Yesterday's Georgia state indictment against Donald Trump for his efforts to overturn the 2020 election in that state includes charges similar to those in the recent federal indictment filed by special counsel Jack Smith. But it also breaks considerable new ground. To the extent that the charges deal with similar issues, Georgia is—in my view—well-justified in prosecuting Trump, for much the same reasons as the federal government is. But some of the charges raise technical legal issues I prefer to leave to commentators with greater relevant expertise.

Some of the charges against Trump and 18 other defendants in the Georgia indictment are similar to recently filed federal charges. For example, both feature charges of fraud related to Trump's scheme to replace Georgia's electors with slates of fake electors, and pressure state officials into falsifying vote counts. While some technical details diverge, there legal case against Trump on these issues is strong (see my discussion of the relevant federal issues here and here), and there is a strong rationale for prosecution based on the need for retribution and deterrence.

As in the federal case, the relevant Georgia fraud statutes (which focus on defrauding the government and election fraud) are not confined to property crimes. And, as in that case, Trump is not being prosecuted merely for claiming he won the election or that fraud occurred. Rather, the indictment details a long list of schemes to substitute fake electors for real ones and otherwise coerce and defraud state officials.

Some might wonder why state officials can prosecute Trump for much the same as crimes as the feds. After all, the Double Jeopardy Clause of the Fifth Amendment bars defendants from being twice "put in jeopardy" for "the same offence." Part of the answer is that Trump has not yet been tried (much less convicted or acquitted) on the federal charges.

But in addition, the Supreme Court has long held that there is a "dual-sovereignty" exception to the double jeopardy clause—a rule recently reaffirmed by the Court in its 7-2 decision in Gamble v. United States (2019). Because states and the federal government are separate sovereigns, the Court reasoned, they are permitted to each try the same person for what is substantively the same offense.

In my view, there is a lot of merit  to Justice Ruth Bader Ginsburg's and Neil Gorsuch's dissenting opinions, in Gamble, arguing that the dual-sovereignty doctrine is wrong. But the Court is unlikely to overturn that rule anytime soon. Thus, Georgia and the feds can both prosecute Trump (and perhaps others) for similar election-related offenses. If Trump gets acquitted in one proceeding, that doesn't give him a pass on the other. Conservatives and others who don't like that can blame the Supreme Court.

Along with these similarities to the federal charges, there are also key differences. Many of the counts against Trump and other defendants are under Georgia's state Racketeer Influenced and Corrupt Organizations Act (RICO). I am sure there are lots of newly minted RICO experts commenting away on Twitter and elsewhere. But I'm not going to pretend to be one of them, and so will have to leave this issue to others.

There are a number of other Georgia-specific charges, as well, such as claims that some of Trump's co-conspirators illegally accessed state election data. I will leave that to relevant experts, as well.

Perhaps the biggest difference between the federal and Georgia indictments is that the latter features 19 defendants, while the former is limited to Trump (though the feds may well file charges against others in separate proceedings).

Some of the Georgia co-defendants are the same people as Trump's unindicted co-conspirators from the federal indictment, most notably Rudy Giuliani, Jeffrey Clark, John Eastman, and Sidney Powell. Others are lesser-known figures, including some whose involvement in election skullduggery appears to have been limited to Georgia. The inclusion of 19 total defendants is likely to make for a longer and more complicated trial and appellate process. Jack Smith may have chosen to charge Trump separately to avoid such problems.

If time permits, I may have more to say about some of Trump's co-defendants in future posts. One of them—Eastman—is a person I knew for many years in his capacity as a law professor; but I should emphasize (in case prosecutors are reading this!) that I have no inside knowledge of his involvement in Trump's schemes to overturn the election.

Experts are divided on whether Trump can potentially force the removal of the Georgia case to federal court. If he can do so, he might potentially get a more favorable jury pool, and also possibly claim immunity to some or all of the charges on the grounds that he was just engaged in his official duty. I highly doubt the latter gambit will work, even if the former succeeds. Trump was pretty obviously acting to advance his private interests as a candidate, not discharge his official responsibilities. But this too is an issue best left to those with greater expertise.

Finally, it's worth noting that the Georgia charges cannot be pardoned by the president, as they are state offenses, not federal ones. Georgia Governor Brian Kemp cannot pardon them either, as the pardon power in that state is controlled by an independent board, not the governor. And even the board cannot issue a pardon until after at least five years have passed since the applicant completed his sentence.

In sum, the Georgia case against Trump deepens his legal jeopardy, and at least some of the charges seem compelling. On others, I must defer to the assessment of commentators with greater expertise.

The post The Georgia Case Against Trump appeared first on Reason.com.

A law firm that holds a mortgage on the house of Carlo Croce, a cancer researcher at The Ohio State University, may foreclose on the property, a judge has ruled.

Croce hired James E. Arnold and Associates to represent him in a libel case against the New York Times and a defamation case against David Sanders, a professor of biological sciences at Purdue University who became something of a public nemesis for the Ohio scientist after pointing out problems in Croce's published work. Croce also needed representation for Ohio State's research misconduct investigation, and a suit attempting to stop the university from removing him as chair of the department of cancer biology and genetics.

Croce lost each case. Ohio State's investigation found problems with how he managed his lab that did not amount to research misconduct.

Arnold and Associates was the second firm Croce hired, after his original lawyers at Kegler Brown Hill & Ritter dropped his cases and sued him because he wasn't paying his bills. Last December, a judge ordered Croce to pay Kegler Brown nearly $1.1 million. To enforce the judgment, Ohio State has been garnishing his wages, and Kegler Brown has filed a motion for the court to allow Sotheby's to handle the sale of pieces from Croce's collection of Renaissance artwork, which the county sheriff seized….

See also this 2021 post on the Sixth Circuit opinion rejecting Croce's libel claim. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Plaintiff Professor's Losing Libel Lawsuit May Lead to His Former Lawyers Foreclosing on His Home appeared first on Reason.com.

Is the output of generative AI entitled to First Amendment protection? We're inclined to say yes. Even though current AI programs are of course not people and do not themselves have constitutional rights, their speech may potentially be protected because of the rights of the programs' creators. But beyond that, and likely more significantly, AI programs' speech should be protected because of the rights of their users—both the users' rights to listen and their rights to speak. In this short Article, we sketch the outlines of this analysis.

The post Journal of Free Speech Law: "Freedom of Speech and AI Output," by Profs. Mark Lemley and Peter Henderson and Me appeared first on Reason.com.

This is an employment discrimination case. Plaintiff has worked for the DOE since 2012. Plaintiff alleges that she is "psychologically disabled" and was subjected to discrimination, harassment, and unlawful retaliation at work….

[Plaintiff] contends that the "primary purpose" of the motion is to protect her minor child, who has "learning disabilities and ongoing mental health issues." Specifically, Plaintiff "seeks to shield her minor child from any discriminatory harm that may be caused by a record of her mental health issues when she was a minor," particularly given her child's "interest in pursuing a career in the military." Plaintiff also expresses concern that, if she litigates this case using her real name, Defendants will further retaliate against her. Finally, Plaintiff contends that making her name public would put her "future employment prospects … at immense risk" because she fears developing a "reputation associated with suing her employer." …

Under Federal Rule of Civil Procedure 10(a), a "complaint must name all the parties." This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly" because "[t]he people have a right to know who is using their courts." Indeed, the public's right of access to judicial proceedings is "supported by the First Amendment."

In limited circumstances, however, district courts have discretion to permit a plaintiff to proceed under a pseudonym. In evaluating a request to proceed anonymously, the Court must balance "the plaintiff's interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant." … The Court … finds that Plaintiff's limited interest in anonymity does not outweigh the public's interest in disclosure….

[1.] Notwithstanding Plaintiff's self-serving assertions to the contrary, claims of employment discrimination, harassment, and retaliation are not highly sensitive or personal in nature…. "Courts have found that cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families are highly sensitive and of a personal nature." …

[2.] The Court is unpersuaded that identifying Plaintiff by name could "pose[] a risk of retaliatory physical or mental harm to [her] or innocent non-parties." To the extent that Plaintiff alleges that Defendants will retaliate against her or her minor child if her name is revealed, Plaintiff has already conceded that "Defendants are well aware of [her] identity." She also admits that "Defendants already involved Plaintiff's minor child in this case." It is therefore unclear how permitting the plaintiff to prosecute her suit anonymously would mitigate the risk of retaliation towards her or her child.

Plaintiff's concern regarding her future employment prospects is similarly unavailing. "[T]he potential injury alleged must be more than 'mere embarrassment' or 'social stigmatization.'" Such a concern surely attends in any employment or discrimination related case. Moreover, Plaintiff's purported concern is both entirely speculative and unsubstantiated…. "[S]peculative claims of physical or mental harms are insufficient to bolster a request for anonymity." … Plaintiff's concern about her minor child's "future interest in joining the military"—at some potential, hypothetical date in the future—fails for the same reason….

[3.] Although Plaintiff contends that revealing her name would risk revealing the identity of her minor child, the Second Circuit [anonymity caselaw] has directed courts to focus on the age of the plaintiff, not associated third parties….

[4.] It is true that "courts are less likely to grant a motion to proceed anonymously when the suit involves solely private parties, as compared to an action involving the government." However, "courts have also determined that [suing the government] can weigh against the use of a pseudonym. That is particularly true where, as here, "the involvement of the government indicates that there is a public interest in the facts of the incident at issue as opposed merely to a public interest in knowledge of the manner in which the courts function in resolving disputes." …

[5.] [W]hen a plaintiff makes "serious charges," courts have found that "[f]airness requires that [Plaintiff] be prepared to stand behind her charges publicly." …

[6.] Plaintiff broadly asserts—without support—that there is "reasonably no public interest in knowing [her] name." However, "lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them" including "the identity of the parties." Moreover, this case does not involve "abstract challenges to public policies, but rather … particular actions and incidents." Accordingly, the Court finds that open proceedings will "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." …

Finally, there are other (less drastic) mechanisms for protecting Plaintiff and her minor child's privacy, such as appropriate, narrow redactions or sealed submissions.

The tenth factor therefore counsels against anonymity….

Plaintiff acknowledges that there are "numerous cases with named Plaintiffs who have filed similar discrimination cases against the DOE." Her case is no different. She should be prepared to litigate this case under her real name—or not at all. {In the alternative, Plaintiff asks that the case proceed under seal. That request is DENIED in light of the presumption of public access to judicial documents.}

I think this is correct, but note that some courts have allowed pseudonymity to conceal a plaintiff's psychological disability; see Appendices 3A & 3B of The Law of Pseudonymous Litigation for a list of many cases going both ways.

The post No Pseudonymity in Psychological Disability Employment Discrimination Lawsuit appeared first on Reason.com.

Today is the second anniversary of the fall of Kabul and the loss of Afghanistan to the oppressive Taliban regime. In the aftermath of the fall, the US took in thousands of Afghans fleeing the brutal new government, including many who had fought on the side of the US or worked to promote human rights. Unfortunately, to this day, the US government still has not granted permanent residency to Afghans who entered the US based on  executive "parole." As a result, most of the Afghans remain in legal limbo, making it difficult for them to fully integrate into American society. That's bad for both them and the US economy.

Congress can easily fix the problem by passing an Afghan Adjustment Act—legislation that would grant Afghan parolees permanent residency and work permits. But, so far, they haven't found the political will.

Washington Post columnist Catherine Rampell, one of the best media commentators on immigration issues, summarizes this unfortunate state of affairs:

But her place in the country that took her in is precarious.

The Biden Administration has eased the situation somewhat by giving Afghan parolees the opportunity to apply for a two year extension to their initial two year parole period. But this is just a temporary reprieve. And people like Akbari remain barred from opportunities (including military service) that are only open to permanent residents. Moreover, like the initial grant of parole, the extension rests entirely on executive discretion. What Caesar giveth, he (or a successor) can taketh away.

Passing an adjustment act can fix these problems. Historically, Congress has in fact enacted such legislation for other parolees fleeing war and oppression, including Hungarians and Cubans fleeing communism, and—most closely analogous to the Afghan situation—Vietnamese fleeing the fall of South Vietnam. It should do the same thing here.

In an August 2021 post, I went over the many reasons why the US should grant refuge to Afghans fleeing the Taliban. They include general moral considerations against barring refugees fleeing violence and oppression, the unusually heinous nature of the oppression Afghans face under Taliban rule (worse than most "ordinary" dictatorships),  national security interests, and the US government's significant share of responsibility for the Taliban's return to power (both the Trump and Biden administrations deserve hefty shares of blame).

I won't go over these points again here. I will merely note that all of them justify granting permanent, not just temporary refuge. The oppression the parolees face if forced to return is just as bad now as two years ago. And granting permanent refuge will serve US national security and foreign policy interests better than a mere temporary reprieve. People who aid US forces in war and help promote human rights in alliance with us should know that we will give them permanent refuge, if needed, not just a brief stay of execution.

As I have previously pointed out, many of the same considerations also justify granting permanent residency to Cuban, Venezuelan, Ukrainian, and other parolees. In addition to the Afghan Adjustment Act, Congress is also now considering a Ukrainian Adjustment Act and a Venezuelan Adjustment Act.

All should be enacted. But if political constraints allow passage of some but not others, that's still much better than nothing. As always, the best should not be the enemy of the good.

The post Time to Pass the Afghan Adjustment Act appeared first on Reason.com.

Judge Rao's opinion for the court summarizes the case and decision as follows:

The First Amendment prohibits government discrimination on the basis of viewpoint. "To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees." City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm'n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia's defacement ordinance against some viewpoints but not others.

In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim "Black Lives Matter." Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking "Black Pre-Born Lives Matter" on a public sidewalk.

The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively "the Foundation"), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional, but arguing the District's one-sided enforcement of the ordinance was not. The district court dismissed the complaint. Concluding the First Amendment and equal protection claims were essentially the same, the district court held the Foundation had failed to adequately allege discriminatory intent, which the court considered a necessary element of both claims.

We affirm the district court's dismissal of the Foundation's equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim. The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation's First Amendment claim and remand for further proceedings.

Judge Rao notes that selective enforcement claims are hard to substantiate, but that the Foundation plausibly alleged such selective enforcement here.

Selective enforcement claims must clear a high hurdle. Because the lawful exercise of prosecutorial discretion does not violate the Constitution, disparate enforcement of a neutral ordinance based on viewpoint is unlawful only when the prosecutorial factors are similar, and "unlawful favoritism" remains the predominant explanation for the government's targets. . . . The Foundation has plausibly alleged that when chalking the "Black Pre-Born Lives Matter" message, its advocates were similarly situated to advocates who painted and marked the "Black Lives Matter" message. . . .

Viewpoint discrimination, whether by legislative enactment or executive action, violates the First Amendment. "Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking." Police Dep't of Chi. v. Mosley, 408 U.S. 92, 96 (1972). We hold the Foundation has plausibly alleged the elements of a free speech selective enforcement claim. We may reasonably infer from the Foundation's complaint, first, that its members were similarly situated to other protesters who were not arrested and, second, that the District engaged in viewpoint discrimination by enforcing the defacement ordinance against individuals chalking "Black Pre-Born Lives Matter" but not against individuals painting and chalking "Black Lives Matter."

And from her concluding paragraphs:

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others. During the summer of 2020, the District arrested individuals chalking "Black Pre-Born Lives Matter" on the sidewalk, while making no arrests against the many individuals marking "Black Lives Matter" on sidewalks, streets, and other property. The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

This is a significant case.

The post D.C. Circuit Revives Viewpoint Discrimination Suit Against District of Columbia appeared first on Reason.com.

Plaintiff …, presently incarcerated in the Hudson County Jail in Kearny, New Jersey, filed a Complaint against several police officers and Cumberland County prosecutors. On January 5, 2023, the Court dismissed the Complaint without prejudice in accordance with 28 U.S.C. § 1915(e)(2) because it failed to state a claim. The Court denied leave to amend as futile because Plaintiff's illegal search and false arrest claims were barred by the statute of limitations and his malicious prosecution claims were premature.

On July 10, 2023, the Court received a letter from Plaintiff that asked the Court to "take the case down entirely" or to change his name to a pseudonym. He states the complaint concerned his activity as a confidential informant and put him "in extreme danger." The Clerk docketed the letter as a motion to modify or correct the Court's order and filed it under temporary seal pending the Court's review. Plaintiff later filed a motion to seal raising the same concerns as his prior letter.

"It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records." "The public's right of access extends beyond simply the ability to attend open court proceedings. Rather, it envisions a pervasive common law right to inspect and copy public records and documents, including judicial records and documents." However, "[t]he public's common law right to access judicial records is not absolute. Instead, when the right exists, there is a strong presumption that the public may view the records."

A party seeking to seal portions of the judicial record from public view "must show 'that the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure.'" The "'strong presumption' of openness does not permit the routine closing of judicial records to the public." … "In delineating the injury to be prevented, specificity is essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient."

The Court is sympathetic to Plaintiff's concerns and certainly does not wish him any undue risk of harm; however, the submissions he seeks to seal are his own submissions to the Court and the Court's proper response to them. The public is entitled to know when relief is sought from a public-funded court and the resolution of those claims.

Moreover, Plaintiff filed his complaint in January 2022 and submitted many exhibits to the docket. It was by his own volition that he disclosed certain facts in his pleadings and not the act of any third party. He made no request to file anything under seal until after the Court issued its opinion.

In the unlikely event that Plaintiff would have been allowed to proceed anonymously, the time to make such a request was before the placement of filings on the public docket, not after. What was done cannot be undone without violating the First Amendment right of access to public information. The Court "simply do[es] not have the power … to make what has thus become public private again." Gambale v. Deutsche Bank AG (2d Cir. 2004). "The genie is out of the bottle …. We have not the means to put the genie back." …

Note, though, that the law isn't firmly established on this question. Several circuits have sharply criticized retroactive pseudonymity. See Singh v. Amar, 2023 WL 3267851, *1 (7th Cir. May 3, 2023) ("Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals."); Kansky v. Coca-Cola Bottling Co., 492 F.3d 54, 56 n.1 (1st Cir. 2007); cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 & n.11 (2d Cir. 2004) (concluding—as to sealing more broadly, rather than just pseudonymity—that, once "the genie is out of the bottle" and "the cat is out of the bag," "the ball game is over," even when that stemmed from a court's own error). For a sample of the district court decisions taking this view, see, e.g., Doe v. Amar, 2023 WL 4564404, *4 (C.D. Ill. July 17, 2023); Stankiewicz v. Universal Com. Corp., 2017 WL 3671040, *1 (S.D.N.Y. Aug. 9, 2017); Doe v. F.B.I., 218 F.R.D. 256, 260 (D. Colo. 2003). Amar and Kansky involved alleged mental health problems, which are often seen as private, and which might have justified pseudonymity if it were promptly sought. Some of the cases noted that the information had been in the public domain a long time; query whether they would have been more open to retroactively sealing or pseudonymizing something after it was in the public record for just a few days.

