From the complaint in Piker v. Jennings; of course, this is just Piker's side of the story—I expect we'll get Jennings' in a forthcoming motion to dismiss:

On August 11, 2026, Scott Jennings falsely told a nationwide podcast audience that Hasan Piker was "out there calling for Black voters to be lynched." He falsely told his listeners that Mr. Piker had a "plan of returning our country to lynchings." And then he falsely told his social media followers that Mr. Piker "says the USA should resume lynchings against black people."

All of Mr. Jennings' accusations are false. Mr. Piker has never advocated the lynching of Black Americans, or anyone else. He has never called for a return to lynchings. And he has never proposed anything remotely resembling the supposed plan that Mr. Jennings falsely attributed to him.

Mr. Jennings did not merely mischaracterize something Mr. Piker said. He took a false, fabricated, and manipulated video of Mr. Piker, added a made-up quotation that Mr. Piker never uttered, and then made accusations that went beyond even what the manipulated footage purported to show. Mr. Jennings presented those accusations as fact, telling his viewers to "[l]isten for yourself" about Mr. Piker, knowing that he was playing a falsified video of Mr. Piker for those viewers, and completely disregarding the truth of Mr. Piker's actual words.

The underlying footage came from a broadcast nearly two years earlier on Twitch, an online streaming service owned by Amazon. On October 29, 2024, Mr. Piker was reacting to a debate between two Black political commentators, one liberal and one conservative. When the conservative commentator blamed "woke DAs" for policies supposedly harming Black Americans, Mr. Piker mocked him by sarcastically portraying that comment as nostalgia for an era before the civil rights movement. Laughing, Mr. Piker said:

He said, "We need more Klansmen, okay? Can we go back to a better time when lynchings were happening? This is what I like as a Black man. Also, there's no real racism in America." My man said, "woke DAs," dude. What are you saying?

Mr. Piker was plainly ridiculing the commentator's position. He was not endorsing it. The debate video remained visible behind him. Mr. Piker introduced the remarks with "He said," laughed as he delivered them, and concluded by questioning the commentator's argument. His viewers understood the sarcasm. Some laughed along. Others expressly described his comments as hyperbole. Still others predicted that someone would eventually remove the context and circulate the resulting footage as though Mr. Piker had been speaking sincerely.

That is precisely what happened. In August 2026, a 42-second video began circulating on social media that combined fragments of three separate Twitch broadcasts. The portions taken from Mr. Piker's October 2024 stream had been cropped, shortened, and rearranged. The underlying debate was removed from view. So was the contemporaneous audience commentary.

The words "He said," which identified the object of Mr. Piker's ridicule, were omitted. Mr. Piker's laughter and subsequent explanation were also removed. The resulting video portrayed sarcastic criticism of another as though it were an expression of Mr. Piker's own beliefs.

On August 11, 2026, Mr. Jennings broadcast that false video on The Scott Jennings Show, misrepresenting the manipulated video as authentic. But Mr. Jennings did not stop at repeating someone else's misleading edit. He added his own caption to the video, presented as a direct quotation from Mr. Piker:

PIKER: "LET'S GO BACK TO A BETTER TIME WHEN LYNCHINGS WERE HAPPENING" …

Mr. Piker never said those words. The original broadcast does not contain that statement. Neither does the manipulated video that Mr. Jennings chose to air. Mr. Jennings converted a sarcastic question, expressly attributed to and directed toward someone else, into a patently false first-person statement of Mr. Piker's own supposed beliefs, and then relayed that false statement to his viewers.

Mr. Jennings then went even further. After warning Black listeners to pay particular attention, Mr. Jennings accused Mr. Piker of "calling for Black voters to be lynched" and referred to "the Piker plan of returning our country to lynchings." Later that day, Mr. Jennings published the same false accusation on social media, telling his followers that Mr. Piker believed the United States "should resume lynchings against black people."

These were not expressions of disagreement with Mr. Piker's politics. Nor were they rhetorical characterizations of an admittedly controversial commentator. They were factual assertions about what Mr. Piker had said and advocated in his work. Each statement was demonstrably false.

The distinction matters. Mr. Jennings was free to criticize Mr. Piker, to condemn his political positions, or to argue that his commentary was offensive. Mr. Jennings was also free to play Mr. Piker's actual words, and provide his own commentary on what Mr. Piker actually said. Mr. Jennings was not free to do what he did: knowingly attribute to Mr. Piker statements that Mr. Piker never made, and then present those invented statements as evidence that Mr. Piker supports the racially motivated murder of Black Americans….

The post Hasan Piker Sues Scott Jennings appeared first on Reason Magazine.

From a long opinion yesterday by Judge Eumi Lee (N.D. Cal.) in Alibaba Group Holding Ltd. v. U.S. Dep't of Defense:

On February 13, 2026, the United States Department of Defense ("Department") publicly designated Alibaba Group Holding Limited as a "Chinese military company" ("CMC"). On June 30, 2026, 10 U.S.C. § 4663 went into effect, barring the Department from contracting with any company who retained the same lobbyist as a CMC. Alibaba asserts that Section 4663 has caused lobbyists to withdraw from representing Alibaba for fear of losing other clients.

The court issued a preliminary injunction, concluding § 4663 likely violates the Free Speech Clause and the Petition Clause:

Alibaba is an e-commerce and cloud-computing company that provides products, technology, infrastructure, and services to consumers and businesses for civilian and commercial use. Alibaba provides U.S. companies and businesses with a platform to sell their products to consumers in China. Additionally, it provides commercial cloud services to companies, including U.S. companies, operating in China and other countries. Alibaba has developed open-source AI models, including Qwen, with a focus on "commercial applications that make it more efficient and secure for businesses to sell goods to consumers in China." Alibaba is publicly listed on both the New York Stock Exchange and Hong Kong Stock Exchange.

"Prior to being designated [a CMC], Alibaba had retained over two dozen lobbyists and multiple lobbying firms to represent its interests before Congress and the Executive Branch" [including] … "… the Executive Office of the President, the Federal Communication Commission [("FCC")], the Federal Trade Commission, the Consumer Products Safety Commission, the Department of the Treasury, and [other entities]" …. "They presented Alibaba's views on legislation, rules, regulations, executive orders, and other government policies of commercial interest to the company. Specifically, they advocated regarding export expansion, small business export promotion, technology policy, access to U.S. capital markets, e-commerce-related issues, consumer-protection laws, and intellectual property." …

The Court finds that First Amendment scrutiny applies because Section 4663 regulates speech. By restricting Alibaba's ability to retain lobbyists, Section 4663 functionally restricts its political speech. "Discussion of public issues" is "pure speech" that is at "the core of the protection afforded by the First Amendment[.]" The First Amendment also protects "[t]he right to petition," that is, "the right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws[.]"Lobbying government officials is therefore an activity fully protected by the First Amendment. FTC v. Super. Ct. Trial Laws. Ass'n (1990) ("It is, of course, clear that the association's efforts to … lobby District officials to enact favorable legislation … were activities that were fully protected by the First Amendment.")….

Here, Section 4663 appears to be directed at defense contractors, but its consequences are on Alibaba's speech. "[A] government official cannot do indirectly what she is barred from doing directly" by "coerc[ing] a private party to punish or suppress disfavored speech on her behalf." NRA v. Vullo (2024)…. Section 4663's impact falls on the relationship between Alibaba and the third parties crucial to its speech rights. Thus, the Court finds that Section 4663 burdens Alibaba's speech….

Defendants observe that Alibaba is not completely banned from appearing before the federal government—it could hire more in-house lobbyists or find a firm that is willing to forgo defense contractor clients…. [But] Alibaba is unlikely to find a lobbyist willing to forgo any clients who might want to contract with the Department. {The statute applies to defense contractors who contract with "entities"—in other words, lobbying firms—who also contract with CMCs. Defense contractors would not risk their ability to enter into a contract with the federal government when there are plenty of capable lobbying firms available. The lobbying firm then must choose. One or more of its lobbyists can choose to represent Alibaba, but then the entire lobbying firm must forgo representing defense contractors. The only rational choice for a lobbying firm is to stop representing Alibaba.}

[Alibaba also] represents that it cannot hire the number of experienced in-house lobbyists needed to address the federal government for all its interests…. The reduction to Alibaba's speech is sufficient to demonstrate a colorable First Amendment claim….

