The discussion of campus free speech that almost did not happen at NYU.

In Souders v. Lazor, decided Wednesday by the Ohio Court of Appeals (Judge Marilyn Zayas, joined by Judges Terrance Nestor and Richard Moore), Souders sued based on "certain posts made in a Facebook group entitled, 'Are We Dating the Same Guy Cincinnati/Dayton'": [T]wo of the named defendants … filed a motion to dismiss Souders' claims against them. The motion to dismiss asserted that the allegations against them arose from representation of their clients …. Additionally, appellees subsequently answered the complaint and filed a joint counterclaim to declare Souders a vexatious litigator under R.C. 2323.52…. The motion claimed that Souders' Hamilton County complaints "stemmed from his 'spurned attempts' to date defendant" Lazor: After Lazor and Souders matched on a dating app and began talking, Lazor posted Souders' photo "to a community of local women" to gather background information on Souders, where she learned of several negative encounters with him. Lazor then attempted to stop communicating with Souders, but he continued to contact her—despite being blocked—on other social-media accounts, either as himself or while using a fake profile. Simultaneously, Souders sent a cease-and-desist letter to Lazor's home address, demanding that she remove the post about him. Concerned about her personal safety and how Souders knew her address, Lazor filed for a civil stalking protection order ("CSPO") in Warren County where she resides. Shortly thereafter, Souders initiated the first Hamilton County action in the case …. Ultimately, the Hamilton County case was dismissed, and Lazor was granted a CSPO in the Warren County case. [For more on the Warren County case, see this 2024 post. -EV] Thereafter, Souder initiated the instant action. The substance of the summary-judgment motion argued that Souders engaged in conduct intended to harass or maliciously injure the defendants in the Hamilton County actions, including obligating the defendants to "expend significant time, money, and effort to combat his frivolous litigation," and asserting disparaging allegations against the defendants that were wholly irrelevant to his claims. The motion further argued that Souders' claims were unwarranted and had no good-faith basis in the law, and claimed that Souders persistently requested the same relief, regardless of prior rulings. The motion also pointed to other cases, outside of the instant matter, to show that Souders "has a long history of needlessly and meritlessly complicating other cases." … The trial court ultimately granted summary judgment in favor of appellees and declared Souders to be a vexatious litigator. … The court [concluded] that Souders "filed multiple motions and briefs that include statements wholly irrelevant to this lawsuit and repeatedly reargues issues this Court has already decided." The court noted that over 13 pages of his response in opposition to summary judgment was focused on challenging the court's dismissal of his claims, rather than addressing the summary-judgment motion. Additionally, the court found that Souders used "incomplete, incorrect, irrelevant," or nonexisting legal citations in his motion for reconsideration of the court's dismissal of his complaint and moved for findings of fact and conclusions of law when it was not warranted under the law or made on a good-faith basis under existing law. Even further, the court found that Souders' conduct "serves to harass or maliciously injure Defendants," where he asserted irrelevant statements against the defendants such as stating that certain defendants expressed a desire to be sexually intimate with him, attempted to solicit him to purchase a membership to her OnlyFans account, or suffered from a mental illness…. Souders argued on appeal that the trial court improperly labeled him "a vexatious litigator," which "violates his First Amendment right to 'seek redress of his grievances'": In support of this argument, he cites to "White v. Gainer, No. 06-C-367, 2007 U.S. Dist. LEXIS 27813, at * 19 (N.D. Ill. Apr. 9, 2007)." However, this case does not exist. Nonetheless, in Deters v. Briggs, 1998 Ohio App. LEXIS 6419 (1st Dist. Dec. 31, 1998), this court addressed a First Amendment challenge to R.C. 2323.52 [the vexatious litigator statute]. Recognizing the burden that frivolous filings place on the court system and the inherent authority of courts to provide relief against frivolous filings and abuses, this court held that "the restriction on First Amendment activity imposed by R.C. 2323.52 is constitutionally permissible" because "it furthers an important governmental interest in a reasonable manner." … R.C. 2323.52 ["]is not designed, nor does it operate, to preclude vexatious litigators from proceeding forward on their legitimate claims. Instead, it establishes a screening mechanism under which the vexatious litigator can petition the declaring court, on a case-by-case basis, for a determination of whether any proposed action is abusive or groundless.["] … Beyond that, Souders makes only a conclusory assertion that "the litigation pursued by him was neither frivolous in nature nor intended to cause harm or injury to any party." In doing so, he does not cite the record or advance an argument specifically addressing the trial court's findings under R.C. 2323.52, appellees' motion for summary judgment, or any of his claims…. Souders fails to make any argument as to why any of the claims in his complaint were warranted under the law or why he had reasonable grounds for any of his actions. Instead, Souders simply asserts that he sufficiently pled "lawless" or "wrongful" conduct. In doing so, a majority of the cases he cites in support of his argument either do not exist or do not stand for what he claims they do. Further, he fails to specifically reference even a single claim—out of eleven—in his complaint when making his arguments. Beyond that, Souders does not present any argument as to the adequacy of appellees' summary-judgment motion or make any specific challenge to any of the trial court's findings under R.C. 2323.52.… The post Are We Dating the Same Vexatious Litigator Whose Filings Cite Nonexistent Cases? appeared first on Reason.com.

From Chattanooga Times Free Press (Mason Edwards): "While the Student Government Association may voice opinions, recognition of student organizations is determined by the UTC dean of students and chancellor," UTC spokesperson JAy Blackman said in an emailed statement. "Turning Point USA has been authorized in accordance with university policy and the law." The Student Government Association denied the organization's approval in a vote Tuesday. The vote served as a recommendation to the Dean of Students Office. Public universities may not deny student groups recognition or other generally available benefits based on the groups' viewpoint: "The State may not … discriminate against speech on the basis of … viewpoint." And that's true even if the group would be free to operate outside the benefits program: "If restrictions on access to a limited public forum are viewpoint discriminatory, the ability of a group to exist outside the forum would not cure the constitutional shortcoming." The post Turning Point USA Chapter at Univ. of Tennessee (Chattanooga) Approved, Despite Student Government Opposition appeared first on Reason.com.

