints created by human nature. (That knowledge was old when Madison was young.) This is true of media institutions as well as governmental ones. There need to be mechanisms to keep reporters' and editors' inevitable ideological predilections from turning into ideological blinders and ideological blunders.

Of course, it's much easier to identify the problem than a suitable solution. One can imagine, for instance, newspapers deliberately seeking out reporters and editors with many different ideological beliefs, hoping that colleagues will fill each others' blind spots (or, in collegial conversations, help each other identify their blind spots). But this may be hard to implement; and, as with preferences based on race and sex, preferences based on politics may be challenged as leading to hiring based on ideology rather than merit. (They may also be defended, as with preferences based on race and sex, as a tool for fighting subconscious bias that keeps meritorious candidates from being fairly considered.) Indeed, hiring that considers applicants' ideological beliefs may violate some states' laws that limit employment discrimination based on political ideology or party affiliation, just as hiring that considers applicants' religious beliefs may violate bans on employment discrimination based on religion.

Newspapers might also return to prohibiting reporters and editors from publicly opining on controversial issues. Of course, realistic readers will recognize that reporters may still be biased. But taking a public stand on an issue may increase such bias: If one has publicly endorsed a position, it might become harder to write fairly about evidence that instead tends to support the rival position. Few of us like writing something that suggests that we were mistaken in the past, or that our critics can interpret as making such a suggestion.

Again, though, in some jurisdictions such public neutrality rules for newspaper employees may violate state employment statutes. One state court held (by a 5–4 vote) that those statutes themselves violate the First Amendment when applied to newspaper reporters or editors. But in AP v. NLRB (1937), the U.S. Supreme Court held (also 5–4) that federal labor law, which bans discrimination based on union membership, didn't violate the Associated Press's rights to select reporters or editors.

Likewise, one can imagine newspapers and magazines deliberately courting a broad ideological mix of readers—not just for the extra revenue, but also to commit themselves to having a base that they will need to be seen as treating fairly. A publication that has many readers on the left, right, and center might feel more pressure to be fair and careful to all sides. Of course, it may be hard these days to acquire such a broad reader base. And there's always the danger that concern about reader reactions may press a newspaper to avoid controversial topics altogether, rather than to try handling them fairly.

Finally, newspapers can just try to recommit themselves to objectivity, fuzzy as the term may sometimes be. (Many commentators have expressly taken the opposite view.) In their news coverage, they may recommit to discussing the best arguments on both sides of contested issues. In choosing what to cover, they may try hard to see what both sides of the aisle view as especially important. On their editorial pages, they may avoid a party line, either instituted top down or by staff revolts. Instead, they may adopt the policy that whatever ideas are shared by at least substantial minorities of the public should be seriously covered, even when editors think that one side is obviously wrong.

Again, though, that's easier said than done (and it's not even that easily said). It will inevitably require hard choices that will leave many observers skeptical about the media organization's fairness —e.g., which sides of a multi-sided issue should be covered, which topics are important enough to cover, which positions are such outliers that they can be set aside, how to allocate scarce space and attention. And it may not do much to solve the problem we began with, which is the ability of media organizations to be massively duped by the side they sympathize with.

Thus, these solutions are likely to be far from perfect. The cures may even be worse than disease.

But there is indeed a disease, "a profoundly broken media system" (to quote the workshop organizers). This system is one that the public has good reason to distrust. Its flaws undermine the media's ability to check government malfeasance. It may have been so captured by the desire to #Resist one movement that it failed to resist the disinformation spread by another. And it may thus have ended up helping the very candidate and movement that it had (understandably) viewed as dangerous.

For an early draft of this article, written before the books cited below came out, see Eugene Volokh, "The 2024 Presidential Campaign Saw a Massive Disinformation and Misinformation Campaign, …["], Volokh Conspiracy, Mar. 31, 2025, https://reason.com/volokh/2025/03/31/....