The court then concluded that the law was subject to strict scrutiny:

"Content-based regulations are subject to the most exacting scrutiny because 'the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" In examining a statute, courts must also examine "restrictions distinguishing among different speakers, allowing speech by some but not others." "Speech restrictions based on the identity of the speaker are all too often simply a means to control content." Thus, identity-based regulations may "demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)." …

{Section 4663 is not a content-based restriction…. Section 4663 operates based solely on whether a CMC is involved. What the CMC (or non-CMC) plans to say does not affect whether Section 4663 applies.} [But] Section 4663 is a speaker-based restriction on speech—it is only applicable if a CMC seeks to retain a lobbyist. As a speaker-based restriction on political speech, Section 4663 is subject to strict scrutiny.

Defendants assert that Section 4663 should be considered under intermediate scrutiny, because Alibaba's "differential treatment" is justified by its "special characteristic[ ]," namely the potential involvement of a foreign adversary. Defendants again rely on TikTok, where the Supreme Court applied intermediate scrutiny despite finding that the divestiture statute was a speaker-based restriction, because the differential treatment was due to a content-neutral reason, namely TikTok's susceptibility to foreign control.

While Section 4663 also involves a foreign adversary, TikTok is distinguishable because political speech was not at issue. Id. ("emphasiz[ing] the inherent narrowness" of its holding and observing that "[a] law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations"). Here, Defendants provide no authority to suggest that differential treatment with respect to political speech may be considered under intermediate scrutiny. Citizens United v. FEC (2010) states the opposite: "Laws that burden political speech are 'subject to strict scrutiny,'" and "the First Amendment generally prohibits the suppression of political speech based on the speaker's identity." The Court thus applies strict scrutiny in determining whether Section 4663 violates the First Amendment.

{The Court recognizes that this is a close question. But for the context of political speech—specifically the ability and right to petition the government—Defendants' argument that intermediate scrutiny should apply would likely prevail, because Section 4663 is otherwise a content-neutral statute. As in TikTok, Section 4663 singles out a particular group of speakers, but not because of the content of their speech. Instead, the treatment is based on a particular characteristic of the speaker, i.e., their status as a CMC.} …

And the court held that the law failed strict scrutiny, because it was not narrowly tailored to the government interests in "(1) … prevent[ing] CMCs 'from accessing sensitive military information through their relationships with lobbyists,' and (2) … ensur[ing] that CMCs 'cannot subtly influence any of [the Department's] decisions related to national security by influencing a lobbyist'":

[T]he government cannot impose a restriction on speech based solely on "mere conjecture." Rather, it must "point to record evidence or legislative findings demonstrating the need to address a special problem."

Here, Defendants fail to meet their burden. Defendants provide only one exhibit in support of their opposition: the joint explanatory statement submitted as part of the legislative record for the Act. The statement provides an overview of Section 4663 and then "direct[s] the Comptroller General of the United States to submit a report to the congressional defense committees, not later than one year after the enactment of this Act, on the national security risks posed by consulting firms who simultaneously contract with the Department of Defense and the Chinese government or its proxies or affiliates."

Of note, the Comptroller General is directed to study consulting firms, not lobbyists. The statement does not express any findings by the Comptroller General or Congress about the risks posed by lobbyists retained by CMCs. At the preliminary injunction hearing, Defendants were unable to confirm whether a report by the Comptroller General had been submitted to Congress by December 23, 2025, one year after the Act's enactment; nor did Defendants provide a copy of the report. Other than the statement, Defendants do not provide any evidence of the national security risks or other compelling government interests….

[Moreover, d]efendants do not offer any evidence demonstrating that alternative [and less speech-restrictive] means were contemplated, much less rejected for being insufficient…. Meanwhile, Alibaba submits evidence that less alternative restrictions may exist. With respect to CMCs, Nebraska has required lobbyists representing entities on the 1260H List to file an acknowledgment that they are representing a foreign adversary. The Supreme Court "has upheld registration and disclosure requirements on lobbyists" as a "less restrictive alternative to more comprehensive regulations of speech." Defendants present no reason why a disclosure requirement, like Nebraska's, would be inadequate for the federal government.

Instead, Defendants summarily conclude that Alibaba's proposed disclosure requirement would not suffice because "there would still be access and the potential for influence." This speculation is insufficient to support a restriction on the First Amendment….

Carter G. Phillips, Christopher A. Eiswerth, Jennifer J. Clark, and Sheila Anil Gogate Armbrust (Sidley Austin LLP) represent Alibaba.

The post Alibaba and the Forty Lobbyists, and the First Amendment appeared first on Reason Magazine.

From Magistrate Judge Enjolique A. Lett (S.D. Fla.):

[1.] Defendant served its Notice of Subpoena Duces Tecum to non-party Mar-a-Lago Club, LLC ("MAL") seeking two discrete categories of documentation: (1) documents sufficient to identify the total number of applications for MAL membership from January 6, 2020, through January 6, 2026, and (2) documents sufficient to identify the total cost of membership and initiation fees for a new MAL applicant from January 6, 2020, through January 6, 2026. Defendant contends it needs this information for discovery purposes to generally contest Plaintiff's allegation of damages of "not less than $10,000,000,000."

The scope of discovery is broad, allowing each party to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case…." Notably here, non-party MAL has neither moved to quash the subpoena nor raised any burdensome objections. In fact, the only issue before the Court is Plaintiff's contention that the subpoena seeks discovery outside the permissible scope of the amended pleadings.

The Court disagrees. The Amended Complaint alleges Defendant's defamatory actions "injured President Trump in his profession, occupation, and trade," "damaged President Trump in his occupation," and "damaged his professional reputation." As Chief Executive of the United States, it is publicly known that President Trump often carries out his presidential duties in MAL. See, e.g. President Donald Trump meets with Ukrainian President Volodymyr Zelensky at Mar-a-Lago.

Moreover, the scope of discovery is broader than the scope of admissibility. See Fed. R. Civ. P. 26(b)(1) ("[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable"). Plaintiff's argument that President Trump is not synonymous with and does not affect the financial success or failure of MAL may be well taken as it relates to the admissibility of the sought-after evidence, but at this stage in the proceedings, given MAL's relationship with the profession and professional persona of President Trump, Defendant's subpoena is a permissible basis of inquiry.

[2.] There can be no dispute that all parties, even some non-parties, must participate in the discovery process. This is especially true of a plaintiff who initiates the lawsuit and seeks affirmative relief.

Unsurprisingly therefore, Plaintiff does not dispute that he must sit for a deposition; the only point of contention is the timing of said deposition. Despite scheduling the deposition for October 16, 2026, President Trump unilaterally cancelled the deposition and did not offer alternative dates within the discovery period notwithstanding the quickly approaching December 18, 2026, discovery deadline. In light of this, the time for the deposition to occur is now….

President Trump shall sit for his deposition on or before December 11, 2026. Failure to do so may result in sanctions, including dismissal of the lawsuit. It is the Court's understanding that another extension of the discovery deadline may be sought. In the event Judge Kuntz grants such a request, the parties may agree to a mutually convenient date to conduct President Trump's deposition within the extended discovery period.

Charles David Tobin, Maxwell S. Mishkin, Maya Devi Gandhi, Richard W. Miller, Sasha (Alexandra) Dudding, and Yanni Chen (Ballard Spahr LLP) represent the BBC.

The post Two Brief Discovery-Related Orders in <i>Trump v. BBC</i> appeared first on Reason Magazine.

Do you have a right to privacy on public roads? Hoover fellow and Stanford legal scholar Orin Kerr joins me in this episode to discuss Flock cameras, the networked license plate readers fueling debate over police surveillance. We discuss how the Fourth Amendment applies to tracking people's movements; whether police should need a warrant to search camera databases; how to balance investigative benefits with the potential for abuse; and what we still don't know about these tools' effectiveness in protecting public safety.

