2/10/1967: The 25th Amendment is ratified. The post Today in Supreme Court History: February 10, 1967 appeared first on Reason.com.

What’s on your mind?

History teaches that government must provide security if serious about a mandatory “gun-free zone.”

I will be testifying against this proposed legislation - which would authorize exclusion or deportation of all or most non-citizen Muslim immigrants.

From Kohls v. Ellison, decided today by Eighth Circuit Chief Judge Steven Colloton, joined by Judges James Loken and Duane Benton: In May 2023, the Minnesota legislature enacted a law regulating deep fakes. The relevant text reads as follows: A person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake is guilty … if the person knows or reasonably should know that the item being disseminated is a deep fake and dissemination: (1) takes place within 90 days before an election; (2) is made without the consent of the depicted individual; and (3) is made with the intent to injure a candidate or influence the result of an election…. A deep fake is defined as "any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct … that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct." … [A later] amendment expanded the scope of the prohibition to include the periods "within 90 days before a political party nominating convention" or "after the start of the absentee voting period." As amended, the statute further provides that a state or local candidate who violates the law must forfeit any nomination or elected office, and is disqualified from any future appointment to office. Kohls is a political commentator who produces and publishes parodies on social media. On July 26, 2024, Kohls broadcast on the YouTube website a video generated by artificial intelligence that depicted a likeness of Vice President Harris making statements that she never made. The video was labeled as "PARODY" and included a disclaimer stating that "[s]ounds or visuals were significantly edited or digitally generated." Elon Musk shared the video on the "X" social networking service but did not convey that the video was a parody or was generated artificially. Franson, a member of the Minnesota state legislature, shared Musk's post on her own "X" account. She, too, did not communicate that the video was a parody. The district court rejected Kohls' and Franson's request for a preliminary injunction, and the Eighth Circuit upheld the denial. It agreed with the district court that Kohls lacked standing: To qualify as a deep fake under the statute, a video must be "so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct." By labeling his videos as parody, however, Kohls communicates that statements in the videos "cannot reasonably [be] interpreted as stating actual facts." Kohls's videos, labeled as parodies, are not deep fakes under the statute, so he is not injured by any threat of enforcement…. Kohls further maintains that he is injured by the threat of enforcement against third parties. His verified complaint alleges that "[t]he chilling effect and enforcement of the law will dissuade others from sharing his content and preclude him from earning a living, which he currently does via monetization of his content on YouTube and X." "Where traceability and redressability depend on the conduct of a third party not before the court, 'standing is not precluded, but it is ordinarily substantially more difficult to establish.'" A plaintiff must show that third parties will act "in such manner as to produce causation and permit redressability of injury." A permissible theory of standing "does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties." The record is insufficient to establish standing on this theory. The evidence showed that Kohls's video of July 26 depicting a likeness of Vice President Harris "was retweeted over 240 thousand times." Kohls did not present evidence that others were deterred from sharing the video or that he lost income from any such reduction in sharing. A plaintiff cannot establish standing based merely on an unsupported assumption that some users of YouTube or X might decline to share a video because of the Minnesota statute. The court also agreed with the district court that Franson did have standing, because she "reshared Kohls's video depicting Vice President Harris without any accompanying label or disclaimer," which "was arguably proscribed by § 609.771, because a reasonable person could believe that the video depicted actual speech or conduct of Harris in which she never engaged." But it concluded that the district court didn't abuse its discretion in denying Franson a preliminary injunction, because of Franson's delay in suing: A plaintiff's delay may justify denial of preliminary injunctive relief where it is not adequately explained, and Franson has not provided a sufficient explanation for her sixteen-month delay. On appeal, Franson argues that she really did not delay for sixteen months because the legislature amended the 2023 statute in July 2024. The 2024 amendments, however, altered only the timing and penalty provisions of the statute. They did not change the statute's basic prohibition on dissemination of deep fake videos, the enforcement of which Franson seeks to enjoin. Franson's proposed conduct was arguably proscribed and subject to criminal penalties ever since May 2023. She voted for the 2023 law as a member of the legislature and possessed the complete factual predicate of her suit at that time. The district court found that Franson disseminated content "as early as 2021" that arguably would be proscribed by the statute. The court did not err in finding that nothing about the 2024 amendments changed the basis for Franson's alleged fear that her speech would be punished under the statute. Franson disputes this conclusion on the ground that there were no federal elections in 2023 about which she sought to disseminate deep fake content. But there were state and local elections during 2023. And Franson, a member of the Minnesota legislature, alleged without limitation that it was her practice to disseminate "videos featuring the likeness of real politicians for comedic or satirical effect" to her "constituents, colleagues, and ideological allies." The district court did not err in construing Franson's claim to encompass content concerning state or local elections…. The district court entered its order on preliminary relief in January 2025, and the case likely could have proceeded toward a final resolution on the merits in the year that has elapsed since. But Kohls and Franson appealed the order denying preliminary relief, and then stipulated that the case should be stayed in the district court pending disposition of this appeal. At oral argument, counsel explained that the plaintiffs sought "guidance" from the court of appeals on the merits of their constitutional claims. This court, however, does not sit to dispense guidance on matters that are unnecessary to a decision. We conclude here only that the district court did not abuse its discretion in denying extraordinary preliminary relief in light of the delay in bringing the request. The purpose of interim equitable relief, where appropriate, is to balance the equities as the litigation moves forward, (per curiam), and the district court did not abuse its discretion in concluding that Franson's delay weighed definitively against her request. In further proceedings, the district court may consider any additional evidence regarding whether Kohls has standing under Article III and, if there is standing, whether he is entitled to relief on the merits. The court also may address whether Franson is entitled to permanent injunctive relief on the merits, despite her delay in seeking preliminary relief, under the different considerations that apply to the question of permanent relief. Peter J. Farrell of the Minnesota Attorney General's office argued on behalf of the state. The post No Preliminary Injunction in Challenge to Minnesota Election Deepfake Law, but Challenge Goes On appeared first on Reason.com.