See, e.g., Chris Whipple, Uncharted: How Trump Beat Biden, Harris, and the Odds in the Wildest Campaign in History 201 (2025) (quoting Leon Panetta, White House Chief of Staff under Clinton and Secretary of Defense under Obama, as making this point); Jonathan Allen & Amie Parnes, Fight: Inside the Wildest Battle for the White House 86 (2025) (quoting "a Biden ally" as making the same point); id. at 90 (inferring that long-time Democratic Speaker of the House Nancy Pelosi held a similar view); Jake Tapper & Alex Thompson, Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again 6 (2025) ("If history is any guide, a competitive primary and caucus process would have produced a stronger Democratic nominee . . . ."); Josh Barro, This Is All Biden's Fault, N.Y. Times, Nov. 11, 2024; Four Writers on What Democrats Should Do, N.Y. Times, June 30, 2024.

See Tapper & Thompson, supra note 1, at xiii (describing "Democrats inside and outside the White House" who "put blinders on, participating in a charade that delivered the election directly into Trump's hands").

See id. at 9 ("The presidency requires someone who can perform at 2:00 a.m. during an emergency. Cabinet secretaries in his own administration told us that by 2024, he could not be relied upon for this.").

See, e.g., Hanna Panreck, Karine Jean-Pierre Doubles Down on 'Cheap Fake' Biden Videos: 'So Much Misinformation', Fox News, June 19, 2024; see also Bari Weiss, The Great Biden Cover-Up, Honestly (Free Press), May 29, 2025, at 1:16:59, https://www.youtube.com/watch?v=wKF_U... (remarks of Jake Tapper) ("One of the stories in our, in the book is when at the same time, around the same time, that Annie Linsky and Siobhan Hughes, these great reporters with the Wall Street Journal, right around the time that they break their story and are garroted by the, by the Democratic party and by by journalists and by media critics and by journalism professors and this whole industry of people who, who claim to be nonpartisan assessors of truth.").

Nate Silver, Did the Media Blow It on Biden?, Silver Bulletin, May 15, 2025, https://www.natesilver.net/p/did-the-... see also Tapper & Thompson, supra note 1, at 100 (discussing the Biden White House's "modus operandi for attacking any journalists who covered any questions about the president's age, enlisting a corps of social media influencers, progressive reporters, and Democratic operatives to besmirch as unprofessional and biased those in the news media investigating this line of inquiry").

See, e.g., Annie Linskey & Siobhan Hughes, Behind Closed Doors, Biden Shows Signs of Slipping, Wall St. J., June 4, 2024; Michael Williams, George Clooney Says Democrats Need a New Nominee Just Weeks After He Headlined a Major Fundraiser for Biden, CNN, July 10, 2024; Tyler Austin Harper, An Autopsy Report on Biden's In-Office Decline, Atlantic, May 16, 2025; David Gilmour, CNN's Jake Tapper Argues Biden White House Misled Public 'All the Time' With 'Cheap Fake' Spin, Mediaite, May 14, 2025, https://www.mediaite.com/tv/i-look-back-on-it-with-humility-jake-tapper-says-he-covered-bidens-cognitive-issues-but-admits-not-enough/; Oliver Darcy, Straight from the Tapper, Status, May 25, 2025, https://www.status.news/p/jake-tapper-original-sin-book-interview ("Conservative media have been raising questions about Biden's acuity for quite some time. Our reporting, which began in earnest after the election when Democrats were suddenly far more willing to talk, suggests that there was merit to some of that early analysis, regardless of the various motives of any charge in this hyper-partisan era.").

See Tapper & Thompson, supra note 1, at 144 ("Most news media coverage of [Special Counsel Robert Hur's testimony to Congress about his investigation of Biden, and his conclusions about Biden's decline] thus did not acknowledge the president's long, rambling answers; the troubling lapses of memory; and the disruptions in his thought process. Most did not point out that Biden's accusation about Hur bringing up Beau's death was false.").

Zachary Leeman, Alex Thompson Recalls Dem Insider's Shock At How 'Easily' Gullible Media Bought Into Their 'Spin' on Biden's Health, Mediaite, May 21, 2025, https://www.mediaite.com/media/tv/alex-thompson-recalls-dem-insiders-shock-at-how-easily-gullible-media-bought-into-their-spin-on-bidens-health/ (statement from Thompson in embedded video) ("Certainly the media fell short, and the biggest example of that is, if the media was on top of this, then Biden's debate performance should not have been such a shock to so many people."); Tunku Varadarajan, 'Original Sin' Review: A Conspiracy in Plain View, Wall St. J., May 19, 2025 ("the elites of the Democratic Party and the media had their eyes and minds closed and couldn't—or wouldn't—see what the rest of us saw").