From Tempel v. School Dist. of Waukesha, decided Sept. 29 by Magistrate Judge Nancy Joseph (E.D. Wis.): Tempel was employed by the District as a dual-language first grade teacher at Heyer from fall 2018 until her termination on July 12, 2023…. In 2021, several new members were elected to the District's Board of Education, causing what many members of the Waukesha community perceived as a more conservative perspective shift. In July 2021, the District suspended diversity, equity, and inclusion training for staff and suspended the work of the District's Equity Leadership Team…. In August 2021, pursuant to the Controversial Issues Polices, the Board enacted a policy to ban "controversial" signs in the classroom … [including] signage related to Black Lives Matter, Blue Lives Matter, Thin Blue Line, Anti-racist classroom, and other materials. The Policy also banned all flags, including Pride flags. The District's decision regarding signage garnered attention from the community, parents, students, teachers, staff, and news outlets. [Further details omitted. -EV] … Every year, Heyer first grade students participate in a spring concert…. [One of the initially planned songs,] "Rainbowland" by Miley Cyrus and Dolly Parton … [was allegedly rejected by Principal] Schneider … [in favor of] "Rainbow Connection" by Kermit the Frog …. On March 21, 2023, at 6:39 p.m., Tempel posted the following tweet on her public Twitter account: After this initial tweet, Tempel tweeted multiple times and conducted interviews with the news media about "Rainbowland" …. Subsequent to Tempel's tweets, the District asserts that it received numerous voicemails and emails containing "vulgar and threatening remarks" … [including]: 1."Hey, I heard your school district doesn't like gay people. Fuck you, you fucking retards! Kill yourselves!" 2."Religious based cultural ignorance-how stupid this is. You are small mindless assholes. Consider changing this or face the consequences," * "You are a fucking cunt for working for that pig. Rot in hell!" [More details omitted. -EV] The court concluded that Tempel could permissibly be fired under the so-called Pickering balancing test, which allows public employers to fire their employees when the employees' speech sufficiently undermines workplace efficiency: Under Pickering, the employer bears the burden of showing that its interest in workplace efficiency outweighs the employee's right to speak…. As to potential security risks and disruption, the record indicates that soon after Tempel tweeted, both Heyer's office and the District's main office received upwards to twenty calls per day regarding the "Rainbowland" decision, many of which consisted of the caller subjecting the recipient to yelling and insults. During spring break, Schneider received multiple emails from staff and parents expressing concern about school safety. Thus, on the weekend prior to Heyer's return from spring break, Schneider emailed all Heyer staff to reassure them that safety and security is their main priority and informing them that police would be outside the building during arrival and dismissal and as needed throughout the day. And indeed, following spring break, police officers were stationed at both Heyer and the District's office for several days. Chaparro testified that Heyer typically receives approximately 40 calls per day. However, in the wake of Tempel's tweets, she received an additional 15 to 20 calls. And these additional calls were not easy calls to take—people were calling to "voice their opinions" at her and did so in an abusive manner. Ettinger testified similarly, stating she was called "every name in the book" such as a "homophobe" during her daily 25 to 30 "Rainbowland" related calls. Further, even if the police officers were stationed outside of the school "out of an abundance of caution," that does not make their presence any less disconcerting to the staff and students. As to disharmony amongst Heyer staff, Schneider testified that upon return to school after spring break, he observed an increased level of discord between his staff members that was "significantly different" from anything the school had experienced before. He testified to receiving one to two staff complaints per day regarding a colleague's behavior, prompting him to organize a "student services meeting" to address the "significant amount of concern among staff." Schneider further testified observing distractions and "strong feelings" amongst staff that impacted their preparation time for class. Tempel argues that her speech did not cause disharmony amongst Heyer's staff and to the extent there was disharmony, it pre-dated her tweets. While Schneider acknowledged that his staff has not always gotten along perfectly in the past, he testified that Heyer had never before experienced the level of staff discord he observed in the wake of Tempel's tweets. Again, the discord was so significant that Schneider testified he organized a "student services meeting" that, for the first time, was held to allow staff to voice their concerns and feelings as staff members as opposed to what the meetings were usually held for—to address student needs. The record contains multiple emails from staff members sent to Schneider and Sebert during spring break expressing concern for school safety and the negative attention Tempel's tweets could bring to the school. Thus, even if any single staff member did not express concerns, the record supports the existence of discord and distraction amongst staff members in the wake of Tempel's tweets. Thus, while Tempel contests the severity of the disruption, the Seventh Circuit has found that school officers can act "to nip reasonable predictions of looming disruption in the bud," so long as those predictions are reasonable. And in this case, given the evidence of staff discord, it was not unreasonable for the District to act before the disruption potentially worsened. Additionally, Tempel's method of speech further weighs in favor of the District. While speech made outside of the workplace may be less disruptive to the efficient functioning of the employer, as the Seventh Circuit noted, speech made on social media can carry a "clear risk of amplification" and therefore disruption. While Tempel tweeted from a personal account outside of school hours and off school grounds, she identified herself as a first grade teacher and named her school and her District in the course of her tweets…. [W]hen a member of the public asked, "are you a teacher in Waukesha" and "what school was supposed to sing [Rainbowland]?," Temple responded by stating "Heyer Elementary." When asked how many students were in her class, Tempel responded "24," but that the school had about 65 first graders in total. This predictably attracted widespread attention and criticism of the school. And her identification as a teacher at that school only increased the statements' attention. It is undisputed that Tempel's tweet garnered national media coverage, with Tempel participating in interviews with both local and national media discussing the "Rainbowland" decision. The court has "repeatedly recognized that public school teachers occupy a unique position of trust"; thus, employers have "more leeway in restricting the speech of a public-facing employee like a classroom teacher who must maintain public trust and respect to be effective." … The undisputed facts show that Tempel's tweets resulted in substantial disruption to the school and District. Thus, weighing the factors relevant to Pickering balancing, I find that the District's interest in workplace efficiency outweighs Tempel's First Amendment interest in expression. Another reminder, I think, of how the government as employer has, rightly or wrongly, a great deal of power to punish employees for their speech. Generally speaking, the government can't prosecute or civilly fine a citizen because their speech causes public upset—either upset directed at the speaker, or upset directed at the people the speaker is criticizing. But cases such as this (applying the Supreme Court's Pickering precedent) show that, if enough people are upset by a government employee's speech to the point that they complain enough to the employer to be "disruptive," the employee can indeed be fired. Christina A. Katt, Hunter Michael Cone, and Joel S. Aziere (Buelow Vetter Buikema Olson & Vliet LLC) represent defendant. The post School Allowed to Fire Teacher Whose Criticisms of School Policy Led to "Disruptive" Criticism and Insults from Public appeared first on Reason.com.