"Defendant Cline also showed former Defendant Joshua Woolsey [whose wife was then running for judge against plaintiff] an unredacted copy of the [sexual assault police report filed by the plaintiff] ... after Joshua Woolsey made a public records request for all records pertaining to Plaintiff."

My seminar picks for 2025 (and every year since 2005)

Steve Twist and I propose increasing involvement by crime victims as a way to reduce politicization of criminal justice processes.

The National Park Service had announced "a temporary closure of Columbus Circle" in D.C. for "the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site."

Readers, these are trained pro se litigants; do not try this at home (especially since other courts might disagree).

Last week, I submitted this letter to the Editor of the New York Times. It was not selected, so I will publish it here: Re: Why The Times Is Expanding Its Supreme Court Coverage (Feb. 2) and Federal Courts Undercut Trump's Mass Deportation Campaign (Feb. 1): Twice in the span of twenty-four hours, the Times felt compelled to refer to me as a "conservative" law professor. And this routinely happens in other media outlets. I would admit the label is accurate, but why is it necessary? To be sure, describing a professor's politics puts the reader on notice about potential biases, but this rule does not seem to be applied uniformly. Based on my searches of the Times's archives, law professors on the political left are routinely introduced without any label, while conservative law professors--in the rare instances when they are quoted--are more likely to be introduced as conservatives. I found one article that introduces a conservative law professor and a liberal law professor in the same sentence, but only the former is so described. I am grateful that the Times looks to balance out its journalism, but reporters should let a scholar's view speak for itself, without red or blue flags. Josh Blackman Houston, Texas I have a detailed list of these articles, which I may publish another time. In related news, the Washington Post published several letters to the editor in response to the op-ed I wrote with Ilya Shapiro on the Dean situation in Arkansas. I think our piece made a bigger splash in higher education circles than in legal circles. The post Letter to the Editor appeared first on Reason.com.