See id. at 204 (discussing the "lie" "that millions of Americans now realized they'd been told for months, if not years: the lie that Joe Biden was perfectly fine and up to the task of being president for four more years").

See, e.g., Colby Hall, I Look Back on It With Humility': Jake Tapper Says He Covered Biden's Cognitive Issues, But Admits 'Not Enough', Mediaite, May 14, 2025, https://www.mediaite.com/tv/i-look-ba....

See Silver, supra note 3 (describing many such indications, and noting, "when something is an open secret to the extent Biden's condition was among elites—to the point that many people close to him felt it jeopardized national security—you'd hope for the press to report on it more aggressively"); see also Paul Mirengoff, Joe Biden's Steep Decline: A Tale of Two Coverups, Ringside at the Reckoning, May 16, 2025, https://ringsideatthereckoning.substa....

Zachary Leeman, Alex Thompson Recalls Dem Insider's Shock At How 'Easily' Gullible Media Bought Into Their 'Spin' on Biden's Health, Mediaite, May 21, 2025, https://www.mediaite.com/media/tv/ale....

Robby Soave, Why Didn't the Media Notice Joe Biden's 'Jet Lag' Sooner?, Reason, July 3, 2024; see also The Great Biden Cover-Up, supra note 5, at 1:19:13 (remarks of Alex Thompson) ("[T]here's lots of reasons for trust in press being low and some of it is like, you know, online polarization. Some of it's online, you know, fake news or disinformation, whichever word you want to use. But I, I do think that like, you know, we bear some, like we should also look inward.").

See Mirengoff, supra note 6. See also The Great Biden Cover-Up, supra note 5, at 48:06 (remarks of Jake Tapper, though focusing on pundits rather than reporters) ("I think that there was also among the punditry class, very much the Trump question: Oh, you want to help Trump? Is that what you want, you want to help Trump?").

Cf. The American Journalist, Key Findings from the 2022 American Journalist Study (reporting that 51.7% of journalists identified as Independent, 36.4% Democrat, 8.5% Other, and 3.4% Republican). I appreciate that this is an online survey, and one that doesn't specifically ask about views on Trump; but it reinforces what is generally seen as conventional wisdom, and I've seen no data pointing in the opposite direction.

Cf. Tapper & Thompson, supra note 1, at 141 (discussing how "Biden's media allies" dismissed Special Counsel Robert Hur's report that cast doubt on Biden's cognitive capacity as "ageism," and quoting a New Republic writer as saying, "Any news org that puts Biden's memory in the headline is actively rewarding Hur's bad faith and giving the Trump campaign what they want.'").

See Eugene Volokh, Should the Law Limit Private-Employer-Imposed Speech Restrictions?, 2 J. Free Speech L. 269 (2022); Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. of L. & Pol. 295 (2012).

See Nelson v. McClatchy Newspapers, 131 Wash. 2d 523 (1997).

See also Ali v. L.A. Focus Publ'n, 112 Cal. App. 4th 1477, 1488 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies").

See, e.g., Leonard Downie Jr., Newsrooms That Move Beyond 'Objectivity' Can Build Trust, Wash. Post, Jan. 30, 2023.

See, e.g., Washington Post Owner Jeff Bezos Says Opinion Pages Will Defend Free Market And 'Personal Liberties', PBS News, Feb. 26, 2025.

See, e.g., Marc Tracy, James Bennet Resigns as New York Times Opinion Editor, N.Y. Times, June 7, 2020.

The post "The Crisis of the Media Environment" appeared first on Reason.com.

[Ilya Somin] Michael McConnell and Neal Katyal Join Our Tariff Litigation Team

[They are prominent legal scholars and Supreme Court litigators from opposite sides of the political spectrum.]

I am pleased to announce that leading legal scholars and Supreme Court litigators Neal Katyal and Michael McConnell have joined the litigation team for VOS Selections, Inc. v. Trump - the case challenging Trump's abusive "Liberation Day" tariffs filed by the Liberty Justice Center and myself. The support of prominent figures from opposite sides of the political spectrum is a testament to the strength and importance of this case.

Neal Katyal the Paul Saunders Professor at Georgetown University and the former Acting Solicitor General of the United States under the Obama Administration. He is a leading left-of-center constitutional law scholar, and has argued over fifty cases before the US Supreme Court.

