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."

Arkansas tooth picks, selective schools, and inconsistent travel plans.

More from the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC: And the lawyer's response: The court's reaction to Mr. Feldman's "confusing justification": In short, Mr. Feldman acknowledged ending up with citations that "did not exist," but failed to provide a coherent explanation as to how. Was the error a product of AI hallucination from the initial drafting stage? Was it somehow a case name mismatch on Google Scholar (setting aside the greater importance of the reporter citation)? Did another case improperly cite Mr. Feldman's case, accidentally supplying him the wrong citation? Did an AI program introduce errors at the cite-check stage where none had existed previously? Representative of much of his colloquy with the Court, Mr. Feldman's explanations were thick on words but thin on substance. For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client. The post "Thick on Words but Thin on Substance" appeared first on Reason.com.

From the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC: Unsurprisingly, the judge (Judge Katherine Polk Failla [S.D.N.Y.]) viewed this not as an important correction, but as Mr. Feldman's "attempt[] to minimize his responsibility." For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client. The post How to Make Friends and Influence Judges appeared first on Reason.com.

Presumably the client's potential remedy now would be a malpractice lawsuit against the lawyer.

From J.W. v. T.S., decided Tuesday by Massachusetts Appeals Court Judges Justices Maureen Walsh, Robert Toone & Gloria Tan. The plaintiff appears to be Julia Prange Wallerce, who had been on the Winthrop Planning Board and the Winthrop Transportation Advisory Committee and had been Assistant Director of Transportation at the Metropolitan Area Planning Council, and the defendant appears to be Todd Sacco, who had run for the Winthrop City Council in 2023: What began as friendly social media conversations about local politics between two people from Winthrop devolved into a situation in which the plaintiff felt targeted by the defendant's comments in his social media posts, private messages, and text messages. On January 18, 2024, the plaintiff applied for a harassment prevention order (c. 258E order), pursuant to G. L. c. 258E, after her requests that the defendant stop communicating with her went ignored…. To obtain a harassment prevention order, a plaintiff must demonstrate "harassment," which the statute defines in relevant part as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." In reviewing the issuance of a harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant committed three or more qualifying acts of harassment aimed at a specific person…. The plaintiff bears the burden of establishing that the three acts were "maliciously intended," defined by the statute as being "characterized by cruelty, hostility, or revenge." "The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' … and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" True threats have been defined as "words or actions that—taking into account the context in which they arise—cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." … The plaintiff's testimony at the evidentiary hearing, which the judge credited, included her testimony that in 2017 she and the defendant had "amicable conversations about community issues" on social media and later by text messages, e-mail messages, and telephone. However, in the following year or two, the defendant began sending her countless e-mail and text messages that contained offensive language, insulting and ridiculing her about her positions on bike lanes and transportation issues. One such instance occurred in 2019, when the defendant disagreed with the plaintiff's position on how best to address traffic issues in the town. The plaintiff sent the defendant an e-mail message in which she expressed her displeasure and frustration with the defendant's communication style and what she believed was his hostile tone toward her. The defendant replied with a particularly caustic e-mail message response, leaving the plaintiff feeling attacked and vulnerable. {The defendant's e-mail message to the plaintiff stated, "GO FUCK YOURSELF!! You don't feel safe, I don't give a rat[']s ass, I hope it motivates you to leave Winthrop. Like I said before, people like you make me fucking sick. You think you do no wrong and you think you know everything. Please go back to the state of losers and stop trying to turn Massachusetts into the shithole that California is." At the hearing, the defendant acknowledged that his e-mail message response was not respectful.} After a lull in communication between 2019 and 2022, the defendant once again began to frequently send Facebook messages to the plaintiff in the summer of 2022. At that point, the plaintiff testified that the defendant's behavior escalated despite her multiple requests that he refrain from contacting her or speaking about her in public and even after she blocked him from communicating with her on Facebook. The defendant posted comments about her on a Facebook group called "Winthrop Votes" in which he was the moderator, criticizing the plaintiff on a variety of topics, including the plaintiff's support of a certain candidate for political office and, in a different post, ridiculing her for taking her infant child to an event supporting bike lanes. The plaintiff testified that in October of 2023, during which time the defendant was publicly criticizing the plaintiff's support of a bike lane in Winthrop, the defendant parked his truck directly in front of her home, even though there were open parking spaces elsewhere on the street. In a January 2024 "Winthrop Votes" podcast, the defendant focused his attention on the plaintiff, telling the audience that he was "going after" the plaintiff and that she was "about to be exposed." In November 2024, after the plaintiff voted in a local election and exited a polling location with her young child, the defendant was outside and said "smells like shit" as she walked past. At the conclusion of the hearing, the judge stated in oral findings that there were "at least two" instances of harassment, crediting "that one in '23, and I'm going to credit October 20th." We discern from the record that the first instance the judge relied on was the October 2023 incident in which the judge found that the defendant intentionally parked his car in front of the plaintiff's home to send her a message that "he knows where she lives" and for the purpose of intimidating her. While it is unclear what specific instance of harassment the judge credited from 2023, it appears to be the November 2024 incident outside the polling station on election day. Even assuming, without deciding, that these two instances qualify as harassment when considered in the totality of the circumstances, we can discern no evidence of a third qualifying act of harassment. The defendant's manner of communicating with the plaintiff and his use of social media to discuss her was undoubtedly rude, offensive, and abrasive. On this record, however, the plaintiff has not sustained her burden of proof to show that the defendant's statements fall within the definition of true threats …. To support the issuance of a c. 258E order, a true threat must be intended to cause "fear of physical harm or fear of physical damage to property" and must in fact cause such fear. At the hearing, the plaintiff agreed that the defendant never physically harmed or threatened to physically harm her or any member of her family. The defendant's statements, including his statement to the plaintiff to "go fuck yourself," that he did not care if she felt safe, and that he hoped that she would move out of Winthrop—troubling and offensive as they were—failed to satisfy the threshold requirement of harassment as a direct or indirect threat. Similarly, the defendant's statements on his podcast that the plaintiff was "about to be exposed," asking "why am I going after [the plaintiff]?" and suggesting that others send the plaintiff a message that "the guys on Winthrop Votes want to know who's lying," are not sufficient to establish harassment. We have carefully reviewed the entire record and conclude that none of the other statements on the defendant's podcast or other social media comments constitute harassment as defined under Rather, they fall within the category of protected speech under the First Amendment …. Philip Weber represents T.S. The post Harassment Order Stemming from Dispute Among Local Political Figures Vacated on Appeal appeared first on Reason.com.

