Eugene Volokh's Blog, page 7

[Eugene Volokh] Free Speech Unmuted: Kimmel, the FCC, and the Government's Power Over Broadcast Speech, with Prof. Ash Bhagwat (UC Davis)

[Ash Bhagwat is an expert on federal communications law, as well as on the First Amendment; he is also Jane Bambauer's and my co-Executive-Editor on the Journal of Free Speech Law.]

Our past episodes:

A Conversation with FIRE's Greg LukianoffFree Speech Unmuted: President Trump's Executive Order on Flag DesecrationFree Speech and DoxingThe Supreme Court Rules on Protecting Kids from Sexually Themed Speech OnlineFree Speech, Public School Students, and "There Are Only Two Genders"Can AI Companies Be Sued for What AI Says?Harvard vs. Trump: Free Speech and Government GrantsTrump's War on Big LawCan Non-Citizens Be Deported For Their Speech?Freedom of the Press, with Floyd AbramsFree Speech, Private Power, and Private EmployeesCourt Upholds TikTok Divestiture LawFree Speech in European (and Other) Democracies, with Prof. Jacob MchangamaProtests, Public Pressure Campaigns, Tort Law, and the First AmendmentMisinformation: Past, Present, and FutureI Know It When I See It: Free Speech and Obscenity LawsSpeech and ViolenceEmergency Podcast: The Supreme Court's Social Media CasesInternet Policy and Free Speech: A Conversation with Rep. Ro KhannaFree Speech, TikTok (and Bills of Attainder!), with Prof. Alan RozenshteinThe 1st Amendment on Campus with Berkeley Law Dean Erwin ChemerinskyFree Speech On CampusAI and Free SpeechFree Speech, Government Persuasion, and Government CoercionDeplatformed: The Supreme Court Hears Social Media Oral ArgumentsBook Bans – or Are They?

The post Free Speech Unmuted: Kimmel, the FCC, and the Government's Power Over Broadcast Speech, with Prof. Ash Bhagwat (UC Davis) appeared first on Reason.com.

[Eugene Volokh] "An AI Fail by an Elite Litigation Firm"

David Lat (Original Jurisdiction) has the story. A brief excerpt:

AI mistakes are no longer the province of the wantonly stupid. They can even be committed by leading litigators at famous firms.

The firm is Boies Schiller Flexner, "one of the most prestigious and profitable law firms in the nation. It's currently #55 in the Vault 100, the nation's 100 most prestigious law firms, and #118 in the Am Law 200, the country's 200 largest law firms based on revenue." Big firm lawyers (like all lawyers), take note.

Here's the declaration from the partner involved, filed together with a brief correcting the hallucinations:

I was and am the sole Firm partner with responsibility for overseeing the preparation and filing of the Filed Response Brief in this action. Under my direction, and with consent of the individual Respondents, the preparation of the Filed Response Brief included the use of artificial intelligence tools. The Firm is committed to the responsible use of artificial intelligence and has adopted policies and implemented trainings intended to protect against the risks of the improper use of artificial intelligence. Independent of the use of artificial intelligence tools, Firm lawyers are always expected to scrupulously proofread and cite check the accuracy of the factual and legal claims in court filings.

Notwithstanding these controls, the Filed Response Brief included material citation errors, including those identified in Appellants' Reply Brief. As the attorney and partner in charge of the Filed Response Brief, I am embarrassed by and very much regret these errors. The Firm is undertaking an investigation to determine why its controls failed and to ensure appropriate corrective action is taken. However, as the supervising attorney ultimately responsible for signing and submitting the Filed Response Brief, I bear the responsibility for failing to personally verify the citations included in the brief.

Lat notes:

To his credit, John Kucera [the lawyer involved] fully and freely admitted the errors, and he didn't throw any colleagues under the bus—even though I'm guessing the brief was prepared in the first instance by associates, whom Kucera did not name. No associates' names appeared on the original response brief. The only lawyers on the brief besides Kucera were two partners, Alison Anderson and Max Pritt—and in the proposed corrected brief submitted along with his motion, Kucera removed the names of Anderson and Pritt, presumably because they had little or no roles in this mess….

Read the full article for more; as usual with David Lat's work, which I like a great deal, it's substantive, readable, and fair-minded.

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[David Kopel] Refereeing the Debate over the 2021 National Firearms Survey

[Critics of Prof. William English's survey sometimes miss the mark, but also raise valid questions.]

George Washington professor William English conducted a "2021 National Firearms Survey," which is available on SSRN.com. The latest version, the "expanded report," was published in 2022. In 2024, five professors, led by Harvard's Deborah Azrael authored a critique of the survey, forthcoming in the SMU Law Review. Her coauthors are Joseph Blocher (Duke, law), Philip J. Cook (Duke, public policy), David Hemenway (Harvard, public health), and Matthew Miller (Northeastern & Harvard, public health). In November 2024, English published a detailed response to the critique, as a working paper for the University of Wyoming's Firearms Research Center, where I am a senior fellow. Then in December 2024, Azrael et al. revised their article to include an addendum (pages 24-26) responding English's November paper. In this Post, I will evaluate the pro/con arguments presented by the various authors. [Bracketed inserts] in summaries of what the authors said are by me.

In short:

English's estimate of a 32% individual adult gun ownership rates is consistent with other surveys.His estimates of defensive gun uses (DGUs) — 1.67 million times a year, with a shot fired in about 300,000 — is credible, if one believes that DGUs can be measured at all.His age distribution of DGUs seems counterintuitive, and might be contradicted by further studies.His estimates of a total national stock of about 44 million rifles that are inaccurately called "assault weapons" could be too high or too low, because of the phrasing of his question. However, other research, when combined with known data other firearms in this category, leads to a minimum national supply easily over 30 million.English's estimate that 48% of gun owners own a magazine with 10 round capacity is undisputed.

Estimates of gun ownership

English: "an overall rate of adult firearm ownership of 31.9%."

Azrael: You undercounted people with incomes over $150,000, who are 20% of the population but only 8% of respondents.

