The federal judiciary will make no inquiries about whether a judge may have violated the Code of Conduct. The whole burden of proof rests entirely on the complainant.

She did so after she shared an article describing me and Adam Mossoff as "malcontent[s]" who "slowly slither[ed] out the door."

The Department of Justice failed to demonstrate that the court had jurisdiction to hear the (premature) claims.

The Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward post reminded me of one of my favorite cases, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar (what a great newspaper name) published the following article that mentioned Mrs. Ruth Ann Nichols: Please think briefly about the story, and then click on the MORE link below to learn what the court decided. Did you read the story as suggesting that the shooter found her husband in a compromising position with Mrs. Nichols—perhaps having sex, or having had sex, or being just about to have sex? That's apparently how many readers read the story as well. But it turns out that, though each statement in the story was literally true, Mrs. Nichols was at the Nichols home together with the shooter's husband, Mr. Nichols, and two neighbors. They were apparently all sitting in the living room, talking. The court concluded that the story could be libelous—assuming negligence was shown on the newspaper's part—because, even though the statements were literally true, they carried a strong implication (that the husband and Mrs. Nichols were together by themselves in a compromising position) that was false: In our opinion, the defendant's reliance on the truth of the facts stated in the article in question is misplaced. The proper question is whether the meaning reasonably conveyed by the published words is defamatory, "whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced." The publication of the complete facts could not conceivably have led the reader to conclude that Mrs. Nichols and Mr. Newton had an adulterous relationship. The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. It is no defense whatever that individual statements within the article were literally true. Truth is available as an absolute defense only when the defamatory meaning conveyed by the words is true. Such "defamation by half-truth" decisions are rare. All statements, after all, omit something, and one can always argue that the full story would convey a somewhat different message from the partial story. Usually that's not enough to turn literal truth into libel. But in some situations, where the statement does carry a very strong implication that turns out to be false, a libel claim can indeed be brought even when the statement is literally true. Another classic example—though just a hypothetical and not a real case—involves the first mate who, upset by his teetotaling captain, writes in the ship's log, Captain sober today. The statement may be literally accurate (the captain was sober today, as on all days) but it carries a very strong implication that turns out to be false (that today was unusual in this respect). H.P. Grice's work on conversational implicatures, by the way, relates to this. The post Libel by Implication: When Is Half the Truth a Falsehood? appeared first on Reason.com.

Judge Sutton concludes there was not much to the complaint submitted by the Department of Justice.