From Judge Jorge Alonso (N.D. Ill.) yesterday in Doe v. Doe Defendants 1-10; note that plaintiff is represented by a partner at a midsize law firm: Plaintiff has filed two motions before the Court. A motion 3 to proceed under pseudonym and a motion 4 for expedited discovery. Motion 3 does not contain a single citation identifying relevant legal authority that support's Plaintiff's position. And motion 4 contains just one citation to the language of Federal Rule of Civil Procedure 26(d)(1). Motion 3 and motion 4 are denied without prejudice. If Plaintiff wishes to proceed on these arguments, Plaintiff shall refile these motions by 2/11/26 with proper citations that support's Plaintiff's position. For a few uncontroversial motions, one can sometimes get away without citations. (That's especially so if the other side has appeared and consents to the motion.) But for motions like this, that's generally not enough, as the judge's order reflects. The post Lawyer's Motion "Does Not Contain a Single Citation Identifying Relevant Legal Authority That Supports Plaintiff's Position" appeared first on Reason.com.

2/6/1858: Justice Mahlon Pitney's birthday. Justice Mahlon Pittney The post Today in Supreme Court History: February 6, 1858 appeared first on Reason.com.

What’s on your mind?

What is the sound of one Justice clapping?

The 6th Circuit has followed the clear and convincing evidence standard since at least 1993, but the actual rule is silent on this issue.