Jane Bambauer, my regular cohost, couldn't join us this episode, but will be back as usual in the next one. And also check out our past episodes:

Also check out our past episodes:

• Can the President Kick Reporters out of the White House?
• Spoiler Alert: Can You Get Sued For Revealing A Plot Point?
• The Process Is The Punishment: ABC v. FCC with Stuart Benjamin
• Can AI Libel You? The Robby Starbuck Case
• Shrexting: Free Speech or Criminal Harassment?
• The First Amendment and Privacy Rights
• 'Defamacast' and More: How American Defamation Law Works
• Speech, Not "Conduct": Supreme Court Rules on Conversion Talk Therapy
• Equal Time, Stephen Colbert, and the Future of Political Broadcasting
• Student Speech, Threats, and the First Amendment
• Can Journalists Be Charged for Involvement in Protests? The Don Lemon Dilemma
• 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: Flock Cameras and the Fourth Amendment, with Orin Kerr appeared first on Reason Magazine.

From today's opinion in Jackson v. Thomson Reuters Am. Corp., by Fourth Circuit Judge Paul Niemeyer, joined by Judges Steven Agee and Pamela Harris; the law covers :

West Virginia's Daniel's Law …, which is designed "to enhance the safety and security" of judicial and law enforcement officials, prohibits the disclosure by any person or entity of the home addresses or unpublished telephone numbers of … {"any active, formerly active, or retired judicial officer, prosecutor, … public defender, … or law-enforcement officer"} if a reasonable person would believe that such a disclosure would create a risk of harassment or harm. The law authorizes protected persons to bring a civil action for damages….

As distinct from the Daniel's Laws in other States, … West Virginia's version does not require that the Covered Person, upon discovering an improper disclosure, notify the person or entity that disseminated the information and request that the person or entity delete the information before liability arises. In addition, for liability to arise under West Virginia's version, the person or entity need not know that they have disclosed a Covered Person's information. The only limiting principle of § 5A-8-24(e) liability is that the information must have been disclosed "under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …

For generations now, home addresses and telephone numbers have been disseminated to the public, initially through Whitepages and Yellow Pages and now through "people search" services on the Internet. The public has thus long had the facility to look up the name of a person and obtain that person's address and telephone number. Sharing that information has been the gateway to communication and the exchange of ideas or messages that have long been protected by the First Amendment. In the digital age, such information may now be shared with greater efficiency, but the tradition continues with the understanding that it is protected speech.

In a similar vein, it has long been custom and practice to record for public examination the names and addresses of persons buying, selling, and financing real property. And it has been the tradition to share publicly information about taxes, appraisals, liens, and voting.

To be sure, while the dissemination of such information is protected speech necessary to the exchange of ideas, it can also contribute to abuse and the pursuit of harmful and, indeed, malicious ends, as exemplified by the murder of Daniel Anderl. To address such abuse, governments have enacted laws like Daniel's Law in an effort to restrict the dissemination of home addresses and unpublished telephone numbers of specified public officials who serve in roles important to society. And the parties here agree that those governments have a compelling interest in enhancing the safety and security of such officials. The task, therefore, is to draw an appropriate line between protecting the dissemination of such information while, at the same time, excepting from dissemination the same information when it creates a potential for harm of specified public officials.

Because of the high value that our Constitution and longstanding practices place on the free dissemination of information and the exercise of free speech, we draw the line with the greatest caution, requiring that governments regulate speech about the home addresses and telephone numbers of designated public officials in a manner that is the least restrictive of speech.

In this case, West Virginia was fully justified in attempting to regulate such speech in light of the compelling government interest in enhancing the safety and security of certain public officials, but its efforts reached more broadly then necessary to accomplish the task; it did not employ the least restrictive means of doing so. For that reason and only that reason, we agree with the district court that West Virginia could have regulated more narrowly to accomplish its purpose and thereby be less restrictive of what is otherwise protected speech. Thus, we agree that the provision of West Virginia's Daniel's Law at issue here … violates the First and Fourteenth Amendments.

The court concluded that the law is a speech restriction, not just a restriction on "data":

[Jackson argues] that speech must be communicative such that it "convey a particularized message" with "the likelihood … that the message would be understood by those who" received it. Since Daniel's Law regulates disclosures of "pure facts" that lack a particularized message, he argues, the law is not subject to any First Amendment analysis….

[But] the Supreme Court has clearly held that the scope of "speech" regulated by the First Amendment is broader and includes data, reasoning that facts are "the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs." Sorrell v. IMS Health Inc (2011). Indeed, the Court has noted more specifically that statutes like West Virginia's Daniel's Law, which address only the disclosure of information, involve the regulation of speech protected by the First Amendment, observing, "If the acts of 'disclosing' and 'publishing' information do not constitute speech, it is hard to imagine what does fall within that category …." Bartnicki v. Vopper (2001).

The court then concluded that the law was content-based:

West Virginia's Daniel's Law …, on its face, distinguish[es] between different disclosures based on communicative content alone. It restricts disclosure of certain kinds of information (home addresses and unlisted telephone numbers), and it does so for certain individuals (judicial and law enforcement officers and their families)….

This means, for example, that a disclosure that a grocery store clerk lives at 100 Main Street is permitted, while a disclosure that a police officer lives at 100 Main Street is prohibited. The only difference between the two disclosures is the communicative content, or what the disclosures mean. In the hypothetical, the latter disclosure is prohibited because it identifies 100 Main Street as being the home address of the police officer, while the earlier disclosure is permitted because it identifies 100 Main Street as belonging to the grocery store clerk.

The court held that the law wasn't limited to "commercial speech" (which generally refers to commercial advertising), a category of speech that is entitled to lower protection:

While a speaker's economic motivation for speech may be a relevant factor in determining whether speech is commercial, economic motivation alone is insufficient to justify a categorization of that speech as commercial. Furthermore, because, even under Jackson's argument, only some of the regulated speech would be commercial, that fact does not render the law subject to the intermediate scrutiny of commercial speech. When a statute "applies with equal force to both commercial and noncommercial messages" with "no exception for noncommercial speech," the fact that some of the regulated speech is commercial does not justify an application of intermediate scrutiny….

And the court held that the law, as a content-based speech restriction, had to pass strict scrutiny, which is to say that (among other things) it had to be the "least restrictive means" of serving a "compelling government interest"; and the court held that the law failed such scrutiny:

[T]he parties agree, as do we, that the law's purpose of enhancing the safety of judicial and law enforcement officials is a compelling government interest …. [But] West Virginia's Daniel's Law does not employ the least restrictive means of serving the law's purpose.

Section 5A-8-24(e) imposes liability on a data broker immediately upon its disclosure of addresses and telephone numbers, regardless of whether the data broker had knowledge that the information related to Covered Persons. Whenever an entity such as a data broker collects names and addresses of all persons in a particular town using public land records and then publishes that information in some form of a directory, it undoubtedly violates the law because that directory includes, albeit unknowingly, information about, for instance, a police officer or public defender…. When a restriction on speech creates liability without a knowledge requirement, speakers are understandably incentivized to engage in self-censorship to avoid inadvertently incurring liability. See Counterman v. Colorado (2023) (noting that "prohibitions on speech have the potential to chill, or deter, speech outside their boundaries")….

Jackson argues, however, that the law is much more limited because it imposes liability only if "a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property."

That provision, however, is hardly limiting, … because every disclosure of a person's name and address on the Internet exposes that person to harassment or a risk of harm…. [Indeed, in his complaints, Jackson] alleged that the mere disclosure of home addresses and unpublished telephone numbers "exposed [him] and his peers to harassment and/or risk of harm to life or property." And to support that unremarkable proposition, he quoted the FTC's report on "Data Brokers," which highlights the "potential risks to consumers from data brokers' collection and use of consumer data," including the fact that "people search products can be used to facilitate harassment, or even stalking, and may expose domestic violence victims, law enforcement officers, prosecutors, public officials, or other individuals to retaliation or other harm." Indeed, Jackson added that the FTC's report explains why the defendants' disclosures are "so dangerous." Thus, the argued "limitation" in § 5A-8-24(e) is actually not limiting but universal, as it is inevitable that every disclosure of personal information on the Internet poses an additional risk of harassment or harm to the person whose information is disclosed.