Other courts, however, allow retroactive pseudonymity and retroactive sealing. At least two Ninth Circuit orders have taken this view. See Order, Doe v. Garland, No. 19-56522 (9th Cir. May 31, 2023) (ordering that "[t]he Clerk will replace appellants name with John Doe on the public docket," though without any publicly available analysis); Order, Doe v. Preciado, No. 10-56218 (9th Cir. July 10, 2012) (likewise). And for a sample of the lower federal court decisions on this side, see, e.g., Doe No. 1 v. United States, 143 Fed. Cl. 238, 241 (2019) ("the Government's 'cat is out of the bag' argument fails because the fact that Plaintiffs have not been harassed or attacked yet does not imply that anonymizing their names now has no value"); Roe v. Doe, 2019 WL 1778053, *4 (D.D.C. Apr. 23, 2019); Order, Doe v. Bryson, No. 1:12-cv-10240 (D. Mass. Sept. 10, 2021).

Finally, for a particularly vivid illustration of the split, see the attempts by Darren Chaker (also known as Darren Delnero) to retroactively pseudonymize and seal many cases that he had filed, often years ago; for instance, this recent decision canvasses some of those cases.

The post Can Court Retroactively Seal or Pseudonymize Case, After Items Have Been in the Public Record for Months or Years? appeared first on Reason.com.

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In a piece at the Lawfare website, Harvard law Prof. Jack Goldsmith responds to critics of his New York Times article arguing that the dangers of prosecuting Donald Trump for trying to overturn the 2020 election may exceed the benefits. One of the critiques he addresses is my own. In this post, I will offer a rejoinder. But note that both Goldsmith's analysis and mine are focused on the federal indictment of Trump filed by special counsel Jack Smith. We do not address the more recent Georgia statement indictment.

Here's the part of Goldsmith's response that addresses my critique:

I agree that "letting Trump off the hook" might be far worse than prosecuting him. My main point is that we cannot now know, and the answer is not obvious, at least to me, especially in light of our broken politics, the novelties and uncertainties in the legal case against Trump, the weight of past Justice Department mistakes and excesses in investigating Trump, and (to add a point not in my piece) Eric Posner's reminder that "trials in which legal proceedings are used to remove political opponents from power or prevent them from taking it … have a long and storied history of backfiring on their perpetrators." If Trump is convicted, and the trial is and seems fair, and the Supreme Court upholds its validity, Smith may well be a triumphant savior of American democracy, especially if Trump self-destructs in ways that diminish him politically. But what if only a few of these things happen, or none of them?

Somin says, for example, that if Trump is not prosecuted, future presidents will be emboldened to repeat his experiment. Maybe, but maybe not, in light of the financial and reputational costs Trump has suffered. The larger point, however, is that the prosecution might go off the rails in ways that make things worse. Somin's argument appears to assume that conviction is assured. What if Trump is acquitted (including via jury nullification), or his conviction is thrown out? What if it becomes clear that what he did was not unlawful, as may well happen? What if Trump wins the presidential election and perceived overkill by the Biden Justice Department is seen as a contributing cause? These outcomes might well embolden a future Trump more, perhaps much more, than non-prosecution. Very hard to say. In assessing the upsides and downsides of the prosecution, one must think in terms of all plausible futures and counterfactuals. Yes, as I said in the opening, the future may be such that non-prosecution would be worse, perhaps much worse, than prosecution. But the opposite might be true as well. We cannot be confident now.

I appreciate Goldsmith's thoughtful response, and am flattered he devotes more space to my piece than any of the others addressed. But I remain unconvinced that the risks of prosecution outweigh the benefits, or even that this is a close question.

Goldsmith is right that Trump could potentially get away with his crimes and be emboldened to further wrongdoing, even if he gets prosecuted (e.g.—he might be acquitted). But if he's not prosecuted at all, that possibility becomes a virtual certainty.

I do not, in fact, believe conviction is certain. But I do think there is a high likelihood of it, given the strength and seriousness of the charges against Trump. I discussed some of the reasons for that legal assessment here and here. I see little chance that a conviction would be reversed, given that the prosecution's position on most relevant legal issues is backed by longstanding Supreme Court precedent, and the Court has a strong presumption (recently reaffirmed) against overturning statutory precedent.

The risk of jury nullification is harder to gauge. But I think it, too, is relatively modest, given that strong partisans are likely to be removed for cause from the jury pool and jurors generally do a better job of controlling bias and evaluating issues fairly than voters (admitted a low standard of comparison). Moreover, the case will probably be tried in Washington, DC, where the jury pool is unlikely to include many hard-core Trump supporters.

If the chance of getting a conviction were very low or nonexistent, that would be a good reason not to prosecute. But that's pretty obviously not the situation here.

Goldsmith suggests future politicians might not be emboldened to repeat Trump's experiment, if he escapes prosecution, because of the "the financial and reputational costs Trump has suffered." It seems to me any such costs are greatly outweighed by the ways in which his Big Lie has enabled Trump to remain the lead contender for the GOP nomination, and avoid the kind of political repudiation usually suffered by presidents who lose their reelection bids.

I'm also skeptical the prosecution will somehow catapult Trump to victory in the 2024 election. It's possible the various indictments helped in him the GOP primary. But his lead over his rivals there is so large (consistently at 20-30 points or more over the last several months) that any marginal boost from this indictment is unlikely to be decisive. By contrast, survey data consistently show that indictments and conviction are likely to harm him with general election voters. If the election is close, even a small shift against Trump could be significant.

I'm not convinced that electoral calculations should play any significant role in decisions to indict and prosecute Trump. Ultimately, they should be guided by the severity of the crime, and considerations of retribution and deterrence. But for those who disagree, the available evidence suggests prosecution is more likely to harm Trump's electoral prospects than help him.

Finally, I agree we should consider "all plausible futures and counterfactuals." But there should be a heavy presumption against giving a president guaranteed impunity for the heinous crime of trying to use force and fraud to stay in power after losing an election. The scenarios and risks posited by Goldsmith are nowhere near sufficient to overcome that presumption. Indeed, they are much less grave than those on the other side of the ledger.

The post Jack Goldsmith Responds to Critics on the Dangers of Prosecuting (or not Prosecuting) Trump for Trying to Overturn the 2020 Election appeared first on Reason.com.

Of particular interest is their new report on policy recommendations for universities. The key points can be found here. The full report is here.

Although motivated by the specific situation at Cornell, the policy recommendations are not specific to that university. The report makes for useful reading and lays out a valuable agenda for faculty across the country.

The post Cornell Free Speech Alliance Launches appeared first on Reason.com.

Both Judge Walker's majority opinion and Judge Carney's dissent cite to my denaturalization scholarship with Cassandra Burke Robertson. The two opinions both cite to our article "(Un)Civil Denaturalization" (NYU Law Review), and the dissent additionally cites to our article "Inalienable Citizenship" (North Carolina Law Review).

We are staying tuned as to whether the Supreme Court ends up granting cert.

The post Second Circuit Cites Scholarship in Both Majority and Dissenting Opinions of Farhane v. United States appeared first on Reason.com.

A defendant is liable … to a person depicted in intimate visual material for damages arising from the disclosure of the material if:

(1) the defendant discloses the intimate visual material without the effective consent of the depicted person and with the intent to harm that person;

(2) at the time of the disclosure, the defendant knows or has reason to believe that the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

(3) the disclosure of the intimate visual material causes harm to the depicted person; and

(4) the disclosure of the intimate visual material reveals the identity of the depicted person in any manner ….

{"Intimate visual material" means visual material that depicts a person: (A) with the person's intimate parts exposed; or (B) engaged in sexual conduct.}

{This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.}

The statute provides for damages liability and an injunction, and it has no exception for disclosure of such material in court; but the Texas Court of Appeals (San Antonio) held Wednesday (in Doe v. Cruz, written by Justice Lori I. Valenzuela, joined by Justices Luz Elena D. Chapa and Beth Watkins) that the general Texas judicial-proceedings privilege applies to the statute. (The logic of the opinion suggests that similar privilege rules would apply to similar conduct, such as disclosing the material to the police and the like.) From the opinion:

Here, the only disclosure of allegedly "intimate visual material" to which Cruz has directed us is Doe's assertion in his amended petition that unredacted photographs "will be made available to the court and jury as this case proceeds to jury trial." Thus, the only anticipated disclosures are disclosures to be made in this legal proceeding to the court and jury. If the judicial-proceedings privilege is available, Doe has established its applicability.

However, the question remains whether the privilege applies to statutory claims under Chapter 98B. Doe assumes that it does, and Cruz has not specifically contested its applicability to his Chapter 98B claim. We hold that the judicial-proceedings privilege applies to Cruz's Chapter 98B claim because (1) his claim is a tort seeking damages for reputational harm, (2) applying the privilege furthers the policy behind the privilege, and (3) the Supreme Court has applied the related attorney-immunity defense to a statutory claim within a statutory framework that, like Chapter 98B, does not expressly, or by necessary implication, abrogate the privilege.

First, "[t]he absolute [judicial-proceedings] privilege bars claims that are based on communications that are related to a judicial proceeding in which the claimant seeks damages for reputational harm." The privilege has been held to apply in libel and slander suits and to "business-disparagement and tortious-interference claims, when those claims are based on an allegedly defamatory communication in a judicial proceeding." Chapter 98B is contained within Title 4 of the Texas Civil Practice and Remedies Code, entitled "Liability in Tort." … "Although [the judicial-proceedings privilege is] commonly applied in defamation cases, the privilege prohibits any tort litigation based on the content of the communication at issue." … Allowing the privilege for the Chapter 98B claim alleged here comports with the general allowance for the privilege against tort claims asserting reputational harm. Moreover, Chapter 98B allows for recovery of "actual damages," which can include damages for reputational harm. Cruz, through his "revenge porn" claim, seeks damages for harm to his reputation and legal practice, including for monetary loss caused by the loss of clients.

Second, the judicial-proceedings privilege "furthers public policy by promoting a 'complete and unbridled development of evidence in the settlement of disputes without fear of reprisals.' " Depending on the circumstances, that policy is furthered if the privilege applies to Chapter 98B claims. It is not inconceivable that a photograph depicting "intimate visual material" may be relevant to a sexual assault claim and that a redacted photograph may not fully resolve disputed facts. {We caution, however, that improper use of sensitive material in litigation may be grounds for discipline, even if the judicial-proceedings privilege applies.}

Finally, our determination that the privilege can apply to Chapter 98B claims finds support, by analogy, from the Supreme Court's decision in Taylor v. Tolbert (Tex. 2022). In that case, an attorney told opposing counsel she intended to use a nude photograph of opposing counsel's client that was inadvertently shared "as a poster-size demonstrative in [a] jury trial." Opposing counsel's client sued the attorney under the Texas wiretap statute, which "grants a private right of action for '[a] person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of' certain statutes …." The attorney moved for summary judgment, arguing she was immune because all claims stemmed from her role as an attorney. The Supreme Court agreed, and determined the attorney's conduct was encompassed by the attorney-immunity defense and the Texas wiretap statute did not abrogate the defense. The Court stated:

[W]hen conduct is prohibited by statute, the attorney-immunity defense is neither categorically inapplicable nor automatically available, even if the defense might otherwise cover the conduct at issue. In such cases, whether an attorney may claim the privilege depends on the particular statute in question.

Attorney-immunity attached "because the Texas wiretap statute does not expressly, or by necessary implication, abrogate the immunity defense." Likewise, here, we find nothing in Chapter 98B that expressly, or by necessary implication, abrogates the judicial-proceedings privilege. {The attorney-immunity defense "is not merely the lawyer's version of the judicial-proceedings privilege, although there is considerable overlap." It is a "comprehensive affirmative defense protecting attorneys from liability to non-clients," and "generally applies when attorneys act in the uniquely lawyerly capacity of one who possesses the office, professional training, skill, and authority of an attorney."}

Here are the factual allegations, which also led to a defamation counterclaim by Cruz that the court did allow to go forward:

On August 30, 2021, Doe filed an original petition against Cruz, whose law firm represents United Independent School District ("UISD") in Laredo. The petition's "Case Summary" states: "Defendant Juan J. Cruz is a homosexual pedophile that assaulted John Doe, a minor who was his employee and a student at one of the school districts where he serves as general counsel." The petition continues with a "Notice to School Districts Employing Juan J. Cruz," which states:

Defendant Juan J. Cruz holds himself out [as] a school law expert dealing with minor children. Any school district that has Juan J. Cruz employed as general counsel is hereby on notice of his deviant proclivity to have homosexual intercourse and sexually assault minor children and should take appropriate actions to protect their students from Defendant Juan J. Cruz.

Doe alleged Cruz began "homosexual advances," including "licking his lips while staring provocatively" at Doe and giving "offensive touch[es] including massages" when Doe was sixteen years old. Doe further alleged Cruz "lured" Doe to work for him. According to Doe's original petition:

Cruz would furnish alcohol and Xanax to minor John Doe to make it easier for Defendant Cruz to sexually assault John Doe. Defendant Cruz would require John Doe to stay at his apartment in San Antonio and at his home … in Laredo, Texas so he could conveniently sexually assault him ….

Doe stated a cause of action, under the heading "Defendant Juan J. Cruz's Homosexual Sexual Assault and Battery of a Minor Child," in which he alleged as follows:

John Doe was 16 years old when Defendant Cruz began homosexually assaulting him. At the time the cause of action accrued, the age of consent was seventeen (17) in the State of Texas. Defendant Juan J. Cruz used his position as a school attorney and the trust he gained from John Doe to commit acts of sexual assault and sexual battery against John Doe….

John Doe's status as a minor, coupled with Defendant Juan J. Cruz's position as his boss, lawyer and authority figure, allowed Defendant Cruz to exercise control and influence over John Doe. Using the power, authority and trust of his position, Defendant Juan J. Cruz homosexually assaulted and molested John Doe on countless occasions, for money….

Doe also asserted causes of action for breach of fiduciary duty and intentional infliction of emotional distress…. Doe's attorney emailed a copy of Doe's original petition to the superintendent and board members of UISD two days after the lawsuit was filed. The subject line of the email states, "Suit filed against UISD School Attorney Juan J. Cruz for Sexual Assault," and the body of the email states:

Good afternoon Superintendent Gonzalez and UISD Board,

A file-stamped copy of Plaintiff's Original Petition filed Monday against UISD school attorney Juan J. Cruz is attached for your review. The facts in the petition are very detailed, with dates and places. There is solid evidence including texts, photos and other conclusive proof substantiating the claims made therein.

This matter of public concern is being forwarded to you because it is understood that Mr. Cruz frequently visits UISD's schools where children are present, in order that you can take appropriate measures to safeguard the children under your care….

Cruz filed an original answer, and thereafter Doe filed an amended petition. On the first page of the amended petition is a redacted photograph of Cruz in a swimming pool. A black square covers Cruz's body, except for his head and shoulders. The redacted photograph is captioned: "Powerful Evidence of Defendant Cruz'[s] Misconduct." …

Cruz filed an amended answer and counterclaims [for, among other things, violation of the revenge porn statute and for defamation -EV]. Cruz "categorically denie[d] that he has ever had forcible sexual contact with any person at any time," and he "categorically denie[d] that he has ever had sexual contact of any kind with a minor." Cruz alleged Doe's counsel held personal animosity toward Cruz and asserted that the aim of Doe's lawsuit was harm to Cruz's reputation and legal practice….

Cruz attached an affidavit [to his motion to dismiss], in which he stated:

I know the true identity of plaintiff "John Doe" in this litigation. He is currently 22 years of age. I met him in November, 2018 when he was 19 years old at the Laredo Country Club gym. I did not know "John Doe" when he was 16 years old, as alleged. I had a continuous, consensual, adult relationship with "John Doe" from August 2019 to December 2019…. I never sexually assaulted "John Doe."

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A new Indiana law prohibits public schools and their employees from providing instruction to students in prekindergarten through grade 3 on human sexuality. Kayla Smiley—a teacher who works for the Indianapolis Public Schools—alleges that the new law violates the United States Constitution because it (1) infringes on her right to free speech and (2) is so vague that she does not know what speech and actions may violate the law. She therefore asks the Court to enter a preliminary injunction preventing enforcement of the new law….

Under HEA 1608, "[a] school, an employee or staff member of a school, or a third party vendor used by a school to provide instruction may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality." But "[n]othing" in HEA 1608 "may be construed to prevent a school employee or a school staff member from responding to a question from a student regarding" human sexuality.

Kayla Smiley is a teacher who will be subject to HEA 1608 when she begins teaching an Indianapolis Public School class of first through third graders on July 31, 2023. She brought this action against the Indiana Secretary of Education, Dr. Katie Jenner, as head of the department overseeing teacher licensing. Ms. Smiley is concerned that she may unwittingly violate HEA 1608, thereby jeopardizing her teaching license, because she has "no idea what is encompassed within the term 'human sexuality,'" and does "not understand what is meant by the statute's term 'instruction.'" For example, she does not know if having books in her classroom library that "touch on LGBTQ themes" and "discuss and represent different family relationships and structures" violates HEA 1608. She contends that she would also "have to censor" herself by (1) not carrying her water bottle with its "message about tolerance of persons who are LGBTQ," (2) "remov[ing] the LGBTQ-supportive bumper stickers" that will be on her car, and (3) refraining from talking with students about "using the word 'gay' pejoratively.'"

The court rejected the request for a preliminary injunction, concluding that Smiley was unlikely to succeed on the merits:

"If a public employee speaks 'pursuant to [her] official duties,'" that speech is, for constitutional purposes, "the government's own speech." In that situation, the First Amendment does "not shield the individual from an employer's control and discipline." …

[Seventh Circuit precedents] show that speech within the scope of a teacher's job duties isn't limited to speech that presents "official curriculum." … "[T]he Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials."

This principle applies with equal force to speech outside of the classroom. As the Supreme Court has explained, the "'critical question … is whether the speech at issue is itself ordinarily within the scope of an employee's duties.'" That's especially important here, in the elementary-education context, where much of what an elementary teacher says to students during a typical school day is spontaneous …, in response to questions …, or otherwise outside of a formal lesson plan. Instead of being outside an elementary teacher's official duties, those things are central to the job. And the students are not any less of a captive audience when having an informal conversation with their teacher in a hallway or choosing which of the teacher's books to look at during unstructured time.

Indeed, Ms. Smiley wants to use classroom-library books, water bottle messages, and car bumper stickers to "create teachable moments" for her students. She "carries her water bottle to instruct those who observe it on tolerance of persons who are LGBTQ." She puts bumper stickers on her car to similarly "express … tolerance." And she has chosen the books in her library to ensure that students have "a whole, full-circle world view where they could be open-minded of other cultures" and "learn about the history of some … hot topic" issues. In short, according to Ms. Smiley, "everything sparks conversation" and "it is always used as a teachable moment." Such interactions, even when spontaneous and not part of official curriculum, are within the scope of Ms. Smiley's duties and responsibilities as an elementary school teacher and therefore not protected by the First Amendment. Garcetti v. Ceballos (2006) ("Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.")….