Some excerpts from Judge David Stras's opinion yesterday dissenting from denial of rehearing en banc in Iowa Migrant Movement for Justice v. Bird (see here for the panel opinion): Access to legal immigration, which allowed my grandparents to settle here following World War II, has been a lasting gift for my family. The welcome mat we offer to those who come here legally, however, means little if skipping the line results in the same (or even better) treatment. Now, as the federal government tries to enforce the nation's immigration laws, Iowa wants to help. If it can do so without getting in the way, I would let it. [I.] Let's be clear about what happened here. Two people, plus an organization purporting to speak for two others, set out to defend the federal government from Iowa's alleged overreach. The problem, in their view, was that Iowa made it a crime for aliens to set foot in the state if they had ever been "excluded, deported, or removed from the United States." The remedy was what the federal government had already decided to do once before: make them leave the country. In short, it mandated self-deportation. The parties have diametrically opposed views of what the law does: Iowa sees it as a helping hand; the plaintiffs as encroaching on federal authority. The federal government, for its part, dropped its own parallel challenge in a companion case. And it has given us assurances that, as far as it is concerned, Iowa's efforts actually "further the purposes of federal immigration law." Despite these developments, the plaintiffs won a preliminary injunction. Not just any injunction, but one that appears to prohibit enforcement of the law against anyone. Fortunately, the panel sent that part back. But we should have reversed the rest too, because the overbroad injunction was far from the only problem with this case…. [III, joined by Judge James Loken.] … "A facial challenge is really just a claim that the law … at issue is unconstitutional in all its applications." To describe them as "hard to win" would be an understatement. They are "the 'most difficult challenge[s] to mount successfully'" because the existence of "some" constitutional applications defeats them. The hill is even steeper than it looks. It requires proof of a negative: "no set of circumstances … under which [Iowa's statute] would be valid." "In effect, [the plaintiffs must] speak[] for a range of people," from green-card-holding waiver recipients to "revolving[-]door" recidivists and violent drug traffickers. A preliminary injunction only becomes an option if the plaintiffs are "likely" to show that every application, including each of those, is unconstitutional…. Not all are, because the most obvious application is also the most obviously constitutional: the state prosecution of an individual who has committed the crime of illegal reentry under federal and state law. Both, after all, prohibit identical conduct: reentry by aliens who "ha[ve] been denied admission, excluded, deported, or removed or ha[ve] departed the United States while an order of exclusion, deportation, or removal is outstanding." If no federal exception applies, then it is possible to comply with each, and a state prosecution does not "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." To the contrary, it furthers it. Indeed, this sort of criminal-law "overlap," a feature of federalism "[f]rom the beginning," would "not even begin" to support preemption. Preemption could occur if state officials pursue charges against aliens who are under no federal obligation to leave the country. But given that federal and state interests align in "at least some" cases, the only type of challenge that can work is an as-applied one. Case-by-case adjudication then becomes the mechanism for defining the limits of state power. Or at least that is how the system is supposed to work.By completely ruling out Iowa's "parallel scheme of enforcement," the panel opinion short-circuits this process. It purports to apply conflict preemption, but in truth it applies a Frankensteinian hybrid: something it calls "conflict preemption" but that more closely resembles field preemption. Only field preemption, after all, can block "parallel" and "complementary state regulation." The panel's patchwork analysis even confused the plaintiffs, who now try to defend the decision on field-preemption grounds. The problem, of course, is that the application of field preemption is hard to square with Arizona, which allowed the state to enforce one immigration statute but not others. The one that survived required state officers to try "to determine the immigration status" of anyone they lawfully stopped and suspected of being an illegal alien. If the federal government occupied the entire field of "immigration policy" or "entry and removal," then this provision should have been preempted. And it would have spared the Supreme Court the trouble of addressing the other Arizona provisions individually, including those that turned out to be conflict preempted. Even as to those, the Supreme Court's analysis does not support what the panel did here. The Court reviewed one that made it a crime for illegal aliens to "solicit … or perform work," which "Congress [had] made a deliberate choice not to" criminalize. Another let state officers arrest aliens they suspected of a removal-triggering "public offense," which was "greater authority" than Congress gave "trained federal immigration officers." Unlike both of those, Iowa's statute is nearly a mirror image of federal law, meaning that any conflict will quite literally be the exception, not the rule. * * * I doubt federally approved prosecutions are the only constitutional application. I cannot imagine, for example, that an order returning an illegal reentrant "to the foreign nation from which [he or she] entered" conflicts when federal authorities have already made the same call. To the extent other circumstances pose a greater risk of conflict, "those are details relevant to an as-applied challenge, not a facial one." All we need to know is that the existence of "some" constitutional applications is enough to foreclose a facial challenge to Iowa's illegal-reentry law. [IV.] Entertaining non-justiciable controversies and ignoring constitutional applications of state laws is bad enough under normal circumstances. But making these kinds of mistakes here handcuffs government officials who are trying to enforce the nation's immigration laws. When federal officers are the ones doing it, some courts have claimed overreach. See, e.g., Vasquez Perdomo v. Noem (C.D. Cal.), stayed by 146 S. Ct. 1 (Sept. 8, 2025). When they decide to bring in backup, the government needs to check all the right boxes first. See Trump v. Illinois (U.S. 2025) (refusing to stay "a temporary restraining order barring the federalization and deployment of the [National] Guard in Illinois"). And now, if states step up to fill the void, the panel opinion sends the message that it is not their job. Who is left to deal with "the admission and exclusion of foreign nationals …[,] a fundamental sovereign attribute" that is supposed to be "exercised by the Government's political departments largely immune from judicial control"? Trump v. Hawaii (2018); see Fong Yue Ting v. United States (1893) (recognizing that the authority "to exclude or to expel … aliens" is the "inherent and inalienable right of every sovereign and independent nation"). More and more, the answer seems to be nobody. Not the federal government, not the states, nor anyone else. We have a duty to rehear "questions of exceptional importance" en banc, particularly when a panel's resolution of them "conflicts with … decision[s] of the United States Supreme Court." This one is about as important as it gets. See Arizona ("Immigration policy shapes the destiny of the Nation."). The post Eighth Circuit Judge on State Enforcement of Immigration Law appeared first on Reason.com.