English: The "missing rich" are a well-known problem in all surveys. I weighted the results to account for this. The weighting has very little effect on the overall results. E.g., Unweighted: 82.7% of gun owners own a handgun. Weighted: 83.7% own a handgun. Besides, my survey got 1,493 responses from people with incomes over $150,000, whereas Cook's 1994 survey had only 197 responses from people with incomes over $75,000.

Azrael: Your survey may have included "yes" responses from people, particularly females, who live in a household with a gun, but who do not personally own the gun.

English: The question was specifically to individuals, "Do you own any of the following?"

Azrael: Overall ownership rates are consistent with "the high end" of prior surveys. [E.g., Pew Research 2023 = 32%, Gallup Poll 2020 = 32%, Gallup Poll 2021 = 31%, U. Chicago General Social Survey 2021 = 24.5%.] But your female rate is 5% above prior surveys. Maybe that's because you didn't ask a separate question about household rather than individual ownership, and so some females in houses with male-owned guns incorrectly answered "yes."

English: Research indicates there is a large problem of false denial of gun ownership in surveys. [Allison E. Bond et al., Predicting potential underreporting of firearm ownership in a nationally representative sample, 59 Social Psychiatry and Psychiatric Epidemiology 715 (2024).] The Bond article reported a gun ownership rate of 34.6%, and, estimated that false denials (75% chance of actually owning a gun based on demographics) accounted for 6.3% more. Females accounted for over 90% of the false denials. Unlike other surveys, mine used anonymous responses, so that an individual would not be divulging gun ownership at a known address, and my survey didn't mention university affiliation, since respondents may guess that universities are affiliated with a gun control agenda. [Which Harvard, Northeastern, and Duke certainly are, although Duke's Center for Firearms Law does publish guest pieces from diverse perspectives, as does Wyoming.] Also, I included "attention check questions" to weed out respondents who weren't reading the questions carefully.

Azrael reply: "He claims, without evidence, that his survey will encourage more female gun owners to respond honestly. Perhaps, but we might be more convinced if he had eliminated the more compelling explanation for his results by simply asking the single question [household rather than personal ownership] that virtually everyone else has."

Kopel: English did provide an explanation: most importantly, anonymity in responses so that the respondent would know that her home address was unknown to pollster. Plus non-inclusion of university affiliation, which is, in my view, often and accurately perceived as an indicator of anti-gun agenda on the part of the surveyor. The total individual ownership rate is consistent with other surveys, and a mere +5% in the female rate is plausible as a result of survey design. Indeed, it's less than the variation in overall individual rates between other surveys.

"Assault weapons"

English survey question:

"Some have argued that few gun owners actually want or use guns that are commonly classified as 'assault weapons.' Have you ever owned an AR-15 or similarly styled rifle? You can include any rifles of this style that have been modified or moved to be compliant with local law. [E.g., replacing a telescoping stock with a fixed stock.] Answering this will help us establish how popular these types of firearms are."

As English admits, this was a leading question, which he justifies as useful in getting potentially reluctant respondents to disclose ownership: the wording "provided an intelligible explanation to respondents as to why sensitive questions were being asked and avoided language that could alienate respondents in a context where the overriding methodological concern in the literature is under reporting by firearms owners."

The results were: 30.2% of gun owners said that they had ever (not necessarily at present) owned such a gun. This leads to an estimate of 44 million such guns having been owned.

Azrael: The term "assault weapon" is vague [citing Wikipedia]. "The term usually refers not only to certain semi-automatic rifles, but also pistols and shotguns that are able to accept detachable magazines and possess other features. Good surveys make it very clear what they are asking about."

Kopel: Very true. "Assault weapon" bills have covered almost every type of gun, including paintball guns, air guns, most handguns, most rifles, all semiautomatic rifles, most shotguns, and all slide action guns — indeed, almost everything except machine guns. See Kopel, Defining "Assault Weapons", The Regulatory Review (Univ. of Pennsylvania), Nov. 14, 2018.

But, English didn't merely ask about "assault weapon." The specific question was "an AR-15 or similarly styled rifle." This wording addressed Azrael's concern about shotguns and handguns, so it is surprising that she raises this as a rebuttal.

English: "The list of similarly styled rifles that are commonly classified as 'assault weapons' is extensive and would include, for example: AK-47 designs, FN FALs, M1 carbines, M1A's, HK 91/93/94s, SKSs, Kel Tec rifles, Thompsons, and even Ruger 10/22s in certain configurations.

Azrael: "The problem is that while English may know what he meant, many respondents and those relying on his survey may not."

Kopel: Fair point. But the phrasing may well have led to an underestimate of the total ownership rates. For example, the semiautomatic M1 carbine (adopted by U.S. military 1941) and the semiautomatic Thompson rifle (patented 1920) were invented long before the AR-15 (base patent 1956), and look nothing like an AR-15, except in that they are rifles.

Azrael: The 44 million is too high based on other sources: 1. The National Shooting Sports Foundation [trade association for the firearms industry] estimated 24.4 million AR and AK platform rifles manufactured between 1990 and 2020. 2. Washington Post/Ipsos survey of ownership of "AR-15 style rifles" and rifles "built on a common AR-15 platform." 3. Azrael et al. 2023 survey.

English: All the above use narrower definitions. NSSF was solely AR and AK, did not include imports, and did not include the approximately two million homemade AR rifles. [Number estimated by ATF.] Washington Post was solely AR. Both these data sources exclude many models that I included; for example, after World War II, the U.S. government, through the Civilian Marksmanship Program, sold millions of M1 carbines to the American public.  Azrael 2023 incorrectly created the mutually exclusive categories of "semi-automatic military-style rifles" and "semi-automatic hunting rifles."

Kopel: And the 2023 Azrael survey would seem to incline respondents to classify a firearm they own for hunting as not being a "military-style" rifle, even though so-called "assault weapons" are commonly used for hunting. Overall, estimates in the low 20 millions are certainly undercounts. Whether 44 million is the correct figure is uncertain. Azrael is right that "Good surveys make it very clear what they are asking about," and the criticism can be applied equally to the English question and to her own question inaccurately proclaiming that "military-style" and "hunting" are two mutually exclusive categories. One of the most popular hunting rifles in American history is the bolt-action .30-'06 caliber, which was the American military service rifle for the most of the first four decades of the twentieth century; surplus rifles were widely sold to the public via the federal government's Civilian Marksmanship Program.