Michael McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School,  a Senior Fellow at the Hoover Institution, and one of the nation's leading conservative originalist constitutional law scholars. He is a former federal court of appeals judge, and has argued sixteen cases before the Supreme Court.

It is an honor to have Michael and Neal with us for the next phase of this case!

The Liberty Justice Center has issued a statement on this occasion, which I reprint below:

On June 25, the Liberty Justice Center announced that leading appellate lawyers and constitutional scholars Michael McConnell and Neal Katyal and their law firms have joined LJC's legal challenge to the Trump Administration's "Liberation Day" tariffs, signing on as co-counsel in the lawsuit.

The Liberty Justice Center and co-counsel Ilya Somin filed a lawsuit challenging the tariffs on April 14, arguing that the tariffs represent a dangerous and unlawful violation of the separation of powers. In a major victory for the separation of powers, the U.S. Court of International Trade issued a unanimous ruling on May 28, finding the tariffs illegal and issuing a permanent injunction banning their enforcement.

After the U.S. Court of Appeals for the Federal Circuit granted a motion by the Trump Administration to temporarily stay the injunction pending the appeal, the Liberty Justice Center announced that Judge Michael McConnell, Senior of Counsel at Wilson Sonsini Goodrich & Rosati, and Neal Katyal, Head of Supreme Court and Appellate Practices at Milbank LLP and former Acting Solicitor General of the United States, have formally joined V.O.S. Selections, Inc. v. Trump.

"More than any other case challenging executive action, the tariff cases combine fundamental principles of structural constitutional law with immense consequences for the economy," said Michael McConnell.  "It is an honor for me and my colleagues at Wilson Sonsini to join in this effort."

"I'm thrilled to join the Liberty Justice Center and Michael McConnell in this vital litigation," said co-counsel Neal Katyal. "The President claims that a 1977 law, IEEPA, justifies his sweeping, unilateral tariffs. I used to administer IEEPA for the government, and no one ever thought it authorized what he is doing here. I've been privileged to serve as counsel in many of the biggest executive power challenges over the last two decades, both for and against the government. These presidential actions fall on the wrong side of the line. I look forward to vindicating our Founders' view of the separation of powers, and to restoring the primacy of Congress over such major questions."

The Liberty Justice Center is pleased to welcome Judge McConnell and Neal Katyal to the team and looks forward to continuing the legal battle against the unconstitutional "Liberation Day" tariffs.

Amicus briefs are due no later than July 8. The U.S Court of Appeals for the Federal Circuit will hold a hearing in the case on July 31, which will be available via livestream.

Immediately following the hearing, the Liberty Justice Center will host a media roundtable to discuss the next steps in the case and answer questions by members of the press. To RSVP for this roundtable, visit the Liberty Justice Center's media reservations page here.

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[Eugene Volokh] "To Certify This Class …, the Court Must Find That the Named Plaintiffs Have Retained Competent Counsel to Represent the Class"

[And the court declines to so find when the proposed class counsel filed a brief containing "a wholesale fabrication of quotations and a holding on a material issue" (presumably stemming from using AI and not adequately checking its output).]

An excerpt from a March 10 order by Judge Somnath Raj Chatterjee (Alameda County [Cal.] Superior Court) in Evans v. Execushield, Inc.:

This is a wage and hour putative class and PAGA [Private Attorneys General Act] action regarding employees who worked as security guards for the defendant. Plaintiff filed a motion for class certification on May 31, 2024. The motion in part sought to certify a "Rounding Subclass" for "All members of the Class whose clock-in and clock-out times were rounded from their actual clock-in and clock-out times." The first issue raised in the Opposition was that the plaintiffs "do not assert a 'rounding' claim, nor do they identify any such class in their First Amended Class Action Complaint." They argued that "Denial of class certification for an unplead claim and class is appropriate."