Following the 2023 Covenant School shooting in Nashville, in which the shooter was killed by responding police officers, the shooter's parents inherited the shooter's copyright interest in various writings (including the shooter's manifesto). They then assigned it "to a trust to be held for the benefit of the Covenant Parents' children," and the Covenant Parents argued that this should keep the writings from being released. The trial court agreed, but yesterday's Tennessee Court of Appeals opinion in Brewer v. Metro. Gov't of Nashville (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson) basically rejected the copyright argument for nondisclosure: The trial court and the Parents … conflate the concept of access for inspection [which wouldn't itself implicate the Copyright Act -EV] with reproduction and display [which might potentially implicate the Act, subject to the fair use defense -EV]. Indeed, the TPRA requires that "[a]ll state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state …" We interpret the TPRA broadly to promote access to the records, in keeping with the statutory purpose. Considering this statutory purpose, we can construe the TPRA in such a way that does not require Metro to publicly display its file. Nor need Metro distribute the records to the public; rather, Metro need only allow Petitioners access for personal inspection. Although the Act protects the means by which copyrighted material may be obtained, the Act itself does not inure total confidentiality and secrecy. As another state court confronted with this issue noted, "[o]ne could certainly disclose a record without either reproducing or distributing the same record." Nat'l Council on Tchr. Quality v. Curators of Univ. of Mo. (Mo. Ct. App. 2014); see also Ali v. Phila. City Plan. Comm'n (Pa. Commw. Ct. 2015) ("[N]ot every disclosure of copyrighted material without the owner's consent violates the Copyright Act."). By the same token, Metro may allow access to the records for personal inspection without itself copying, displaying, or publishing the records. This result "allow[s] the public to scrutinize [Metro's] reliance on or consideration of the copyrighted material[,]" thus furthering the purposes of the TPRA. That said, we acknowledge the potential issue foreseen by the trial court. Assuming for argument that the Parents hold a valid copyright and that Petitioners seek copies of the material pursuant to section 10-7-506, where does this leave Metro as the records custodian? In Ali, the Pennsylvania appellate court explained this dilemma well: Although the rights conferred on the copyright holder are subject to "fair use," the Copyright Act is nonetheless problematic for local agencies when faced with a RTKL [Right-To-Know Law] request that seeks copyrighted materials. Unless the copyright holder has consented to duplication, duplication of the copyrighted material under the RTKL carries the risk that the copyright holder will sue the local agency for infringement in federal court. If found to be an infringer, the local agency could be held liable to the copyright holder for actual or statutory damages, which, in the case of willful infringement, could be up to $150,000. The local agency could also be ordered to pay the copyright owner's costs and attorneys' fees. All the while, the local agency is expending taxpayer dollars in costs and attorneys' fees to defend itself in an infringement action occasioned not by its own assessment of the risk and subsequent voluntary disclosure, but by forced disclosure by [court order]. This concern, while reasonable, falls outside the scope of what we must decide today. This is a TPRA case in which Metro is the respondent. Thus, our ruling is narrowly tailored to address only Metro's obligations under the TPRA and whether it can meet that obligation without running afoul of the Act. Construing the TPRA broadly to promote access to public records, as we are required, we conclude that under these particular circumstances, the only overt action Metro must take to meet its obligation is to allow Petitioners access to the records for personal inspection. Although we acknowledge the copying rights conferred to the public by section 10-7-506, we do not opine whether it is advisable for Petitioners to copy or otherwise reproduce those records upon said personal inspection and access. Simply put, so long as Metro maintains the records, it must allow Petitioners access to same for personal inspection.  