Defensive gun use

English: My survey indicated that guns are used defensively around "1.67 million times a year: about 300,000 times a shot is fired, about 852,000 times the gun is only brandished, and about 518,000 times neither happens (e.g., someone said they had a gun and that made an aggressor flee)."

Azrael: You should have asked separate questions about DGUs against humans and against animals. Combining the two in one category makes it hard to compare your findings with prior surveys that asked only about use against humans.

Kopel: Fair point.

Azrael: "English includes a type of defensive gun use that is almost always excluded—did you just say you had a gun. He can include these if he wants, but if he wanted his results to be comparable to the many other surveys, all he needed was one question to separate those out."

Kopel: Incorrect. First, English did ask "one question to separate those out." On page 13 of his study, there is the question "Did you fire your gun, show it, or neither." Fired was 18.1%; showed was 50.9%, and neither was 31.0%.

Moreover, Azrael is wrong to claim that English's approach was not "comparable to the many other surveys." The leading prior survey, Gary Kleck 1995, counted a DGU if "the gun was actually used in some way — at a minimum it had to be used as part of a threat against a person, either by verbally referring to the gun (e.g., 'get away — I've got a gun') or by pointing it at an adversary." Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 Journal of Criminal Law and Criminology 150, 162-63 (1995). Kleck found a range of 2.1 to 2.5 million DGUs annually, and those included verbal references. Kleck found that only 24% of DGUs involved firing the gun. This would leave 76% as brandishing or verbal. English went further than Kleck, by asking a question that distinguished brandishing from verbal. Because crime was higher at the time that Kleck conducted his survey, English's 1.67 million DGU figure is consistent with Kleck.

Azrael's co-authors Cook and Hemenway spent years writing journal articles sparring with Kleck about his survey, so they are quite familiar with it. Thus, it is astonishing that an article of which they are coauthors claims that English is an outlier for including verbal references as DGUs. And the claim that English did not ask a question to "separate out" raises concerns about whether the authors of the critique carefully read the paper they are critiquing.

Azrael: English's DGU results are 20 times higher than those reported in the National Crime Victimization Survey. [The NCVS is conducted annually by the Census Bureau in conjunction with the Department of Justice, and is based on in-person interviews.]

English: The NCVS doesn't even ask about DGUs. It just allows persons who have already identified themselves as crime victims to volunteer a DGU in response to an open-ended question about whether they did anything in response to the crime. Even this question is asked only for some crimes. Contrary to Azrael's article, the NCVS does not offer respondents an "option" to indicate a a DGU. [E.g., something such as, "Did you do any of the following: 1. Run away, 2. Use a gun, 3. Use a knife, 4. Try to reason with the attacker."] A RAND Corporation analysis specifically called out these problems with the NCVS as a means of estimating DGUs. "The Challenges of Defining and Measuring Defense Gun Use," Gun Policy in America, Mar. 2, 2018.

Additionally, the NCVS surveyors are specifically identified as working for the U.S. Department of Justice. Respondents may be chary of disclosing DGUs to the federal government.

Kopel: The Azrael NCVS point is preposterous, and at least some of her coauthors can be presumed to be aware of its severe limitations. Notably, those limitations are not mentioned in their article.

The stronger point would have been to adopt the argument in coauthor Cook's 1998 article. There, he conducted a survey that remedied various alleged methodological flaws in the Kleck survey. The data seemed to indicate there were over a million DGUs annually. However, Cook and his coauthor stated, "We find that estimates from this new survey are apparently subject to a large positive bias [i.e., false reporting of a DGU], which calls into question the accuracy of DGU estimates based on data from general-population surveys." Philip J. Cook & Jens Ludwig, Defensive Gun Uses: New Evidence from a National Survey, 14 Journal of Quantitative Criminology 111 (1998).

Thus, one can argue that general population surveys — such as those conducted by English, Kleck, and Cook — are incapable of accurately estimating DGU, and one can also admit that the NCVS, which is also a general population survey that only asks follow-ups to persons who first identify as having been a crime victim, has unique flaws that prevent it from providing a valid estimate of DGUs. Hence, total DGUs are unknowable. This would have been a stronger critique than the one presented by Azrael et al.

Azrael: You asked about lifetime DGUs rather than about DGUs in a specific time period, such as within the last year, or within the last five years.

English: I asked lifetime because Azrael's coauthor Hemenway specifically criticized time-bounded DGU questions as producing artificially high numbers because of the problem of telescoping. That is, if the DGU occurred 13 months ago, it may be such a vivid memory that the respondent recalls it as having happened within the past year. David Hemenway, The Myth of Millions of Annual Self-defense Gun Uses: A Case Study of Survey Overestimates of Rare Events, 10 Chance 6 (no. 3, 1997).

Azrael: "18–20-year-olds in his sample reported more than half (54%) of the total number of lifetime DGUs reported by all age groups combined."

English: Not so. Here are the tables by age: 9,534 total DGUs, with 590 by ages 18-20. English, A Response to Critics, at 18.

Azrael: You're right. We correct the latest version of our article and admit the error in the prior version. (Dec. 5, 2024, version at 19, n.75).

But, your DGUs per respondent are "not credible" because young people have so much higher rates than older people. [DGUs per respondent are .88 for ages 18-20, .90 for ages 21-25, and decline thereafter. Ages 51-55, are .47, and ages 80+ are .15.] "In particular, the 51-55 year olds report only half as many lifetime defensive gun uses as the 21-25 year olds, despite the fact that the older group were young during the most violent period in US history (circa 1990) and have had 30 additional years to add to their experience since then…. Again, if he wanted his to be comparable to all the other surveys, all he needed was one question to ask about whether the most recent defensive gun use was in the past 5 years."

English. "[I]t appears that 80-year-olds passed through their 'most active DGU years' during a time when crime was extremely low, and therefore they accumulated fewer DGU's. Thus, the average of the old and the young taken together approximates the average of the middle aged."