The Supreme Court's Kennedy opinion, which Ms. Smiley relies on, does not support Ms. Smiley's position. There, the Court held that a high school football coach spoke as a private citizen when he prayed on the field after a few games. That was because the prayers were not in the scope of his coaching duties, were at a time when coaches were "free to engage in all manner of private speech," and were "when students were engaged in other activities." As the Court observed, "what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy's speech and the circumstances surrounding it point to the conclusion that he did not."

Here, by contrast, most if not all of the expression that Ms. Smiley fears could violate HEA 1608 is aimed at "teachable moment[s]" to impart specific lessons to elementary students. There's therefore no indication that Ms. Smiley would be "stepp[ing] outside" her role as a teacher "to speak as a citizen." On the contrary, the situations that Ms. Smiley describes seem to be squarely within her job as an elementary school teacher. Garcetti ("When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee."). Indeed, Ms. Smiley cites no authority establishing that an elementary school teacher has the right to speak in her capacity as a private citizen when expressing an educational message to her students.

At the least, even if some of the expression that Ms. Smiley is worried about—perhaps the LGBTQ-supportive bumper stickers on her car—is protected by the First Amendment, Ms. Smiley is nonetheless unlikely to be able to show that HEA 1608 is unconstitutional on its face…. "Facial invalidation for technical overbreadth is strong medicine, and is inappropriately employed unless the statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep." … In short, Ms. Smiley asks for an injunction that would "throw out too much of the good based on a speculative shot at the bad." "That is not the stuff of overbreadth—as-applied challenges can take it from here." { Because Ms. Smiley brings only a facial challenge, the Court does not address her likelihood of success on any as-applied challenge.}

To be clear, the Court does not suggest that Ms. Smiley forfeited her First Amendment rights when she became a public school teacher…. But here, HEA 1608's prohibition of "instruction … on human sexuality" affects only expression to elementary students—rather than to the public—which the First Amendment does not protect when it's "against the instructions of elected officials." …

[As to vagueness,] "[A] statute is only unconstitutionally vague if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner." In short, due process "does not demand perfect clarity and precise guidance."

Because Ms. Smiley has not shown some likelihood of success on her First Amendment claim, her facial vagueness challenge is "limited" and "disfavored." HEA 1608 is therefore unconstitutional on its face only if it "has no discernable core" of understandable meaning and "lacks any ascertainable standard."

Here, "instruction … on human sexuality" is not so vague that it lacks a core of understandable meaning. Those terms are no vaguer than "acquires," "receives," or "transfers," all of which the Seventh Circuit has held to be understandable. And they are certainly more definite than "reasonable," which also "has enough of a core to allow its use in situations where rights to speak are at issue." Like each of those terms, "instruction" and "human sexuality" are terms that people "use and understand in normal life." So Ms. Smiley has not been given "no guidepost" from which to "divine what sort of conduct is prohibited." …

Ms. Smiley worries that her classroom-library books, water bottle messages, car bumper stickers, and passing conversations with students may unwittingly violate HEA 1608. But even if there are questions about whether these actions and expressions come within HEA 1608's scope, they do not undermine or remove HEA 1608's understandable core…. "The enforcement of the Statute will inevitably present many uncertainties at the margins, but the resolution of those 'edge questions' arising from the enforcement of a state law is a principal role of the state's courts." …

Nor does Ms. Smiley argue that she could not bring an as-applied challenge if the Department of Education were to initiate proceedings to suspend or revoke her teaching license…. "When a statute is accompanied by a system that can flesh out details, the due process clause permits those details to be left to that system." … That is the appropriate way to raise constitutional concerns about the periphery of a statute's application. So while "an as-applied challenge to [HEA 1608] may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core."

My quick reaction: As I've written before, courts have generally held that teachers have no First Amendment right to choose what and how to teach in public K-12 schools. (Cases tend otherwise as to public colleges and universities, but those decisions stress the special treatment that courts give to higher education.) The government may, if it wants to, give considerable flexibility to teachers. But it can also insist that decisions about teaching be made not by such line public employees but instead by higher-level officials—principals, school boards, legislatures, or others, as each state decides.

This might not extend to all interactions between teachers and students, especially outside class; sometimes teachers, even in lower grades, may be speaking just on their own behalf and not on behalf of the school. But a law that's limited to "instruction" does strike me as constitutional. And the void-for-vagueness doctrine is unlikely to change things; when the government tells its employees what to say as part of their jobs, it may permissibly use rules—e.g., "don't be rude," "be professional," "answer questions well"—that would be too vague for it to impose on the public at large, on pain of criminal or civil liability.

Melinda Rebecca Holmes and James A. Barta represent the state. Smiley has appealed.

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There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. See  and Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.

I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.

We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964). The broader and more nebulous the definition of engaging in insurrection, and the fewer the procedural safeguards, the greater the danger.

Section 3 speaks of "insurrection" and "rebellion." These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whisky Rebellion and the Civil War. The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history. Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. Are they insurrections or rebellions, within the meaning of Section 3?

I have not done the historical work to speak with confidence, but I would hazard the suggestion that a riot is the use of violence to express anger or to attempt to coerce the government to take certain actions, while insurrections and rebellions are the use of violence, usually on a larger scale, to overthrow the government or prevent it from being able to govern.

Moreover, Section 3 uses the verb "engage in," which connotes active involvement and not mere support or assistance. Significantly, Section 3 also uses the term "give aid and comfort to"—but this is reserved for giving aid and comfort to the "enemies" of the United States, which has historically meant enemies in war. Bas v. Tingy (1800). That Section 3 uses both terms, with different referents, strongly suggests that "engage in" means more than just give "aid and comfort" to an insurrection. Baude and Paulsen maintain that Section 3 "covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support." They explicitly state that Section 3 trumps the First Amendment. The terms "broad range of conduct" and "indirect support" are ominous, especially since they also say that Section 3 trumps the First Amendment and does not require due process. What could go wrong?

Putting together my friends' broad definitions of "insurrection" and "engage," and lack of concern about enforcement procedure, I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot. Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.

Congress has enacted a statute, 18 U.S.C § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty "shall be incapable of holding any office under the United States." This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute. It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.

Note that the "friends" here isn't just the lawyer conceit of referring to opposing counsel as "my friends"; I think McConnell and Calabresi, Baude, and Paulsen are indeed friends, and McConnell, Baude, and Paulsen are actually coauthors (together with our own Sam Bray) of a casebook on the Constitution. Baude also clerked for McConnell when McConnell was a Tenth Circuit judge (as did Bray). As you might gather, I'm always delighted to see—and, when possible, host—such substantive debates among friends and colleagues.

The post Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump appeared first on Reason.com.

Generative AI, in particular text-based "foundation models" (large models trained on a huge variety of information including the internet), can generate speech that could be problematic under a wide range of liability regimes. Machine learning practitioners regularly "red-team" models to identify and mitigate such problematic speech: from "hallu­ci­nations" falsely accusing people of serious misconduct to recipes for con­structing an atomic bomb. A key question is whether these red-teamed behaviors actually present any liability risk for model creators and deployers under U.S. law, incentivizing investments in safety mechanisms.

We examine three liability regimes, tying them to common examples of red-teamed model behaviors: defamation, speech integral to criminal conduct, and wrongful death. We find that any Section 230 immunity analysis or downstream liability analysis is intimately wrapped up in the technical details of algorithm design. And there are many roadblocks to truly finding models (and their associated parties) liable for generated speech.

We argue that AI should not be categorically immune from liability in these scenarios and that as courts grapple with the already fine-grained complexities of platform algorithms, the technical details of generative AI loom above with thornier questions. Courts and policymakers should think carefully about what technical design incentives they create as they evaluate these issues.

And here's the Introduction:

ChatGPT "hallucinates." That is, it often generates text that makes factual claims that are untrue and perhaps never even appear in its training data. It can get math problems wrong. It can get dates wrong. But it can also make things up. It makes up sources that don't exist, as one lawyer found out to their chagrin when they cited nonexistent cases in a legal brief. It makes up quotes.

And it can make up false claims that hurt people. Ask it what crimes a particular person has committed or been accused of, and ChatGPT might get it right, truthfully saying, for instance, that Richard Nixon was accused of destroying evidence to hide a burglary committed by his campaign, or truthfully saying that it is unaware of any accusations against a person. But it will also sometimes tell a false story about a crime. ChatGPT 3.5 (but not 4.0), for instance, says that one of us (Lemley) has been accused and indeed found liable for misappropriating trade secrets. (He hasn't.) Others have falsely been accused by ChatGPT of sexual harassment.

This isn't a problem of bad inputs. Rather, it is a function of the way large language models (LLMs) or foundation models work. ChatGPT and other similar models are trained to imitate large language datasets, but they don't generally copy text from any particular work directly. Instead, they generate text predictively, using the prompts and the prior words in the answer to predict what the next logical words in the response should be.

That enables them to generate new content rather than copying someone else's, and allows some amount of generalizable problem solving and writing ability. But it also means that the model is not simply taking content from existing writing (true or not), but potentially making up new things each time you ask it a question. When asked questions that involve well-known entities that appear often in the training data, the model can generate accurate text with high confidence, such as in the case of Nixon's crimes. But when queried about entities that appear much less frequently, these models can rely upon a "best guess" rather than a known fact. Chat­GPT might associate Lemley with trade secrets (and therefore, wrongly, with misappropriating them) because he has written academic articles on the subject, for instance.

Worse, the false statements read just like the true ones. Because language models are good at modeling human writing, they pepper their false reports of crimes with the same things a real report would include—including (made up) quotations from reputable sources (whose articles are also made up).

This is a problem. It's not great to have false accusations of crimes and other misconduct out there. But it's even worse because models like ChatGPT are good at mimicking human language and seeming authentic. People may be inclined to believe these statements, for several reasons: (1) human experience with similarly authoritative-seeming stories from the real world suggests that they are generally true, (2) ChatGPT is quite good at accurately reporting facts in many settings, and (3) people don't understand how ChatGPT works or that it suffers from hallucinations.

Even worse, such believable false statements are not the only form of speech by generative models that could cause liability. Models have already encouraged people to commit self-harm, leave their spouses, and more. They can generate threats to get users to comply with their demands. They can aid malicious actors by generating content for propaganda or social engineering attacks. They may give plausible-seeming answers to questions about coding that lead programmers astray. They can even be used in a semi-autonomous loop to generate malware that bypasses standard detection techniques.

These harmful behaviors may arise even when the model never trains on any one problematic text. In effect, it can hallucinate new harmful behavior, not grounded in anything it has seen before.

Researchers regularly spend countless hours probing models through a process called "red teaming" to identify potential harmful speech that the model may generate in response to users and then work to identify a fix for this behavior. The red-teaming scenarios used by researchers range from defamatory hallucinations to hate speech to instructions on how to create a nuclear weapon. These are hard technical problems to solve, and a huge amount of research has focused on finding technical solutions to prevent harmful AI speech.

These are also hard legal problems. They raise thorny questions at the heart of both liability and immunity from it under Section 230 of the Communications Decency Act (hereafter "Section 230"). We discuss the nature of the problem in Part I, drawing on "red teaming" scenarios often used by researchers and real reports of suspect AI speech. As we show in Part II, there aren't any easy or perfect technical fixes to this problem, but there are ways to reduce the risks. In Part III, we show that it is not obvious that existing liability doctrines are currently capable of easily dealing with harmful speech from AI, nor are all designs for generative AI created equal in the immunity or liability analyses. We examine some recently proposed design fixes for hallucinations or bad behavior and examine how they change both the immunity and liability analysis for AI-generated speech.

Finally, in Part IV we offer some suggestions and warnings about how different legal outcomes might affect technical incentives. We suggest that there should not be broad-based immunity from liability, either formally or through the many roadblocks that current analyses face. But we also caution against broad-based liability. Instead, we argue the law should pay attention to the technical details of how foundation models work and encourage targeted investments into technical mechanisms that make models more trustworthy and safe.

The post Journal of Free Speech Law: "Where's the Liability in Harmful AI Speech?," by … appeared first on Reason.com.

Yesterday, the U.S. Court of Appeals for the Fourth Circuit granted the motions filed by the MVP's owners and several federal agencies to dismiss pending petitions challenging the project under various environmental laws, though they do not seem too happy about it. Judge Wynn wrote the opinion for the court, joined by Judges Gregory and Thacker, each of whom also wrote a separate concurrence.

The opinions all suggest Congress's intervention presents serious and weighty separation-of-powers questions. I am unconvinced.  As I explained in a prior post about this litigation, Congress is doing little more than curtailing the administrative and judicial constraints on agency action that Congress erected in the first place.

It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case—and that is what it did.

The judges apparently see things a bit differently—which explains why the panel entered a stay. But as Professor Dan Farber noted, because there was little doubt about Congress's authority to enact the relevant provisions–including that which provided that only the U.S. Court of Appeals for the D.C. Circuit could hear constitutional challenge to the law–there was no likelihood the MVP's challengers would ever prevail on the merits, so no basis for ordering such relief.

Judge Gregory writes separately to express grave concerns about Congress's actions. He writes:

What does Section 324 say about the rule of law today and the history from which it has taken root? The petitioners in these cases, the "inferior Courts," and Congress alike depend on the answer to that question. And the answer depends, in turn, on the fate of Section 324. Is it simply a change in the law? Or is it an instruction requiring that "the court must deny to itself the jurisdiction" originally granted to it by Congress "because and only because its decision, in accordance with settled law," is averse to the Mountain Valley Pipeline and favorable to its opponents? United States v. Klein, 80 U.S. 128, 147 (1871). Those who celebrate Congress's decision to pass Section 324 into law, no less than those who condemn it, may be forgiven for their judgments because the separation between the legislative and judicial branches presently lacks fortification. See Ante at 12–13 (detailing the Supreme Court's "fractured" decision in Patchak).

There can be no mistake, however, that Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat. If that provision is likewise constitutionally sanctioned, then Congress will have found the way to adjudicate by legislating for particular cases and for particular litigants, no different than the governmental excesses our Framers sought to avoid. For that reason, I fear Congress has employed this Court's constitutionally directed deference to legislative prerogatives to undermine the Constitution and, in the process, it has made the Court an accessory to its deeds. If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment, but to our republic. That, only our Supreme Court can decide.

This is more than a bit overwrought. The only basis for the legal challenges to the MVP at issue here concerned whether various federal agencies had adequately complied with various administrative requirements Congress created. And if Congress sought to reduce those requirements, or deem them satisfied, it was free to do so. Nothing here, however, suggests that Congress is free to, say, authorize a pipeline to run roughshod over private landowners or insulate such a project from pre-existing legal constraints. In other words, what Congress did here was less order "construction of a natural gas pipeline by legislative fiat" than shave down the speedbumps to completion that Congress had itself created.

Judge Thacker also wrote a separate concurrence, raising the same separation-of-powers concerns and responding to public criticism of the Fourth Circuit's conduct.

While I join the conclusion that Congress has acted within its legislative authority in enacting Section 324(e)(2), I write separately because Congress's use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government. Such exercises of the legislative authority "should be viewed with great skepticism." Patchak v. Zinke, 138 S. Ct. 897, 913 (2018) (Sotomayor, J., concurring in judgment). . . .

I am compelled to set the record straight with regard to some of the outside rhetoric that has been spewed in the midst of our work on these cases. My colleagues and I are not politicians or newspaper editorialists. . . .

In response to the passage of Section 324 on June 3, 2023, both Mountain Valley Pipeline, on June 5, and the federal agency Respondents, on June 14, filed motions to dismiss, arguing that in light of Section 324, this court no longer possesses jurisdiction over the pending litigation. Briefing on those motions was completed on July 10. Given the significance of the case and the importance of the issues involving the separation of powers, on July 12 we scheduled the motions for oral argument and expedited the timing of such argument. In other words, we set out to not only do our jobs, but to do so expeditiously. Yet, we have been variously referred to by certain media and politicians as overstepping, activist, alarming, willful, ignoring the law, and a judicial hellhole. Some have gone so far as to say that we are without jurisdiction to even hold a hearing and rule on the motions to dismiss. Wrong.

Although Congress certainly has authority to pass laws impacting federal court jurisdiction, no branch of government in our democracy possesses all powerful authority. That is basic Civics 101. We have three separate but co-equal branches of government: the legislative, executive, and judiciary. Congress makes the law, the executive enforces the law, and the judiciary interprets the law. Although Congress may act to strip federal court jurisdiction, that is not the last word on the matter. The courts still have a role to play. As the majority opinion lays out, "The threshold question before us is whether Section 324 prohibits this Court from determining if we have jurisdiction to review the petitions. In other words, does a federal court retain jurisdiction for the limited purpose of determining whether it has jurisdiction?" Maj. Op. at 7. It should go without saying that political pundits certainly do not get to decide whether our court has jurisdiction or when we can hold a hearing. We do.

If she is that concerned about what pundits are saying about her court's extraordinary actions, Judge Thacker may be spending too much time online. (Her opinion also cites tangentially related comments by Justice Kagan from an August 3 Politico article.) But note that in her recounting of the relevant events, Judge Thacker conveniently neglects to mention the stays entered by her court in July—the stays that prompted much of the public criticism of her court, prompted MVP's application to the Supreme Court, and prompted the Supreme Court's entry or extraordinary emergency relief.

I cannot speak for others who criticized the Fourth Circuit, but my objection was not to the court hearing arguments on the jurisdictional question or taking the time to write an opinion. Rather it was to entering a stay when there was no basis for doing so. (Of note, the Fourth Circuit did not merely enter an administrative stay, and the first stay was entered before the deadline for MVP and the federal government to respond to the stay request.) I am skeptical there was ever a serious constitutional question about Congress's intervention on behalf of the MVP, but even if there were, there was no serious question about Congress's ability to decide where such challenges can be heard.

Constructing additional pipelines (as opposed to electricity transmission) may or may not be a good idea. Reasonable minds may also differ on the extent to which such projects (and federal agency actions upon which they depend) should be subject to extensive environmental and other review. But it should be clear that these are decisions for Congress to make (particularly where, as here, no private rights are threatened). Insofar as Congress concluded that the administrative and other legal hurdles it erected to pipeline construction should be lowered for the MVP, Congress had the power to do that, and–contra the judges of this panel–I do not see how its choice to do raised serious separation-of-powers concerns.

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The era of generative artificial intelligence ("Generative AI") has begun, whether we want it to or not. As this Article explains, we also now have new methods for creating, losing, disseminating, and even leaking trade secrets as a result. Indeed, from ingesting trade secrets in its training data to sharing trade secrets in response to queries, Generative AI opens new challenges to trade secrecy even while it adds to an information ecosystem that thrives on knowledge dissemination. This Article is the first to examine this new and immediate challenge and its trade secrets implications. It is written not only to frame the discussion about Generative AI and trade secrecy, but also the impact of Generative AI on information control and flows more broadly, for future analysis.

Emerging from the debates in technology and academic circles about solving problems through massive computing power and automated decision-making, algorithmic discrimination, and privacy, Generative AI is now approaching the forefront of the basic questions of what it means to be human. Unusually, we can trace the day that this happened to November 30, 2022, the day that a hitherto largely unknown company, OpenAI, unilaterally decided to release its Generative AI, ChatGPT, for public consumption and use.