The allegedly infringing Tweet, from the court file; I've redacted the last name and part of the face, just as a matter of editorial discretion.   From Judge George Daniels' opinion Tuesday in MCM Group 22 LLC v. Perry (S.D.N.Y.), which strikes me as quite correct, given the fair use doctrine: Plaintiff is a limited liability company and the owner by assignment of a registered copyright for the Video. Plaintiff's predecessor-in-interest is a non-party to this suit and is referred throughout the Complaint as "Jane Doe." In 2015, Jane Doe appeared in the Video, which was filmed by the founders and operators of Girlsdoporn.com and Girlsdotoys.com (collectively, "GDP"). As revealed by a series of criminal cases [which led to guilty pleas], GDP was a criminal sex trafficking enterprise, in which the website's operators recruited victims to appear in its videos by fraudulently representing that the videos would never be posted online or released in the United States. On December 14, 2021, Judge Janis L. Sammartino of the Southern District of California … issued a restitution order in Garcia's case … that provided, inter alia, that the victims specified in the order "hold[ ] superior right, title, and interest in the images, likenesses, and videos depicting that [victim] produced by GDP" and "shall have and recover all property that GDP … took from them, including images, likenesses, videos, and copyrights." Jane Doe was one of the specified victims, so the Restitution Order awarded her "superior right, title, and interest" in the Video. She subsequently assigned her rights in the Video to Plaintiff "for the purpose of prosecuting the use of copies, still images, and derivatives of the [Video] through DMCA takedown notifications and, when necessary, civil actions." On June 13, 2022, Defendant Lyndon Perry published a post (the "Tweet") on the social media platform Twitter (currently known as X). The Tweet included a composite of two images: a still frame from the Video superimposed onto a screenshot of an online article from Forbes. The still frame from the Video depicts a fully clothed woman—who is identified as "Jessica" in the Video's title—sitting alone on a bed. The still frame includes text of an apparent conversation between the woman and an off-screen interviewer in which the woman states that she is studying business and marketing. The screenshot from the Forbes article shows a profile of an individual, who is identified as the head of institutional lending at Celsius Network, in the publication's 30 Under 30 list for 2020. The Tweet juxtaposes these two images, suggesting that they are the same woman. The Tweet was Perry's second post in a larger thread. The first post in the thread shows an advertisement for Celsius Network next to a screenshot of a Reuter's article entitled, "Crypto Firm Celsius Pauses All Transfers, Withdrawals, as Markets Tumble." Defendant then replied to this post with the Tweet, which included the composite image and the message "Same company btw." MCM Group (the assignee of the copyright in the videos) sued for copyright infringement, but the court rejected the claim: "In 1976, Congress enacted § 107 of the Copyright Act, giving statutory recognition to the long existing common law doctrine of fair use." Section 107 provides that: [T]he fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— * the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; * the nature of the copyrighted work; * the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and * the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors…. "A use that has a further purpose or different character is said to be 'transformative.'" This includes uses that "transmit a message that differs from the message communicated by the original." But as the Supreme Court recently clarified, accepting "any further purpose, or any different character, would narrow the copyright owner's exclusive right to create derivative works." Thus, in addition to a further purpose or character, "there must be justification for copying." Examples of further justifications include instances in which the copying critiqued or commented on the original, "provided information to the public about the copied work, [ ] enabled the furnishing of valuable information on any subject of public interest, or rendered a valuable service to the public." Notably, "the more transformative the [ ] work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use." Defendant argues that his use was transformative because Defendant posted the Tweet squarely for the purposes of commenting on Celsius' business struggles and its message differed from the original pornographic film.  Plaintiff counters that the Tweet was "commercial" in nature and that additional facts must be developed through discovery to determine exactly what message the Tweet conveyed. It is clear from the face of the Complaint that the Tweet utilized the still frame for a transformative purpose. The Video is a pornographic film with the express purpose of displaying explicit sexual content. Conversely, the Tweet does not contain any nudity or sexually explicit imagery and is framed as a commentary on Celsius. Defendant posted the Tweet as a direct reply to his previous tweet, which juxtaposed Celsius' marketing with critical reporting on the company. The Tweet's text—"Same company btw"—is a clear reference to Celsius when viewed in the context of the entire thread. The Defendant's reproduction of the still frame in the composite image is in service of this commentary. The reproduction of a copyrighted image in a larger collage is transformative where "the copyrighted work is used as 'raw material,' in furtherance of distinct creative or communicative objectives." Here, Defendant superimposed the still frame from the Video over a Forbes profile of Celsius' former head of international trading. By arranging the images of two women, both identified as being named Jessica, side by side, the composite image vaguely implies that a Celsius executive appeared in a pornographic film. The still frame's accompanying text stating that Jane Doe was studying business and marketing further supports this implication. In short, a reasonable observer would understand the Tweet as a commentary on Celsius with a markedly different purpose from the original pornographic video.  Further, as a commentary on a "subject of public interest" (i.e., Celsius' decision to pause its customer's transfers and withdrawals), the Tweet's transformative use of the still frame justifies its copying. {This Court makes no finding as to what Defendant subjectively intended to communicate through the Tweet, as the Defendant's intentions are not alleged within the complaint or obvious from the Tweet itself. That said, one could likely surmise that Defendant intended to cast aspersions on Jane Doe's character and the judgment of Celsius for perhaps employing someone who had appeared in a pornographic film. This opinion in no way approves or endorses that view. For the purposes of deciding this motion, it is enough for this Court to note that whatever Defendant subjectively intended to communicate, it is clearly not sexually explicit or pornographic in nature.} Plaintiff argues that the alleged "commercial" nature of the Tweet weighs against fair use. But even assuming that the Tweet was posted "for the purpose of achieving additional donations or pledges," "that is not dispositive of the first factor, particularly in light of the inherently transformative role" of the Tweet. Thus, this Court's determination that the Tweet was "substantially transformative" allows it to discount the alleged "secondary commercial nature of the use."  … [The amount-and-substantiality factor also] weighs in favor of the fair use defense. It is undisputed that the Tweet reproduced a single frame of a forty-six-minute video. Plaintiff contends that this objectively small amount of copying is not a fair use because "the 'heart of the work' is any portion [of the Video] that identifies [Jane Doe], specifically images of her face, given that she is the victim of criminal sex trafficking and the [Video] is the evidence thereof."  But the central inquiry under this factor is not whether the portion copied is the most important part of the work to the copyright holder, but rather whether the portion copied contains the central creative expression of the original such that "the secondary work might serve as an effectively competing substitute for the original." The Tweet does not capture the central expression of the Video and is not a substitute for the original. The heart, or core, of the Video is its sexually explicit imagery. The Tweet is not pornographically explicit and shows a fully clothed woman describing her career interests. Accordingly, because the Defendant copied an insubstantial amount of the Video in furtherance of a transformative purpose, the third factor weighs in favor of fair use…. The … "the effect of the use upon the potential market for or value of the copyrighted work" … factor focuses on "whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that the potential purchasers may opt to acquire the copy in preference to the original." Like the other factors, a court's analysis of the market effect is often influenced by whether the secondary use is transformative. "[T]he more transformative the secondary use, the less likelihood that the secondary use substitutes for the original." … "[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act." …. [This] factor weighs in favor of fair use. As detailed above, Defendant's use of a single still frame from the Video was a transformative secondary use intended as a form of commentary on Celsius. Further, the Defendant's use of a single frame from the video did not include any sexually explicit imagery. In short, a person in the market for a sexually explicit, pornographic film would not turn to the Tweet. Because Defendant's use of the still frame would not, and could not, usurp the market for the Video, the fourth factor weighs in favor of fair use…. Note that the lawsuit alleged only copyright infringement, not defamation, false light invasion of privacy, or any other tort. Jay Wolman and Marc Randazza (Randazza Legal Group PLLC) represent defendant Perry. The post Use of Still from "Girls Do Porn" Video to Criticize Later Employer of Alleged Participant Is Fair Use, not Copyright Infringement appeared first on Reason.com.