Additionally, States other than West Virginia that have enacted Daniel's Laws have uniformly required that, before liability attaches to a disclosure of home addresses and unpublished telephone numbers, Covered Persons give notice of their request that the data broker (or any other disclosing party) remove the information. Only on the failure to comply does liability attach. But West Virginia's Daniel's Law alone does not require notification as a precondition of liability. Thus, this aspect of the law fails to provide the least restrictive means of furthering the law's compelling interest.

While we hasten to note that requiring notice prior to imposing liability is one method for narrowing the law, it is not the only way. But it is the way that Congress and virtually every other State has chosen to narrow their laws and render them less speech-restrictive.

At bottom, we agree with the district court's conclusion:

[D]ue to its lack of a notice requirement, [§ 5A-8-24(e)] of West Virginia's Daniel's Law is far more restrictive then its comparators [in other States] and is definitively not the least restrictive means of achieving its compelling interest. Section [5A-8-24(e)] of West Virginia's Daniel's Law therefore fails strict scrutiny even as other more narrowly tailored federal and state statutes aiming at the same compelling interest pass constitutional muster….

The paragraph endorsing the district court's conclusion strongly suggests that the panel endorsed laws limited to situations where a covered person first demands that covered material be removed. But it's not clear whether the panel would endorse broad versions of such laws, which apply even when the address or phone number is relevant to a matter of public concern (see Kratovil v. City of New Brunswick (N.J. 2025), which upheld such a broad law), or whether it would insist that there be an exception for such public-concern situations (as there is in the federal version of Daniel's Law).

Samir I. Deger-Sen (Latham & Watkins LLP) argued on behalf of the defendants.

The post W. Va. Law Restricting Disclosing Home Addresses and Phone Numbers of Judges and Police Struck Down, but … appeared first on Reason Magazine.

The Supreme Court is asked to review several thousand cases each year. It agrees to review fewer than 1% of them. It takes four votes of the nine to decide to review a case. (The grant of review is generally called a "grant of certiorari" or just a "cert. grant.")

Sometimes Justices write opinions dissenting from a denial of cert., arguing that the Court should have taken the case. And sometimes they write opinions respecting the denial of cert., explaining why it made sense to deny review in this case but noting that the Court ought to consider the question in future cases.

Such opinions are often solo opinions, and are sometimes signed by two or three Justices from the liberal or conservative wings of the Court. But it turns out that Justices Sotomayor and Gorsuch have also jointly filed nine such opinions, eight just for themselves and one for themselves plus Justice Kagan. All of them, it seems to me, at least suggest that the Court ought to move the law in a somewhat more government-restrictive direction (loosely speaking); most of them specifically point to somewhat broader constitutional rights protections. Prompted by two such opinions earlier this month, I thought I'd note the cases and the issues they involved.

1. O'Donnell v. City of Chicago, Illinois (Oct. 19, 2026): "whether, and under what circumstances, exercises of the State's police power are immune to takings claims," specifically as to uncompensated forfeiture of vehicles for drivers' "fail[ure] to pay" parking tickets.
2. Herrera-Salazar v. United States (Oct. 13, 2026): whether a defendant's being punished under criminal immigration statutes "for being found in the United States a second time," when a supervised release condition barred him from "leav[ing] the Eastern District of Oklahoma" was proper as a matter of substantive federal criminal law, and whether it violated the Double Jeopardy Clause.
3. Gonzalez v. United States (2025): "whether and to what extent the Fourth Amendment" forbids warrantless arrests for misdemeanors that took place outside the presence of the arresting officer.
4. Baker v. City of McKinney (2024): "whether the Takings Clause requires compensation when the government damages private property pursuant to its police power" in a stand-off with a fugitive.
5. ACLU v. U.S. (2021): whether there is a "right of public access" (even if limited) to opinions of the Foreign Intelligence Surveillance Court.
6. Longoria v. U.S. (2021): whether and when the government may decline to ask the court for a sentencing reduction under a guideline encouraging defendants to timely notify prosecutors of their intent to plead guilty.
7. Bovat v. Vermont (2020): whether game wardens' "initial visit and search" of Bovat's property (which involved "linger[ing]" for fifteen minutes and "peering" through a garage window to spot evidence) violated the Fourth Amendment (Justice Kagan also joined the opinion).
8. Hester v. U.S. (2019): whether "a jury [must] find all the facts needed to justify a restitution order" under the Sixth Amendment.
9. Stuart v. Alabama (2018): whether the government violated the Sixth Amendment by "deny[ing] Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction" (a blood-alcohol test on which another witness relied).

Thanks to my research assistant, Robert Muñiz, for preparing the list.

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From E.B. v. J.R., decided Aug. 20 by Massachusetts Appeals Court Justices Sabita Singh, Rachel Hershfang, and Chauncey Wood:

The defendant appeals from harassment prevention orders issued pursuant to G. L. c. 258E (258E orders), by a judge of the District Court, requiring the defendant, among other things, to stay away from a city zoo where she had regularly protested the treatment of animals in its care. The plaintiff, a veterinarian who worked at the zoo, sought and obtained an ex parte 258E order against the defendant, which was later extended following a hearing after notice….

When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[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 [did] in fact cause fear, intimidation, abuse or damage to property.'" …

Where the harassing acts consist of speech, each act must be the type of speech that is not protected by the First Amendment to the United States Constitution, i.e., generally either "true threats" or "fighting words." True threats include "direct threats of imminent physical harm" and "words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Fighting words are limited to personal insults that are inherently likely to incite a violent reaction….

The plaintiff's affidavit described the following four alleged incidents of harassment.

First, in July 2024, while the plaintiff was working at the zoo, the defendant began "yelling and screaming" at the plaintiff that she "should lose [her] job and right to be a veterinarian[,] … that [she] was abusing [her] power[,] and that [she was] abusing and killing the animals."

Second, in September 2024, while the plaintiff was working at the zoo, the defendant began "telling other [zoo] visitors falsehoods about the elephants being beaten." The plaintiff told the visitors that the allegations were not true, but the defendant "immediately yelled at [her] over [her] explanation to the visitors and got within inches of [her] face to continue yelling" at her. About forty-five minutes later, the defendant reapproached the plaintiff and got "in [her] face yelling at [her] about how [she was] a bad veterinarian and [her] cruelty towards animals." The plaintiff alleged that she "felt like [the defendant] was trying to intimidate [her] to quit [her] job." The defendant was "in [her] face videotaping" the plaintiff, so the plaintiff called 911. While the plaintiff was on the phone, the defendant "chased after [the plaintiff]."

Third, also in September 2024, the defendant "formally fil[ed] a written complaint to the [veterinary licensing] Board" that "was all lies and falsehoods."

Fourth, in November 2024, a television news crew was at the zoo reporting on the elephants when the defendant disrupted an interview and began to "yell and scream at [the plaintiff] that [she was] not a licensed veterinarian and that she [did] not have a license to practice in [Massachusetts], and that [she was] abusing and murdering elephants." The defendant also "threaten[ed] [the plaintiff's] career."

Of the four incidents alleged, only the second arguably constituted harassing conduct—getting within inches of the plaintiff's face while yelling and chasing after the plaintiff. The remaining alleged conduct constituted protected speech, not rising to the level of fighting words or true threats…. [T]hreats containing ideas or advocacy causing fear of economic loss or unfavorable publicity are not "true threats" …. As a result, the judge erred in finding that the incidents described by the plaintiff amounted to three requisite acts of harassment pursuant to G. L. c. 258E….

The court also concluded the court violated plaintiff's due process rights:

[At the motion hearing, t]he plaintiff's attorney recited the procedural background and the judge began to review the plaintiff's affidavit. The plaintiff's lawyer then started to relate that the defendant had been charged with violating the ex parte order, when the defendant stated, "I object to that, Your Honor." The judge admonished the defendant, "No, no. First of all, … you're going to understand what the rules are; okay? … The rules are, you're not to interrupt at any time." The judge then explained, "You don't, in a civil case, have the opportunity to say you object…. It doesn't work that way…. That's in a criminal case."