10/10/2012: Fisher v. University of Texas at Austin I argued. The Roberts Court (2010-2016) The post Today in Supreme Court History: October 10, 2012 appeared first on Reason.com.

What's on your mind?

Without a Founding-era analogue, late 19th century restrictions don’t count.

From Nat'l Retail Fed'n v. James, decided yesterday by Judge Jed Rakoff (S.D.N.Y.): [T]he Algorithmic Pricing Disclosure Act … provides that any entity domiciled or doing business in New York that sets the price of a specific good or service using personalized algorithmic pricing, and that directly or indirectly, advertises, promotes, labels or publishes a statement, display, image, offer or announcement of personalized algorithmic pricing to a consumer in New York, using personal data specific to such consumer, shall include with such statement, display, image, offer or announcement, a clear and conspicuous disclosure that states: "THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA." The Act defines "personalized algorithmic pricing" as "dynamic pricing set by an algorithm that uses personal data," which the Act further defines as "any data that identifies or could reasonably be linked, directly or indirectly, with a specific consumer or device." The Act excludes from this definition location data used by a "for-hire" or "transportation network company" vehicle to calculate a passenger's fare based on mileage and travel time. The Act also excludes from its coverage entities that are regulated under state insurance law and certain regulated financial institutions, as well as discounted prices offered to consumers under "existing subscription-based agreement[s]." … Just as the First Amendment limits the government's power to restrict expression, it also curtails its power to compel speech. To determine whether a particular law runs afoul of these limits, courts employ different levels of judicial scrutiny, depending on the type of expression and the nature of the restriction at issue. On the whole, laws regulating commercial speech are subject to a less-exacting standard of review than are laws regulating other forms of speech. Under this umbrella, restrictions on speech are also treated differently from compelled disclosures. A law that prohibits or restricts commercial speech must survive so-called "intermediate" scrutiny in order to pass constitutional muster. This means that the regulation must "directly advance[ ] a substantial governmental interest" and must not be "overly restrictive." By contrast, a law that requires the disclosure of "'purely factual and uncontroversial information' about the goods or services the speaker may offer" is governed by the more permissive Zauderer standard of review. Under Zauderer, a commercial disclosure law does not offend the Constitution so long as it is "'reasonably related to the state's interest in preventing deception of consumers,' and [is] not 'unjustified or unduly burdensome.'" Under Zauderer, the fact that First Amendment scrutiny applicable to commercial disclosure requirements is relatively "relaxed" follows from the fact that the First Amendment protection afforded commercial speech "is justified principally by the value to consumers of the information such speech provides." Accordingly, a seller's First Amendment "interest in not providing any particular factual information in his advertising is minimal." Moreover, unlike a "flat prohibition[ ] on [commercial] speech," disclosure requirements "trench much more narrowly" on sellers' First Amendment interests because they do not prevent sellers from conveying any message of their own but merely require them "to provide somewhat more information than they might otherwise be inclined to present." … "[I]nformational disclosure law[s] … [are] subject to review under Zauderer" so long as the required disclosure is of "'purely factual and uncontroversial information' about the goods or services the speaker may offer." Plaintiff has not plausibly alleged that the disclosure mandated by the Act fails to satisfy these requirements. First, the statement requirement by the Act—"THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA"—is plainly factual. Plaintiff concedes as much, acknowledging that pricing algorithms "analyze data and publish prices" based on "consumer inputs," and that its members use algorithmic pricing to set prices and offer promotions. The Act "by its terms applies only [when a price was set using personalized algorithmic pricing]" and therefore "the disclosure[ ] [is] necessarily accurate." In other words, only when a merchant has literally satisfied the disclosure must the merchant "identify" as much. Accordingly, the required disclosure "accurate[ly]" describes plaintiff's members' practices. To avoid this conclusion, plaintiff points to caselaw from the Ninth Circuit, arguing that the required disclosure is not "purely factual" even if "literally true" because it is "misleading and, in that sense, untrue." Even accepting, in the absence of any similar Second Circuit precedent, the proposition that certain "literally true" statements are excluded from Zauderer's reach, plaintiff has not plausibly alleged that the disclosure required here is "misleading." In Wheat Growers, the Ninth Circuit explained that the statement that a certain chemical is "known … to cause cancer" was not a "purely factual" statement because "the use of the word 'known' [was] misleading" in context. That was so because "an ordinary consumer would not understand the nuance between 'known' as defined in the statute and 'known' as commonly interpreted without the knowledge of the scientific debate on that subject." Plaintiff does not identify any similarly misleading aspect of the disclosure here. Instead, it merely speculates that the overall statement "gives the misleading, imaginary and 'unsubstantiated' impression that price-setting algorithms are 'dangerous,'" that they involve "non-consensual invasive surveillance," and that they set prices in ways that are harmful to the consumer. The Court notes that plaintiff's assertions about how consumers will react to the disclosure are entirely speculative. In any event, Wheat Growers provides no support for plaintiff's argument, which focuses on the disclosure's "overall message," and not on any specific aspect of the disclosure that plaintiff contends is misleading. By contrast, in Wheat Growers, the Ninth Circuit's conclusion was based on the presence of specific language in the challenged warning that it reasoned was susceptible to misinterpretation and that, if so interpreted, would make the statement demonstrably false. See Wheat Growers (reasoning that "a 'known' carcinogen carries a complex legal meaning that consumers would not glean" and which is distinct from the lay meaning of the term). To the extent that the court in Wheat Growers referenced the "totality of the warning," it did so only to explain why other parts of the statement could not adequately correct the misimpression communicated by the use of the word "known," and not to invite an assessment of a consumer's overall reaction to the message. Plaintiff does point to the terms "personal data" and "algorithm" in this disclosure, speculating that because they are "undefined" they will "falsely imply that the price to which that disclosure is attached is exploitative and based on sensitive personal information, even when it is not." But, unlike in Wheat Growers, plaintiff stops short of alleging that the meaning of those individual terms, as used in the disclosure, is demonstrably odds with their ordinary meaning and, in that sense, misleading. Plaintiff's argument thus "amounts to little more than a preference" for other terms, not an argument that the terms adopted are inherently misleading. Likewise, plaintiff's attempt to analogize to R.J. Reynolds Tobacco Co. v. FDA (D.D.C. 2012), is unpersuasive. There, the court considered an FDA rule requiring certain textual warnings and "graphic images" to be printed on cigarette packages. Assessing only the "graphic-image requirements," the court concluded that the images were not being used to convey "factual information." The court relied on the government's acknowledgment that the primary purpose of the images was to "elicit negative emotional reactions" and that the images did not depict "common consequence[s]" of smoking but were merely meant to "symbolize[ ]" its harms. Thus, the images in that case were not even "literally true." By contrast, plaintiff has not pointed to any part of the disclosure here that communicates anything but "literally true" information about its members' practices. Second, plaintiff also fails to plausibly allege that the required disclosure is "controversial." The Second Circuit has been clear that a compelled commercial disclosure is not rendered "controversial" merely because the regulated entity does not wish to make that disclosure or because they would prefer to make a different statement on that same topic. In NYSRA, for example, the Second Circuit applied Zauderer to a law requiring calorie counts to be printed on certain restaurant menus, notwithstanding plaintiff's assertion that "its member restaurants do not want to communicate to their customers that calorie amount should be prioritized among other nutrient amounts." The court reasoned that, so long as the government's focus on the required disclosure is "rational," the First Amendment does not bar the government from mandating "'under-inclusive' factual disclosures." Accordingly, the fact that plaintiff's members would, in the absence of the Act, choose to make a different statement (or none at all) regarding their use of algorithmic pricing does not remove the law from Zauderer's reach. Nor, as plaintiff contends, is the disclosure here rendered "controversial" because it requires the speaker to "take sides in a public debate." Although the Second Circuit has not spoken directly to this consideration, the Supreme Court in NIFLA suggested that certain disclosures that bear on controversial "topic[s]," such as abortion, may not qualify for Zauderer review. Plaintiff, however, makes no more than a conclusory assertion that the topics of "machine learning, algorithms, and artificial intelligence" in general, or algorithmic pricing in particular, are "controversial" in any meaningful way. And those topics are hardly more controversial than abortion, which was directly at issue in a disclosure law that the Second Circuit recently upheld under Zauderer. Furthermore, even if we were to assume, arguendo, that the regulation of these technologies is the subject of "robust public debate" and is therefore "controversial," that does not mean that "the fact that [plaintiff's pricing mechanisms] are what they are" is itself controversial. Plaintiff's members are free to utilize algorithmic pricing or not and are free to communicate their own views about the use of such technologies. Plaintiff's members are not required by the disclosure to "t[ake] sides" in any controversy, no less a "heated political" one. The disclosure "does not require any statement regarding the merits [of algorithmic pricing]" and plaintiff's members "remain free to share with their [customers]" their own views on that matter, including their professed view that algorithmic pricing is "socially beneficial." The law does not require any statement "at war" with that belief…. Finally, plaintiff argues that the challenged disclosure requirement falls outside of Zauderer's reach because it does not meet the threshold requirement that the statement "seek to correct misleading or deceptive commercial speech." However, Zauderer is not limited, as plaintiff would have it, to disclosures narrowly designed to "correct" specific instances of "deceptive commercial speech." Zauderer is "broad enough to encompass nonmisleading disclosure requirements," and has consistently been applied to evaluate commercial disclosure laws aimed at "the non-disclosure of information material to the consumer." … Indeed, the disclosure required here serves to ameliorate "consumer confusion or deception" by ensuring that consumers are better informed about how a merchant has set the displayed price, including the fact that the price may be different for different consumers. This, then, is not a case where "the disclosure requirement is supported by no interest other than the gratification of 'consumer curiosity.'" … Yuval Rubinstein of the New York AG's office represents the state. The post N.Y. Federal Court Upholds "Algorithmic Pricing Disclosure Act" appeared first on Reason.com.