2/9/1937: NLRB v. Jones & Laughlin Steel Corp. argued. The post Today in Supreme Court History: February 9, 1937 appeared first on Reason.com.

What’s on your mind?

A new Cato Institute study provides the most comprehensive analysis of this issue to date.

Nixon's enemies within his own administration were spying on and trying to subvert the elected President.

Trump's call to "nationalize elections" leads prominent election law scholar Rick Hasen to reverse his longstanding support for such a policy.

Earlier today, I wrote a post about whether a minor typo in a clerkship application should disqualify the candidate. Fittingly, my post had typos. I think I've fixed them, but maybe there are others. I thought it might be useful to give my own thoughts on proofreading. Blogging is for me a form of release. I have lots of thoughts in my head, and writing them down helps me to make sense of things. My primary audience when I write is not you (sorry) but is me. Longtime readers may recall that while clerking for Judge Boggs, I was not allowed to blog. So I made my blog private, and continued writing blog posts that no one would see. (Well, a few friends had the password, but the site was not for public consumption.) When my clerkship finished, all of the posts were made public. To be sure, some posts I write are intended to influence public discourse, but most of my blogging is introspective. To that end, typos don't bother me. I want to make sure my writing is clear and understandable, but my goal is not perfection. Each subsequent round of review takes time that I could be using to do something else. If I were to ensure that each post was flawless, I would end up writing far less. That is not a tradeoff I find worthwhile. There is another aspect of my writing process that may not be obvious. I often have very discrete blocks of time to write, and I do not wish the project to extend beyond that block. Maybe I have 30 minutes before class starts to pump something out. Or it is late at night, I'm getting tired, and I need to wrap up a post before I call it a night. Today, for example, I had about 30 minutes on the elliptical, in which I conceived, wrote, and published the clerkship post. (I keep my laptop on a music stand adjacent to the elliptical so I can type while working out.) You might ask, why don't I just pause the project when the time block finishes, and resume later. I'm sure I could fix errors after some sleep. But that wait is agonizing for me. My goal is to sort through my thoughts as quickly as possible, and move onto the next topic. To leave a post unpublished would make me keep coming back to it over and over again. I doubt I would be able to fall asleep if a project was still not fully developed. Once I hit the "Publish" button I can sign off and move on to the next project. There are a few regular readers who email me typos. I will usually fix these promptly. I promise, I will respond pleasantly. Comments about typos will not be read. For those curious, I wrote this post in a single five-minute block, after having thought about it for the past hour or so. I proof-read it once. The post My Thoughts On Typos In Blog Posts appeared first on Reason.com.