The allegedly libelous post over which Wilkins is suing (copied from the Complaint). From Wilkins v. Schaffer, decided yesterday by Judge Donald Middlebrooks (S.D. Fla.): Plaintiff Alexis Wilkins has lodged a single defamation by implication claim against Defendant Elijah Schaffer, political commentator, comedian, and podcast host whose shows mix politics and current events, with a comedic, satirical style. Plaintiff's claim is centered on an X-post drafted by the Defendant. The post at issue is caption-less but contains a photograph of Plaintiff alongside her significant other, Federal Bureau of Investigations (FBI) Director Kashyap "Kash" Patel. The post also "quotes" a distinct post, which in pertinent part, states that "Mossad sent female operatives deep into Iran-seducing top officials, infiltrating government surveillance networks, and carrying out sabotage missions." In essence, Plaintiff argues that this post insinuates and spreads the false narrative that Ms. Wilkins is "an Israeli Mossad agent, spy, or 'honeypot,' who is only in a relationship with Kash Patel to spy on and manipulate the United States government." This insinuation is the core of Plaintiff's claim for defamation by implication…. [Under Florida law, d]efamation by implication arises, "not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication." … Defendant suggests that "[b]ecause the expressed facts are literally true (Defendant reposted Plaintiff's authentic photograph in response to reporting about alleged Mossad agents), Plaintiff should make an especially rigorous showing that an ordinary viewer would understand the repost to affirmatively suggest Defendant intended or endorsed the alleged defamatory inference." This heightened standard is improper. Two literally true facts may nevertheless create a false interest. Defendant's characterization misunderstands applicable law. The Plaintiff need only allege facts that suggest "Defendant juxtaposed a series of true facts so as to create a defamatory implication. The inquiry turns on whether the 'gist' of the publication is false." "[E]ven if the statements are defamatory by implication, a defendant is still protected from suit if his statements quality as an opinion[.]" Defendant's caption-less post lies within the gray zone between opinion and innuendo of a fact. Defendant argues that a caption-less repost of a true photograph of Plaintiff and Director Patel, in response to an ongoing thread about foreign influence cannot reasonably be read as a literal assertion that Plaintiff is an active Mossad agent committing espionage and treason, particularly where Plaintiff herself describes that implication as "inherently ludicrous." However, context once again matters. Plaintiff alleges facts concerning Defendant's general postings about Israel's outsized influence over the United States. These allegations provide sufficient background to substantiate the innuendo allegedly asserted in the X-post-trending towards assertion of a fact rather than an opinion. For purposes of a Motion to Dismiss, this backdrop of Defendant's prior posts is informative of the affirmative suggestion or intent behind the alleged defamatory post…. "The [defamatory] language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference." … Defendant's posts, considered holistically, support Plaintiff's allegation that a viewer of the alleged defamatory post could reasonably draw the inference that Defendant is labeling Ms. Wilkins a "honeypot" and accusing her of infiltrating the U.S. government…. [And a]lthough I decline to definitively rule at this early stage whether Plaintiff can be adequately regarded as a general limited public figure, I find that even assuming Plaintiff is a general public figure, the facts alleged by Plaintiff meet the pleading requirement for actual malice…. Of course, this merely reflects the judge's conclusion that the plaintiff's allegations were plausible and legally sufficient. There will be more proceedings, and if the case goes to trial, the factfinder will need to ultimately decide how a reasonable reader would have perceived the post. Wilkins is represented by Jared Joseph Roberts and by Jason Caldwell Greaves (Binnall Law Group). The post Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward appeared first on Reason.com.

I hope to convince the Fifth Circuit to fully protect the families' rights under the Crime Victims' RIghts Act.

From Sheets v. Lipker, decided Monday by Judge John Badalamenti (M.D. Fla.): This case is about words—specifically, a four-letter expletive that has vexed legal authorities and amused teenagers for generations. Plaintiff Andrew Sheets, proceeding pro se, alleges that Officer David Joseph Lipker violated his First Amendment rights by citing him for displaying signs bearing the word "Fuck" in a public place…. Because this case is before the Court on a motion to dismiss, we accept the factual allegations in the complaint as true. Back in 2021, Sheets stood on a public sidewalk in Punta Gorda. He was there to protest. To make his point, he displayed two flags: one reading "Fuck Trump" and the other "Fuck Biden." He also wore a shirt emblazoned with the phrase "Fuck Policing 4 Profit." Officer David Joseph Lipker approached Sheets and issued him a citation for violating City Ordinance 26-11.5(z), which prohibited the public display of obscene signs. The citation was allegedly issued because of the language Sheets displayed, and Defendants do not contend otherwise. Lipker then ordered Sheets to leave the sidewalk. Sheets complied, packed up his flags, and left…. Long ago, the Supreme Court settled the question of whether the government may act as the guardian of public morality by banishing the word Fuck from the public square. In Cohen v. California (1971), the Court considered the conviction of a man who walked through a courthouse corridor wearing a jacket bearing the words "Fuck the Draft." The State of California argued, much as Officer Lipker decided here, that such language was offensive conduct that disturbed the peace. The Court disagreed. It held that the "simple public display" of this "single four-letter expletive" could not be made a criminal offense consistent with the First Amendment. The Constitution, the Court explained, leaves matters of taste and style largely to the individual, recognizing that "one man's vulgarity is another's lyric." In the decades since, the law has been made clear: the state may not censor a citizen for public display of the word "fuck." See Mahanoy Area Sch. Dist. v. B. L. by & through Levy (2021)…. Officer Lipker asks for a free pass because he was enforcing an ordinance, but he enforced it against speech that has been protected for generations. He argues he did not mean to retaliate, but his citation targeted the very words he determined offensive. And he claims no harm was done, even though he silenced a citizen in the public square. None of these defenses hold water at this stage. When Officer Lipker cited Sheets for the content of his speech, he crossed a constitutional line that was drawn long ago…. Civility is a virtue, but it is not a legal requirement for political protest. When Officer Lipker cited Sheets for his choice of vocabulary, he ignored well-settled precedent protecting the very speech he sought to punish. He is not entitled to qualified immunity for that error…. The post No Qualified Immunity for Arrest over "Fuck Trump" and "Fuck Biden" Flags appeared first on Reason.com.