Kopel: It's odd for a paper coauthored by Hemenway to criticize an author for not using the exact technique (asking only about DGUs within the last five years) that Hemenway said should not be used. Damned if you do (Kleck, time-limited), and damned if you don't (English, lifetime).

However, I agree with Azrael that the age distribution of DGUs doesn't make sense. A 75-year-old in his 2021 survey would have been born in 1946, and lived through three major crime waves: The first began in the mid-1960s, began declining after 19800, and surged again starting in the latter 1980s. Another crime decline began in the mid-1990s, and continued through the mid-2010s, by which time crime had fallen to the low levels of the early 1960s. Thereafter, crime sharply increased.

Moreover, according to English, about 25.2% of DGUs occurred inside the home, and 53.9% occurred outside on the home but on the victim's property. English 2022, at 14. Thus, even though today's 70-year-olds would have, in many states, been prevented from carrying a defensive handgun in public for much of their lives, and thus been unable to defend themselves against criminal attackers in a parking lot, those 70-year-olds still would have been able to possess a firearm for defense of their homes, which per English accounts for 79% of DGUs.

Part of the explanation for the higher rates of DGUs reported by young adults in the English survey can be attributed to the fact that violent crime victimization and perpetration is higher for people in their teens and twenties than for older groups. One reason is that they are out and about more, and another reason is their social interactions are more varied. A third reason is younger people are less risk-averse, which makes some of them more likely to perpetrate crimes, and more of them more likely to put themselves in sketchy situations, such as walking around dark city streets very late at night. Conversely, if you're married, in your forties, and living at home with three small children, you're probably don't go out as much at night as you used to, and the people with whom you interact are probably mostly close to your age, which makes them less likely than younger people to perpetrate interpersonal crimes.

Additionally, the younger persons are, the more likely they are to have spent all their adult lives living in jurisdictions where the carrying of defensive arms outside the home is lawful.

As for the upper part of the age cohorts, they entered adulthood at a time when American gun ownership for sport was relatively more common compared to defensive ownership than today. The gun-owner who in 1967 kept an unloaded hunting rifle in a safe in the basement simply might not have been able to access that rifle when burglars broke into his home to take the jewelry and television.

The above analysis is only a partial explanation of what might account for the age skew reported in the English survey. It will be interesting see whether future surveys of DGUs have, like English did, large enough sample size to report results by age, and whether those surveys violate Hemenway's First Law (don't ask time-bound DGU questions) in order to comply with Hemenway's Second Law (don't ask lifetime DGU questions).

Magazines

English: 48% of gun owners have owned a magazine that holds 11 or more rounds. Of them, 62.4% says that home defense is a reason for a choice of a magazine that size.

Azrael: That doesn't prove that "large" magazines are useful for defense. The free-form section of the responses, in which respondents could describe their DGUs, did not include information about how many shots were fired.

English: True, but "Plenty of cases do describe multiple, violent criminal assailants… I leave it for the judicious reader to consider whether being able to fire more than 10 rounds without reloading would or would not be useful in defending against multiple violent assailants.

Kopel: If Azrael et al. sit down next you at a coffee shop and start giving you advice about to weight subgroups in a survey, listen to every word and take copious notes. If they start  advising you how to use your firearm defensively, run away as if your life depended on it.

Next time you see a police officer or sheriff's deputy, take a look at what handgun they are carrying. It will very likely be a pistol with a magazine capacity over 10 rounds. They're not carrying that handgun to shoot woodchucks. They're bearing the gun for the sole purpose of defending innocent lives, including their own. As they well know, most defensive shots, even when fired by law enforcement miss. Further, as they also know, one or two hits usually does not immediately stop an assailant. Additionally, a standard capacity magazine (such as the 11-20 round magazines sold with many pistols) has deterrent value.

Other issues

Kopel: This post discussed the leading issues in the Azrael v. English dispute, but not all of them. I urge readers to read the English survey, the Azrael et al. rebuttal, the English reply and make up their own minds. I have omitted discussion of separate criticism of English's estimate of "assault weapon" prevalence by professor Louis Klarevas, of Columbia Teacher's College, because Klarevas evidently misread the English paper. A few respondents had claimed to own an implausible number of "AR-15 style" rifles, such as 1,000. English dropped these responses from his estimates, but Klarevas believed that these numbers were included. English 2024, at 20-23.

The post Refereeing the Debate over the 2021 National Firearms Survey appeared first on Reason.com.

[Eugene Volokh] From Prison to Helping the FBI to an Apple TV Miniseries … to Google-Hallucinated Libel?

[Jimmy Keene, on whom the Apple TV miniseries Black Bird was based, sues Google alleging its AI hallucinated accusations that he's a convicted murderer serving a life sentence.]

From the Complaint in Keene v. Google LLC, just removed yesterday to federal court (N.D. Ill.); Keene's discloses that his work with the FBI happened while "he ended up on the wrong side of the law and was sentenced to ten years" in prison for drug conspiracy:

Plaintiff has written and published several novels and is best known for his memoir about his life and experiences, titled In with the Devil: A Fallen Hero, a Serial Killer; and a Dangerous Bargain for Redemption (2010). Plaintiff is well known for working with the FBI to uncover the crimes of the serial killer Larry Hall who was suspected of murdering many women. By helping the FBI secure evidence and proof against Hall, Plaintiff, working as an operative for the FBI, absolved himself of any wrongdoings and assisted in convicting Hall for multiple murders….

Plaintiff is an executive movie producer and consultant on various film projects and has deals with Paramount Pictures. Plaintiff owns a real estate development company and several other businesses….

On or about May 24, 2025, through May 26, 2025 …, Plaintiff was made aware, though friends and acquaintances of his, of statements that Google had posted and that Google had stated as fact on its own platform Google.com…. [Google] stated that Plaintiff "is serving a life sentence without parole for multiple convictions, according to Wikipedia." … The Wikipedia article regarding Plaintiff … did not state that Plaintiff is serving a life sentence without parole for multiple convictions.

Google LLC also stated through its platform, between May 26, 2025, and May 30, 2025, that "Plaintiff is serving a life sentence without parole for the murders of 3 women." Additionally, between May 26, 2025, and May 30, 2025, when asking about Plaintiffs' net worth Google stated through its platform that the Plaintiff "in the search results refers to a criminal, not a celebrity with a known net worth."