The plaintiffs filed their Reply Brief on November 4, 2024. Their lead argument asserted that the Court should certify their rounding claim even though it was not stated in the complaint. The Reply Brief stated:

While the rounding claim was not explicitly stated in the First Amended Complaint ("FAC"), its certification is not precluded. Courts have routinely held that class certification can be granted for claims that are reasonably related to those in the complaint, especially when they arise from the same set of facts and legal theories. In Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004), the California Supreme Court stated that "courts are not obligated to deny certification where the complaint omits facts that would support class treatment." Furthermore, in Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1537 (2008), the California Court of Appeal held that "the court may consider new claims, constructively adding them to the complaint, so long as their addition does not create prejudice." …

The legal proposition that a court may "constructively" add new claims to a complaint for class certification and thus certify claims not pled was news. It turns out that the quotations in Sav-On and Ghazaryan and the asserted holding in Ghazaryan that counsel represented to be California law simply do not exist. The Court conducted a Westlaw search for the quoted language in those cases but found none in any California or federal case.

Before the hearing on 2/18/25, the Court issued a tentative decision that stated: "The court ORDERS counsel for plaintiff to appear and to be prepared to direct the Court to the relevant pages in Sav-On and Ghazaryan, or to the origin of the phrases if they came from a treatise or some other source."

At the hearing on 2/18/25, Ms. Le appeared for the plaintiffs and acknowledged that the two cases did not include the two direct quotations or stand for the propositions asserted. Counsel stated that she used a "tool" (which the Court understood to mean an electronic program that most likely employed some form of artificial intelligence) to help prepare the Reply Brief.

She stated that a "law clerk" brought to her attention that Save-On and Ghazaryan did not support the assertions in a draft of the Reply Brief and that she agreed with the "law clerk." She stated that she intended to remove those matters from the Reply Brief before it was filed, but for reasons she did not explain, that did not happen. Counsel apparently did not read the brief before she signed and filed it. After the Reply Brief was filed, Ms. Le took no corrective action to fix the misrepresentations before the Court brought the problem to counsel's attention….

A growing, and distressing, body of law addresses whether and how judges respond when counsel not only misconstrues or misinterprets case law that does exist but cites fake cases and legal propositions…. In this Court's view, artificial intelligence assisted software can assist counsel in research and in preparing drafts of documents like any other "tool." But, counsel who sign and submit legal documents must own and take full responsibility for the final product and must ensure that they discharge their obligations under the Rules of Professional Conduct, the Business & Professions Code, the Code of Civil Procedure, and otherwise.

Here, the most pressing issue is class certification as counsel who submitted material misrepresentations to the Court is requesting that the Court appoint that counsel to represent unnamed class members who did not choose them….

To certify this class and to grant the motion, the Court must find that the named plaintiffs have retained competent counsel to represent the class. Under California law, "Adequacy of representation depends on whether the plaintiff's attorney is qualified to conduct the proposed litigation." Under federal law, a court considering appointment of class counsel "must consider … counsel's knowledge of the applicable law" and the court "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."

FRCP 23(g) states the court "must consider "counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action," and "counsel's knowledge of the applicable law" and "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." "A court's experience with a particular counsel … may be relevant to its determination of the counsel's adequacy to represent a proposed class." The court may consider the quality of the briefing. Carson v. Giant Food, Inc. (D. Md. 2002) denied class certification stating: "Ms. Myles' frequent typographical errors, citation errors and clear misstatements of the law in memoranda and during oral argument prove that the interests of the putative class members will not be adequately served by her representation."

The nature of a class action makes the competency of counsel more significant than in regular litigation. "California trial court judges … are charged with 'acting in a fiduciary capacity as guardian of the rights of absentee class members."' In regular litigation, parties may retain counsel of their choice, and they alone suffer the consequences of retaining less than competent counsel. On a motion for class certification, however, the court must make a finding that counsel is competent to represent the class and then appoint counsel to represent unnamed class members without any voluntary assent by them.

Here, the Court does not find that Plaintiffs' counsel are adequate to represent the putative class and declines to appoint them to represent unnamed class members who have not voluntarily retained them. This case does not involve a good faith interpretation of a decision, but a wholesale fabrication of quotations and a holding on a material issue. Counsel's conduct violates, among other things, the Rules of Professional Responsibility, the Business & Professions Code, and the Code of Civil Procedure cited above.

Plaintiffs' counsel knew that the legal representations based on Sav-On and Ghazaryan were wrong. But she signed and filed the brief anyway. She either did not read the brief before she signed and filed it, or worse, she read it, knew that it contained material misrepresentations, and filed it anyway. Just as disconcerting is that she took no corrective action after the brief was filed. That means that she did not read the brief after she filed it, or she read it after it was filed and intentionally allowed the misrepresentations to continue.