A short excerpt from Judge Jeannete Vargas's long opinion in Graham v. UMG Recordings, Inc.; read the full opinion for more: This case arises from perhaps the most infamous rap battle in the genre's history, the vitriolic war of words that erupted between superstar recording artists Aubrey Drake Graham ("Drake") and Kendrick Lamar Duckworth ("Lamar" or "Kendrick Lamar") in the spring of 2024. Over the course of 16 days, the two artists released eight so-called "diss tracks," with increasingly heated rhetoric, loaded accusations, and violent imagery. The penultimate song of this feud, "Not Like Us" by Kendrick Lamar, dealt the metaphorical killing blow. The song contains lyrics explicitly accusing Drake of being a pedophile, set to a catchy beat and propulsive bassline. "Not Like Us" went on to become a cultural sensation, achieving immense commercial success and critical acclaim. Here are the relevant lyrics quoted from "Not Like Us," though there were more songs quoted from the rap battle: Say, Drake, I hear you like 'em young You better not ever go to cell block one To any b**** that talk to him and they in love Just make sure you hide your lil' sister from him They tell me Chubbs the only one that get your hand-me-downs And PARTY at the party, playin' with his nose now And Baka got a weird case, why is he around? Certified Lover Boy? Certified pedophiles Wop, wop, wop, wop, wop, Dot, f*** 'em up Wop, wop, wop, wop, wop, I'ma do my stuff Why you trollin' like a b****? Ain't you tired? Tryna strike a chord and it's probably A-Minor Back to the opinion excerpt: Both Drake and Kendrick Lamar have recording contracts with Defendant UMG Recordings, Inc. ("UMG" or "Defendant"). Drake alleges that UMG intentionally published and promoted "Not Like Us" while knowing that the song's insinuations that he has sexual relations with minors were false and defamatory.,,, [I.] Defamation Claims … The issue in this case is whether "Not Like Us" can reasonably be understood to convey as a factual matter that Drake is a pedophile or that he has engaged in sexual relations with minors. In light of the overall context in which the statements in the Recording were made, the Court holds that it cannot.,,, The forum here is a music recording, in particular a rap "diss track," with accompanying video and album art. Diss tracks are much more akin to forums like YouTube and X, which "encourag[e] a freewheeling, anything-goes writing style," than journalistic reporting. The average listener is not under the impression that a diss track is the product of a thoughtful or disinterested investigation, conveying to the public fact- checked verifiable content…. The fact that the Recording was made in the midst of a rap battle is [also] essential to assessing its impact on a reasonable listener…. That the Recording can only reasonably be understood as opinion is reinforced by the language employed in the song. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff" and "imaginative expression" cannot constitute actionable defamation…. [II.] Second Degree Harassment New York does not recognize a civil cause of action for harassment. Notwithstanding this precedent, Plaintiff attempts to bring a claim for harassment under section 240.26(3) of the New York Penal Code. A person commits harassment in the second degree when they hold the "intent to harass, annoy or alarm another person" and "engage[] in a course of conduct or repeatedly commit[] acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Plaintiff alleges that the Recording, Video and Image "individually and collectively provide a call to target Drake, including through violence," and that Defendant's "course of conduct in publishing specific and unequivocal threats of violence has placed Plaintiff in reasonable fear of physical harm." This state criminal statute does not provide a private right of action, however. Accordingly, Plaintiff fails to state a claim for harassment…. [III.] New York General Business Law Section 349 Plaintiff's final cause of action, brought under section 349 of New York General Business Law ("GBL"), fares no better. Section 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service." Plaintiff alleges that, "on information and belief," Defendant "engaged in deceptive acts and practices in the conduct of business, trade, and commerce by covertly financially incentivizing third parties—including music platforms and social media influencers—to play, stream, and promote the Recording." … While these covert practices of providing financial incentives to undisclosed third parties and leveraging of business relationships, if they exist, may be facts that are "peculiarly within the possession and control of" UMG, Plaintiff's allegations —based on what boils down to unreliable online commentary—do not form a "sufficient factual basis such that there is a 'reasonable expectation that discovery will reveal evidence of illegality.'" Ultimately, Plaintiff fails to provide any facts or circumstances that would make it "highly plausible" that UMG conducted such covert business tactics. Even if the Court accepted Plaintiff's pleadings on information and belief, Plaintiff still has not stated a claim for relief under section 349. Plaintiff has not sufficiently alleged deceptive practices that are consumer oriented. "Under New York law, the term 'consumer' is consistently associated with an individual or natural person who purchases goods, services or property primarily for personal, family or household purposes." … The Amended Complaint does not indicate how any of the deceptive practices allegedly utilized by UMG harmed consumers. For example, the Amended Complaint does not allege that consumers paid more than they otherwise would have for a product, purchased a product that they otherwise would not have because of misrepresentations regarding the product, or otherwise received less in value for any purchases that they did make…. The post Judge Rejects Drake's Defamation + Harassment Lawsuit Over Kendrick Lamar's "Not Like Us" Diss Track appeared first on Reason.com.