Plaintiff made a complaint to Google on May 27, 2025 informing Google about the false statements made by its platform. Google privately apologized to Plaintiff, stating that the statements were an unknown error made by their Artificial Intelligence Platform.

Google proceeded to edit their Platform and AI which resulted in more false statements…. Plaintiff contacted Google again and informed them about their defamatory statements; Google proceeded to apologize to Plaintiff again.

By repeatedly acknowledging and then apologizing for the false statements made on their platform Google acknowledged their existence, yet allowed such untruthful statements to continue to be published through their platform over a period of at least two months; Google demonstrably failed to take reasonable steps to correct misinformation which continued to be published with Google's actual knowledge as to the falsity of the statements….

For more on how libel law would apply to such cases, see Large Libel Models: Liability for AI Output? For more on the four earlier such cases in U.S. courts, see Battle, Walters, Starbuck, and LTL.

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[Eugene Volokh] What Apparently Didn't Happen in Lisbon Didn't Stay in Lisbon. Result: Libel Takedown Injunction

From Wednesday's decision by Judge K. Michael Moore in Signorello v. Murphy (S.D. Fla.):

{The following facts are taken from the Complaint, and a "party in default has admitted all well-pleaded allegations of fact" therein.} Underlying this action is an altercation between Plaintiffs and Defendant in Lisbon, Portugal.

Defendant accompanied Plaintiffs, who were both college students, on a night out after meeting by chance earlier that day, which according to Plaintiffs was initially welcome but became increasingly uncomfortable throughout the evening, culminating in an "almost manic" outburst from Defendant after which he started following Plaintiffs' group and accusing one of Plaintiffs' classmates, Harry, of stealing money. As Defendant continued to harass and follow Plaintiffs' group, Harry took out his wallet to offer Defendant the allegedly stolen cash to end the confrontation, but Defendant grabbed his wallet, tore up the bills, and yelled: "You think this money means anything to me?!"

After further attempts to retrieve the wallet, at the suggestion of nearby club bouncers the group went to the police, who located Defendant and forced him to return the wallet. Defendant again started yelling obscenities and otherwise harassing Plaintiffs' group, which led to a physical altercation where Defendant was attacking Harry and Plaintiffs were jumping on Defendant and pulling him to the ground to end his attack, after which they got away.

Immediately Defendant sought to make himself a victim of the attack, both in the moment and on social media in the following days, prompting the police to investigate Plaintiffs. Defendant spoke menacingly to Neubauer by mentioning his address in Tennessee, which he had apparently researched since the fight, and after Plaintiffs left Portugal, Defendant and his associates continued to send harassing messages to Plaintiffs' group over email, text, X, as well as sending defamatory and harmful information about Plaintiffs to their school, Washington & Lee University. Both Washington & Lee University and their study-abroad affiliate school in the United Kingdom required Plaintiffs to explain the altercation and Defendant's accusations.

Aside from the group, Plaintiffs' parents and Signorello's sister have also received harassing text messages with pictures of Defendant's injuries and demands for payments, among other texts characterizing Plaintiffs as having committed a crime, which caused them academic and professional issues and embarrassment.

Plaintiffs sued for, among other things, defamation; the defendant failed to adequately respond, and was thus found in default, which meant that plaintiffs' factual allegations were accepted. Here is the court's analysis:

[1.] Plaintiffs ask the Court to enjoin Defendant from publishing defamatory statements, "including but not limited to Internet, emails, text, and social media posts, including but not limited to any allegation stating, or implying, that Plaintiffs harmed the Defendant," to enjoin him from contacting Plaintiffs' "employers, universities, friends and family regarding the Plaintiffs" as well as with Plaintiffs and their affiliates, and to order him "to remove any existing social media or other internet posts making statements regarding the Plaintiffs." …

It is well-settled Florida law that "absen[t] some other independent ground for invoking equitable jurisdiction, equity will not enjoin either an actual or threatened defamation" as that would constitute an unconstitutional prior restraint. There is disagreement among courts as to whether this rule continues to apply when there has been an actual finding of particular speech being false and defamatory, either by judge or jury, which has sometimes been called the "modern rule." See Basulto v. Netflix, Inc. (S.D. Fla. 2023) (collecting cases as to this split). While most cases recognizing the modern rule have been outside of this District, and there are no decisions binding on this Court that have adopted it, at least one court in this District has granted injunctive relief for defamation on the "independent ground" that "an action at law would not be a complete, prompt and efficient remedy."

Plaintiffs have satisfied the three prongs of the test for a permanent injunction based on the Court's finding that they adequately stated their claim for defamation, mere damages will not stop Defendant from continuing his ongoing digital harassment campaign against Plaintiffs and their affiliates, and that as Defendant's campaign continues so does the harm to Plaintiffs as they are forced to defend themselves against false accusations to friends, family, schools, and employers. The remaining question, therefore, is whether such an injunction may be granted in this defamation context.

The courts in Lustig v. Stone (S.D. Fla. 2015) and Saadi v. Maroun (M.D. Fla. 2009) granted permanent injunctions narrowly tailored to only postings that the defendants had already made online and had already been found to be defamatory. Lustig ("[Defendant] has shown through her conduct a single-minded intent to destroy [Plaintiff] professionally and personally …. In particular, the Undersigned notes that none of [Defendant's] defamatory internet postings about [Plaintiff] have been taken down and they continue to damage his reputation."); Saadi ("[T]he Court finds that [Defendant] should be enjoined from continued or repeated publishing of the statements  that were found by the jury to be defamatory. However, the scope of the injunction must be limited to those statements.").

The Court will similarly constrain itself here. Accordingly, Plaintiffs will be granted a limited permanent injunction covering only statements regarding Defendant's false and defamatory assertions that Plaintiffs attacked, assaulted, robbed, or otherwise committed criminal acts against or harmed Defendant, which allegations Defendant has admitted by default.