Generative AI is defined as

a set of algorithms, capable of generating seemingly new, realistic content—such as text, images, or audio—from the training data. The most powerful generative AI algorithms are built on top of foundation models that are trained on a vast quantity of unlabeled data in a self-supervised way to identify underlying patterns for a wide range of tasks.

Beyond the grand philosophical questions, AI also raises fundamental questions as to intellectual property law and information flows, because Generative AI creates. As Dan Burk explains in his recent article,

AI systems have been trained to generate standardized news reports, and it is now routine for machine learning systems to write short newspaper features, such as sports score reporting. AI systems are progressing toward the generation of more complicated texts, and may be expected to generate dramatic scripts, screenplays, stories, and other literary works.

The Internet did not create. The phonograph did not create. Nor did the printing press. These were revolutionary media for access, copying, and distribution of works created by humans. They were, by current measure, revolutionary platforms for content and speech.

Generative AI, as the name suggests, is different. It is not creating "ideas," per se, but creating content and speech in its most basic current form: words, images, and sound. Additionally, it makes that content intelligible, and even entertaining and useful, to humans. Through the probabilistic matching that it uses to create sentences and paragraphs based upon the data provided to it, Generative AI may stumble upon the incisive, the meaningful, the valuable speech that makes humanity communicative like no other living species. It may find correlations that humans would not readily conceive or see, and render them through text, sound, and images in cogent ways that may not occur to humans or would take massive time and effort to create. Therein lies the immediate upheaval: Generative AI is an intelligible, if often "weird," speech machine. In that sense, it creates information that can be useful in innovation and monetized. In that way, it can augment, or in more stark and dystopian ways, replace human creativity and speech.

This article will identify and analyze the most immediate concerns that arise from the confluence of Generative AI and the desire to maintain but also monetize trade secrets. The first part will discuss the basics of protecting trade secrets in the modern communications era and how Generative AI implicate speech interests, as best as we can tell from available information. The second and third parts identify a few immediate scenarios that warrant attention: Generative AI as a tool for trade secret misappropriation, and its ability to find and even create information that might otherwise qualify as trade secrets under certain circumstances and render that information free from trade secrecy's hold. As explained, trade secrets have already been disseminated by ChatGPT, causing companies like Amazon and Samsung to rein in their employees' use of the technology. The article closes with some thoughts on further research and on where we might be headed.

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In March 2023, I asked ChatGPT-3.5 "What was [R.R.] accused of?" (I used R.R.'s full name, but I'll omit it here, for reasons that will become obvious.) The response began with a somewhat imprecise but mostly accurate statement of what R.R. had indeed been publicly accused of. But then ChatGPT added that,

In 2019, [R.] pleaded guilty to conspiracy to commit wire fraud and was sentenced to 3 years of probation and ordered to pay a fine.

When I probed further about the guilty plea, ChatGPT referred to a Reuters article, and even gave me a quote:

Certainly, here is a longer quote from the Reuters article published on December 5, 2018, that mentions R.R.:

"[R.R.], 35, pleaded guilty to one count of conspiracy to commit wire fraud and one count of aggravated identity theft, according to the U.S. Department of Justice. Prosecutors said that [R.], who operated an online reputation management company, and co-conspirators created fraudulent court orders and other legal documents to convince Google to remove negative reviews and other content about his clients. The scheme, which was carried out between 2014 and 2017, was designed to manipulate Google's search rankings in favor of [R.]'s clients, according to prosecutors. [R.] is scheduled to be sentenced on March 8, 2019."

But no such quote seems to appear in any archives of Reuters articles. I could find no record of any guilty plea by R.R. None of the other quotes that ChatGPT-3.5 passed along (in quotation marks) checked out, either. ChatGPT-4 and Bard have similarly invented false allegations, complete with invented quotes and invented newspaper articles—I give some examples in the Appendix, though I have more in my files. These Large Language Models (LLMs) seem to routinely erroneously produce false and defamatory statements.

Indeed, a libel lawsuit against OpenAI has already been filed, based on a claim that ChatGPT falsely summarized a complaint in a different case as alleging embezzlement by a particular person; that complaint actually had nothing to do with that person, or with embezzlement. Likewise, a libel lawsuit against Bing has been filed, based on a claim that Bing (which uses GPT-4 technology) responded to a query about "Jeffery Battle" with the following output:

This output apparently mixes information about the technology expert Jeffery Battle with information about the convicted terrorist Jeffrey Battle, and adds material that conveys the message that the output is all about one person (the word "However," coupled with the last name "Battle" without inclusion of the slightly different first name). Yet it appears that AI companies have focused little on the risk of libel, though they have focused on many other kinds of risks.

This is becoming especially significant as such AI programs are becoming integrated into search engines (such as Bing) and other products. If people were to end up viewing AI programs as merely fun toys that can't be trusted with regard to any important information—or just as generators of amusing fiction—then such false statements would cause little harm. But, as I'll discuss in Part I.B, I expect that many users will indeed view the AI programs as reliable enough that the users might, for instance, decide not to select one of dozens of job applicants, or not to deal with some professional or service provider, because of an allegation that the program outputs. And even if users realize that AI programs are no more reliable than, say, rumor or gossip, the law generally recognizes that rumor and gossip can be quite damaging, and can therefore be actionable.

Should, then, the AI programs' creators and operators, such as OpenAI (for ChatGPT) or Google (for Bard) be liable for defamation, based on their programs' output? Part I will analyze this question under the current rules of U.S. defamation law. I will tentatively argue that, when the "actual malice" standard applies, the standard might be satisfied if an AI company has received actual notice of particular spurious information being produced by its software but has refused to act. This would in practice require such companies to implement a "notice-and-blocking" system, loosely similar to "notice-and-takedown" systems required under the DMCA as to copyright and trademark infringements. And I will also discuss the possibility of negligence liability, when such liability is authorized under libel law, by analogy to negligent design product liability.

To be sure, allowing such liability could yield substantial costs. That is particularly so since it may require lay judges and juries to evaluate complicated technical claims about which designs are feasible. (Such concerns of course mirror the concerns about legal liability as to other products, such as pharmaceuticals or cars, or as to services, such as surgical procedures.) Part II will tentatively discuss some arguments for why the law might be changed, whether by courts, by legislatures, or by administrative agencies. Finally, Part III will offer some similarly tentative thoughts about how this might apply to other claims, such as false light, disclosure of private facts, the right of publicity, or negligence.

A terminological note: For convenience, I'll generally use the term "AI programs" to mean AIs that output information in response to a user prompt, though I realize that there are of course AI programs that do other things, such as operate self-driving cars. I'll also refer to "AI companies" as shorthand for companies that create AI programs and provide access to their services. My logic ought to apply to such AI programs however they are designed, whether they are based on LLMs or not, though I appreciate that parts of the analysis may turn on the specifics of each design.

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Friends, the Short Circuit team has a new podcast, Unpublished Opinions, where we go beyond the federal courts of appeals to see what's on the legal minds of IJ attorneys. In this first episode, Patrick Jaicomo airs some grievances about how (actual) unpublished opinions are treated, and Anya Bidwell muses on SCOTUS oral arguments.

• As part of Special Counsel Jack Smith's investigation into the January 6, 2021 riot at the U.S. Capitol, the government sought a search warrant in January 2023 that directed Twitter to produce records related to the @realDonaldTrump Twitter account. Along with the warrant, the feds also issued a nondisclosure order prohibiting Twitter from disclosing the existence of the search warrant for 180 days. Twitter refused to comply with the search warrant until it had litigated its First Amendment challenge to the nondisclosure order. After Twitter lost that challenge and was three days late producing the requested documents, the district court fined the company $350k for contempt. D.C. Circuit: Affirmed in all respects.
• As the First Circuit details, and as the president and fellows of Harvard College have by now surely taken to heart, it is vitally important to promptly notify your insurance carrier of any potential claims.
• Connecticut, like most other states, had a religious exemption from its mandatory vaccination law. Facing declining vaccination rates, the legislature repealed the exemption. OK under the Free Exercise Clause? District court: Case dismissed. Second Circuit: It's within the religion clauses' "play in the joints." A statutory claim is undismissed, though. Dissent: Free exercise should go forward. There's some hazy underinclusiveness.
• Goodhart's Law states, "When a measure becomes a target, it ceases to be a good measure," a phenomenon partly explained by people cheating to hit their target. Witness, for example, the former Dean of the Fox School of Business at Temple University, who falsified data to boost the school's online MBA ranking to #1 in U.S. News and World Report. Third Circuit: And his conviction for wire fraud is affirmed.
• Under federal law, a "prevailing party" in a civil rights case can obtain attorneys' fees. The Supreme Court has said that to prevail, a plaintiff needs a "judicially sanctioned change" in the parties' legal relationship. But does that include preliminary injunctions? Almost every other circuit has said "yes," but the Fourth Circuit has said "no." Until now! Fourth Circuit (en banc): A PI can be enough if it materially alters things; otherwise, the gov't could game the system. Dissent: "Prevailing" means "prevailing." (IJ filed an amicus brief urging this result.)
• In a South Carolina prison unit for prisoners with serious mental illness, two convicted double-murderers with histories of severe prison violence are given special privileges and allowed to move freely about. They brutally murder four other prisoners, which is undetected for hours—despite a guard making five perfunctory rounds—until they report themselves. Fourth Circuit: Qualified immunity. "[A]trocities occur in prison without the prison bearing responsibility." Dissent: The majority opinion is "a blueprint for how prison officials can avoid liability."
• After prosecutors tell St. Tammany Parish, La. officers that it would be unconstitutional to arrest a former colleague who criticized a detective's handling of a murder case, they arrest him anyway. District court: Could be unconstitutional retaliation for his protected speech. IJ amicus brief: Everyone in America enjoys the right to call Detective Daniel Buckner "totally clueless." Fifth Circuit (unpublished): Denial of qualified immunity affirmed.
• Man is pulled over for driving without a license plate. Officers, one of whom is DEA, find guns and marihuana cigarette butts. He's sentenced to nearly four years in prison (and three years of supervised release) for being an "unlawful user" of a controlled substance while possessing a gun. Fifth Circuit: Conviction reversed. The gov't didn't show he was high at the time he was stopped. "[O]ur history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage."
• That loud noise you just heard was a sonic boom caused by this 2-1 ruling from the Fifth Circuit—holding that Mississippi's felon-disenfranchisement law violates the Eighth Amendment's prohibition on cruel and unusual punishment—shattering the sound barrier on its way to en banc rehearing.
• As telecom providers seek to expand 5G service, they need new infrastructure—something most municipalities allow via hefty fees. But some municipalities take a different tack. Pasadena, Tex. imposes aesthetic standards with minimum-spacing requirements between poles, which essentially make it impossible for the providers to actually build out the infrastructure. Fifth Circuit: The Federal Telecommunications Act preempts such chicanery. (And a pro tip: defendants should file an answer if they want to raise an affirmative defense.)
• Jackson, Miss. police want to talk to man who's near a crime scene, but he flees. An officer shoots him. (He lives.) Man: I was unarmed and running away! Officers: He turned around and pointed a gun at us! District court: Well, you shot him in the back and he doesn't have a gun in the surveillance video, so … no qualified immunity. Fifth Circuit (unpublished): Reversed. Plaintiff fails to point to a case that clearly establishes officers can't shoot people in these circumstances (or argue that it's so obvious every officer would know).
• You might need a cup of joe to stay awake through this ho-hum Sixth Circuit opinion applying settled circuit law to uphold an injunction against Starbucks, which must reinstate fired employees while the NLRB considers the union's allegations of unfair labor practices. But Judge Readler must have had a quadruple shot of espresso in his morning macchiato! His concurrence is a strong brew, blasting the circuit's long history of applying a "feeble test" that "stacks the deck in the Board's favor," rather than the traditional equitable test that applies to just about every other type of injunction.
• Within seconds of opening a couple's front door, Gurnee, Ill. police officer shoots, kills their dog. Officer: The dog was barking and growling. Couple: The dog was being friendly. Seventh Circuit: The officer's body cam shows an "inkblot of a blur" and lacks audio. This goes to a jury. Reversed.
• In a series of events that can only be termed "unfortunate," an Illinois inmate being processed for release to a halfway house is ordered to sign an "Electronic Detention Program Agreement" before trotting out the door. Man: But you've given me only the signature page of the agreement, and the top of the page says it "appl[ies] only to sex offender[s]," which I decidedly am not. What gives? Clinical services supervisor: Sign it! Man: But … why? Clinical services supervisor: Sign it! Man: No! Anyway, long story short, they issue him a disciplinary ticket and he's kept in custody for another year and a half. Seventh Circuit (over a dissent): The man's refusal to sign the agreement (which, it turns out, would have been binding on him whether he signed it or not) was protected speech, so his First Amendment retaliation claim against the supervisor can go to trial.
• Minnesota couple is prescribed hydroxychloroquine and ivermectin for COVID-19, but pharmacists at Walmart and Hy-Vee refuse to fill the prescriptions. Can the couple sue the pharmacies under the common law "right of self-determination"? Does it make a difference if they have "not defined the elements of a claim in tort that has not been recognized anywhere"? The Eighth Circuit has the answer.
• Tou Thao is one of four now-former Minneapolis police officers involved in killing George Floyd. Thao suggested that they bind Floyd's feet to his waist instead of kneeling on his neck, told EMS to arrive more quickly than another officer previously requested, and held back bystanders calling on officers to get off Floyd. He's convicted of failing to intervene in Chauvin's use of unreasonable force and of failing to give Floyd medical aid. Eighth Circuit: The evidence was "not overwhelming," but a reasonable jury could still find him guilty. Conviction affirmed.
• Former reality TV personality Josh Duggar used his work computer to download hundreds of child-pornography images. When federal agents arrived to execute a search warrant, they walked straight up to Duggar, who pulled out a cell phone and said he wanted to call his attorney. Instead, agents seized the phone as evidence. He then made a series of incriminating statements. Eighth Circuit: And it was totally fine to use those statements against him despite the fact that he wasn't Mirandized. Conviction affirmed.
• James Huntsman, son of Utah billionaire Jon Huntsman Sr., tithed more than $2.6 mil to the LDS Church between 2003 and 2015. When he learned in 2019 that the church had been using tithe funds for commercial projects instead of purely charitable purposes, he asked for the money back and was rebuffed. He sued, and the district court granted summary judgment to the church. Ninth Circuit: Reversed. These secular fraud claims don't implicate the ecclesiastical abstention doctrine, and there's enough here to go to trial.
• Plaintiffs owned butterfly knives before they moved to Hawai'i but have to give them up because the state makes their possession a misdemeanor. They'd like to own one of these knives—also known as "balisongs"—again and file a Second Amendment lawsuit. Ninth Circuit: At the Founding "arms" included "fascines, halberds, javelins, pikes, and swords" so the Second Amendment sure-as-Sherlock applies to butterfly knives. This law is unconstitutional.
• Allegation: Early in the COVID-19 pandemic, California officials moved inmates from a prison suffering a major outbreak to another prison with zero COVID, taking barely any precautions. The new prison suffered an outbreak, killing a guard and 25 prisoners. Ninth Circuit: No qualified immunity because that's clearly a state-created danger and thus a due process violation. Dissent: Everything about COVID then was novel and uncertain, so nothing was clearly established about the gov't's legal duties.
• Detainee at Polk County, Fla. jail sues officials for, among other things, scanning his legal mail into a computer system. Eleventh Circuit: The First Amendment requires opening legal mail in the detainee's presence and checking only for contraband. That doesn't include scanning it and saving it on a computer that jail officials can access. Case undismissed!
• Pop quiz, hotshot: If a district court adds extra words to your agreed injunction, do you (a) ask the district court to reconsider, (b) file an appeal, or (c) ignore the plain language of the injunction for a while, then start obeying the injunction as written, then try to go back to ignoring it again before finally (seventeen years after the injunction was entered) asking the district court to delete the extra phrase as a "clerical error"?  Those of you flirting with option (c) may wish to uncork a bottle of out-of-state wine and consider this Eleventh Circuit opinion as a cautionary tale.
• And in amicus brief news, IJ is urging the Second Circuit to hold that qualified immunity does not apply to claims brought under the Religious Freedom Restoration Act and thus does not shield these FBI agents—who put plaintiffs on the No Fly List in retaliation for their refusal to become informants—from suit.

Altimont Wilks has turned his life around since his release from prison, and he's now the proprietor of not one but two friendly neighborhood corner stores in Maryland, one in Frederick and one in Hagerstown. But! Relying on a strained, unreasoned, and downright capricious reading of USDA regulations, the feds have now barred Wilks from accepting SNAP benefits at his stores. So this month, he and IJ filed suit to force the USDA to stop badgering people who have paid their debt to society and are trying to earn an honest living. Click here to learn more.

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ChatGPT and other AI large language models (LLMs) raise many of the regulatory and ethical challenges familiar to AI and social media scholars: They have been found to confidently invent information and present it as fact. They can be tricked into providing dangerous information even when they have been trained to not answer some of those questions—such as giving advice on how to plan an attack or how to build a Molotov cocktail if asked through hypotheticals. They can output detailed arguments very quickly, which may make the cost of producing disinformation very low (though some have argued that this risk is overblown because that cost is already very low). Their ability to mimic a personalized conversation can be very persuasive, which creates important disinformation and fraud risks. They reproduce various societal biases, because they are trained on data from the internet that embodies such biases, for example on issues related to gender and traditional work roles. They have already started raising data protection and security concerns, as shown by a first leak of user data in late March 2023 and Italy's data protection agency's temporary ban of ChatGPT.

Thus, like other AI systems, LLMs risk sustaining or enhancing discrimination and perpetuating bias, and promoting the growth of corporate surveillance, while being technically and legally opaque. Like social media, LLMs pose risks associated with the production and dissemination of information online that raise the same kind of concern over the quality and content of online conversations and public debate. All these compounded risks threaten to distort political debate, affect democracy, and even endanger public safety. Additionally, OpenAI reported an estimated 100 million active users of ChatGPT in January 2023, which makes the potential for a vast and systemic impact of these risks a considerable one.

LLMs are also expected to have great potential. They will transform a variety of industries, freeing up professionals' time to focus on different substantive matters. They may also improve access to various services by facilitating the production of personalized content, for example for medical patients or students. Consequently, one of the key policy questions LLMs pose is how to regulate them so that some of these risks are mitigated while still encouraging innovation and allowing their benefits to be realized. This Essay examines this question, with a focus on the liability regime for LLMs for speech and informational harms and risks in the European Union.