Six other lawyers representing the plaintiffs—two at the Clarkson Firm [which seems to have about 25 lawyers -EV] and four at other firms—are named on the moving papers and the Reply Brief, and they also seek to be appointed as class counsel. But none of those lawyers corrected the misrepresentations before the brief was filed, nor did they take any corrective action after the brief was filed to fix the mistake.

This omission is disconcerting because Save-On, a widely cited Supreme Court decision, and Ghazaryan were being cited for odd, unusual, and audacious legal propositions—that a court can constructively add claims to a complaint for class certification purposes and thus certify a class for claims not alleged in the complaint. The nature of the argument would presumably have motivated at least one lawyer in one of the three law firms representing the plaintiffs to check the law on the issue before the brief was filed, particularly given that they claim that they specialize in class action litigation. Over two months elapsed between when Plaintiffs filed the Reply Brief on 11/4/24 and when the Court issued the tentative ruling before the hearing on 2/18/25. It appears that during that period no lawyer at any of the three law firms read the brief critically and checked the assertions of law in the brief because none of them took any corrective action.

Further, no one else in the Clarkson Law Firm took any steps to catch this problem before the brief was filed or took any corrective actions afterwards. That raises concerns regarding lack of training, oversight, and controls at a firm seeking to be appointed as class counsel to prevent this type of misrepresentation. For example, having a seasoned lawyer review a brief before filing could and should have caught this problem. The audacious nature of the proposition for which Save-On and Ghazaryan were cited should have clued any seasoned lawyer that the representation should be checked or at least that Ms. Le should be questioned about it. And, a standard cite-checking procedure routinely done by a legal assistant would have immediately caught the problem that the quoted language simply did not exist.

The Court, and the class, must be able to rely on counsel's representations. Counsel's conduct here calls into question both whether the Court can rely on the veracity of their representations going forward and the quality of their work and representations looking backwards, including their work in preparation for class certification. The Court simply lacks the confidence to do so.

The Court understands that lawyers are human, and all humans make mistakes. All lawyers deserve second chances, and the Court hopes that counsel here will take appropriate corrective measures going forward.

But appointing counsel here to represent the class is problematic. The Court has a fiduciary-like obligation towards those unnamed class members to determine that counsel is competent before appointing them to represent those class members who have no choice in the matter. While sanctioning counsel is one thing (addressed below), appointing counsel to represent unnamed class members is an affirmative step by the Court that creates issues going forward. For example, if the Court appoints these attorneys to represent the class and similar problems occur in the future that damage the class's interest, the Court will have a difficult time justifying its decision to an unhappy class member. Under the totality of these circumstances, the Court cannot appoint plaintiffs' counsel to represent the class.

The court allowed the named plaintiffs time to retain new counsel if they "want to continue prosecuting the case as a putative class action." It also ordered counsel to

[A] Provide a copy of this Order to the Plaintiffs;

[B] Within 30 days, file and serve a copy of this Order in all other actions currently pending in the Alameda County Superior Court in any department in which any one of Plaintiffs' counsel is an attorney of record; and

[C] Review all papers filed in the Alameda County Superior Court in any currently pending action in which Plaintiffs' counsel used the same "tool" that resulted in the misrepresentations here and to file corrected pleadings if necessary by May 1, 2025.

It declined, however, to impose further sanctions on the lawyers, because "[t]here has already been a significant professional and monetary consequence," including that Ms. Le "is no longer with Clarkson Law Firm, P.C." and the three relevant firms "will not get an award of fees from this Court for any of the work they performed in this case."

The post appeared first on Reason.com.

[Eugene Volokh] Defamation, Emotional Distress, Racism/Sexism Allegations, and Discovery

["[Defendant ex-employer's] request for all of [plaintiff's] communications containing language that is sexist or racist is overbroad."]