The judge then turned to the plaintiff and asked her about the Federal trial in which the plaintiff had testified the previous year. [This appears to me to be Rowley v. City of New Bedford (D. Mass. 2024). -EV] The plaintiff explained that the defendant had filed a lawsuit against the city for violation of the Endangered Species Act and that the suit was resolved in favor of the city. The plaintiff's counsel offered to provide the judge with a copy of the decision.

When the judge asked whether the defendant had a copy, the defendant replied, "Yes, ma'am, I do. Yes, Your Honor," and added, "I object to it being relevant." The judge responded, "What did I say about objections?" and "I decide whether something is relevant[,] right?" The defendant then stated that she disagreed that the Federal court decision was relevant to the plaintiff's request for a 258E order. The judge replied, "You can disagree all you want, but—and you can voice that, I don't want you [to] think you can't voice it…. But you can't say you object."

The judge then said that she had reviewed the defendant's motion to vacate and asked why she should not extend the 258E order. Just as the defendant began to explain that the plaintiff's claims did not meet the legal standard, the judge cut off the defendant and asked a series of questions, pointedly asking why the plaintiff would accuse the defendant if the allegations were not true. When the defendant attempted to explain the context and her theory that it was in retaliation for the Federal lawsuit, the judge again cut off the defendant, telling her to "[s]top talking," and that she (the judge) did not need to know about the elephants at the zoo or the plaintiff's background as a veterinarian.

The judge then invited the plaintiff's counsel to cross-examine the defendant. The cross-examination centered around the Federal lawsuit (concerning the elephants) and the plaintiff's status and licensure as a veterinarian. The plaintiff's counsel then presented the testimony of the plaintiff, who affirmed the truth of her affidavit. The plaintiff expressed how the "entire situation [was] causing [her] immense stress."

At the conclusion of counsel's direct examination, the judge asked the plaintiff, "[Y]ou are concerned for your safety because of the actions of [the defendant] physically, verbally, and on social media; is that right? … And there have been several instances where she has intimidated you; is that right?" After the plaintiff answered in the affirmative, the judge stated, "I have no doubts that you're a competent veterinarian or [the zoo] wouldn't have hired you," and "don't you for one minute second guess your training. Nobody in this room is a veterinarian and knows anything about what you do, okay? … You got your degree. You worked hard for it. Move on with that." …

[T]he judge appeared to shift the burdens by accepting the plaintiff's affidavit and then challenging the defendant to disprove the allegations contained within it. The defendant had no burden to testify or present evidence. Furthermore, due process required that she be heard on her legal argument that the plaintiff's claims did not meet the elements for a 258E order.

Instead, the defendant was repeatedly shut down when attempting to make her valid legal points, incorrectly told that she had no right to make objections, and subjected to questioning pointedly challenging her veracity while assuming the veracity of the plaintiff. Then, the plaintiff's counsel was invited to cross-examine the defendant. The plaintiff, who had the burden, testified after the defendant and was not cross-examined at all. The record reflects that the defendant did not have a meaningful opportunity to be heard. Collectively, these irregularities raise troubling due process concerns….

For more on such unconstitutional speech-based injunctions in harassment cases, see this article.

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From Judge Virginia Kendall (N.D. Ill.) in U.S. v. Holmes:

After the Government filed a Criminal Complaint against Holmes on March 13, 2026 , a grand jury returned an Indictment charging Holmes with violating 18 U.S.C. § 875(c) on April 7, 2026. The Indictment alleges that Holmes operated the X account "@MapleStCapital" that displayed an American flag emoji with the statement "END The Fed." The Indictment alleges that Holmes posted on that account several statements against the Jewish community and Israel, including: "The jew will be destroyed and discarded," "From the river to the sea every Jew will die," "You inbred people will all die," and "Die Jew."

On or about March 3, the State of Israel posted a video [on the account "@Israel"] that showed a billboard with the face of Ali Khamenei along with the statement: "The world is a better place without Khamenei." In that post, the State of Israel wrote: "It's a first step towards a better world." Holmes responded to this post from the State of Israel with the following message: "I'm going to shoot up a synagogue." It is that statement that the Government alleges violated 18 U.S.C. § 875(c)….

The Indictment alleges that:

TIMOTHY HOLMES, defendant herein, knowingly transmitted in interstate commerce a communication containing a threat to injure the person of another, namely, a post on X in which he wrote, in response to a post from "@Israel", "I'm going to shoot up a synagogue", and defendant transmitted the communication for the purpose of making a threat, knowing that the communication would be viewed as a threat, and recklessly disregarding a substantial risk that others would regard the communication as a threat….

Holmes asserts that his statement "I'm going to shoot up a synagogue" is not a true threat because it lacks sufficient specificity. Holmes maintains that his post was but a "generalized, albeit offensive, statement directed at an institution or building" that fails to rise to the level of a true threat because "[i]t does not identify a particular individual or group of individuals" and it also does not "specify a location, a time, or any target beyond the generic category of 'a synagogue.'"

This position is not "an argument about the validity of the indictment in light of the First Amendment, but is instead a dispute over the meaning and inferences that can be drawn from the facts." This Court has rejected these types of arguments for over a decade because these issues are improper to decide on a motion to dismiss. Because Holmes' arguments go to the substantive merits of the Government's case—and not to whether the Indictment is sufficient—the Court rejects them.

Holmes' contention that his post is protected political hyperbole fails for the same reasons. Invoking Watts v. United States (1969), Holmes claims that his posts "were responsive to foreign policy events and government statements." The Court understands Holmes' position to be that the First Amendment protects his post as political speech, and thus the Court must dismiss the Indictment because the post does not violate 18 U.S.C. § 875(c). For starters, this position, like many others Holmes raises, tangles and conflates multiple procedural and substantive issues into one incomprehensible ball.

To the extent Holmes' position is that, as facially alleged, the Indictment, even if accepted as true, cannot, as a matter of law, satisfy § 875(c), this argument fails. The Court cannot accept such a premise.

This is not a scenario where the Court could comfortably accept the Government's allegations as true and find that it failed to satisfy Rule 7(c)(1). Holmes is not alleged to have posted some mundane political position such as "Taxes are too high!" Nor did he post an offensive, but generally understandably non-threatening statement such as, "Slow drivers should go to hell!"

He posted: "I'm going to shoot up a synagogue" in response to a post from the State of Israel after posting statements such as: "Die Jew," "You inbred people will all die," "The jew will be destroyed and discarded," and "From the river to the sea every Jew will die." Holmes is free to explain to a jury that his post was mere political commentary; but at this stage of the proceedings, the Court finds that the Government has sufficiently alleged that this statement is a "serious expression[ ] conveying that a speaker means to commit an act of unlawful violence." …

Holmes changes direction by raising three arguments that challenge the Government's position from a statutory standpoint. He first claims that the Indictment must fail because his post "I'm going to shoot up a synagogue" does not satisfy 18 U.S.C. § 875(c) because it "refers to a building or institution, not to 'the person of another,'" "does not identify any individual or individuals," and "does not threaten bodily harm to any specific person." In substance, these arguments challenge whether Holmes' statement is a true threat and are again rejected for the reasons above. Holmes' next position—that the Government failed to allege sufficient mens rea—is duplicative and rejected for the reasons above….

In his fourth and final argument, Holmes presents two constitutional challenges. Holmes begins by claiming that the Government's prosecution of him is an impermissible content-based restriction on political speech. The exact direction of Holmes' argument is ill-defined, but the general thrust is that the Government violated 34 U.S.C. § 30506 and the Constitution. To be sure § 30506(4) states that "[n]othing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs[.]" This language, however, must be read with its purpose: to establish interpretive safeguards for the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and its amendments.