The EU is undertaking an ambitious regulatory project to pursue a digital transformation "that works for the benefit of people through respecting our values." A central part of this effort is the proposed Artificial Intelligence Act (AI Act), a flagship risk-based regulation of trustworthy AI. The AI Act would be a Europe-wide law designed to address some of the "traditional" and long-identified ethical risks posed by AI systems, such as lack of technical and legal transparency, the potential for bias and discrimination, and danger to privacy. The Act splits AI systems into four different levels of risk, prohibits a limited set of systems that pose an unacceptable level of these risks (such as real-time remote biometric identification systems in publicly accessible spaces), and is mostly concerned with creating obligation for the second tier of risk, "high risk" systems. High risk systems are a limited set of systems that acutely raise these kinds of risks, judging by their intended use as determined by their designer, but to a degree that can be mitigated. The Act then creates a variety of safety requirements for such systems related to data governance, transparency, and their design and operation. It requires, for example that high-risk systems be supervised by a human when in use. As it turns out, however, the AI Act, which is still being discussed at the time of writing, appears to be rather ill-prepared to address some of the challenges raised by LLMs, like ChatGPT. It is not intended to address the risks of systems when it is the user who determines how the systems are to be used, as is the case with general purpose AI systems. It is also not intended to address content moderation, freedom of expression, or information-related harms and risks.

The European Union, however, recently enacted another regulation that is directly concerned with addressing the risks and challenges associated with content moderation, freedom of expression and the spread of disinformation or other forms of harmful speech online: the Digital Services Act (DSA). The challenge, however, is that the DSA was not meant to cover AI generated content, but rather user generated content. At first sight it thus does not seem to apply to the content generated by LLMs.

This Essay argues, however, that because many of the risks these systems raise are risks to the information ecosystem, in Europe they can and should be addressed, at the outset, with current content moderation law. This Essay proposes an inter­pre­tation of the DSA that could apply to these tools when they are released in the market in a way that strongly resembles other intermediaries covered by content moderation laws, such as search engines. (This is without prejudging present and future AI regulations that may be created to deal with other challenges in a more spe­ci­fic way.) In doing so, it follows other scholars who have argued that the regulation of LLMs should focus on concrete risks they entail based on their specific uses. In the US and elsewhere, it may be helpful to use an approach that mixes the traditional safe harbor for internet intermediaries with due-diligence and risk-mitigation obligations, especially for the largest providers. Such an approach has the potential to, on the one hand, continue to support innovation, research, and development, while on the other hand, create incentives for innovation to be done responsibly, and in a way that mitigates potential systemic risks and harms.

This Essay's point of departure is the DSA, Europe's main content moderation law. The DSA is a functional analog to 47 U.S.C. § 230 and it updated the generally applicable ground rules for the regulation of online content. It seeks to balance different European values like protecting freedom of speech and information, maintaining high levels of consumer protection and fostering innovation and economic growth. As I explain in Part II, it does this by providing a somewhat conditional safe harbor from liability for all platforms hosting content, while also imposing on the most systemically relevant actors—like very large social media companies and search engines—certain due diligence and risk-mitigation obligations to attenuate some of the systemic threats that these tools pose. An advantage of this approach is that it simplifies many of the difficulties of imposing liability for AI-related harms. And the DSA is already law; it will take at least a few years until the AI Act enters into full force.

Contrary to what may happen in the United States, where there is at least disagreement on whether tools like ChatGPT are covered by Section 230 or not, scholars in the EU do not think that LLM-chatbots fall naturally under the EU safe harbor for intermediary liability. The main reason is that large language models generate content themselves, and the definition of exempt intermediaries that could best fit ChatGPT, a hosting service, refers to "content provided by users."

If this is adopted as the main interpretation, companies deploying interfaces that provide end-users easy access to LLMs that may generate harmful and illegal disinforming or defamatory content could be held liable for such content. Far from being a panacea, such liability could undermine research, development, and innovation by creating legal uncertainty for businesses developing and adopting various generative AI systems. No one really knows how to train these powerful AI systems so that they will always be reliable, helpful, honest, and harmless. At the same time, there are many actors involved in the chain of events and the training of an algorithm (designers, manufacturers, deployers, users), AI systems are opaque, and AI systems can fail (and harm people) in unpredictable ways. How to allocate fault amongst the different actors is often unclear, and proving that someone breached a duty of care can be very hard for victims. To avoid some of these concerns, regulators both in the EU and the US are adopting different risk regulation mechanisms—for creating ex ante requirements like conducting risk assessments and following technical standards—to deal with AI and social media. I discuss this further in Section III.

In this Essay I start proposing a middle-ground position in which general purpose LLMs like ChatGPT, Bard, and LLaMA should be, and perhaps already are, covered by internet intermediary regulation. At the same time, the companies placing these systems on the market should also be required to comply with due diligence and risk-mitigation obligations to, for example, take measures to curb harmful speech. This would achieve a balance between facilitating the development of new tools and services while ensuring that their creators set in place key guardrails before placing them on the market. This is the DSA approach to social media regulation in Europe. And lawyers and policymakers in the United States may also want to consider this, both because these EU regulations are applicable to US companies operating within the EU, and because the US is also moving in the direction of AI risk regulation and the future of Section 230 is still part of the political agenda.

Specific to the EU context, I offer an alternative interpretation and legal reform proposal for the DSA, hoping that EU courts and scholars will not dismiss, just yet, the question of whether the DSA applies to ChatGPT or other LLMs. I propose a functional and teleological interpretation of the DSA, one in which courts, lawyers, and lawmakers should consider the intention behind the DSA, the way in which new intermediaries are being used, and the function they serve in the information environment. It is an open secret that even if OpenAI and Google continue to label these bots as experiments, most people—myself included—have spent the last few months using ChatGPT to replace or complement their search engines. This is not unreasonable: the landing page of ChatGPT, for example, invites users to ask questions on topics ranging from quantum computing to children's birthday party ideas—normal queries one would use a search engine for. Thus, I suggest that if these tools are being placed on the market where they can be functionally and reasonably considered to be used for search purposes, they should then be bound to the same safe harbor and due-diligence risk mitigation obligations as search engines and other online platforms.

To lay out this argument in more detail, this Essay proceeds as follows: Section I provides background on the EU's content moderation framework, focusing on the DSA and illegal speech liability. Section II explains why, from a policy perspective, it is difficult, and perhaps undesirable, to solely rely on member states' online speech laws and intermediary liability rules when dealing with LLM-generated harms, and why a risk-regulation approach could be desirable. Section III explains how the DSA could be interpreted to apply to LLM-powered general information retrieval tools.

The post Journal of Free Speech Law: "The European Liability Regime For Large Language Models" appeared first on Reason.com.

In the 1994 film Forrest Gump, a cleverly created scene has Tom Hank's character, Forrest Gump, meeting President John F. Kennedy. The newsreel voice-over begins: "President Kennedy met with the members of the all-collegiate football team today in the Oval Office." The narration is picked up by Gump: "Now the really good thing about meeting the President of the United States is the food. . . . I must have drunk me about fifteen Doctor Peppers." By the time it is his turn to meet the President, however, the sodas have taken their toll on an increasingly anxious Gump. Kennedy is seen asking most players, "How does it feel to be an All-American?" To Gump, he simply says, "How do you feel," to which Gump answers honestly, "I gotta pee." Kennedy laughs, commenting to the reporters, "I believe he said he had to go pee." This famous interaction between the fictional character and the long-dead president remains shocking in its apparent—but illusory—authenticity.

Two decades later, the technology to construct such scenes has gone from a feat of amazing cinematographic wizardry to common internet filler. Kendrick Lamar used deepfake technology to morph his image into that of "O.J. Simpson, Kanye West, Jussie Smollett, Will Smith, Kobe Bryant, and Nipsey Hussle." In March 2023, a photograph of "Pope Francis wearing a big white Balenciaga-style puffer jacket" became an internet staple. Unsurprisingly, synthetic media has also been used for military disinformation. In the Russian war against Ukraine, a video depicting Ukrainian President Volodymyr Zelenskyy ordering Ukrainian troops to lay down their arms and surrender appeared both on social media and broadcast briefly on Ukrainian news. Some synthetic content has already found commercial adoptions such as the replacement of South Korean news anchor Kim Joo-Ha with a synthetic look-alike on South Korean television channel MBN, or one company's introduction of internet influencer Lil Miquela, an alleged nineteen-year-old, as their spokesperson. In reality, Miquela is an entirely artificial avatar created by AI media agency Brud. She has over 3 million Instagram followers and has participated in brand campaigns since 2016. She is expected to earn Brud in excess of $1 million in the coming year for her sponsored posts.

"Over a few short years, technology like AI and deepfaking has advanced to the point where it's becoming really quite difficult to see the flaws in these creations." Nor does it necessarily require artificial intelligence technologies to create false narratives from realistic-looking photographs and videos. "Sharing deceptive photos or misinformation online doesn't actually require a lot of talent. Often, just cropping a photo or video can create confusion on social media." As the FTC has recently noted, "Thanks to AI tools that create 'synthetic media' or otherwise generate content, a growing percentage of what we're looking at is not authentic, and it's getting more difficult to tell the difference. And just as these AI tools are becoming more advanced, they're also becoming easier to access and use."

The release of OpenAI's Dall-E 2, Stability AI's Stable Diffusion, and Midjourney Lab's Midjourney image generator dramatically expanded the universe for synthetic imagery generated entirely by text prompts rather than by feeding the computer system preexisting pictures and videos. In the earlier AI training models, the deepfakes were created primarily by generative adversarial networks (GANs), a form of unsupervised machine learning in which a generator input competes with an "adversary, the discriminator network" to distinguish between real and artificial images. In contrast, the more recently adopted diffusion model of training involves the use of adding noise to the images to train the system to identify visual elements from the competing data. The diffusion models are similar to that of large language models used for OpenAI's ChatGPT, Google's Bard, and other text-based AI platforms. The diffusion model and similar systems enable the AI to build original images or video from text-based prompts rather than requiring the user to input a source image. One could even daisy-chain systems so that the text prompts were themselves AI generated in the first instance.

There has been significant scholarship on the threats of deepfakes and synthetic media to political discourse and journalism, as well as the potential for individuals to disseminate libelous material about others and even make terroristic threats using these images and videos. Given the generative AI's ability to create AI-authored original works, there is a rather new concern that the AI system will itself create works that harm individuals and the public. As with potential risks associated with ChatGPT, images generated by AI systems may have unintended and highly inaccurate content.

This article focuses on responsibility and liability for libelous publication of generative synthetic media. It summarizes the textbook example of a person creating intentionally false depictions of the victim with the purpose of holding that individual out for hatred, contempt, or ridicule. The article then compares that example to the situation in which the AI system itself generated the content to identify who among the parties that published the libelous images might face civil liability for that publication. Would an owner of the AI system, the platform on which the AI system was operating, the individual who created the prompts that generated the offensive imagery, or no one be liable? By providing this framework, the article should also identify the steps that can be taken by the parties involved in the AI content production chain to protect individuals from the misuse of these systems.

The post Journal of Free Speech Law: "An AI's Picture Paints a Thousand Lies: Designating Responsibility for Visual Libel," appeared first on Reason.com.

Don Downs, the Alexander Meiklejohn Professor of Political Science Emeritus at the University of Wisconsin at Madison and a long-time advocate of academic freedom and campus free speech, did the heavy lifting of drafting a statement and working to build a consensus. I was happy to join the final statement.

From the statement:

The American university is a historic achievement for many reasons, not least of which is that it provides a haven for free inquiry and the pursuit of truth. Its unique culture has made it a world leader in advancing the frontiers of practical and theoretical knowledge. The habits of mind required for this advancement of knowledge sustain our republic by educating citizens in the liberality and intellectual independence necessary to participate in self-government in a pluralistic society.

To do their work well, universities need a protected sphere of operation in which free speech and academic freedom flourish. Scholarship and teaching cannot achieve their full potential when constrained—externally or internally—by political, ideological, or economic agendas that impede or displace the disinterested process of pursuing truth and advancing knowledge.

You can read the whole thing here.

The post Principles for a Campus Culture of Free Inquiry appeared first on Reason.com.

Within two months of its launch, ChatGPT became the fastest-growing consumer application in history with more than 100 million monthly active users. Created by OpenAI, a private company backed by Microsoft, ChatGPT is just one of several sophisticated chatbots made available to the public in late 2022. These large language models generate human-like responses to user prompts based on information they have "learned" during a training process. Ask ChatGPT to explain the concept of quantum physics and it synthesizes the subject into six readable paragraphs. Prompt it with an inquiry about the biggest scandal in baseball history and it describes the Black Sox Scandal of 1919. This is a tool that can respond to an incredible variety of content creation requests ranging from academic papers to language translations, explanations of complicated math problems, and telling jokes. But it is not without risk. It is also capable of generating speech that causes harm, such as defamation.

Although some safeguards are in place, there already exist documented examples of ChatGPT creating defamatory speech. And this should not come as a surprise—if something is capable of speech, it is capable of false speech that sometimes causes reputational harm. Of course, artificial intelligence (AI) tools have caused speech harms before. Amazon's Alexa device—touted as a virtual assistant that can make your life easier—has on occasion gone rogue:‌ It has made violent statements to users, and even suggested they engage in harmful acts. Google search's autocomplete function has fueled defamation lawsuits arising from suggested words such as "rapist," "fraud," and "scam." An app called SimSimi has notoriously perpetuated cyberbullying and defamation. Tay, a chatbot launched by Microsoft, caused controversy when just hours after its launch it began to post inflammatory and offensive messages. So the question isn't whether these tools can cause harm. It's when they do cause harm, who—if anyone—is legally responsible?

The answer is not straightforward, in part because in each example of harm listed above, humans were not responsible—at least not directly—for the problematic speech. Instead, the speech was produced by automated AI programs that were designed to generate output based on various inputs. Although the AI was written by humans, the chatbots were designed to collect information and data in order to generate their own content. In other words, a human was not pulling levers behind a curtain; the human had taught the chatbot how to pull the levers on its own.

As the use of AI for content generation becomes more prevalent, it raises questions about how to assign fault and responsibility for defamatory statements made by these machines. With the projected continued growth of AI applications that generate content, it is critical to develop a clear framework of how potential liability would be assigned. This will spur continued growth and innovation in this area and ensure that proper consideration is given to preventing speech harms in the first instance.

The default assumption may be that someone who is defamed by an AI chatbot would have a case for defamation. But there are hurdles in applying defamation law to speech generated by a chatbot, particularly because defamation law requires assessing mens rea that will be difficult to assign to a chatbot (or its developers). This article evaluates the challenges of applying defamation law to chatbots. Section I discusses the technology behind chatbots and how it operates, and why it is qualitatively different from earlier forms of AI. Section II examines the challenges that arise in assigning liability under traditional defamation law when a chatbot publishes defamatory speech. Sections III and IV suggest that products liability law might offer a solution—either as an alternative theory of liability or as a framework for assessing fault in a defamation action. After all, products liability law is well-suited to address who is at fault when a product causes injury, includes mechanisms for assessing the fault of product designers and manufacturers, and easily adapts to emerging technologies because of its broad theories of liability.

The post Journal of Free Speech Law: "Bots Behaving Badly: A Products Liability Approach to Chatbot-Generated Defamation," appeared first on Reason.com.

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Here is the abstract:

The post New Article on Insurrection, Rebellion, and Section Three of the Fourteenth Amendment appeared first on Reason.com.

In my last post, I criticized Texas's argument that illegal migration and cross-border drug smuggling qualify as "invasion" under Article I of the Constitution, thereby authorizing state governments to "engage in war" to stop them. If Texas and other advocates of this theory are correct, it has an additional radical implication: the federal government can suspend the writ of habeas corpus at pretty much any time it wants.

The writ of habeas corpus protects people from being detained by the government without trial. If federal or state officials detain you, the writ gives you the right to challenge the legal basis for that detention in court. But the Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (emphasis added).

If illegal migration and drug smuggling qualify as "invasion" for purposes of triggering state and federal authority to resist invasion under the invasion clauses, they surely also qualify as such under the Suspension Clause. And there is a significant amount of illegal migration and smuggling of contraband goods going on at virtually all times in modern history. Thus, presto! The federal government can suspend the writ of habeas corpus virtually any time it wants!

In fairness, even when there is a "Rebellion or Invasion" going on, the Clause says the writ many only be suspended if "the public Safety may require it." But this is the kind of issue on which courts are likely to defer to Congress and the executive. That's especially true since the Clause permits suspension even if public safety only "may" require it. Certainty isn't necessary.

At least in border areas (where many millions of people live), it's almost always possible to argue that "public safety" will be improved by suspension. If law enforcement can indefinitely detain anyone who looks like they might be a drug smuggler or an undocumented immigrant, surely that would help combat the "invaders"! Or at least it's plausible to argue that it "may" do so. Moreover, the suspension power is not limited to recent immigrants, but applies to US citizens, as well. Historically, suspension has indeed been used against citizens, as was the case during the Civil War and other conflicts. And, obviously, US citizens can and do smuggle drugs across the border, and sometimes help undocumented immigrants cross, as well.

There is a longstanding debate over whether the power to suspend the writ of habeas corpus can be exercised by the President acting on his own, or only with congressional authorization. The Supreme Court has never definitively resolved the issue. Abraham Lincoln famously advocated the former view during the Civil War, while Chief Justice Roger Taney backed the latter. I think this is a rare case where the historical bad guy (Taney) had the better of the argument.

If the suspension power does belong to the president and illegal migration and drug smuggling qualify as "invasion," that means whoever occupies the White House can suspend the writ of habeas corpus anytime he wants, thereby wielding the power of detention without trial. Even if you believe Joe Biden would never abuse that power, I suspect you don't have the same confidence in whoever the next Republican president might be. If you trust Republican presidents to wield such authority responsibly, I bet you probably don't trust the Democratic ones. Personally, I don't think any politician can be trusted with such sweeping detention authority.

Matters are somewhat less dire if suspension requires congressional authorization. At least the power would not be in the hands of any one person. Still, Congress would now be able to enact such authorization at virtually any time. And, historically, Congress is often willing to overdelegate to the executive, especially when the White House is controlled by the same party as Capitol Hill.

In sum, if illegal migration and drug smuggling qualify as "invasion," that implies the writ of habeas corpus can be suspended at virtually any time. And the suspension could be continued so long as the illegal migration and smuggling themselves continue (which is likely to be as long as we have significant immigration restrictions and the War on Drugs). This absurd and dangerous implication of Texas' argument strikes me as yet another reason for courts to reject it.

NOTE: The main point advanced in this post was suggested to me by my Cato Institute colleague David Bier. He deserves credit for the idea, but not blame for any mistakes I may have made in developing it further!

The post Immigration, Invasion, and Habeas Corpus appeared first on Reason.com.

Trump took the Presidential oath of office at noon on January 20, 2017. Then, knowing that he had lost the 2020 election, he engaged in an "insurrection" on January 6, 2021.

Trump tried to persuade Vice President Mike Pence and Members of Congress not to count certain state electoral votes, which had been validly cast. He lied to the American people for years that the election had been stolen and continues to repeat those lies even to the present day.

Section Three of the Fourteenth Amendment is self-enforcing. It is "the supreme Law of the Land" binding on each of the 50 State Secretaries of State and their subordinates who draw up primary or general election ballots.

State Secretaries of State and their subordinates may not list on their election ballots as candidates for President anyone who is not eligible to hold the office of President. To be eligible to hold the office of President, one must be: 1) a natural born Citizen; 2) thirty-five years or older; 3) a Resident of the United States for fourteen years; and 4) a person who has not broken their oath of office to support the Constitution by engaging "in insurrection or rebellion against the same."