This injunction requires Defendant to both take down the existing internet posts of any kind that reflect these defamatory assertions and cease and desist from making any outreach to Plaintiffs and their affiliates, including any institutions and actual or prospective employers, to convey the same including but not limited to internet, emails, texts, and social media posts. The injunction will not extend to a broad category of unspecified "derogatory statements" or "any statements about either or both of the Plaintiffs," and instead will be limited to any statements that reflect the information properly presented to the Court and that has been specifically adjudicated as defamatory….

Marty Steinberg and Hans H. Hertell (Hogan Lovells) represent plaintiff.

The post What Apparently Didn't Happen in Lisbon Didn't Stay in Lisbon. Result: Libel Takedown Injunction appeared first on Reason.com.

[Eugene Volokh] No Preliminary Injunction Against Publishing Billionaire's Cryptocurrency Asset Details

From Judge Colm Connolly's opinion yesterday in Sun v. Bloomberg, L.P. (D. Del.):

On August 11, 2025, after months of working to verify Sun's assets, Bloomberg published Sun's profile in its Billionaires Index, "a ranked list of the world's richest people." Two sentences of the profile are at issue here:

Sun owns more than 60 billion Tronix (also referred to as TRON or TRX), the cryptocurrency native to Tron, according to an analysis of financial information provided by representatives of Sun in February 2025…. Sun also owns about 17,000 Bitcoin, 224,000 Ether, and 700 million Tether, according to the same analysis.

According to Sun, (1) Bloomberg's publication of "the alleged specific amounts of cryptocurrencies" he owns constitutes a public disclosure of private facts, and (2) Bloomberg is estopped from publishing "financial information regarding the value of specific assets and details related to [his] ownership of those assets" because it promised him that it would not publicize "the amounts of specific cryptocurrency" he owns and that it "would take measures to protect [his] Confidential Financial Information from disclosure."

Within hours of Bloomberg's publication of the profile, Sun filed in this Court his initial Complaint  and a motion for a temporary restraining order and preliminary injunction. He withdrew the motion three days later because, according to Sun, the parties were "engaged in discussions" that may have mooted the motion. Those discussions apparently did not go well, however, because on September 11, Sun filed the instant motion, seeking a temporary restraining order and preliminary injunction requiring Bloomberg (1) "to remove the amounts of any specific cryptocurrency owned by Mr. Sun from any of its online publication," (2) "to retract its claim that Mr. Sun owns 60 billion Tronix and controls the majority of its supply," and (3) to refrain from "publishing the amounts of any specific cryptocurrency owned by Mr. Sun in any future publication." …

Sun has not made a clear showing that he is likely to succeed on the merits of his promissory estoppel claim. To prevail on this claim, Sun would have to "demonstrate by clear and convincing evidence" that (1) Bloomberg made a promise; (2) it was the reasonable expectation of Bloomberg to induce action or forbearance on the part of Sun; (3) Sun reasonably relied on the promise and took action to his detriment; and (4) such promise is binding because injustice can be avoided only by enforcement of the promise.

Sun makes several attempts to establish the first element of his promissory estoppel claim-that Bloomberg made a promise. Each fails. He first asserts that in the conversations that "predated his decision to participate in the Billionaires Index, Bloomberg made express promises that any information provided to Bloomberg would only be used to verify his personal assets." In support of this proposition, Sun cites his own declaration in which he states that Muyao Shen, a Bloomberg reporter, "told [him] that any information [he] provided to Bloomberg for the purpose of verifying [his] personal wealth would be kept strictly confidential and would only be used to verify [his] personal assets for the Billionaires Index profile."

Bloomberg counters with declarations of its own. Muyao Shen, the reporter who Sun asserts made express promises regarding confidentiality, attests in a declaration that she did not "make any promises of confidentiality regarding any aspects of Bloomberg's coverage of Mr. Sun." Two members of Bloomberg's Billionaires Index team, Dylan Sloan and Tom Maloney, also attest that they never "promised confidentiality in connection with the information Mr. Sun and his team were sharing with Bloomberg for the Bloomberg Billionaires Index." On this record, I cannot say that Sun has made a clear showing that Bloomberg "made express promises that any information provided to Bloomberg would only be used to verify his personal assets." [Discussion of further claims that Bloomberg had promised confidentiality omitted. -EV] …

In short, on this record, Sun has not shown clearly that Bloomberg made a promise of confidentiality. He therefore has not shown clearly that he is likely to succeed on the merits of his promissory estoppel claim.

Next up is Sun's claim for public disclosure of private facts. To prevail on this claim, Sun would need to prove: (1) public disclosure, (2) of a private fact, which would be offensive and objectionable to the reasonable person, and which is not of legitimate public concern. Regarding the third element, Sun asserts that Bloomberg's publication of his cryptocurrency assets "to millions of online readers and [threats] to further publicize it in an additional article" would be highly offensive to a reasonable person because "the knowledge of what cryptocurrency [he] owns makes him an increased target for hacking, phishing, social engineering, kidnapping, or bodily injury." But before Bloomberg published Sun's profile, other entities, including Nansen, provided similar (if not more detailed) estimates of Sun's assets. And Sun himself has disclosed far more specific information about his Bitcoin holdings than what Bloomberg published:

Accordingly, at this stage, I cannot say that Bloomberg's publication of estimates of Sun's cryptocurrency holdings—information that is arguably less specific than what other entities and Sun himself have made public—would be objectively offensive to a reasonable person. Thus, Sun has failed to show clearly that he is likely to succeed on the merits of his public disclosure of private facts claims….

Jeffrey J. Lyons, Isabelle Corbett Sterling, Teresa Goody Guillen, and Katherine L. McKnight (Baker & Hostetler LLP) and James M. Yoch, Jr. and Robert M. Vrana (Young Conaway Stargatt & Taylor, LLP) represent Bloomberg.

UPDATE: I originally titled this post "no liability for publishing billionaire's cryptocurrency asset details," because the court's reasoning suggests that there's likely no basis for liability under either of the plaintiff's theories. But technically the decision was just that there was no likelihood of success on the merits (since the court was asked to issue a preliminary injunction), so I decided to update the title accordingly.

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[Josh Blackman] Today in Supreme Court History: September 23, 1971

9/23/1971: Justice John Marshall Harlan II resigns.