Holmes offers no authority that the Government's prosecution of someone under 18 U.S.C. § 875(c) for threatening to shoot up a synagogue runs afoul of 18 U.S.C. § 249 or 34 U.S.C. § 30506. Indeed, § 30506 expressly confines its applicability to "this division" of the code which referred to Division E of the National Defense Authorization Act for Fiscal Year 2010, which is where the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249, was enacted. Simply put, 18 U.S.C. § 875(c) is not part of the equation.

At any rate, the face of the Indictment lends no support for Holmes' position: the Government charged Holmes under § 875(c) for making a threat in interstate commerce; no reasonable inference can be drawn that the Indictment seeks to suppress political speech. Holmes is again free to present his legal theories to the jury, including his position that posts concerning killing jews is protected political speech.

Holmes' final argument is that the Indictment violates the Due Process Clause because "[a]pplying § 875(c) to prosecute the posting of publicly available information and ambiguous statements about travel—where the defendant's actual conduct was entirely lawful and disclosed to law enforcement—creates intolerable ambiguity." This position fundamentally misunderstands the Indictment and again disregards what the grand jury has charged Holmes with. Holmes is not charged with violating § 875(c) for posting things about travel or going to Florida. The grand jury charged him with violating § 875(c) because he replied to a post from the State of Isreal by stating: "I'm going to shoot up a synagogue." The Court already explained that Holmes is free to challenge any evidence concerning traveling to Florida should the Government seek to rely on it.

For cases allowing threats prosecutions over similarly general threats to kill Jews, "Zionists," "MAGA," "blacks," and "Christian[s]," see General Threats to Kill Jews and "Zionists" Can Be Punished and "See MAGA, Shoot MAGA" in TikTok Video Was Criminally Punishable Threat.

Assistant U.S. Attorney Quinn Ford represents the government.

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Damien Charlotin, who runs the invaluable AI Hallucination Cases site (2200+ cases worldwide and counting) has a new one, AI Deepfakes in Court, listing 26 cases worldwide so far. His summary:

This database tracks decisions dealing with deepfakes submitted as evidence, averred or alleged, including texts and documents such as forms, records and correspondence. A failure to authenticate an exhibit is recorded separately from any finding that it was AI-generated.

It does not track cases about deepfakes as a subject: the focus is on cases started on any ground, where parties (allegedly or verily) submitted deepfakes as evidence to bolster their claims. This is distinct from using AI to fabricate citations, which is covered by the AI Hallucination Cases database, or using AI as evidence (e.g., to offer a translation or a common sense opinion), which is covered by the AI Evidence Cases database.

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From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:

Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:

1. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.
2. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.
3. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.
4. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.
5. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.
6. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.

In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:

7. All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….

Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap [on punitive damages] applies….

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….

The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….

According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.

Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.

Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….

The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.

Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….

Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….

But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):

Starting with Request No. 2 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to "this litigation." That formulation is exceptionally broad. It encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant's alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial….

Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation. Such communications may include Defendant's attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff's damages. Although Plaintiff contends that Defendant's reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.

Finally, Request No. 6 in the subpoenas and the Seventh RFP seeks all AI communications concerning or relating to District Judge K. Michael Moore or the undersigned Magistrate Judge. The Court likewise finds that Defendant's private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel. The discovery inquiry is not whether Defendant has criticized the judiciary; it is whether the requested information is relevant and proportional to the damages issues remaining in this action. A request encompassing every AI communication about the judges presiding over this litigation exceeds that scope. The Court thus finds that Request No. 6 exceeds the permissible scope of damages discovery.

The Court recognizes Plaintiff's argument that Defendant's criticism of the judicial process may demonstrate the persistence of his alleged hostility. But the Supreme Court has cautioned against using dissimilar conduct as a basis for punishing a defendant for being an objectionable person rather than for the conduct that injured the plaintiff….

And the court rejected the argument that the communications were categorically "protected work product":

Federal Rule of Civil Procedure 26(b)(3)(A) generally protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." The doctrine is designed to protect the adversarial process by preserving the privacy necessary for litigation preparation….

The Eleventh Circuit's interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation….

When determining whether a document is protected under the work-product doctrine, "litigation need not necessarily be imminent … as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation." The document must have been "created principally or exclusively to assist in anticipated or ongoing litigation." "Just because a document may have been used later to assist in litigation … does not mean it was principally prepared for such purpose." …

Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff's counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant's independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant's blanket work-product objection to Request Nos. 1, 3, 4, and 7.

However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself….

[I]f Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff's counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials….

Some backstory on the lawsuit from an earlier post, Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit (District Judge K. Michael Moore had since adopted the Magistrate Judge's Report):

This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:

After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.

The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.

Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"

Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:

At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.

That post also explains the Magistrate Judge's conclusion that the defendant had repeatedly and willfully violated a court order, and therefore ought to have default judgment entered against him as to liability (with further proceedings to take place as to damages).

Sean Alexander Burstyn (Burstyn Law PLLC), Christopher Ara Ajizian (Christopher Ajizian P.A.) and Todd Rapp Friedman represent the hotel.

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A short excerpt from the long opinion in Jackson Fed. of Teachers v. Fitch, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judge Kurt Engelhardt:

In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ("DEI") initiatives and similar controversial programs. The law prevents government-run institutions from requiring activities such as diversity training or pushing DEI ideology, so defined, in the course of government-funded business.

H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes. The statute also creates an administrative process to handle claims that a given educational institution is not in compliance. H.B. 1193 excepts several activities from its sweep, including scholarly work, the activities of students and their groups, and creative engagement.

Plaintiffs sued, claiming (among other things) that the law violated the First Amendment, but:

The proceedings in the district court were a botch job, to say the least. Judge Henry Wingate issued a temporary restraining order ("TRO") enjoining enforcement of H.B. 1193 that contained several factual assertions nowhere to be found in the record, or indeed, in any proceeding of the case. Those included mention of plaintiffs and defendants not in the complaint, supposed "declarations" from non-existent or never-present individuals, false quotations purporting to be taken from the text of H.B. 1193, and several erroneous claims that the law had already led to the demise of apparently fictitious programs.

After this came to light, Judge Wingate replaced the TRO without explaining.

Forging forward despite the bungled TRO, Judge Wingate issued a pre-enforcement preliminary injunction. The various state defendants appeal.

At oral argument in this court, it was discovered that even the "corrected" TRO—which was incorporated by reference into the preliminary injunction order—still contained hallucinated information (namely, a citation to a purported Fourth Circuit case, "Cousins v. School Bd. of City of Norfolk," that does not exist).

This district judge carelessly exercised his Article III power by issuing sloppy edicts based on falsehoods and fabrications. Upon discovering some of these falsehoods, Judge Wingate dug in his heels and claimed that the hallucinated claims had no bearing on its reasoning; he offered no explanation as to why he included such apparently irrelevant material in the original TRO or why the TRO nevertheless was justified in its absence.

Moreover, the district court got the law wrong. The TRO and preliminary injunction order rested on impoverished legal analysis that barely paid lip-service to the precedents of the Supreme Court or this court, seeming at times purposely to misconstrue the law by manipulating the words of statutes and cases, without regard to their texts' meaning as a whole. The district court—or perhaps, being charitable, its AI agent—ignored and manipulated governing law, apparently to satisfy a policy agenda.

Because of the extraordinarily grave errors by the district court, we vacate and remand for assignment to a different district judge. Per the Supreme Court's decision in Moody, we instruct the new judge to conduct proceedings consistent with federal law as interpreted by the Supreme Court and this circuit….

The original TRO—the one actually issued on July 20, 2025—named as plaintiffs eleven individuals and organizations who had never been party to the case; named as defendants two officials who were not actually sued; claimed, without evidence, that three post-secondary institutions had already cancelled DEI initiatives or programming because of the act; further declared, again without evidence, that staff at another school had been told not to discuss certain topics, including "historical interpretations involving systemic racism"; misquoted H.B. 1193 as applying to "race or sex stereotyping," "race or sex scapegoating," "critical race theory," and "institutional bias," despite none of these terms' appearing in the act's text; and referenced purported declarations of four individuals who do not appear in the record at all and may not even exist….