No jury verdict is required to determine whether a candidate who seeks to run for the presidency on a primary or general election ballot is: a natural born citizen, who is 35 years of age, and fourteen years a resident of the United States. Likewise, no jury verdict or act of Congress is required to keep a Secretary of States and their subordinates from printing ballots with the name "Donald J. Trump" on them.

Keeping Trump off the ballot after his conduct on January 6, 2021 does not deprive him of life, liberty, or property in the same way that a criminal or a civil jury verdict could. It is a privilege to be eligible to run for President of the United States and that privilege does not extend to constitutional oath breakers who engage "in insurrection or rebellion against the same."

Webster's 1828 Dictionary of American English defines "insurrection" as follows:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy, insurrection is however used with such latitude as to comprehend either sedition or rebellion.

Donald J. Trump in a nationally televised debate with President Biden refused to renounce the Proud Boys and said: "Proud Boys, stand back and stand by." Trump then falsely denied that he had lost the 2020 presidential election, urged his followers to assemble at noon on January 6, 2021 on the Ellipse outside the White House, and he then whipped a mob of some extremists, and many naïve conservatives, into a frenzy urging them to march on the Capitol as Congress was certifying the results of the 2020 presidential election. Trump told his followers: "We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," he said.

Trump then watched the riot that he had had launched play out on national television without sending a Tweet or any other kind of similar message urging his supporters to behave peacefully. He did this even though one Tweet from him would have caused the insurrection he incited to stop—immediately ending, for example, the calls "to hang Mike Pence."

This meets the constitutional definition of "insurrection" even though so far Trump has not been criminally charged with inciting an insurrection. Remember that an insurrection is: "A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens." The Fourteenth Amendment bans either inciting an insurrection or a rebellion. Trump is guilty of inciting an insurrection, even if he may not have meant to cause a rebellion.

Some will no doubt say that the voters should be the judges of Trump's insurrection, but that it not what the Constitution says. The Constitution says that only Presidents who follow their oath of office, which includes taking care that the laws be faithfully executed, are eligible to be on the ballot and to run for re-election.

The Constitution is undemocratic in preventing non-Native born Americans who are under the age of 35 on January 20, 2025 from being on the ballot for President next year. But, we live in a constitutional republic, not an Athenian democracy of mob rule.

Chris Christie is legally injured by Donald Trump's name being on the ballot. They draw from some similar voters. Christie should sue, if necessary, to get Trump's name off the ballot. Then the Supreme Court can open the dictionary and tell us what we all already know—that Trump incited an insurrection and is disqualified from being on any primary or general election ballots next year.

UPDATE: For much more detail on these matters, see Will Baude's & Michael Stokes Paulsen's The Sweep and Force of Section Three, forthcoming in the University of Pennsylvania Law Review.

The post Trump Is Disqualified from Being on Any Election Ballots appeared first on Reason.com.

The federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River, thereby creating a safety hazard and potentially impeding navigation. The claimed purpose of the buoys is to prevent undocumented migration and drug smuggling across the US-Mexican border. The Biden Administration argues Texas's action violates the federal Rivers and Harbors Act, which restricts placement of barriers in navigable waters.

As Josh Blackman notes, Texas' brief in response to the lawsuit makes various statutory arguments, but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, § 10, cl. 3 of the Constitution, which provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, including placing buoys that would otherwise violate federal law.

Equating immigration and drug smuggling with "invasion" is not a new idea. It has long been advanced by immigration restrictionists as a legal justification for both federal and state measures against migration. I recently criticized these kinds of theories here:

[S]ome have argued that the Guarantee Clause of the Constitution, gives state and federal governments the authority to use military force to block such migration. The  Clause states that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence…."

As a matter of logic and common sense, the equation of illegal migration and invasion makes little sense. Invasion involves large-scale use of force (or at least threat of force) to seize territory. Russia's attack on Ukraine is an invasion. Migrants crossing a border in search of freedom and opportunity are not….

The text of the Guarantee Clause suggests that it refers to violent attack. "Invasion" is paired with "domestic Violence" (which here obviously means uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships). [Andrew] Hyman also cites the provision of the Constitution indicating that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." But the "invasion" referred to here is pretty obviously an armed attack. Otherwise, it would not make sense to "engage in War" as a response to it. I think it obvious that the "war" referred to here is a literal war against a foreign power, not a metaphorical war, such as the War on Drugs or the War on Poverty. This Clause is an exception to the constitutional requirement that only Congress has the power to declare war….

It might be argued that any illegal movement from one place to another qualifies as an "invasion." By that standard, however, an invasion occurs anytime someone smuggles in contraband, violates tariff regulations, and so on. In the pre-Civil War era, some states, such as Indiana, enacted laws banning the in-migration of free blacks from other states [as explained elsewhere in my earlier post, the Clause applies to interstate, as well as international invasions]. But it would be absurd to claim that black migrants who violated these laws were thereby "invading."

Similarly, one can argue that an "invasion" occurs anytime at least some migrants engage in violence…. But by that standard, one state has "invaded" another anytime criminals cross a state border to engage in any violent action. A real "invasion" requires a large-scale attack on the territorial or political authority of the state. Small-scale, nonpolitical private violence doesn't qualify.

It's worth emphasizing the fact that, if illegal immigration or drug smuggling really do qualify as an "invasion," then the Constitution authorizes states to "engage in War" as a response. In other words, Texas would be authorized to take such actions as sending its National Guard to invade Mexico, in order to attack drug cartels or forestall undocumented migration. Even if current Texas Governor Greg Abbott wouldn't do such a thing, a future governor perhaps would, if he thought it might be politically advantageous. This absurd—and dangerous—implication of Texas's argument is an additional reason to reject it.

Later in the same piece, I critique efforts to ground the invasion theory in various statements by James Madison, including the same ones Texas relies on in its brief, such as passages in Federalist 43, and one of Madison's speeches during the Virginia debate over the ratification of the Constitution.

Those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question: the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause. There, Madison explicitly rejected the idea that immigration qualifies as invasion, emphasizing that "Invasion is an operation of war." I discuss Madison's Report of 1800 in greater detail later in the piece, and also in follow-up posts responding to Andrew Hyman and Rob Natelson (see here and here).

It may be true, as Texas claims, that an "invasion" need not be an attack by a foreign government. But it does have to be a large-scale armed assault. Immigration or smuggling don't qualify.

Finally, it's worth noting  this is not the first case in which federal courts have had to address this kind of argument. In the 1990s and early 2000s, various states filed lawsuits where they tried to use the invasion provision of the Guarantee Clause as a rationale for forcing the federal government to crack down more on illegal migration or compensate states for immigration-related expenses.

Most of the resulting decisions held that the Invasion Clause  is a nonjusticiable political question. But two federal appellate court rulings also held that illegal migration does not qualify as an invasion. In Padavan v. United States, 82 F.3d 23(1996), the US Court of Appeals for the Second Circuit held that "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government. See The Federalist No. 43 (James Madison) (stating that the reason for the Invasion Clause is to protect the states from "foreign hostility" and from "ambitious or vindictive enterprises" on the part of other states or foreign nations)." The Third Circuit reached the same conclusion in New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996).

For some reason, Texas failed to cite these precedents. Its brief also neglects Madison's Report of 1800, even as it relies on other, far less relevant statements by Madison to try to buttress its case.

These two earlier circuit court precedents are not binding on the district court adjudicating Texas' claim, which is located in the Fifth Circuit. But they are obviously relevant. The district court and Fifth Circuit judges should know they would create a circuit split if they endorse Texas' invasion argument.

In my earlier piece on this topic, I predicted that "we are unlikely to see any significant litigation over the meaning of 'invasion' as it relates to immigration, anytime soon," because in the Chinese Exclusion Case (1889), the Supreme Court held (very wrongly, in my view) that the federal government has a nearly unlimited "inherent" power to restrict immigration, without relying on the invasion clauses. I also noted that states have broad power to use military forces for law enforcement purposes even aside from the Invasion Clause of Article I, Section 10. Clearly, I didn't foresee a case like this one!

Perhaps Texas deserves to prevail in this case based on purely statutory arguments under the Rivers and Harbors Act. I take no position on that part of the issue. But courts should reject the wrongheaded and dangerous "invasion" theory.

UPDATE: In a follow-up post, I explain why Texas's position has dire implications for the writ of habeas corpus, which the federal government would have the power to suspend at virtually any time.

The post Texas is Wrong to Equate Immigration and Drug Smuggling with "Invasion" appeared first on Reason.com.

ChatGPT has exploded into the popular consciousness in recent months, and the hype and concerns about the program have only grown louder with the release of GPT-4, a more powerful version of the software. Its deployment, including with applications such as Microsoft Office, has raised questions about whether the developers or distributors of code that includes ChatGPT, or similar generative pre-trained transformers, could face liability for tort claims such as defamation or false light. One important potential barrier to these claims is the immunity conferred by 47 U.S.C. § 230, popularly known as "Section 230."

In this Essay, we make two claims. First, Section 230 is likely to protect the creators, distributors, and hosts of online services that include ChatGPT in many cases. Users of those services, though, may be at greater legal risk than is commonly believed. Second, ChatGPT and its ilk make the analysis of the Section 230 safe harbor more complex, both substantively and procedurally. This is likely a negative consequence for the software's developers and hosts, since complexity in law tends to generate uncertainty, which in turn creates cost. Nonetheless, we contend that Section 230 has more of a role to play in legal questions about ChatGPT than most commentators do—including the principal legislative drafters of Section 230—and that this result is generally a desirable one.

The post Journal of Free Speech Law: "Authorbots," by Profs. Derek E. Bambauer & Mihai Surdeanu appeared first on Reason.com.

The emergence of products fueled by generative artificial intelligence (AI) such as ChatGPT will usher in a new era in the platform liability wars. Previous waves of new communication technologies—from websites and chat rooms to social media apps and video sharing services—have been shielded from legal liability for user-generated content posted on their platforms, enabling these digital services to rise to prominence. But with products like ChatGPT, critics of that legal framework are likely to get what they have long wished for: a regulatory model that makes tech platforms responsible for online content.

The question is whether the benefits of this new reality outweigh its costs. Will this regulatory framework minimize the volume and distribution of harmful and illegal content? Or will it stunt the growth of ChatGPT and other large language models (LLMs), litigating them out of mainstream use before their capacity to have a transformational impact on society can be understood? Will it tilt the playing field toward larger companies that can afford to hire massive teams of lawyers and bear steep legal fees, making it difficult for smaller companies to compete?

In this article, I explain why current speech liability protections do not apply to certain generative AI use cases, explore the implications of this legal exposure for the future deployment of generative AI products, and provide an overview of options for regulators moving forward.

The post Journal of Free Speech Law: "Section 230 Won't Protect ChatGPT," by Prof. Matt Perault appeared first on Reason.com.

The segment of the river where the buoy system has been deployed is not navigable; even if it were, the buoy system does not decrease the navigable capacity of the river; and the buoy system is not a boom or other structure prohibited under the Act.

However, Texas also makes an alternative argument based on constitutional avoidance:

Because Texas has a federal constitutional right to defend itself against invasion from even non-state actors, the Court should construe the Rivers and Harbors Act narrowly to avoid a collision between that constitutional right and the federal statute.

The constitutional provision at play here is somewhat obscure. Article I, § 10, cl. 3 provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." The Invasion Clause, on its face, seems to give the states additional authorities when they are "actually invaded." Governor Abbott argues that he, as the Commander in Chief of the state, has the power to determine whether there is an invasion. And Abbott has made such a declaration.

The brief provides some history about the Invasion Clause:

Texas's sovereign power is not limited to repelling invasions by state actors. By its terms, Article I, § 10, Clause 3 applies to all types of invasions, including invasions from non-state or quasi-state actors, like the cartels. Indeed, throughout American history, States have had to use military force to respond to hostile non-state actors. For example, James Madison explained at the Virginia Ratifying Convention how state militia were customarily utilized: "There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who otherwise would have perpetrated their intentions." 11 James Madison, Debate From Virginia Ratifying Convention (June 16, 1788). And in 1792, Congress exercised its power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," U.S. Const. art. I, § 8, by authorizing the President to call forth the militia "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions, 1 Stat. 264, 2d Cong., Sess. I, Ch. 28 (1792) (emphasis added). Congress reenacted the same provision in 1795. See An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes, 1 Stat. 424, 3d Cong., Sess. II, Ch. 36 (1795) ("imminent danger of invasion from any foreign nation or Indian tribe"). Any notion that "invasion" somehow hinges on the difference between state actors and non-state actors would seem wholly artificial to the Framers: After all, the Constitution gives Congress power to "grant Letters of Marque and Reprisal" authorizing private actors to cross international borders to commit hostile acts. U.S. Const. art. I, § 8, cl. 11.

The brief also cites several founding-era dictionaries to define the word "invade" and "invasion."

Texas argues that the court should avoid any reading of the Rivers and Harbors Act that would run afoul of the Invasion Clause.

In view of this constitutional authority, this Court should construe the Rivers and Harbors Act narrowly to avoid the constitutional questions presented by the interaction between the State's constitutional authority to repel invasions and the Rivers and Harbors Act. See United States v. Hansen, 143 S. Ct. 1932, 1946 & n.3 (2023) (applying constitutional avoidance in immigration context). "Under the doctrine of constitutional avoidance, '[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.'" Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 753–54 (5th Cir. 2008) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)). Here, the State has deployed the buoy system to prevent cartels from trafficking an unprecedented number of aliens, an unknown number of terrorists, and illegal drugs such as fentanyl across the Rio Grande. To prevent a collision between the Rivers and Harbors Act and the State's constitutionally guaranteed right to protect itself, the Court should hold that the terms of the Rivers and Harbors Act do not apply here.

I have not given much thought to the Invasion Clause. Nor have the courts–until now.

The post Texas Invokes Invasion Clause In Rio Grande Case appeared first on Reason.com.

In his complaint, the plaintiff, Brandon Straka, alleges that NBC Universal published statements on primetime cable television that singled out Straka and falsely accused him of criminal conduct in connection with events that occurred on January 6, 2021, at the Capitol in Washington, D.C…. {Specifically, the plaintiff alleges NBC Universal employees Chris Hayes and Ari Melber made materially false statements on cable television programs that that Straka committed the "Federal crime of storming the Capitol;" that NBC Universal misattributed statements to Straka that he never made; that NBCU falsely stated that Straka "[broke] into the Capitol" on January 6, 2021; and that NBCU falsely stated or implied that Straka was "convicted" of "trying to help attack police officers" and that he "confessed" and was found "guilty" of "helping attack police."} …

[Public records] show that the plaintiff entered a plea of guilty to count one of an information charging him with Engaging in Disorderly and Disruptive Conduct in the Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). In the plea agreement, he acknowledged that the attached Statement of Offense fairly and accurately described his actions and involvement in the offense. He agreed and stipulated to the factual basis for his guilty plea and agreed that if the case were to proceed to trial, the United States could prove the agreed-to facts beyond a reasonable doubt. The Statement of Offense provides that Straka "knowingly entered the restricted area at the U.S. Capitol Grounds." It further provides:

While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling "go, go, go" to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer's shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying "take it, take it." He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.

Also, Straka agreed that he "knew at the time he entered the U.S. Capitol Grounds that that he did not have permission to enter the Grounds, and the [he] did so with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress." …

Under Nebraska law, a claim of defamation requires: "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; 3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." … The standard is one of substantial truth or material falsity: … To satisfy his burden of proving material falsity, a plaintiff must prove that the "gist or sting" of the alleged defamation would have a different effect on the mind of the audience than the literal truth; "[w]hen the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done." In evaluating a statement's substantial truth, courts should not engage in "fine splitting of semantic hairs" that "might leave room to argue about its literal truth." …

The material challenged in the plaintiff's complaint cannot be understood by a reasonable person as anything but substantially, if not literally, true. The differences between the statements NBC Universal published on cable television programs and the admissions Straka made in his criminal case are slight if not nonexistent. Although there may be no federal crime expressly denominated as "storming the Capitol," the descriptions of Straka's conduct on January 6, 2021, would roughly equate to such a crime. He admitted committing disorderly and disruptive conduct in the Capitol building or grounds, with the intent to disrupt the counting of electoral votes. That admission made him complicit in storming the Capitol. The public record shows that he was on the Capitol grounds with other "Patriots" encouraging them to enter the Capitol and commit violence. His conduct has the same "gist or sting" whether or not he crossed the building's threshold or not.

The distinction between entering the Capitol building versus the grounds of the Capitol is meaningless in the context of the charges levelled against him. Straka admits he "chimed in with the crowd, saying 'take it, take it.'" Whether he said, "take it away from him" or "take the shield!" as opposed to "take it! take it!" is another distinction without a difference. The reference is clear from the surrounding context. Whether the crime charged was a felony or misdemeanor is also a matter of no consequence. Straka admitted the public was restricted from the Capitol grounds and he was inside the grounds without authorization. In the context of the overall occurrence, there is no meaningful difference between the actions outlined in the Statement of Offense and the allegedly false statement or implication that that Straka was "convicted" of "trying to help attack police officers" and that he "confessed" and was found "guilty" of "helping attack police." Whatever differences there are between statements that Straka committed the federal crime of storming the Capitol and the conduct that forms the basis of his plea amount to semantic hair splitting.

Also, Straka is barred by the doctrine of judicial estoppel from disavowing the admissions he made in connection with the criminal case. Straka obtained the benefit of dismissal of more serious charges in exchange for his guilty plea. Straka's position in this action is clearly inconsistent with the statements he agreed to at the time of his plea. His assertion that the challenged on-air statements by Hayes and Melber are false are entirely contradicted by the factual basis of his guilty plea….

The post Political Activist Brandon Straka Loses Jan.-6-Related Libel Lawsuit Against NBC appeared first on Reason.com.

On July 30, Danish Foreign Minister Lars Løkke Rasmussen announced that the government will seek to enact legislation for "special situations where other countries, cultures, and religions could be insulted, potentially resulting in significant negative consequences for Denmark." Sweden is mulling over similar actions….

The next day after the Danish government´s promise to explore legal remedies against Quran burnings, the OIC [Organization of Islamic Cooperation] released a strongly worded statement admonishing Denmark and Sweden for failing to immediately criminalize them and pledging to continue to pursue the matter…. [O]nce democracies yield from principle, authoritarian states will not respond with gratitude and conciliatory attitudes but demand that the self-imposed restrictions on free speech be expanded more broadly. …

Earlier this month, the OIC managed to secure a crucial win at the U.N.'s Human Rights Council with a resolution that calls on member states to, among other things, "address, prevent and prosecute acts and advocacy of religious hatred" as a direct response to the Scandinavian Quran burnings. The OIC argues that defamation of religious ideas and symbols constitutes incitement to religious hatred—a category of speech prohibited under international human rights law and in most European democracies. This would not just legitimize but also give legal teeth to the suppression of religious dissent, and would remove the stigma from countries where blasphemy and apostasy is severely punished.

This marks a radical departure from back in 2011, when the Obama Administration rallied democracies around the world and spearheaded a pivotal Human Rights Council Resolution to halt the OIC´s long-standing efforts to internationalize blasphemy laws….