Whether Petitioners choose to go further than that considering their potential copyright liability is left to them. Likewise, if the Parents wish to pursue a copyright infringement action against Petitioners based on how the Petitioners choose to use the information in the records, the Act provides the Parents with that remedy. See Nat'l Council on Tchr. Quality v. Minn. State Colls. & Univs. (Minn. Ct. App. 2013) ("If [Minnesota law] requires a Minnesota governmental entity, such as MnSCU, to release copies of public data, the person or entity receiving the data takes the information subject to the owner's [federal copyright] rights. All of the author's rights and remedies under the [Act] are unimpeded."). The Parents argue that the weight of authority on this issue supports their position. Respectfully, our research suggests otherwise. The cases addressing the issue before us reflect a variety of results. For example, several courts have held that while the Act applies to public records, the fair use limitation, found at 17 U.S.C. section 107, allows the records to be copied. See, e.g., Zellner v. Cedarburg Sch. Dist. (Wisc. 2007) ("Applying the 'fair use' factors outlined in 17 U.S.C. § 107 in this case, we are satisfied that the CD and the memo do not fall within the copyright exception under Wis. Stat. § 19.32(2)."); Nat'l Council on Tchr. Quality (fair use allowed disclosure under Minnesota law where requestor, a non-profit working for educational reform, planned to use the information for "criticism, comment, … scholarship, or research"); ACLU of Utah Found., Inc. v. Davis Cnty. (Utah Dist. Ct. 2021) (concluding "that the laws of copyright do not limit the release of the Utah Jail Standards to these Petitioners for the uses they have outlined[,]" where "the type of use envisioned by these Petitioners falls easily within the fair use doctrine of federal copyright law"); State ex rel. Rea v. Ohio Dep't of Educ. (Ohio 1998) ("Exceptions to public records requests do not include the copyright defense where the public records fall under the 'fair-use' exception to the federal copyright statute or where the copyrighted material is purchased by the public office or agency that is the subject of the public records request."). {Petitioners argue on appeal that the fair use exception allows Metro to release the disputed records. In light of our decision that the TPRA and Act do not conflict here, we need not delve into Petitioners' intended uses for the information.} On the other hand, at least one court has rejected the fair use argument, finding that to be the sole purview of the federal courts. Curators of Univ. of Mo. ("[T]his court lacks the authority to determine whether a particular use of copyrighted materials constitutes fair use, as federal courts have 'original jurisdiction of any civil action arising under the [Act].'"); see also Pictometry Int'l Corp. v. Freedom of Info. Comm'n (Conn. 2013) (noting that the court lacks "jurisdiction to determine whether a particular use of copyrighted materials infringes on the copyright holder's rights under federal copyright law or, instead, constitutes a fair use of the materials"). Accordingly, there is no weight of authority as the Parents suggest. Rather, the results vary and depend in part upon the language of the state law at issue. And here, the TPRA's text provides a solution that allows Metro to comply with Petitioners' requests while avoiding conflict with the Act…. Metro can satisfy its obligations under the TPRA by allowing Petitioners to access the records for personal inspection, thereby avoiding conflict with the Act. To the extent Petitioners then engage in actionable conduct under the Act, the Parents may pursue the remedy available to them, as those remedies remain unimpeded, and Petitioners can raise any relevant defenses…. Note that I was one of the many signers of an amicus brief arguing against using copyright law to limit disclosure of the writings; many thanks to the Vanderbilt Stanton Foundation First Amendment Clinic and the Intellectual Property & the Arts Clinic for representing us on that brief. The post Copyright Law Doesn't Bar Release of Covenant Shooter Manifesto appeared first on Reason.com.