From Judge Jane Triche Milazzo's decision yesterday in Mann v. Quraan (E.D. La.); recall that the factual assertions are just those alleged in the Complaint—there hasn't yet been factfinding as to whose side of the factual story is correct: Plaintiff Dylan Mann, an undergraduate student at Tulane University, alleges that on October 26, 2023, he participated in a demonstration in support of Israel in uptown New Orleans in response to a pre-planned anti-Israel protest. He alleges that the anti-Israel protest was organized by non-Tulane students and specifically targeted Tulane due to the significant number of Jewish students enrolled there. Plaintiff alleges that during the protest Defendant Abraham Quraan drove back and forth in his vehicle between the two protests in order to cause a disturbance or provoke the Tulane students. At some point, Defendant Quraan exited his vehicle, violently assaulted Plaintiff, and ripped an Israeli flag off of Plaintiff's body. Defendant Alaa Salam allegedly joined in the attack and struck Plaintiff with a bullhorn. Plaintiff alleges that the Defendants verbally expressed hate for Jewish people during the incident. After assaulting Plaintiff, Defendants allegedly continued to aggressively approach other Tulane students and Quraan removed his belt with the intent to use it as a weapon. Plaintiff also alleges that, after the incident, Defendants utilized social media to "espouse implied threats of violence" toward Jewish people and Plaintiff personally…. Plaintiff brings an act of terror claim pursuant to Louisiana Civil Code article 2315.9, which provides that: In addition to general and special damages, a prevailing plaintiff shall also be awarded court costs and reasonable attorney fees in the appropriate district or appellate court upon proof that the injuries on which the action is based were caused by an act of terror or terrorism resulting in injury to the person or damage to the person's property, regardless of whether the defendant was prosecuted for his acts. The article goes on to define "act of terror" or "terrorism" as, relevant here, the "[i]ntentional infliction of serious bodily injury upon a human being" occurring "when the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion." … "A complaint may allege knowledge and intent generally, though it must still contain factual support making the plaintiff's claims plausible." While this Court agrees with Defendants that the Complaint is lacking in detail, it must view the allegations in the light most favorable to Plaintiff and finds that he has alleged sufficient facts for his act of terror claim to survive this stage of litigation. Plaintiff generally alleges that Defendants' actions were intended to intimidate or coerce Plaintiff and the other Tulane students at the protest. He alleges that Defendants' presence at the pro-Israel demonstration was for the purpose of inciting or provoking the Tulane students. According to the Complaint, Defendants violently attacked Plaintiff without warning and acted aggressively toward other students while spewing hatred toward Jewish people. These acts could reasonably be seen as intending to intimidate or threaten the students, prevent them from protesting or supporting Israel, and chill their freedom of speech and assembly. The Court notes that article 2315.9 is broadly worded, and there is no case law interpreting its meaning. However, the facts as pleaded sufficiently allege that Defendants acted with intent to intimidate the civilian population…. Paul Sterbcow (Lewis, Kullman, Sterbcow & Abramson, LLC) represents plaintiff. The post Louisiana Act of Terror Claim Can Go Forward Based on Alleged Violent Attack on Pro-Israel Demonstration appeared first on Reason.com.

Should the United Colonies declare independence from Great Britain?

10/9/1954: Justice Robert H. Jackson dies. Justice Robert H. Jackson The post Today in Supreme Court History: October 9, 1954 appeared first on Reason.com.

This one is a search.

Interesting tidbits in an interview with Adam Liptak

The 2d and 3d Circuits mistook a widely-criticized, private publication for a Founding-era “law.”