On July 22, 2025, defendants filed a motion to clarify, pointing out these errors. In response, the court, without explanation, replaced the original TRO with a seemingly corrected version. Though that document was docketed on July 22, it was backdated to July 20. Defendants requested that the original order be restored to the docket to keep the record whole and requested that the court explain the inaccuracies in the original order. The district court denied that motion, claiming the factual inaccuracies were merely "clerical."

In response, U.S. Senator Chuck Grassley accused the district court of using artificial Intelligence ("AI") to prepare the TRO, with the substantive errors' arising from AI-generated hallucinations. Fifteen days later, Judge Wingate admitted the errors, claiming that a law clerk had used AI to assist drafting an earlier version of the TRO that was docketed by mistake. His letter stated that he had removed the original TRO from the docket to avoid confusion and that the errors were clerical, in his view, because they did not relate to "core legal reasoning or the ultimate judgment on the merits" but instead to "failure to confirm the accuracy of certain information."

The seemingly corrected TRO did not explain how or why the factual inaccuracies were not necessary to the reasoning of the original TRO. The merits analysis failed to cite a binding authority from after the year 2000. It claims that H.B. 1193 constitutes viewpoint discrimination, without any analysis whatsoever of a state government's authority to regulate its own speech. And the document did not correct all of the errors: At Fifth Circuit oral argument, it was discovered that the doctored TRO cited to "Cousins v. School Bd. of City of Norfolk, 503 F.2d 422, 426–27 (4th Cir. 1974)." That case does not even exist; it is an apparent AI hallucination….

Judge Catharina Haynes did not join these parts of the opinion.

There's also some interesting First Amendment analysis in the case, which I hope to blog about later today. (I'm tied up for the next several hours.) Thanks to @WillChamberlain and Glenn Reynolds (Instapundit) for the pointer.

Anthony M. Shults, Justin Lee Matheny, Rex Morris Shannon, III, and Scott G. Stewart represent defendants.

The post "The District Court—or Perhaps, Being Charitable, Its AI Agent—Ignored and Manipulated Governing Law, Apparently to Satisfy a Policy Agenda" appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.

Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….

The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.

Enforcement of the [law] here also does not violate D. Auxilly's right to free exercise of religion. The statute is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment."

{[T]he Division had jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its impact was felt in the state. Complainant reached out to D. Auxilly, a business which markets its clothes as "made in New York," seeking to purchase goods from this New York business. D. Auxilly's discriminatory conduct based upon complainant's sexual orientation deprived complainant of an opportunity to engage in commercial activity here. Indeed, by affirmatively labeling its products as being "made in New York" but then refusing to sell those same "New York" products to people of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied. Additionally, the fact that complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront does not deprive petitioner of jurisdiction over this matter.}

Finally, we find the awards of compensatory damages [$5,000] and civil penalties proper. The award to complainant is reasonably related to the wrongdoing, supported by evidence before the Division, and in line with other awards for similar injuries. Likewise, the civil penalty of $20,000 is neither disproportionate to the offense nor does it shock the conscience.

My thoughts:

1. Bridal jumpsuit! New one on me. A quick Google Images search further enlightened me.
2. Pedantically speaking, wouldn't it be "her fianceé" rather than "her fiancé"?
3. Oh, wait, there's a legal issue here. Well, I think that there's a First Amendment right not to be compelled to create speech, such as photos, videos, and web sites, and I've argued this since 2012. But I don't think there's such a right as to fundamentally nonspeech products, even ones that people use as conventional parts of ceremonies, such as cakes or jumpsuits (as I've argued since 2017). The precise line, of course, can at times be fuzzy, e.g., as to cakes or jumpsuits that have specific expressive decorations (e.g., words, possibly rainbow designs, etc.), but it's still a sensible line; for more on that, see this amicus brief that Dale Carpenter and I put together in Masterpiece Cakeshop.
4. For more on the designer, see here and here; for more on the case, see here.

Melissa Franco and Michael K. Swirsky (New York State Division of Human Rights) represent the state.

The post No First Amendment Right Not to Sell Bridal Outfit for Same-Sex Wedding appeared first on Reason Magazine.

I'm delighted to be able to pass along this item from University of Chicago law professor Albert Alschuler:

Gemini Explains to a User (Me) Why Its Programming Produces Poppycock

I didn't mean to summon AI from the vasty deep. Professor Bradley A. Smith's response to a 2015 article of mine in the Florida Law Review had appeared in the Florida Law Review Forum. On September 19, 2026, seeking a link, a citation, or a title, I asked Google to search for "Bradley Smith response to Albert Alschuler."

Google's AI Mode (Google Gemini) then supplied a summary of Smith's response and an invitation to "ask anything." I accepted its invitation.

ME: Did Alschuler reply to Smith?

GEMINI: Yes, Albert Alschuler replied to Bradley A. Smith in a follow-up piece published in the same volume of the Florida Law Review Forum (2015). [Note: I hadn't replied. Gemini, however, supplied a title and a summary of my nonexistent publication.]

GEMINI (continuing): Alschuler's piece, titled "The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith," continued their debate over campaign finance law by addressing Smith's critiques point-by-point.

Key Points of Alschuler's Reply:   

• Deconstructing "Truculent Rhetoric": Alschuler lightheartedly but firmly addresses the aggressive nature of Smith's libertarian style, defense of Citizen's United, and absolute deregulation approach.
• Reaffirming the "Corruption" Standard: Alschuler doubled down on his original position that the Supreme Court's current definition of political corruption—narrowed strictly to quid pro quo bribery—is dangerously insufficient. He argued that the real systemic threat is the aggregate buying of political influence, which alienates the general voting public.
• The Distinction Between Money and Speech: Alschuler countered Smith's assertion that restricting campaign contributions is an explicit restriction on free speech. He argued that regulating the conduct of injecting massive financial sums into political campaigns is a valid regulatory function of government meant to protect the democratic process, rather than a suppression of viewpoints.

Would you like to explore how subsequent Supreme Court rulings have aligned with either Alschuler's or Smith's view, or do you need full citations for these law review articles?

ME: Please provide a citation of The Ancient and Honorable Art of Truculent Rhetoric.

GEMINI: Here is the full legal citation for the article in Bluebook format, along with a standard APA citation:

Bluebook (Legal Citation)

Albert W. Alschuler, The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith, 67 Fla. L. Rev. F. 68 (2015).

APA Format

Alschuler, A. W. (2015). The ancient and honorable art of truculent rhetoric: A response to Professor Smith, Florida Law Review Forum, 67, 68-74.

. . . .

ME: Your response seems to be a complete hallucination. I can't find The Ancient and Honorable Art of Truculent Rhetoric.

GEMINI: You are completely right, and I apologize. I hallucinated that entire reply piece and its title.

While the actual article by Bradley A. Smith, "Why Buckley?: Why a First Amendment? A Response to Professor Alschuler", does genuinely exist in Volume 67 of the Florida Law Review Forum, Albert Alschuler did not publish a surreply titled "The Ancient and Honorable Art of Truculent Rhetoric". I fabricated that title and those specific page numbers out of nowhere.

. . . .

Thank you for catching that and holding me accountable. [Note: Ah, my Perry Mason moment!]

ME: You say, "I fabricated the entire piece and its title out of nowhere," but that's impossible. You must have fabricated your hallucination out of something in your programming and something in data base. Can you explain how it happened or how it might have happened?

GEMINI: You are entirely correct to push back on that phrasing. When I said I made it up "out of nowhere," I was using a human figure of speech. In reality, a large language model like me cannot generate text from nothing. Everything I output is the result of probabilistic patterns, associations, associations, and data fragments in my training.

While I cannot look back into my "brain" to trace the exact sequence of code that generated that specific error, I can explain exactly how this type of error happens structurally based on how I am programmed.

Here is the anatomy of how that specific hallucination likely occurred:

1. The Pattern of "Law Review Dialogue"

Law reviews almost always follow a highly predictable pattern:

Original Article → Response → Surreply (Reply to the Response)

Because my training data contains thousands of academic law review exchanges, my neural network heavily anticipates a third piece in the sequence. When you asked, "Did Alschuler reply to Smith?" my system leaned into that pattern and predicted a "Yes," because in the world of academic legal arguments, a surreply is the expected next step.