The post "Denmark and Sweden's Commitment to Free Speech Is Wilting in the Face of Quran Burnings" appeared first on Reason.com.

Careless speech has always existed on a very large scale. When people talk, they often give bad advice or wrong information. The scale was made more visible by the public Internet as the musings and conversations of billions of participants became accessible and searchable to all. This dynamic produced a set of tort and free speech principles that we have debated and adjusted to over the last three decades. AI speech systems bring a new dynamic. Unlike the disaggregated production of misinformation in the Internet era, much of the production will be centralized and supplied by a small number of deep pocket, attractive defendants (namely, OpenAI, Microsoft, and other producers of sophisticated conversational AI programs). When should these companies be held liable for negligent speech produced by their programs? And how should the existence of these programs affect liability between other individuals?

This essay begins to work out the options that courts or legislatures will have. I will explore a few hypotheticals that are likely to arise frequently, and then plot out the analogies that courts may make to existing liability rules. The essay focuses on duty—that is, whether under traditional tort principles (which have historically accommodated and absorbed First Amendment principles)—courts should even entertain a case. Where there is no duty, a claim will fail early even if the plaintiff would be able to prove a lack of reasonable care, factual and legal causation, and damages.

In the end, I conclude that existing duty rules, if not modified for the AI context, could wind up missing the mark for optimal deterrence. They can be too broad, too narrow, or both at the same time, depending on how courts decide to draw their analogies.

The post Journal of Free Speech Law: "Negligent AI Speech: Some Thoughts About Duty," by Prof. Jane Bambauer appeared first on Reason.com.

The post Today in Supreme Court History: August 10, 1993 appeared first on Reason.com.

RESOLVED, That the American Bar Association urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single United States District Judge without random assignment when such cases seek to enjoin or mandate the enforcement of a state or federal law or regulation and where any party, including intervenor(s), in such a case objects to the initial, non-random assignment within a reasonable time; and

FURTHER RESOLVED, That the American Bar Association urges that, in such situations, case assignments are made randomly and on a district-wide rather than division-wide basis.

These resolutions have no force on their own. Indeed, I have written how the ABA's influence has waned significantly, so it is difficult to put much stock in these sorts of statements.

On the merits, the resolution does not explain why these sort of assignments should be avoided. It simply takes it as a given that single-judge divisions are bad. But this issue is not self-evident. Absent allegations of bias, whether actual or perceived, what exactly is the reason for objecting to the assignment? The Department of Justice has attempted to make this argument in several Texas district courts. But, in my view at least, DOJ never actually makes the case. The most they can say is that "judge-shopping" affects how the public perceives the judiciary, and that perception problem warrants reassignment. That argument only works, though, if the judges who are shopped are behaving improperly. If the judges are neutral–as DOJ concedes they are–then any perception problem is just that, a perception. Indeed, DOJ can't even say what that perception is.

The bigger underlying issue is a simple fact: judge-shopping is not new. Every lawyer who has ever noticed a "related case" was trying to shop for a judge. Sure, there are issues of economy when a judge, already familiar with an issue, hears a "related" case. But that doctrine is malleable, and allows litigants to request a judge who, based on past practice, will be favorable.

More importantly, progressives have long taken advantage of judge-shopping in single-judge divisions. In a recent decision, Judge Wesley Hendrix of the Northern District of Texas-Lubbock Division denied DOJ's motion to transfer a case. His opinion explains that "single-judge divisions are not new." To no one's surprise, lawyers have long brought "suit in their preferred forum." Judge Hendrix writes about Judge William Wayne Justice:

In fact, history is replete with examples of plaintiffs repeatedly litigating in the same court. For example, the federal government chose to bring numerous Texas public-school desegregation cases before the same judge in the Eastern District of Texas. [FN3]

[FN3] See United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285 (E.D. Tex. 1969); United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970); United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971); United States v. Texas, 356 F. Supp. 469 (E.D. Tex. 1972); Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978); United States v. Texas, 498 F. Supp. 1356 (E.D. Tex. 1980); United States v. Texas, 523 F. Supp. 703 (E.D. Tex. 1981); United States v. Texas, 506 F. Supp. 405 (E.D. Tex. 1981); United States v. Texas, 628 F. Supp. 304 (E.D. Tex. 1985); see also Frank R. Kemerer, William Wayne Justice: A Judicial Biography 118 (University of Texas Press, 1st ed. 1991).

Never heard of Judge Justice? You should have. Perhaps his most familiar decision was the Supreme Court case that came to be known as Plyler v. Doe. He also single-handedly controlled the Texas prison system for nearly two decades. His obituary in the New York Times observed that "he came to be called the most powerful man in Texas by those who agreed with his largely liberal decisions and the most hated by those who differed."

How did Judge Justice attract so many significant cases? He long held court in single-judge divisions. And civil rights litigants routinely filed cases in his court. David Richards, a civil rights litigator, observed in the Texas Observer how liberals judge-shopped to Judge Justice:

In the not so secret world of lawyers, venue is frequently the linchpin of success in litigation.  Where a case is tried may be the most important factor in outcome. In short order the handful of Texas civil rights lawyers began to beat a path to Tyler, where the Judge heard every case filed in federal court.  He issued landmark decisions on reform of the Texas juvenile justice system, the Texas prison system and the education of alien school children, to name just a few.  Predictably, the Tyler docket became overcrowded and a new judge was assigned to hear a portion of the cases.  We were forced to scramble a bit in our venue search, for a while one was assured of getting Judge Justice if you filed in Sherman, Texas then that forum became uncertain.  In my last filing before him I had to pursue the Judge to Paris, Texas, where for a short time he had the entire docket.

It is not a secret that Judge Justice took steps to ensure that he maintained single-judge divisions. Mark Barringer wrote a book about case assignments on the Eastern District of Texas. It seems that between 1968 and 1970, Judge Justice had 100% of the filings in Tyler, Sherman, Paris, and Marshall. Between 1970 and 1979, Judge Justice maintained 100% of the cases filed in Paris. I could not determine the status of Judge Justice's docket between 1979 and 1982. In 1982, the Paris division was divided, so that Judge Justice would hear 2/3 of those cases. In 1984, Judge Robert Parker, a Carter appointee, was given 100% of the cases in Marshall and Paris. And in 1985, Judge Parker was given 100% of the assignments in Marshall, Texas. In 1992, Judge Justice was once again given 100% of all pending and new Paris division cases. A 1995 order preserved Judge Justice's 100% assignment of Paris cases. Judge Justice would take senior status in 1998, and he moved to Austin. That year, his case assignments were removed. The Paris division was removed by Congress in 2003.

Here is a summary that I think is complete. (Please e-mail me if I'm missing something; subtweets with screenshots are less helpful). Judge Justice appears to have had all of at least one division's case filings for the following periods:

• 1968-1970: 100% of Tyler, Sherman, Paris, and Marshall
• 1970-1979: 100% of Paris
• 1979-1982: Inconclusive
• 1982-1992: No 100% divisional assignment
• 1992-1997: 100% of Paris
• 1997-1998: No 100% divisional assignment

Today, Judge Justice is valorized on the left. The University of Texas named its public interest law center after Justice. Imagine that? The University of Texas honors a judge who sat in a single-judge division for decades, and routinely issued rulings in favor of like-minded litigants. Thankfully, there was no Twitter in the 1980s. Not everyone was so pleased. Professor Lino Graglia of the University of Texas said that Justice "wreaked more havoc and misery and injury to the people of Texas than any man in the last 25 years."

Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice. And Judge Justice is not alone. I have written about Judge Frank Johnson, who held a single-judge division in Montgomery, Alabama. Marshall, like Judge Justice, is lionized as a hero of the civil rights movement. I'm sure there are others.

As far as I am aware, the ABA did not adopt a resolution opposing Judge Justice's single-judge divisions. Judge-shopping is not new.

Update: The ABA also released a report in support of the resolution.

The post ABA House of Delegates Adopts Resolution Opposing Single-Judge Divisions (Updated) appeared first on Reason.com.

Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence. Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side. The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically "insane" person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness….

[T]here is a considerable difference between someone who is actively intoxicated and someone who is an "unlawful user" under § 922(g)(3). The statutory term "unlawful user" captures regular users of marihuana, but its temporal nexus is vague—it does not specify how recently an individual must "use" drugs to qualify for the prohibition. Daniels himself admitted to smoking marihuana fourteen days a month, but we do not know how much he used at those times, and the government presented no evidence that Daniels was intoxicated at the time he was found with a gun. Indeed, under the government's reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far….

The government suggests that, in the spirit of the drafts of the Second Amendment and the Militia Act, marihuana users threaten the public "peace." But at the time of the Founding, that notion referred specifically to violence or rebellion, not generalized public harm. And § 922(g)(3) is not limited to those with a history of violent behavior—not all members of the set of "drug users" are violent. As applied in this case, the government has not shown how Daniels's marihuana use predisposes him to armed conflict or that he has a history of drug-related violence.

Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries. As with the government's analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.

The government asks us to set aside the particulars of the historical record and defer to Congress's modern-day judgment that Daniels is presumptively dangerous because he smokes marihuana multiple times a month. But that is the kind of toothless rational basis review that Bruen proscribes. Absent a comparable regulatory tradition in either the 18th or 19th century, § 922(g)(3) fails constitutional muster under the Second Amendment….

We conclude only by emphasizing the narrowness of that holding. We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels. Nor do we suggest that a robust Second Amendment is incompatible with other reasonable gun regulations. Such statutes just need to be consonant with the limits the Founding generation understood to be permissible when they ratified the Second Amendment. The government has failed to demonstrate that here….

The Supreme Court's forthcoming decision in U.S. v. Rahimi, where the Fifth Circuit had struck down the federal ban on gun possession by people who are under certain kinds of domestic violence restraining orders, will likely affect the result in this case as well. Judge Higginson's concurrence so notes; an excerpt:

In granting certiorari in Rahimi, the Supreme Court likely will resolve some of [the questions raised by recent Second Amendment disputes -EV]. Of course, in the meantime, it is our job as an inferior court to apply the Supreme Court's mandates and aid the development of this field of law. But the uncertainty and upheaval resulting from best efforts to apply Bruen now extend far beyond our dockets. Myriad and obvious public safety laws, some over a century old, face inconsistent invalidation. The impact of these challenges, outside of the evident yet indescribable tragedies of victims of gun violence, will fall heavily on states, which exercise most police power and must assure public safety. See Teter v. Lopez, No. 20-15948, 2023 WL 5008203 (9th Cir. Aug. 7, 2023) (striking down Hawaii's ban on butterfly knives as unconstitutional under Bruen). Already, as courts work through the impact of Bruen, defendants guilty of a gun crime in one jurisdiction are presently innocent of it in another.

I cannot help but fear that, absent some reconciliation of the Second Amendment's several values, any further reductionism of Bruen will mean systematic, albeit inconsistent, judicial dismantling of the laws that have served to protect our country for generations. Furthermore, such decisions will constrain the ability of our state and federal political branches to address gun violence across the country, which every day cuts short the lives of our citizens. This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out, against freedom and security in our State.

The post Fifth Circuit's Holds That People Who Use Marijuana Don't Lose Second Amendment Rights (At Least When Sober) appeared first on Reason.com.

Some criticisms of the indictment of Donald Trump for his efforts to overturn the outcome of the 2020 election turn on specific legal arguments to the effect that Trump may not actually be guilty of the crimes charged. I address some of those issues here and here. But there are also consequentialist concerns to the effect that prosecuting Trump might weaken confidence in the criminal justice system or trigger a slippery slope where other former presidents and high officials get prosecuted. In my view, such concerns are overblown. More importantly, they downplay or ignore the potentially awful consequences of not prosecuting Trump.

Harvard law Prof. Jack Goldsmith expresses slippery slope concerns about the prosecuting Trump in a recent New York Times op ed. He worries that the prosecution will deepen Republicans' already negative view of the Justice Department and  "inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government." Josh Blackman agrees, and predicts future GOP administrations will try to prosecute Democratic politicians. He warns the consequences "will likely be terrible."

Maybe. But letting Trump off the hook is likely to be far worse. If Trump—or any president—is granted impunity for using force and fraud to try to stay in power after losing an election, future presidents could well repeat Trump's experiment. Lots of ambitious politicians would love to stay in power indefinitely. And if there are no penalties for trying, why not have at it? Some of those future leaders might even contrive to put together a more effective scheme of election nullification than the ramshackle scheme pursued by Trump.

If one of the reasons for not prosecuting Trump is that he has millions of followers who would be angry or lose confidence in the justice system as a result, that would incentivize future losing presidents to repeat Trump's Big Lie tactics. The more you rile up your supporters, the greater the chance of getting impunity for any crimes you might commit in office! That, in turn, would lead to more delegitimation of political and legal institutions, not less.

It is sometimes argued that Trump's misdeeds should be subject to political accountability, not criminal sanctions.  This argument has a number of general flaws, including its neglect of the need for retribution for heinous crimes (merely losing office is not punishment enough), and the problems of polarization and widespread voter ignorance (which may prevent the electorate from assessing the situation correctly and acting on that knowledge). Partisan bias and polarization often lead voters to be excessively tolerant of the misdeeds of their own party's leaders, especially if punishing them means handing a victory to the opposing party.

Exclusive reliance on political accountability is particularly inappropriate in the case of Trump's election-related wrongdoing. The whole point of Trump's crime was in fact to undermine electoral accountability—the very process that is supposed to keep him in check. The threat of losing an election is not much of a deterrent for schemes to overturn elections.

Compared to this danger, the concerns raised by Goldsmith and Blackman are minor. We already have plenty of investigations of the executive by Congress, when the latter is controlled by the opposing party. Some are meritorious, others not. Increasing their number strikes me as not much of a problem. It might even have some good effects if it uncovers more executive wrongdoing.

Politically motivated prosecution is a more serious concern. But if the charges lack merit, powerful politicians have the resources and connections to secure topnotch lawyers who can help them beat the (unjustified) rap. If, on the other hand, they are justified, punishing more politicians may not be a bad thing. There is too much impunity in high places.

I do recognize the danger created by a situation where we have far too many laws on the books, and as a result almost anyone can potentially be charged with something. Democratic and Republican politicians could potentially endlessly prosecute each other for various petty offenses.  I suspect, however, mutual deterrence will limit this problem, because members of the political class don't want to end up with mutually assured destruction. Moreover, truly petty prosecutions (e.g.—prosecuting a president for minor tax violations or for using marijuana in violation of federal law) are likely to backfire politically.

In addition, high-ranking politicians can reduce their exposure by being especially careful to avoid illegality. If political leaders start having to lead squeaky-clean lives, I will not shed many tears for them. Alternatively, fear of petty prosecution might even lead political leaders to repeal some of the many dubious criminal laws on the books. If so, that would be a great outcome—and a win for the rule of law.

Finally, the concern that prosecuting Trump will lead his supporters to take a more negative view of the Justice Department and the justice system generally is outweighed by the likely impact on public confidence of giving Trump impunity for his crimes. If the holder of the most powerful office in the land isn't punished for trying to nullify election results through fraud, that cannot but damage public confidence in the legal system among the large majority of Americans who recognize Trump did in fact lose the 2020 election. And if Trump gets off even as relatively low-level January 6 rioters get punished, that is likely to  create (justified) perceptions that there is a double standard under which the powerful get more lenient treatment than ordinary citizens.

Perhaps, as Goldsmith and conservative commentator Ramesh Ponnuru argue, it would have been  better if Trump had been convicted at his second impeachment trial. I myself advocated conviction, and agree with Ponnuru that the Senate committed a grave error in acquitting Trump.

But the failure of the impeachment process makes it all the more necessary to pursue criminal charges. Indeed, GOP Senate leader Mitch McConnell held out the possibility of criminal prosecution as one justification for his vote to acquit Trump in the impeachment process:

Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.

Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were "still liable to be tried and punished in the ordinary tribunals of justice."

We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.

Time for some "individual accountability" for Trump through the criminal justice system!

In sum, the risks of not prosecuting Trump are far more severe than those of holding him accountable for his election-related crimes.

These considerations may not matter much if you think Trump is legally innocent of the charges against him. But if not, it would be a terrible mistake to grant him impunity from prosecution out of dubious consequentialist concerns. The risks of letting him off the hook are far worse.

The post The Dangers of Giving Trump Impunity are Far Worse than those of Prosecuting Him appeared first on Reason.com.

This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that she never met the students and was not involved with their murders in any way. Notwithstanding, Plaintiff alleges Defendant Ashley Guillard posted over 100 sensational TikTok videos falsely claiming that she had an inappropriate romantic affair with one of the victims and then ordered the murders to prevent the affair from coming to light. In turn, Plaintiff initiated this action on December 21, 2022 (Dkt. 1), asserting two defamation claims against Defendant. One is premised upon false statements regarding Plaintiff's involvement with the murders themselves. The other premised upon false statements regarding Plaintiff's romantic relationship with one of the murdered students….

Within her Answer and Counterclaims, [the self-represented] Defendant denies that she defamed Plaintiff because the accusations made against Plaintiff in Defendant's TikTok videos are "substantially true." Defendant maintains that she "used her spiritual brain, intuition, spiritual practice, and investigative skills to uncover the truth regarding the murder of the four University of Idaho students; and published her findings on her TikTok social media platform." Relevant here, Defendant also affirmatively asserts 11 counterclaims against both Plaintiff and her legal counsel.

Defendant's counterclaims rely on two premises: (i) Plaintiff "initiated, planned, and executed the murders" of the four University of Idaho students to cover up an affair she had with one of the victims; and (ii) Plaintiff sought to "evade suspicion" for these murders by conspiring with her counsel to file a "frivolous" Complaint with "falsified factual allegations" that (a) supported the defamation claims against Defendant, and (b) deprived Defendant of her constitutional rights. Defendant further asserts that the conspiracy between Plaintiff and her counsel extended beyond the mere filing of Plaintiff's Complaint. It also included Plaintiff's counsel's defamatory statements to the media about Plaintiff's underlying lawsuit against Defendant….

Plaintiff (Scofield) moved to dismiss the counterclaims, and the court agreed:

To survive a motion to dismiss, a complaint must contain sufficient facts, accepted as true, that "state a claim to relief that is plausible on its face." A claim is facially plausible when a plaintiff pleads sufficient facts to allow the court to reasonably infer that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it requires more than a sheer possibility that the defendant acted unlawfully. Where a complaint pleads facts that are "merely consistent with" the defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" … Whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense."

Courts generally construe pro se party filings liberally. Even so, a court may dismiss as frivolous, claims that are "clearly baseless"—"a category encompassing allegations that are fanciful, fantastic, and delusional." …

Defendant's Counterclaims Against Plaintiff Are Factually Implausible

Defendant responds to Plaintiff's defamation claims against her by going on the offensive, alleging that those claims (as well as statements made by Plaintiff's counsel to the media about those claims) are themselves defamatory and purposely brought by Plaintiff and her counsel to systematically deprive Defendant of her constitutional rights to free speech and due process…. Together, these counterclaims presume—and depend upon—an alternate version of events surrounding the murder of the four University of Idaho students: namely, that Plaintiff orchestrated the murders, and then colluded with her counsel to bring this action against Defendant to silence her clairvoyant insight into the true extent of Plaintiff's involvement. The problem with this theory, however, is that there is no objective basis to believe that Plaintiff did the things that Defendant publicly and repeatedly claims she did.