Justice John Marshall Harlan II

 

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[David Kopel] The Dean of Gun Lobbyists

[John Snyder’s Oral History]

In November 2015, I recorded an oral history with John Snyder, who was then-retired as "the dean of Washington gun lobbyists." A pivotal figure in the gun rights movement, he passed away in 2017 at age 79. He started in 1966 with the National Rifle Association (NRA), then in 1975 co-founded and became the lobbyist for the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), serving in that capacity until he retired in 2011.

The full 31-page oral history interview was recently published as a Working Paper by the University of Wyoming College of Law's Firearms Research Center: John Snyder: An Oral History of the Dean of Washington Gun Lobbyists. Below, I summarize some of our conversation at his home in Bethesda, Maryland, starting with the emergence of the gun control debate in the 1960s.

From Georgetown to the NRA

John Snyder entered the gun rights arena almost by accident. In 1966, at age 26, he was a Georgetown University graduate student in political science, preparing for his master's comprehensive exam and seeking part-time work so that he could focus on his studies. A classmate's tip led him to a "Boy Friday" job at The American Rifleman, the NRA's flagship magazine.

At the time, the NRA was a sleepy organization of 800,000 members, primarily target shooters, hunters, and collectors, with little appetite for political engagement. Snyder explained, "there was no pro-gun movement or pro-gun lobby" in 1966. Gun ownership was simply assumed to be a right of law-abiding Americans.

The landscape shifted after the 1966 University of Texas shooting and the 1963 assassination of President Kennedy. Senator Thomas Dodd (D-Conn.) was Chairman of Senate Subcommittee on Juvenile Delinquency and had been criticizing violence on television and cinema. Franklin Orth, the NRA's Executive Vice President, told Snyder that "pressure was put on Dodd by Hollywood and a lot of the advertisers on Hollywood to get off the film kick. And somebody pointed him in the direction of the firearms kick."

Snyder's work at The American Rifleman under editor Ashley Halsey, Jr., placed him at the forefront of the NRA's nascent response. Halsey, a former Saturday Evening Post features editor, saw the need to counter anti-gun propaganda. He tasked Snyder with research, and Snyder began digging through Library of Congress archives for quotes from dictators on disarmament. He recalled:

These were English translations of all their writings and for like Stalin, there'd be 40 volumes. . . I went through those volumes piecemeal and found out things that these various dictators have had to say about disarming the people and so on. All of which has become common knowledge now but at that time it wasn't, because the research hadn't been done. I did the research which involved me sitting in the Library of Congress for hours going through all these filthy old books.

These findings informed editorials, some reprinted in the Congressional Record by pro-gun Democrats like Rep. Bob Sikes of Florida.

Yet the NRA remained divided. Many members and leaders, including Executive Director Louis Lucas, resisted lobbying, viewing it as unseemly. However, as Snyder repeatedly affirmed:

They were very patriotic, good, good people, but just totally unprepared for the political onslaught that was building at that time. . . The people who didn't want to get too involved in the public defense of the Second Amendment thought . . . the war would peter out. . . Because they had grown up in the old America, they couldn't conceive of anybody wanting to take guns take away. I mean, they just couldn't believe it!

As a reporter for The American Rifleman, Snyder investigated the Kenyon Ballew case and exposed law enforcement misconduct.  On June 7, 1971, in Silver Spring, Maryland, the Montgomery County Police and the new federal Bureau of Alcohol, Tobacco, and Firearms (BATF) broke down the door of the wrong apartment, shot first, and severely injured Kenyon Ballew. Next, they fabricated a case, ultimately unsuccessful, purporting that Ballew had violated the National Firearms Act.

George Gordon Liddy

One day in June 1972, Snyder and a friend were heading out to lunch in Washington, D.C., near the then-headquarters of the NRA, at 1600 Rhode Island Avenue, N.W. They ran into G. Gordon Liddy, whom Snyder knew from upstate New York, and as a White House aide who often came to the NRA building to shoot at the handgun range. They invited Liddy to "come to lunch." To which he replied, "'Guys I'd love to," but 'We've got to re-elect the president."

"THAT night was Watergate!" said Snyder.

Snyder recalled that he and the friend "both thought that was kind of strange" at the time for Liddy to say what he did, even in the context of Liddy's typical "hardcore" demeanor.

The Rise of a Movement and Birth of the CCRKBA

While still employed at NRA, Snyder made contacts with Young Americans for Freedom (YAF), and became their gun policy expert, mentoring YAF's National Students Committee for the Right to Keep and Bear Arms. Collaborating with another YAF figure, Alan Gottlieb, Snyder created the Citizens Committee for the Right to Keep and Bear Arms. On January 1, 1975, he started with a single desk in a shared office.

In those early days, two congressmen were particularly helpful:

John Ashbrook was a member of Congress from Ohio, and he was a Republican. One of the last real, solid anti-communist types in the House. He at that time was a minority leader of the Subcommittee on Crime of the House Judiciary Committee. He and I talked a lot. He just said he told the other Republicans that he thought I could be trusted, and I'd never let them down, and I'd always give 'em the straight scoop. He made sure I got invited to testify and so on.

There was a guy on the Democrat side who was the same way, Larry McDonald. . . Larry Patton McDonald. He was the nephew of General George Patton. His mother was George Patton's sister. So I developed the ability to deal with people in both parties, mainly through the efforts of these two congressmen.

Snyder provided legislators with data and talking points, which they shared with colleagues, and he gave lectures for congressional staff.

He also began a long-running holiday tradition of mailing pro-gun Christmas cards. The first one "just had Santa Claus getting ready to put a firearm in a box under the Christmas tree." Because the printer hand printed thousands, Snyder kept the cards, and mailed them widely the next Christmas, this time to every congressperson. It did not go over well with some. Rep. Jonathan Bingham (D-N.Y.) delivered a speech on the House floor expressing his outrage. CBS Evening News anchorman Walter Cronkite denounced the card. Snyder laughed in recollection of the free publicity.

Perspective over Half a Century

Snyder reflected on the transformations of lobbying over the previous half-century. In the 1960s, lobbying was not a recognized profession. By 2015, Washington hosted tens of thousands of lobbyists, with universities offering master's degrees in legislative affairs. Large firms now dominate, contracting with interest groups.