On Tuesday, the Court heard oral argument in Chiles v. Salazar. This case considers the constitutionality of Colorado's ban on conversion therapy. As a general rule, the First Amendment protects speech, but not conduct. It is true that some conduct, like flag-burning, has speech-like properties, so is protected by the First Amendment. It is also true that some speech incidental to conduct is not fully protected by the First Amendment. The doctrine here is complex. During argument, several Justices asked how to draw the line between "treatment" and "non-treatment." This questions seemed to presume that treatment would not be protected by the First Amendment, while non-treatment (that is speech) was protected by the First Amendment. Colorado argues that therapy that consists entirely of speaking is still a form of medical treatment, and is therefore considered conduct, rather than protected speech. Chiles, by contrast, argued that her therapy that consists entirely of speaking is not a form of medical treatment, and should be considered speech rather than conduct. I'm not sure the line between treatment and non-treatment really matters. James Campbell, counsel for Chiles, explained that the line doesn't matter "because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment." And I agree with Hashim Mooppan, the Deputy Solicitor General, that treatment and non-treatment are just "labels" that don't make a conceptual difference. Still, I think there might be a way to draw this line based on how the care is received. First, care that consists entirely of talk, which implicates only the senses of hearing and sight, is not medical treatment. Second, care that is not limited to talk, which implicates the senses of touch, taste, or smell, would be medical treatment. The First Amendment protects the former category of care, but not the latter category of care. So-called "aversive" therapy, which might include electro-shock therapy, is not limited to talk, but implicates the sense of touch, so would be medical treatment. I don't think any would argue that shock therapy is protected speech. Providing a patient with medicine that they have to ingest would implicate the sense of taste, so would be medical treatment. Any type of surgery that requires a scalpel would clearly be medical treatment. The treatment at issue in Chiles does not involve any physical touching. And Chiles is not licensed to prescribe medicine or perform any sorts of medical treatment. Her all-talk care, which can only be heard, is not treatment, and is not conduct, but is speech. I don't think this issue is conceptually difficult under the First Amendment. The post The Line Between Conduct and Speech, Between Treatment and Non-Treatment appeared first on Reason.com.

Next week, if the Supreme Court decides to reach the merits in the U.S. v. Ellingburg case, it should recognize that restitution to crime victims serves compensatory rather than penal purposes.

"By the end of President Reagan’s administration, the originalist revolution was underway."

From State v. Every, decided by the Tennessee Court of Criminal Appeals yesterday, in an opinion by Justice John W. Campbell, Sr., joined by Judges Robert L. Holloway, Jr., and Matthew J. Wilson: We glean the following facts from the record: On April 12, 2021, a Knoxville police officer shot and killed an African American male student in a bathroom at Austin-East High School. The incident caused social unrest, and community members began demanding transparency about the shooting, including the release of the officer's body camera video. On the evening of April 19, 2021, the Defendant and a group of protestors entered the Knoxville City-County Building during a Knox County Commission meeting. The Defendant activated the siren on a bullhorn and spoke through the bullhorn to demand release of the video. Uniformed police officers quickly escorted her and six other individuals out of the building and arrested them for disrupting the meeting. The court upheld defendants' conviction for "disrupting a lawful meeting," defined as "with the intent to prevent [a] gathering, … substantially obstruct[ing] or interfere[ing] with the meeting, procession, or gathering by physical action or verbal utterance." Taken in the light most favorable to the State, the evidence shows that the Defendant posted on Facebook the day before the meeting and the day of the meeting that the protestors were going to "shut down" the meeting. During the meeting, the Defendant used a bullhorn to activate a siren for approximately twenty seconds. Witnesses at trial described the siren as "loud," "high-pitched," and "alarming." Commissioner Jay called for "Officers," and the Defendant stated through the bullhorn, "Knox County Commission, your meeting is over." Commissioner Jay tried to bring the meeting back into order by banging his gavel, but the Defendant continued speaking through the bullhorn. Even when officers grabbed her and began escorting her out of the Large Assembly Room, she continued to disrupt the meeting by yelling for the officers to take their hands off her and by repeatedly calling them "murderers." Commissioner Jay called a ten-minute recess during the incident, telling the jury that it was "virtually impossible" to continue the meeting during the Defendant's disruption. The Defendant herself testified that the purpose of attending the meeting was to disrupt the Commission's agenda and to force the Commission to prioritize its discussion on the school shooting. Although the duration of the disruption was about ninety seconds, the jury was able to view multiple videos of the incident and concluded that the Defendant substantially obstructed or interfered with the meeting. The evidence is sufficient to support the Defendant's conviction. Defendant also claimed the statute was "unconstitutionally vague as applied to her because the statute does not state that it includes government meetings," but the appellate court concluded that she had waived the argument by not raising it adequately below. Sean F. McDermott, Molly T. Martin, and Franklin Ammons, Assistant District Attorneys General, represent the state. The post Bullhorn Siren Protest at County Commission Meeting Was Crime of "Disrupting a Lawful Meeting" From State v. Every, decided by the Tennessee Court of Criminal Appeals yesterday, in an opinion by Justice John W. Campbell, Sr., joined by Judges Robert L. Holloway, Jr., and Matthew J. Wilson: We glean the following facts from the record: On April 12, 2021, a Knoxville police officer shot and killed an African American male student in a bathroom at Austin-East High School. The incident caused social unrest, and community members began demanding transparency about the shooting, including the release of the officer's body camera video. On the evening of April 19, 2021, the Defendant and a group of protestors entered the Knoxville City-County Building during a Knox County Commission meeting. The Defendant activated the siren on a bullhorn and spoke through the bullhorn to demand release of the video. Uniformed police officers quickly escorted her and six other individuals out of the building and arrested them for disrupting the meeting. The court upheld defendants' conviction for "disrupting a lawful meeting," defined as "with the intent to prevent [a] gathering, … substantially obstruct[ing] or interfere[ing] with the meeting, procession, or gathering by physical action or verbal utterance." Taken in the light most favorable to the State, the evidence shows that the Defendant posted on Facebook the day before the meeting and the day of the meeting that the protestors were going to "shut down" the meeting. During the meeting, the Defendant used a bullhorn to activate a siren for approximately twenty seconds. Witnesses at trial described the siren as "loud," "high-pitched," and "alarming." Commissioner Jay called for "Officers," and the Defendant stated through the bullhorn, "Knox County Commission, your meeting is over." Commissioner Jay tried to bring the meeting back into order by banging his gavel, but the Defendant continued speaking through the bullhorn. Even when officers grabbed her and began escorting her out of the Large Assembly Room, she continued to disrupt the meeting by yelling for the officers to take their hands off her and by repeatedly calling them "murderers." Commissioner Jay called a ten-minute recess during the incident, telling the jury that it was "virtually impossible" to continue the meeting during the Defendant's disruption. The Defendant herself testified that the purpose of attending the meeting was to disrupt the Commission's agenda and to force the Commission to prioritize its discussion on the school shooting. Although the duration of the disruption was about ninety seconds, the jury was able to view multiple videos of the incident and concluded that the Defendant substantially obstructed or interfered with the meeting. The evidence is sufficient to support the Defendant's conviction. Defendant also claimed the statute was "unconstitutionally vague as applied to her because the statute does not state that it includes government meetings," but the appellate court concluded that she had waived the argument by not raising it adequately below. Sean F. McDermott, Molly T. Martin, and Franklin Ammons, Assistant District Attorneys General, represent the state. appeared first on Reason.com.