2/4/1824: Gibbons v. Ogden argued.   The post Today in Supreme Court History: February 4, 1824 appeared first on Reason.com.

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It's been a difficult few weeks for DHS Secretary Noem

Jane and I, joined by press freedom advocate Seth Stern to dissect the federal prosecution of journalist Don Lemon, discuss whether covering—and allegedly accompanying—a disruptive protest inside a church can make a journalist liable for criminal conspiracy under federal laws that ban disruption of worship services. You can also see our past episodes: * 2025: The Year In Free Speech * Does the First Amendment Protect Supposedly "Addictive" Algorithms? * Defamation Law in the Age of AI with Lyrissa Lidsky * Free Speech and the Future of Legal Education * From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze * Kimmel, the FCC, and the Government's Power Over Broadcast Speech * A Conversation with FIRE's Greg Lukianoff * A Burning First Amendment Issue: President Trump's Executive Order on Flag Desecration * Free Speech and Doxing * The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online * Free Speech, Public School Students, and "There Are Only Two Genders" * Can AI Companies Be Sued for What AI Says? * Harvard v. Trump: Free Speech and Government Grants * Trump's War on Big Law * Can Non-Citizens Be Deported For Their Speech? * Freedom of the Press, with Floyd Abrams * Free Speech, Private Power, and Private Employees * Court Upholds TikTok Divestiture Law * Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama * Protests, Public Pressure Campaigns, Tort Law, and the First Amendment * Misinformation: Past, Present, and Future * I Know It When I See It: Free Speech and Obscenity Laws * Speech and Violence * Emergency Podcast: The Supreme Court's Social Media Cases * Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna * Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein * The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky * Free Speech On Campus * AI and Free Speech * Free Speech, Government Persuasion, and Government Coercion * Deplatformed: The Supreme Court Hears Social Media Oral Arguments * Book Bans – or Are They? The post Free Speech Unmuted: Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma appeared first on Reason.com.

The proposal would add a new Business and Professions Code section that would say, in relevant part (emphasis added): It is the duty of an attorney using generative artificial intelligence to practice law to ensure … [that r]easonable steps are taken to do … [r]emove any biased, offensive, or harmful content in any generative artificial intelligence material used, including any material prepared on their behalf by others. But legitimate advocacy, whether in court or "provided to the public," may well include content that some view as "biased, offensive, or harmful" (e.g., emotionally distressing, advocating for bad ideas or bad people, etc.). An attorney may well reasonably think that it's in his client's interest to engage in such advocacy. As I understand it, there are no legal ethics rules forbidding such advocacy—indeed, they may mandate it, if that's what it takes to serve the client's interest. Indeed, even the proposed Rule 8.4(g), which would have forbidden certain "derogatory or demeaning" speech "based upon race, sex, religion, …," and which some courts have rejected on First Amendment grounds, at least expressly excluded "advice or advocacy consistent with [the] Rules [or Professional Conduct." This proposed statute doesn't have such an exclusion (though even if it did have such an exclusion, I think it would still be improper). I'm not sure how the law can then forbid the lawyer from using AI to express those views. Indeed, I think such a requirement would be an unconstitutional viewpoint-based speech restriction, especially since "practic[ing] law" often involves not just creating court filings but also creating public statements on a client's behalf. And even when it comes to court filings, where various restrictions (perhaps including some viewpoint-based ones) may be permissible, it strikes me that this restriction would be highly unwise. Likewise, under the bill a lawyer would have the duty to ensure that The use of generative artificial intelligence does not unlawfully discriminate against or disparately impact individuals or communities based on age, ancestry, color, ethnicity, gender, gender expression, gender identity, genetic information, marital status, medical condition, military or veteran status, national origin, physical or mental disability, political affiliation, race, religion, sex, sexual orientation, socioeconomic status, and any other classification protected by federal or state law. But what does it mean for generative AI in an attorney's work product to "unlawfully discriminate against or disparately impact individuals or communities" based on those criteria? For instance, say that the attorney uses AI to generate an argument that sharply condemns people who have a particular affiliation—is that forbidden, because it "disparately impact[s]" that "communit[y]"? Or is that OK because it's not an "unlawful[]" disparate impact? If so, what exactly would be an unlawful disparate impact of the use of generative AI (as opposed to, say, a hiring decision by the lawyer's client). Similar rules have already been implemented as part of California State Judicial Administration Standard 10.80, but that has to do with rules for judicial officers "within their adjudicative role." Such restrictions placed on the state's own judges are a quite different matter than ones that bind all lawyers "practic[ing] law." The post Ban on AI-Generated "Biased, Offensive, or Harmful Content" in Law Practice Passes California Senate, 39-0 appeared first on Reason.com.