One of my most important roles is advising my students on clerkships. This process has changed significantly since I clerked from 2009-12. (I wrote about my story here.) Back in the day, under the hiring plan, law students would apply to clerkships over the summer after 2L. Judges were only allowed to contact applicants on a particular day in early September. And all interviews would be conducted over the the following week. Of course judges cheated then. Indeed, these "off plan" hires led to the implosion of the plan. Today, we live in a free-for-all. I am reliably informed that at top-ranked schools, judges interview students and make offers before the first semester of grades are released. Some judges will hire students after they graduate college before they begin law school. Soon enough, high school students will start lining up judicial clerkships. Why wait? At most other law schools, the clerkship process begins in earnest after two semesters of grades are released. By the time three semesters of grades are released, students are already interviewing for positions and accepting offers. Students can then apply for a second clerkship (the trend) with their fourth semester of grades. Most 3Ls in the clerkship game already have their careers planned out for several years. As they say, don't hate the player, hate the game. I work closely with my students at South Texas. I would submit that our clerk placement rate rivals schools that have been in the game for far longer. You can see our clerk roster here. But these efforts take a lot of work at very early junctures. Invariably, students have to target specific judges based on a range of factors, and hope the process works out. If they are dinged for unexpected reasons, it may become too late to rally for other judges. One of the most difficult aspects of this process is the application screen. Imagine a student submits an application with a superlative package. They are top of their class, have glowing references from professors who got to know them personally, thrived on journal and moot court, plus had relevant legal experience. The student has done everything right since they stepped foot on campus. But there is a glitch in the resume or the cover letter or the writing sample. Mind you, these materials have been reviewed by the student countless times, and also screened by professors and career service staff. Yet, something slipped through. Should the application automatically be nixed? I can see both sides of the equation. On the one hand, judges need to be able to implicitly rely on a clerk. That relationship requires that the student to have a exceptional attention to detail. Any error that leaves chambers ultimately falls to the judge, not the clerk. As the argument goes, if a student can submit a clerkship application with an error, that shows a lack of judgment that will infect the entire clerkship. How can this student be trusted? Application rejected. And for what it's worth, when a clerk application is rejected, the applicant will seldom figure out why. After years of excellent work, a stray hyphen or a margin error can quietly disqualify the candidate for career-altering clerkship. On the other hand, a clerkship application must be viewed as a whole. The resume is the sort of document that is reviewed so many times that errors become invisible. I think most professors have experienced this sort of fatigue when reviewing the same law review article through multiple rounds. Litigators have similar experience with briefs. The usual remedy is to have a fresh set of eyes to look over the materials--whether research assistants, student editors, or fellow associates. But doesn't that fresh look defeat a primary purpose of the application: to determine the applicant's attention to detail. Thus, there is a paradox. Applicants who try to play by the rules, and do not seek outside help, are more likely to include disqualify errors. Applicants who skirt the rules, and seek outside help, are less likely to include disqualify errors, and the judge will never know it. And now with AI, I have very little trust that the work students submit is actually their work. The importance of the written application becomes far less than the value of the references. As regular readers of my posts can guess, I am not one to disqualify people for small errors--especially when the application is otherwise excellent. We should never judge a person by their worst moment, especially when every other aspect of the application is golden. Are typos and errors a problem for courts? You bet they are. Don't believe me? The Supreme Court has an errata page for all of the corrections to opinions. Mind you, these are opinions reviewed by some of the smartest law school graduates around and double-checked a full staff of editors at the Court who scan citations. Errors will always slip through. It's okay. I think most parties would rather have a timely opinion that gets the law right than an absolutely flawless opinion that takes far longer. Still, I warn all of my students that failure to strictly scrutinize their clerkship applications could lead to a summary rejection, and they will never know it. It can't be my job to find these errors, so the burden falls on them. The post Should A Clerkship Application Be Summarily Rejected For Having A Minor Error? appeared first on Reason.com.

2/8/1941: Justice Willis Van Devanter dies. Justice Willis Van Devanter The post Today in Supreme Court History: February 8, 1941 appeared first on Reason.com.

What’s on your mind?

"But that does not mean that litigants have a right to hide them from the public once they are implicated in court proceedings."

2/7/1870: Hepburn v. Griswold decided. The post Today in Supreme Court History: February 7, 1870 appeared first on Reason.com.

What’s on your mind?

"What plaintiffs are really asking us to do is read subtext into the Provision's text."