From Brewer v. Metro. Gov't of Nashville, decided yesterday by the Tennessee Court of Appeals (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson): This case stems from the tragic shooting that occurred at The Covenant School … in Nashville, Tennessee, on March 27, 2023. After killing six victims within the School, including three children, [the shooter] was shot and killed by responding Metro police officers. This led to requests from various people and organizations under the Tennessee Public Records Act (the "TPRA") for various records, including "the shooter's journals and personal writings." The trial court concluded this information was exempt from disclosure, but the Court of Appeals largely disagreed. The opinion is long (nearly 15,000 words), but here is an excerpt related to the "school safety" argument: [Under] the "school safety" or "school security" exception[,] … {[i]nformation, records, and plans that are related to school security, the district-wide school safety plans or the building-level school safety plans shall not be open to public inspection.} … The trial court concluded that dissemination of the shooter's original works creates a substantial likelihood of copycat school shootings and that preventing access to such material furthers the greater good of Tennessee schools and schools nationwide. By so concluding, the trial court rejected Petitioners' argument that academic study of a criminal's manifesto lends itself to prevention. Petitioners relied on the affidavit of Dr. Katherine Kuhlman, who opines that academic study of mass shooters' writings is an important aspect of early intervention for potential school shooters. The trial court adopted the Covenant Intervenors' policy position, which is that "the hateful words of the shooter in this particular case certainly may have an audience in the general public. And as a result, you do have individuals who could take the writings of the shooter and commit violence against the Covenant School or some other school." Respectfully, this argument is rooted in speculation about potential future events, not facts present in the record before us. This is a policy debate not contemplated by, or anywhere mentioned in, the TPRA. The trial court's interpretation of section 10-7-504(p) is, in essence, a policy exception to the TPRA barring any disclosure of a school shooter's writings and compilations. While the language of section 10-7-504(p) is broad, it is not the blanket policy exception created by the trial court. This interpretation ignores the legislative directive "to broadly construe the [TPRA] 'so as to give the fullest possible access to public records[,]'" and instead gives the exemption the broadest possible construction to limit public access to the documents. To the extent a school-shooter manifesto exception to the TPRA is warranted, that decision is more appropriately left to the General Assembly or our Supreme Court…. The court also rejected parents' claims under the Tennessee Victims Bill of Rights, holding that the text of those provisions show they apply just to "crime victims navigating a criminal case at various stages of a pending or contemplated criminal prosecution" rather than "TPRA requests [from] a third party." And the court rejected the claim that "Tennessee Rule of Criminal Procedure 16, which [limits] inspection and discovery of evidence in criminal prosecutions" bars disclosure, given that the investigation is closed and there can be no criminal prosecution because the shooter is dead, and apparently acted alone. The court concluded with guidance to the trial court: First, the trial court shall instruct Metro to release any responsive documents that were withheld solely based on Rule 16. Second, the trial court shall determine which of the shooter's writings and other works are exempt from disclosure under [the school safety exception], in accordance with this opinion. {Petitioners concede that they do not seek any information created by Covenant Church or Covenant School regarding its internal safety measures or plans. In addition, such information may be contained within the writings made by the shooter. Any such information should be redacted from responsive documents.} No record in Metro's file should be deemed exempt "simply because it contains some exempt information." "Rather, redaction of the exempt information is appropriate." ["T]he trial court has discretion to prescribe additional procedures as necessary to govern the proceedings on remand. The entire process should be concluded as expeditiously as possible. Because almost three years has passed since the first request for this information, we encourage the trial court to impose upon [Metro] an expedited schedule for completion of its review of the [requested public records].["] More on a separate part of the decision, dealing with copyright questions, in an upcoming post. Note that I was one of the signers of an academic brief related to that copyright issue. The post Tennessee Appeals Court Rejects Argument That Covenant Shooter Manifesto Must Remain Concealed to Avoid Copycats appeared first on Reason.com.

A judge blamed Trump for his decision to leave the bench, but it also terminated a misconduct inquiry.

2/5/1793: Chisholm v. Georgia argued.   The post Today in Supreme Court History: February 5, 1793 appeared first on Reason.com.

What’s on your mind?

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.