2/3/1812: Justice Joseph Story takes oath. Justice Joseph Story The post Today in Supreme Court History: February 3, 1812 appeared first on Reason.com.

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We learn fascinating insights about how the newspaper of record covers the "holy of holies of American law."

I'm left scratching my head with Hazony's strange remarks around a non-existent fifteen minute video that actually exists.

A judicial appointment that began the Supreme Court's transformation.

Although a federal judge declined to issue a preliminary injunction requested by Minnesota and the Twin Cities, the plaintiffs should still prevail on their claims that the federal government’s actions there are unconstitutional.

It is now up on SSRN, and also under submission to law reviews.

Ilya Shapiro and I respond to the situation at the University of Arkansas

But Council Member Peter Ortiz had gotten a temporary order that was in effect for nearly four months; the underlying disputed stemmed from a controversy related to a "Drag Queen story time."

From Kentucky A.G. opinion 26-01, released Jan. 5 but just posted on Westlaw: The "basic policy" of the Open Meetings Act … "is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." Under KRS 61.840, "[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency" and "[a]ll agencies shall permit news media coverage, including but not limited to recording and broadcasting." The Office has previously found that "KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency." Indeed, the only conditions of attendance permitted by the Act are "those required for the maintenance of order." Regarding the recording of public meetings, the Office has found that public agencies that did not allow members of the public to record their meetings violated KRS 61.840…. For the purpose of KRS 61.840, there is little difference between recording a meeting on a cellphone and live-streaming a meeting on a cellphone. Indeed, KRS 61.840 also requires the "broadcasting" of public meetings to be permitted. Though KRS 61.840 specifically requires agencies to permit "news media coverage, including but not limited to recording and broadcasting." that requirement does not place the news media in a position superior to that of the common citizen. Rather, it is simply illustrative of what it means for public agencies' meetings to be open to the public and that any exceptions to this general rule be "strictly construed" under KRS 61.800. Thus, the Office has previously found that KRS 61.840's grant of recording authority extends to members of the public. In light of the current state of technology and the ubiquity of persons live-streaming content using their cell phones, the live-streaming of a public meeting with a cellphone is but a modern example of "recording and broadcasting" public meetings that is protected by KRS 61.840. [Senator Gex Williams, who posed the question that led to the opinion,] limits his inquiry only to members of the public who are "non-intrusive and non-disruptive." No conditions are necessary for the "maintenance of order" if the live-streaming member of the public is "non-intrusive and non-disruptive." As such, a public agency may not prevent a "non-intrusive and non-disruptive" member of the public from live-streaming meetings of public agencies. It is therefore the opinion of the Office that the Act does not allow a public agency to prevent a "non-intrusive and non-disruptive" member of the public from live-streaming its meetings. {Senator Williams also asks whether KRS 61.840's mandate that public agencies "shall permit news media coverage" violates the First Amendment by not expressly granting the same right to all members of the public. Because it is the opinion of the Office that KRS 61.840 does not allow a public agency to prevent a "non-intrusive and non-disruptive" member of the public from live-streaming its public meetings, KRS 61.840 does not treat the news media differently from members of the public.} The post Kentucky Law Lets Citizens Live-Stream Public Agency Meetings Using Cell Phones appeared first on Reason.com.

2/2/1790: Justice William Cushing takes oath. Justice William Cushing   The post Today in Supreme Court History: February 2, 1790 appeared first on Reason.com.

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