10/8/1888: Chief Justice Melville Fuller takes the judicial oath. Chief Justice Melville Fuller The post Today in Supreme Court History: October 8, 1888 appeared first on Reason.com.

What's on your mind?

Justice Barrett's new book is not a memoir. Though she sprinkles the book with some anecdotes about her family, Listening Law is quite guarded concerning how Barrett came to be where she is now. Her press appearances have likewise been fairly controlled, and she seems to repeat the same sets of pre-scripted answers. Yet, if you read between the lines, we can start to tie some threads together. The first thread is that Justice Barrett did not aspire to be a judge before becoming a lawyer. Barrett's father was an attorney. But the Justice said in a recent press appearance that she wanted to be a teacher, like her mother. By contrast, some of Barrett's colleagues had their sights on the bench at a young age. In her high school yearbook, Elena Kagan wore a robe and held a gavel, and included a Felix Frankfurter quote. Samuel Alito's Princeton Yearbook said, "Sam intends to go to law school and eventually to warm a seat on the Supreme Court." Justice Jackson said that Judge Constance Baker Motley (with whom she shares a birthday) was a "North Star for me in my career." I don't get the impression that a young Amy Coney aspired for the bar or the bench, in the ways that some of her colleagues did. Second, even after Barrett clerked for Justice Scalia, it still does not seem that she aspired to the bench, at least not right away. As a law professor, she did not do the sorts of things that an aspiring judge would do. I've written before how Barrett did not become a member of the Federalist Society until 2014. And prior to Justice Scalia's passing, she did not attend the Federalist Society National Convention, and did not speak at any FedSoc events. I did not ever see Barrett in person until 2017, after she was already nominated to the Seventh Circuit. I was not alone. Ed Whelan recalls that he met Barrett for the first time at a memorial for Justice Scalia in November 2016, shortly before the election. In the cafeteria before the ceremony, I sat down at a table with other former Scalia law clerks, and I met for the first time a Notre Dame law professor by the name of Amy Coney Barrett. Little could she or I have imagined that four years later she would become President Trump's third appointee to the Supreme Court and complete his process of transforming the Court into a body that would expand and entrench Scalia's legacy. I consider Ed Whelan as one of the most plugged-in people in the conservative legal movement. He knows everyone, and remembers everything. How could it be that Whelan had never met her before? It appears that Barrett not only didn't attend any FedSoc events, but also did not attend the Scalia clerk reunions. "Little could" Whelan imagine that Barrett would make it to the Supreme Court. I suspect Professor Barrett in 2016 likewise could not have imagined at that point in time what would happen. Were Barrett to write a memoir, I think this is the story she would have to tell. Most of her colleagues who made it to the Court took a series of deliberate and strategic actions throughout the course of their career to make it onto the bench, and later on the Supreme Court. At a minimum, they all served in government or some other public service. Barrett, other than clerking for two prominent judges, did none of these things. Indeed, she declined the various opportunities to put herself a position to be recognized as a potential judge--other than being a popular law professor at Notre Dame. There is a third, and related thread. Justice Barrett by her own admission did not fully understand how she would be criticized as a Justice. For example, she told Jan Crawford: "If I had imagined before I was on the Court, how I would react to knowing that I was being protested, that would have seemed like a big deal, like, 'oh, my gosh, I'm being protested,'" she says. "But now I have the ability to be like, 'Oh, okay, well, are the entrances blocked?' I just feel very businesslike about it. It doesn't matter to me. It doesn't disrupt my emotions." She made similar comments in other venues--something to the effect of, I could have never imagined that X would happen. I've made the point many times that Professor Barrett was never subject to any sort of public scrutiny. Much was made of the "dogma" moment, but the full video tells a different story: A senile Senator asked a bizarre question, and Barrett just stared back blankly and didn't say a word. This was not exactly courage under fire. Let me tie the three threads together. First, I find it refreshing that a young Amy Coney Barrett did not clamor to be a judge. Frankly, I find it a bit pretentious when young people say they want to become judges. I've rolled my eyes at many 1Ls who tell me they aspire for the bench. Second, I also find it refreshing that Professor Barrett did not structure her career with an eye towards becoming a Supreme Court Justice. Indeed, I've written that anyone who wants to be a Supreme Court Justice should be immediately disqualified from the job. But there is also a problem with the inverse situation: someone who never planned to become a Supreme Court Justice yet is somehow elevated to that position. That brings us to the third thread. Because Barrett was never tested before becoming a judge, there was no way to predict how she would handle pressure when she becomes a Justice. Justice Gorsuch knew first hand from his mother's experience how D.C. works. Justice Kavanaugh had been at the center of many major controversies in his tenure. But what about Barrett? President Trump, or at least those advising her, took a gamble on her. There is a fourth, and related thread: Because Justice Barrett was not acculturated in the conservative legal movement, it was unknown who would prove influential to her. Now, Barrett has confirmed what I have long speculated: Justice Kagan has proven to be an influential colleague. Jan Crawford's piece relays: Still, Barrett insists that kind of language doesn't affect her relationship with Jackson, and that she works to have relationships with all the other justices. She says she enjoys talking about the law with Justice Elena Kagan, also a former law professor who, like Barrett has a more formalistic approach to the law than the Court's two other liberals, even though it leads them to very different places. In a recent interview, Bari Weiss of The Free Press asked Barrett to give one word for each of her colleagues. For Kagan, Barrett chose "analytical." That's a word she also used in our conversation to describe herself. I have written a lot about the Kagan-Barrett bond, and speculated (to much criticism) that Kagan was using that bond to influence Barrett's opinions. There were a (small) number of cases where Kagan joined Barrett's separate writings, Vidal v. Elster in particular. But here we have Barrett acknowledging what I suspected. I don't think Barrett has singled out any of her other colleagues with similar praise. Certainly she hasn't said these sorts of things about the other Trump appointees. Recall that Kagan went out of her way to make friends with Justice Scalia. She even went hunting with him! Query how often Kagan has gone hunting since Scalia's passing? I would wager the number is zero. Kagan, the former Dean, is very savvy, and knows how to play to people. This is precisely why Laurence Tribe urged President Obama to nominate Kagan over Judge Sotomayor: she would be able to persuade Justice Kennedy. Now, Kagan can persuade a Scalia disciple without even having to pick up a gun. She can naturally exude the "analytical" mode of a law professor. Yet, I have wondered over the past few months whether this relationship is faltering a bit. In earlier emergency docket rulings, Justice Barrett ruled more consistently with Kagan. But more recent orders have Barrett (likely) joining the conservative majority. And Kagan has taken shots at a majority opinion Barrett (likely) joined. Let's see what happens on the merits docket this year. The post Becoming Justice Barrett appeared first on Reason.com.