Corporate lobbying, Snyder observed, offered high salaries but lacked the heart of cause-driven work. His own efforts were fueled by a belief in the Second Amendment as a God-given right, not a government-granted privilege.

In 2015, Snyder described the Second Amendment as "tenuous" because many people felt "that no right, in and of itself, exists other than as something granted or conceived of by the government. . . [T]he right of individuals is always tenuous. Not only now. That always has been the case. You can go way back into ancient history," starting with Plato, the philosophical founder of dictatorship.

It should be noted that Snyder in February 2016 became the first national figure in the gun rights movement to endorse Donald Trump for President. Some considered the endorsement shocking, including because of Trump's erratic record on gun issues from interviews in previous years.

Fighting the Good Fight

John Snyder and I became friends starting in 1988, when he interviewed me for a newsletter article naming me "Gun Rights Defender of the Month." He was a good man, with a passion for human rights. It was a blessing to have known him.

The above post was previously published on the website of the University of Wyoming College of Law, Firearms Research Center.

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[Eugene Volokh] S. Ct. Agrees to Hear Merits Case on Whether President Has Power to Remove "Independent" Agency Heads (the Humphrey's Executor Overruling Question)

From today's order in Trump v. Slaughter:

The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. The parties are directed to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey's Executor v. United States, 295 U.S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented from the Court's staying the lower court decision, which had temporarily ordered FTC Commissioner Rebecca Slaughter reinstated.

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[Ilya Somin] Courts are Checking Trump More Effectively than Many Think

[Legal scholar Steve Vladeck explains how and why. ]

AI-generated image.

There is a widespread perception - reinforced by a number of high-profile Supreme Court decisions - that the judiciary has been largely ineffective in curbing the second Trump Administration's many illegal actions. In an insightful recent post, Georgetown law Professor Steve Vladeck (one of the nation's leading experts on the Supreme Court and the federal judiciary), explains that courts have actually had more impact than many think:

There is, alas, plenty of Supreme Court-related news…. But I wanted to use this week's "Long Read" to tell a slightly different story—about cases that aren't making headlines, for instance, the ongoing litigation challenging President Trump's executive order purporting to limit birthright citizenship. That order remains on hold—thanks to a series of rulings by lower courts after the Supreme Court's 6-3 ruling on June 27. These lower-court rulings have flown under the radar—at least largely because the government has not sought emergency relief from the courts of appeals or the Supreme Court, nor has it refused to comply with them. For now, it is "taking the L."

That's an important story unto itself—not just in the birthright citizenship cases, but more generally. For all of the attention that is (understandably) being paid to the unprecedented number of cases the Trump administration is rushing to the Supreme Court (we're up to 28), and to the Court's (troubling) behavior in those cases, they represent only a small subset of the broader universe of legal challenges to Trump administration behavior. In the majority of cases in which the government is losing in the lower courts, it is (1) not seeking emergency or expedited intervention from above; and (2) otherwise complying with the adverse rulings while the cases move (very slowly) ahead.

Because this reality doesn't make for quite as attractive headlines, it's one to which too many folks are largely oblivious. That's a problem worth fixing—not only because it's important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration.

Vladeck goes on to explain that the birthright citizenship order - like a number of other Trump policies - remains blocked by lower courts, and that the administration often chooses not to appeal, or to do so only slowly. He also notes that this record shows that the Court's ruling in Trump v. CASA, Inc., barring most universal injunctions, has so far not had the devastating effect some predicted, because lower courts have found other ways to impose broad injunctions constraining illegal policies:

[F]olks might recall the loud and sharp debate following on the heels of the Supreme Court's ruling in CASA over just how much (or how little) of an impact that decision would have on the ability to challenge lawless (and allegedly lawless) behavior by the Trump administration. As I wrote at the time, the answer was always going to depend upon what happened both on remand in those three cases and elsewhere—and on how viable other means of seeking nationwide relief would be in challenges to Trump administration policies. It's still early, but at least so far, the returns have largely borne out the views of those who did not think that CASA would be a cataclysm. To be clear, that doesn't mean CASA was rightly decided (or even rightly framed, as Professor Jack Goldsmith has explained). And the Court may yet impose tighter limits on (1) nationwide class actions; (2) state standing; (3) what plaintiffs must show to demonstrate that a universal injunction is necessary to obtain "complete relief"; or (4) nationwide vacatur of rules under the Administrative Procedure Act—any of which will necessarily affect the ability of plaintiffs to bring nationwide challenges to federal policies. But at least for now, CASA's effects have been decidedly modest—and felt most perhaps by lawyers, who have had to reconfigure many of the lawsuits against the Trump administration.

Vladeck opposes the ruling in CASA (as do I). But he's right that its impact will depend on the scope and availability of alternative modes of relief. I made a similar point in my post criticizing CASA at the time it came down.

I think Vladeck's other points here are mostly well-taken, as well. In assessing the impact of the judiciary we should look to the full range of cases, not just those that reach the Supreme Court on the "shadow" docket, as the latter are in some ways unrepresentative (Vladeck is a well-known longtime critic of the shadow docket). His analysis undercuts some left-wing narratives about the seeming ineffectiveness of the judiciary. And, as he notes, it also undercuts right-wing narratives to the effect that lower-court rulings against the administration are all indefensible "Lawfare" that will surely be overturned by the Supreme Court. If the latter were true, we would expect to see the Administration taking many more of these cases to the Supreme Court, at an accelerated pace.

That said, we should not assume that the judiciary has been completely effective, or even close to it. Some of the Supreme Court's rulings blocking lower court decisions against Trump have been badly flawed and are likely to have harmful effects. The recent ruling on racial profiling in immigration enforcement is a notable example. And some illegal actions are hard to stop completely or swiftly enough through judicial rulings alone.

More generally, as I argued in an UnPopulist article published in June, the challenge posed by Trump should be met by a combination of litigation and political action. The two should be mutually reinforcing, and it is unlikely either can work completely alone. Vladeck's piece shows the situation isn't as bad as some think. But there is no cause for complacency.

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