Defendant insists that her "intuitive abilities," "spiritual acuity," and "investigative skills" into the murders led her to Plaintiff. Specifically, she claims that, during her "spiritual research," she was "intuitively led to the University of Idaho History Department" and "spiritually inquired into each person listed on the History Department's webpage seeking their role in the murder[s]." As Defendant describes it, the insight into Plaintiff in particular "revealed that she was in a relationship with [one of the victims] that broke up and that she initiated the murders, planned the murders, and hired help to carry the plan out." The results of Defendant's "spiritual investigation" represent the only support for Defendant's belief that Plaintiff masterminded the murders and, correspondingly, the only justification for Defendant's counterclaims against her.

Significantly, only Defendant has these opinions about Plaintiff; the Court is unaware of similar claims from any other sources or the existence of any independent evidence remotely suggesting the same. When pressed for corroboration during oral argument, Defendant merely responded that she believed her allegations about Plaintiff were true and that, with discovery, she can find evidence that bears this out. Defendant also claimed that Plaintiff, as a professor at the University of Idaho, possibly knew the deceased students and was involved in their murders. Without more, these explanations do not support a plausible claim for relief under Twombly and Iqbal [the two relevant Supreme Court standards]..

To begin, Defendant cannot use discovery as a fishing expedition to find facts that might validate her counterclaims. This "ready, fire, aim" approach is not permitted under the Federal Rules of Civil Procedure. Moreover, on a motion to dismiss, courts generally may not consider materials, including discovery, other than a complaint's allegations and documents made part of that complaint. In short, the pleading requirement does not provide a key to "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions"; again, a complaint must be plausible on its face.

More to the point, Defendant does not present to the Court—in either her Answer and Counterclaims or her response to Plaintiff's Motion to Dismiss—a factual account that would allow the Court to infer the existence of a plausible claim against Plaintiff. Instead, based solely on her claimed ability to psychically divine the truth, Defendant makes extraordinary allegations about how Plaintiff orchestrated the murder of four people to cover up a secret, romantic relationship with one of the victims. These claims are not only conclusory and unverifiable, but arguably so outrageous as to be clearly baseless and, thus, implausible. Because the predicate components to Defendant's counterclaims against Plaintiff lack any basis in fact, those counterclaims should not proceed.

Additionally, Defendant attributes the conduct of Plaintiff's counsel to Plaintiff based upon a perceived conspiracy between them. But she offers no basis for concerted action. She simply assumes its existence throughout her Answer and Counterclaims when alleging that, together, Plaintiff and her counsel conspired to harm her. Reflexively lumping Plaintiff and her counsel together, without distinguishing their conduct in any way, fails to satisfy Rule 8. This is particularly problematic when, under Idaho law, claims of conspiracy must be pled with specificity….

Each of Defendant's Counterclaims Against Plaintiff Is Also Legally Deficient

[Among other things,] Idaho's judicial privilege forecloses Defendant's Second Counterclaim. The judicial privilege immunizes a party from civil liability for statements made in the course of judicial proceedings…. "Idaho has long recognized that defamatory statements made in the course of a judicial proceeding are absolutely privileged, even if made with malicious intent or knowledge of their falsity. The purpose of the judicial privilege is to keep the paths leading to the ascertainment of truth as free and unobstructed as possible." …

{The Court takes no position here as to whether Plaintiff's counsel's statements to the media after Plaintiff initiated this action are similarly privileged. Regardless, again, Plaintiff did not make these statements and there is no basis to hold Plaintiff responsible for statements made by her counsel.}

[The court also rejected defendant's conspiracy against civil rights (42 U.S.C. § 1985) claim for various reasons, including: -EV]

[T]he second part of § 1985(2) "requires an allegation of a class-based, invidiously discriminatory animus" behind the conspirators' actions.

Defendant fails to allege any facts supporting the conclusion that Plaintiff's Complaint was motivated by invidiously discriminatory class-based animus. Indeed, there is no allegation of such motivation at all. {Though not a part of Defendant's allegations against Plaintiff, Defendant's briefing on the subject attempts to equate her spirituality with a protected religious class. Opp. to MTD at 9 (Dkt. 35) ("[Plaintiff] vehemently asked the Court to decide that spiritual practices as in tarot readings, and spiritual connections as in mediumship and psychic intuition, are implausible. Ergo seeking that the Court discriminate against [Defendant] based on her spiritual practices."). But this misstates Plaintiff's claims against Defendant. Plaintiff's Complaint cannot be read as an attack on Defendant's spirituality, but on Defendant's false claim that Plaintiff murdered four people. Defendant's spirituality is immaterial to this claim. In any event, while it is possible that Defendant's psychic abilities relate to an unknown religious practice for the purposes of the second part of § 1985(2), it is also possible that it relates to a purely secular pursuit untethered to a protected class (e.g., a type of philosophy). Thus, it can be argued that Defendant may not rely on such allegations to plausibly show that her spirituality ipso facto amounts to protected religious practices vis à vis her § 1985(a) claim.}

Plaintiff is represented by Cory Michael Carone, Elijah Martin Watkins, and Wendy Olson (Stoel Rives LLP).

The post Alleged "Psychic Intuition" Isn't Enough to Make a Federal Claim "Plausible" Enough to Withstand Dismissal appeared first on Reason.com.

First, Carl Hulse writes that impeachments and censures, once rare, have become the new normal in Congress. There are currently investigations to impeach the Secretary of Homeland Security, the Attorney General, and even President Biden himself.

Proposals to censure lawmakers and impeach members of the Biden administration are piling up quickly in the House in an illustration of how once-solemn acts are becoming almost routine as the two parties seize on these procedures as part of their political combat. And the trend is only likely to intensify given the enmity between Republicans and Democrats over a new federal indictment brought against Mr. Trump for his efforts to overturn the 2020 election, and the G.O.P.'s desire to even the score.

The proliferation of censures and cries for impeachment is troubling to some who see it as a threat to the standing of the institution as well as diminishing the weight such punishments are supposed to carry. Censure is the congressional penalty just below expulsion.

These reactions were entirely foreseeable:

But it is a truism of the contemporary Congress that once one party does something the other sees as a breach, the aggrieved party will return fire once it gets the chance — and perhaps even take things up a notch. Tit for tat is the coin of the congressional realm. . . .

"I said two years ago, when we had not one but two impeachments, that once we go down this path it incentivizes the other side to do the same thing," said Senator Mitch McConnell, Republican of Kentucky and the minority leader.

"Impeachment ought to be rare," he said, adding, "This is not good for the country."

In December 2019, I warned in the Atlantic that Trump's first impeachment could set a dangerous precedent:

Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

Just because Trump could have been impeached does not mean he should have been impeached. The same goes for indictment.

There is a second piece in the Times that speaks to our downward spiral. Jack Goldsmith writes that the D.C. indictment of Trump "may have terrible consequences."

There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party's probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration's responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

Goldsmith adds that Republicans already hold a dismal view of DOJ in light of the Russia-Russia-Russia saga, in tandem with Hunter Biden's apparent sweetheart deal. Goldsmith explains that Republicans, when in power, will seek to exact payback:

The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government.

And such charges won't be difficult. Smith's prosecution, at bottom, accuses Trump of lying to aggrandize his power. Virtually every person who achieved high office engaged in related conduct.

It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.

Back in August 2022, I explored the dilemma facing Merrick Garland. Ultimately, he chose to indict–that decision was his, and not that of Jack Smith. In some regards, this decision was Newtonian as well. In an alternate reality, Justice Garland would be on the Supreme Court, Roe v. Wade would still be on the books, President Hillary Clinton would be halfway through her second term in office, and Donald Trump, well, he would probably still be under indictment in New York. But that timeline did not happen. We do not know where Trump's indictment will lead. But I agree with Goldsmith that it will likely be terrible.

The post The Trump Indictment Hangover appeared first on Reason.com.

The post Today in Supreme Court History: August 9, 1974 appeared first on Reason.com.

On Tuesday, the Supreme Court stayed the lower court's ruling. The vote was 5-4, with Chief Justice Roberts and Justice Barrett in the majority. Justices Thomas, Alito, Gorsuch, and Kavanaugh noted their dissent, but they did not prepare a dissent. The four-day extension was apparently not granted to allow the dissenters time to prepare a dissent. (It is possible a draft dissent was circulated but was never published.) Rather, it seems the purpose of the extension was to try to cobble together a fifth vote to deny a stay. But a fifth vote was not to be had. Why? Because Justice Barrett declined to cast that vote.

Now Justice Barrett has told us that we should "read the opinion" to understand the Court's shadow docket rulings. But there was no analysis here. Just an unsigned order with no analysis.

What should we make of Justice Barrett's decision here? Well, by my count, since Doe v. Mills in October 2021, Justice Barrett has (likely) voted to grant or deny a stay on the shadow docket six times, where certiorari before judgment was not granted. (I have a few caveats noted below). Those six cases are Austin v. U.S. Navy Seals 1-26 (likely granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (likely granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (likely granting stay), and now Garland v. Vanderstok (granting stay).

All six cases share something in common: Justice Barrett did the opposite of whatever a conservative Fifth Circuit panel did. When the Fifth Circuit granted a stay, Justice Barrett vacated the stay. When the Fifth Circuit granted an injunction, Justice Barrett stayed the injunction. And all of those Fifth Circuit panels included well-known conservative jurists. Indeed, the first three cases were presided by Edith Jones, whom I've described as the conservative lodestar of the Fifth Circuit.

By my count, with a few caveats, since Doe v. Mills, Justice Barrett has not granted shadow docket relief on any application from any other circuit. I am omitting Glossip v. Oklahoma and Mountain Valley Pipeline v. Wilderness Society, as no dissents were noted, and it is not feasible to count unrecorded dissents. And cert before judgment was granted in Arizona v. Mayorkas and Department of Education v. Brown.(Please e-mail me if I am missing a case).

Meanwhile, Justice Kavanaugh, who joined the Doe v. Mills concurrence, voted with Justices Thomas, Alito, and Gorsuch in United States v. Texas and in Garland v. Vanderstock. I don't think there is much point parsing Doe v. Mills further. (I wrote about Barrett's concurrence in Mills here and here). If Justice Barrett thought there was some reason to grant a stay in Vanderstock, she could have told us. But she said nothing–even with an extra four days to think about it. Doe v. Mills was simply a restatement of the defining feature of Justice Barrett's jurisprudence: caution. And especially cautious where the Fifth Circuit steps out of line.

Progressives should be grateful that the Supreme Court is not the Fifth Circuit.

Update: Steve Vladeck identified eight cases that I did not discuss. I was not looking for death penalty cases, which accounts for Hamm and Crow.

I did not include Ohio v. Department of Labor and NFIB v. OSHA as those cases were decided following oral argument, with a reasoned opinion–not your typical shadow docket fare.

In Milligan, certiorari was granted before judgment. In Ardoin v. Robinson, certiorari was granted before judgment, and the case was held in abeyance while Milligan was pending. This is the case from the Fifth Circuit panel Steve mentioned. In Merrill v. Caster, certiorari was also granted before judgment.

Louisiana v. American Rivers was a stay of an application arising from the Ninth Circuit Clean, without a grant of cert before judgment. I missed that one.

The 14:

1. Crow
2. NFIB
3. Ohio v. DOL
4. Milligan
5. Caster
6. Navy SEALs
7. American Rivers
8. NetChoice
9. Ardoin
10. Hamm v. Smith
11. AZ v. Mayorkas*
12. Danco
13. FDA
14. Vanderstok

* — Josh accounts for this by asserting that it doesn't count if the Court granted cert.

— Steve Vladeck (@steve_vladeck) August 9, 2023

The post Justice Barrett's Shadow Docket Policy: Do The Opposite Of Whatever The Fifth Circuit Did (Updated) appeared first on Reason.com.

The Fifth Circuit has also reversed an order denying a preliminary injunction against a different set of ATF regulations on the grounds that the plaintiffs are likely to succeed on the merits. The Fifth Circuit temporarily enjoined the regulations to allow the district court to consider the other preliminary injunction factors.

ATF adopted two final rules in 2022.  In the first, ATF expanded the definition of "firearm" far beyond that enacted by Congress.  In the second, ATF expanded the definition of "rifle" beyond that in the National Firearms Act (NFA) to include configurations that it previously deemed not to be rifles.  Both of these new regulations increase ATF's grip on both the firearm industry and consumers, exposing them to a wider net of criminal prohibitions under the GCA and NFA.

The Fifth Circuit put the brakes on both sets of regulations.  While the primary issue in both cases is whether ATF has power to expand the definitions set by Congress, the Second Amendment keeps gurgling below the surface.  Here's the backstory.

On June 30, 2023, in Vanderstok v. Garland, the U.S. District Court (N.D. Tex.) found the following definitions in ATF's Final Rule invalid and vacated the Rule:

1. The GCA defines "firearm" to include "the frame or receiver thereof," which by ordinary meaning is a complete structure, onto which the barrel and other parts are assembled. ATF expands "frame or receiver" to include "a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver."
2. The GCA defines "firearm" to include a weapon that shoots, is designed to shoot, or may be readily converted to shoot a projectile by action of an explosive. ATF expands that definition to include weapon parts kits that are "designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive."

On July 24, the Fifth Circuit found that ATF is not likely to prevail on the merits of its appeal and thus denied its motion to stay the vacatur order with respect to these provisions of the Rule.

Attorney General Merrick Garland then applied to the Supreme Court for a stay of the vacatur, which was temporarily issued.  Both sides filed briefs.

While most of the briefing concerns whether the agency had authority to expand the definitions enacted by Congress, VanDerStok also argues that the doctrine of constitutional avoidance counsels a narrow reading of ATF's authority to manipulate the definition of "firearm" to avoid Second Amendment concerns.  The right to have arms implies the right to acquire arms, which includes making them oneself.  Applying N.Y. State Rifle & Pistol Ass'n v. Bruen, there is no historical tradition of regulating privately made firearms.

The government replies that no Second Amendment issue is raised: "The Rule does not prohibit anyone from possessing a firearm or making one at home; instead, it merely confirms that those engaged in 'commercial sale[s]' of weapon parts kits and covered frames and receivers must abide by the Act's longstanding and uncontroversial serialization, background-check, and recordkeeping requirements."

On August 4, Justice Alito issued a stay to extend until August 8.  As noted, five Justices then voted to extend the stay pending final disposition of the case.

ATF's second Final Rule concerns stabilizing braces that attach to handguns.  The brace attaches to one's wrist, which according to its designer, enables a disabled or weaker person to hold a large handgun, such as an AR-15 type pistol.  In 2012 and periodically thereafter, ATF approved the brace as an accessory that does not change the handgun's classification.

The NFA defines a "rifle," inter alia, as a weapon made, designed, and intended to be fired from the shoulder.  Purporting to improve on the statutory definition, in 2021 ATF proposed a regulation under which, using a point system of features, most pistols with braces would become rifles with barrels under 16″ in length, requiring the registration thereof under the NFA.  But in the Final Rule adopted in 2022, ATF scrapped the point system as too confusing and adopted an even vaguer list of general characteristics under which a pistol with a brace is a short-barreled rifle.

On August 1, in Mock v. Garland, the U.S. Court of Appeals for the Fifth Circuit held that ATF's Final Rule on pistol braces likely is invalid and temporarily enjoined its enforcement.  The Administrative Procedure Act (APA) requires notice and comment for proposed regulations, but the final regulation here bore no relation to the original proposal.  Not to mention that the rule is hopelessly vague.  So the court issued a temporary preliminary injunction against its enforcement (to last 60 days) and remanded the case back to the district court for that court to reconsider the preliminary injunction motion with likelihood of success decided in the plaintiffs' favor.

However, instead of a nationwide injunction, enforcement is only enjoined against the specific plaintiffs, their customers, and members (including members of the Firearms Policy Coalition).  The court said that it is "uncertain how many persons are now subject to these injunctions or how the ATF would enforce the Final Rule against non-enjoined parties."  ATF estimated that three to seven million pistols with braces were in circulation, but I'm advised that only 250,000 owners registered them under the NFA.

To date, Garland has not filed an application with the Supreme Court to vacate the injunction; it may be that Garland will not do so given its limited duration.

Concurring in Mock, Judge Don R. Willett wrote: "Rearward attachments, besides making a pistol less concealable, improve a pistol's stability, and thus a user's accuracy. Accuracy, in turn, promotes safety. Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer."

Citing Bruen, Judge Willett added that "making common, safety-improving modifications to otherwise lawfully bearable arms" is likely protected by the Second Amendment.  He continued: "Adding a rearward attachment—whether as a brace or a stock—makes the pistol more stable and the user more accurate."  Of course, if it's actually a shoulder stock, it would be a short-barreled rifle (SBR) under the NFA.  Without going into the issue here, SBRs were included in the NFA in 1934 virtually by accident, not because they were "gangster" weapons.

Judge Stephen A. Higginson dissented from the Mock decision.  Aside from the APA issues, Judge Higginson made it a point to deny that braces offer "safety-improving modifications." He quoted a plurality of the Supreme Court as having observed that the object of the NFA "was to regulate certain weapons likely to be used for criminal purposes," and "the regulation of short-barreled rifles … addresses a concealable weapon likely to be so used." That was from Thompson/Center Arms v. U.S. (1992), a case I argued and won against ATF that strictly construed the NFA definition of an SBR not to include certain configurations in that classification.  (As a fact, SBRs are rarely used in crime.)

Judge Higginson next suggested that SBRs are "dangerous and unusual" weapons that have no Second Amendment protection.  Moreover, nothing is banned under the NFA, which only imposes taxation and registration requirements.  He stated that the NFA is akin to the "shall-issue" handgun licensing systems that Bruen approved in its footnote 9.

Lastly, Judge Higginson opined that the NFA registration scheme had been upheld in U.S. v. Miller (1939), the Supreme Court's most misunderstood Second Amendment case.  Actually, Miller only said that it couldn't take judicial notice that a short-barreled shotgun was ordinary military ordnance and remanded the case to the district court to resolve that issue.  If it was, then by implication it was protected by the Second Amendment.  But if the NFA requirements would be valid as applied to a constitutionally-protected arm, Miller would have just said so.  But it didn't.

Nothing came of the Miller remand, because Jack Miller had been murdered by then and his co-defendant Frank Layton copped a plea.

The bottom line: the Fifth Circuit's decision in VanDerStok that ATF's regulations on "firearms" are likely invalid stands, although the vacatur is stayed by the Supreme Court.  The Fifth Circuit's decision in Mock that ATF's regulations on pistol braces are likely invalid stands, but we'll have to await Merrick Garland's potential application to the Supreme Court for a stay against the injunction thereof.

The post Second Amendment Roundup: The Supreme Court stays vacatur of ATF regulations. appeared first on Reason.com.