Plus, "I don't know how you can vehemently deny that when the evidence is staring us all in the face. That denial is still very troubling to me."

"The fact that disclosure means Plaintiffs 'could be deemed litigious' or that future employers 'may treat Plaintiffs' association with this litigation as a red flag' is not sufficient to allege a substantial privacy interest."

A short excerpt from yesterday's long Massachusetts high court decision in Weiss v. President & Fellows of Harvard College, written by Justice Scott Kafker: In a macabre scheme spanning several years, Cedric Lodge, the person responsible for the care of cadavers at the Harvard Medical School morgue, dissected, stole, and sold parts of the bodies of individuals who donated their remains for research purposes…. Decedents' relatives sued Harvard, and the court concluded that the case could go forward, despite "the 'good faith' defense under the Uniform Anatomical Gift Act (UAGA …)": As outlined in [a criminal] indictment, Lodge stole dissected portions of donated cadavers, including heads, brains, skin, bones, and other human remains, and transported them to his home in New Hampshire. From there, Lodge and his wife sold the stolen body parts to buyers, including the two alleged coconspirators, with whom they communicated via social media websites and cell phones. Lodge also allowed third parties unauthorized access to the morgue in order to select body parts for purchase. For example, alleged coconspirator Katrina Maclean {the proprietor of "Kat's Creepy Creations"} agreed to meet Lodge at the Harvard morgue at 1 p.m. on Wednesday, October 28, 2020, to purchase two dissected faces for $600. Lodge also assisted Maclean with finding human skin to provide to a third party in exchange for his services tanning other human skin into leather. Coconspirator Joshua Taylor sent thirty-nine electronic payments, totaling over $37,000, to a PayPal account operated by Lodge's wife, including a $1,000 transaction with the memo "head number 7" and a $200 transaction with the memo "braiiiiiins." While employed by Harvard during the period in which he was dissecting, removing, and selling donated body parts for profit, Lodge commuted to work in a car with a license plate that stated, "Grim-R." … [Section] 18 (a) [of the UAGA] specifies that "[a] person [including a corporation] who acts in accordance with [the UAGA] … or who attempts in good faith to do so, shall not be liable." … [W]e [have] defined "good faith" as "an honest belief, the absence of malice, or the absence of a design to defraud or to seek an unconscionable advantage over another." We further explained that "it may be possible that evidence of a peculiarly pervasive noncompliance [with the act] could warrant an inference that a defendant acted maliciously, possessed a design to defraud or to seek an unconscionable advantage over the plaintiffs, or acted out of something other than an honest belief" and thus failed to act in good faith. We conclude that the plaintiffs' factual allegations rise to this level and therefore warrant an inference that Harvard failed to act in good faith. We reach this conclusion for several reasons. First, the facts alleged constitute "peculiarly pervasive noncompliance" with the act. Instead of the dignified treatment and disposal of human remains required by the act, the donors' remains were ghoulishly dismembered and sold for profit under the most horrifying of circumstances…. "[T]here is 'a special sensitivity' required in the processing and handling of a deceased human body" …. "There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead; a duty, and we may also say a right, to protect from violation" …. This horrific and undignified treatment continued for years and involved numerous donors. Although we focus our inquiry on Harvard's conduct, Lodge's misdeeds are relevant insofar as they demonstrate where Harvard failed to act in good faith in operating and overseeing the morgue. Despite the risk of harm being known to Harvard, as similar misconduct had previously occurred in a strikingly similar fashion in another medical school morgue [at UCLA], there were little to no controls in place to prevent this harm from occurring at Harvard. Instead, according to the allegations, an unsupervised Lodge was able to dismember the donated bodies; bring unauthorized people into the morgue to inspect and purchase body parts, including during working hours; and carry body parts out of the morgue for years. Other red flags, such as his license plate describing himself as the "Grim-R[eaper]," which revealed an unprofessional insensitivity given his position in a medical school morgue, were also ignored or tolerated.  Thus, Harvard's extraordinary failure to adequately supervise the morgue's operations and properly protect the donated remains in its care exemplifies the kind of "peculiarly pervasive noncompliance" we have said can demonstrate a lack of good faith…. We emphasize that "peculiarly pervasive noncompliance" is different in kind and not just degree from isolated acts of noncompliance, which alone are insufficient to defeat a good faith defense under the act…. Jeffrey N. Catalano, Kathryn E. Barnett, Jonathan D. Sweet, Leo V. Boyle & Chelsea Bishop represent plaintiffs. The post Possible Tort Liability for Harvard in Donated Cadaver Parts Theft Case appeared first on Reason.com.