First, some backstory, from a decision in March by Judge Jessica Clarke (S.D.N.Y.) in eShares, Inc. v. Talton allowing Talton to proceed on his defamation claim:

According to Talton, in December 2022, he was terminated by Carta [also called eShares] and [Carta's CEO] Ward for opposing Carta and Ward's discrimination toward women …. One week after Talton's termination, Carta initiated a lawsuit against Talton for, among other things, breach of fiduciary duty and misappropriation of trade secrets. Several months after Talton's termination, Ward published and circulated an article on Medium casting Talton as "inappropriate toward women" and a "misogynist and racist." …

Talton specifies several statements made in Ward's Medium Article that could constitute defamation per se. The article states that Talton "was inappropriate with women and abused his position as CTO" and that Talton was "a misogynist and racist." In the context of an article about employee impact on company performance, these qualify as "words that impute a person … lacks integrity in performing … his employment duties" and as "words that … prejudices [a] person in … his profession." Moreover, Talton has alleged the defamatory effect of these statements included lowering his professional standing and extending his period of unemployment….

Carta and Ward also argue that these statements are constitutionally protected opinions. But this is also unavailing. As discussed above, Illinois law categorizes such statements about Talton's lack of integrity at work and statements prejudicing him in employment to be defamation per se….

In a decision Monday, Judge Clarke limited Carta's discovery of Talton's past communications:

Carta's request for all of Talton's communications containing language that is sexist or racist is overbroad…. [T]he basis for Talton's defamation claim regarding the Medium Post is that the Medium Post disparaged Talton as unemployable due in part to his racist and sexist behavior—not that Talton was simply racist and sexist… In a defamation defense asserting substantial truth, Carta must assert that Talton was racist and sexist in such a way as to make him unemployable. And Carta cannot show that Talton's alleged exchange of racist and sexist messages—if any—made him unemployable if his employer did not even know of that conduct when firing him….

The March decision, by the way, also allowed Talton to proceed on his intentional infliction of emotional distress claim:

Illinois law requires three elements to state an IIED claim. First, the conduct involved must be extreme and outrageous, such that it goes "beyond all bounds of decency and be considered intolerable in a civilized community." Second, "the actor must have intended for their conduct to inflict severe emotional distress, or must have known there was at least a high probability their conduct would cause severe emotional distress." Finally, the conduct must in fact cause severe emotional distress.

"Under Illinois law, defamatory statements, if sufficiently extreme and outrageous, can support an IIED claim." If a defamatory statement is sufficiently extreme and outrageous, a court need not dismiss the IIED claim for duplicativeness….

Non-defamatory acts can also form the basis of an IIED complaint. That is because "[u]nlike a defamation claim, a claim of intentional infliction of emotional distress does not include falsity as an element."  For this reason, even statements that cast depictions of truth can give rise to an IIED claim—such as broadcasting or publicizing the private details of a plaintiff's life, or deeply personal moments of intimacy or trauma. "If anything, sometimes depicting the truth can be more harmful and more extreme than giving a falsehood, because it deprives the victim of the satisfaction of a denial."

Talton's allegations meet the "extreme and outrageous" bar of an IIED claim. First, Talton has alleged that the Medium Article's defamatory statements were an abuse of power, widely casting Talton as an unemployable individual to the entire pool of his prospective employers.  To be sure, when Illinois courts have found defamatory statements alone to support an IIED claim, the statements themselves are usually of a more extreme nature. See Goldstein v. Kinney Shoe Corp. (N.D. Ill. 1996) (finding defamatory statements that plaintiff had engaged in "criminal sexual conduct" sufficient to support an IIED claim); Dawson v. New York Life Ins. Co., (N.D. Ill. 1996) (finding defamatory statements that depicted plaintiff as engaging in forgery and fraud sufficient to support an IIED claim).

However, Talton has alleged that he suffered more harm than just the publication of the defamation statements: the circulation of the Medium Article, with its link to the Complaint and private texts contained therein, also exposed Talton's private life to more widespread scrutiny than the uncirculated filing of the original Complaint. Again, the filing of the Complaint cannot form the basis for the IIED claim. However, the act of contextualizing and circulating that Complaint via the Medium Article does contribute to whether the publication and circulation of the Medium Article forms an IIED claim.

Taking all facts together, the Court finds that Talton narrowly alleges "extreme and outrageous" conduct based on the publication and circulation of the Medium Article. Though there remains a question about whether this is sufficiently extreme conduct for an IIED claim to succeed, "this sort of detailed fact-parsing and distinguishing of factual records is not properly done in this case under a Rule 12(b)(6) analysis." …

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