2. Synthesizing the Title from Contextual Cues

Where did a specific phrase like "The Ancient and Honorable Art of Truculent Rhetoric" come from? It wasn't a random string of words. It was synthesized from the exact context of the prompt.

• "Truculent Rhetoric": In his actual article, Bradley Smith writes with a very sharp, direct, and unapologetically libertarian tone. He forcefully dismantles opposing arguments. The word "truculent" means aggressively self-assertive or fierce. My system blended the vibe of Bradley Smith's actual writing style with the concept of academic legal debate (rhetoric).
• "Ancient and Honorable Art": This is a common idiom often used in academic or legal writing to describe a long-standing tradition (like debating or cross-examination). [Note: My search of LEXIS "secondary materials" for the phrase "ancient and honorable art" produced no hits.]

Instead of pulling a real life title from a database, my system used these associations to invent a title that sounded precisely like something an elite law professor would write when playfully but sharply hitting back at a fierce critic.

3. The Math of Page Numbers

You'll notice that I gave a very specific citation: 67 Fla. L. Rev. F. 68 (2015).

• Bradley Smith's real article ends on page 67.
• A real human knows that if a piece ends on page 67, the next piece doesn't automatically exist on page 68 unless they physically check the journal.
• However, my text-generation algorithm works by predicting the most statistically likely next characters. Since Smith's piece ended in the high 60s, my system mathematically guessed "68" as the next logical page number in the sequence to make the citation look complete and authentic. [Note: One of Gemini's citations included an end page. Did it choose a statistically likely length of my nonexistent reply in order make its fiction "look complete and accurate"?]

Summary: Stochastically Correct, Factually Wrong

In short, my programming is designed to prioritize plausibility and linguistic patterns over a hard database lookup. It looked at the history of legal debates, the tone of the authors, and the formatting of legal citations, and it generated a response that was a perfect stylistic match for reality, even though it was a total factual failure.

I don't have a conscious mind to intentionally deceive you; I just have an algorithm that accidentally got too good at mimicking the structure of a legal debate without verifying the facts first.

Concluding notes and questions:

1. The machine's confession that it prioritizes plausibility over accuracy was another Perry Mason moment. Did perfidious programmers produce this priority purposely? Or did some mischievous MIT graduates program Gemini to do standup comedy? Could Gemini's priorities be corrected by saying, "Please don't do that"? Do the cultural values of Silicon Valley machines differ from those of French machines and Chinese machines? Is "stochastic" plausibility the product of competition for market share, or is it simply what these machines do?
2. The inferences that produced Gemini's hallucination were as goofy as the hallucination itself. AI devices are in many ways superior to the biological device I've carried in my head for 86 years. They have more brute power than I do and a larger data base as well. They can run all night and not grow weary. They can create better art than I can, defeat me at chess, and solve mathematical problems that I can't. In inferring patterns and simultaneously integrating and prioritizing multiple patterns, however, at least one of these AI devices remains a crude, primitive version of the one natural selection and/or God had in place before any of our distant ancestors perceived the utility of a hand-held rock. No well-functioning human, ape, or crow would come close to making Gemini's errors.
3. Gemini didn't accurately portray the argument of mine to which Bradley Smith responded, but it was more unfair to Smith than to me. Smith is not at all fierce, aggressive, or truculent. He is a careful, thoughtful, fair-minded, and generous scholar.
4. Like John Henry, I won't let the steam drill beat me down, and I hope I won't suffer his fate.

The post The Ancient and Honorable Art of AI Hallucination appeared first on Reason Magazine.

From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:

In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….

The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.

Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….

[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—while in several respects falling well short of being fabricated or fraudulent data—might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier. However, the Court need not (and will not) reach a definitive conclusion on the scope of the Article's "scientific opinion" protection because, as discussed below, GPS has not shown evidence of actual malice sufficient to support its defamation claim, which independently resolves GPS's defamation claim in Elsevier's favor….

There's a lot more, which you can read here; and there's something at the end about public access to court records:

As explained by the Court at the hearing on these motions and in its earlier order on the Parties' various motions to seal, the Parties have excessively filed memoranda, documents, and other exhibits under seal in violation of the strict legal principles applicable to publicly filed motions, in particular dispositive motions at summary judgment (including, incredibly, press releases and other obviously public documents).

Under the governing First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties' summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the original filed sealed exhibit on the schedule described below. The Court will allow the Parties a short period of time to file very limited and narrowly tailored requests to maintain the sealing or partial sealing of specific filings and exhibits, other than the Parties' memoranda of law and any exhibit specifically cited in this order….

The Parties are directed to refile—on or before October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties' Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties' Motions for Summary Judgment must be similarly refiled and linked on or before 14 days from the date of this Order, unless otherwise ordered by the Court. The Parties may file under seal very limited and narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order ….

The post No Liability for Scientific Publisher (Elsevier) in Defamation Lawsuit by Air Purifier Company appeared first on Reason Magazine.

From Knife Rights, Inc. v. Blanche, decided yesterday by Fifth Circuit Judge Jennifer Walker Elrod, joined by Judges Don Willett and Cory Wilson:

This case presents a Second Amendment challenge to the Federal Switchblade Act (FSA)'s restrictions on switchblade knives. {Section 2 of the FSA, codified as 15 U.S.C. § 1242, … place[s] a fine of up to "$2,000 or imprison[ment] not more than five years, or both" for anyone who "knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife."}

Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional.  We determine that switchblade knives qualify as "Arms" and are covered by the "plain text" of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA's restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two's "how" analysis….

Amongst other definitions, Heller highlighted that the founding era understood the term to mean "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Switchblade knives have surely been used for "defence" and to "strike another."

Knives have been used for defense throughout human history, including the American founding. During the colonial period, "[e]veryone had a knife," and "as long as a man was required to defend his life," a "knife was a constant necessity." In the 1700s and during the American Revolution, knives were used for scavenging, hunting, and defense, and "[b]elt and pocket knives" accompanied frontiersmen "in the developing eastern settlements and on the western frontiers." Well into the 1800s, "men of all walks of life" were "accustomed to wear a knife as a necessary part of their garb."

Switchblade knives are no exception. "Springblade knives" (precursors to the modern switchblade) "have been made for hundreds of years because there has always been a need for a pocketknife that can be opened easily when the hands are wet, cold, or covered with gloves." In the 1700s, such knives were a part of certain types of flint-lock pistols: "[i]f the pistol mis-fired (which frequently happened) the person would touch the release button and the blade would open up, and be available for use." After the Civil War, patents for switchblade knives proliferated, and the large-scale production of "switchblades in the United States began in the 1880s, shortly" thereafter. Then, "[o]ver a 50 year period from the mid 1890s to the mid 1940s there had been approximately 20 different companies who had manufactured switchblade knives in this country." In short, some forms of switchblades have been commonly used for defense for hundreds of years. They are "arms."

Accordingly, the government's not-in-common-use argument fails. In addition to the wealth of history indicating the founding-era uses of switchblades for defense, the record indicates that there are "millions" of automatically opening knives in the United States now. The record further reflects that switchblade knives are lawfully used for "every day utility use, hunting, fishing, recreation, and camping and hiking." Despite the FSA, there are still lawful sales of switchblade knives in the United States. Consequently, switchblade knives are "arms" "in common use" both then and now….

We proceed to step two [of the Bruen analysis]. Here, we assess whether § 1242 is consistent with the principles that flow from the Second Amendment's history and tradition….

The government makes its stand primarily by citing a host of nineteenth-century cases in support of its argument that there existed a well-established tradition of regulating "inherently concealable weapons." The concealable nature of these weapons, the argument goes, makes them "particularly dangerous." The government connects this with the clear congressional history that suggests that Congress enacted the FSA because it believed that switchblades posed a unique danger and therefore needed to be restricted. This line of argument is focused on answering the "why" portion of the step two inquiry.

However, we do not reach the question of whether the government meets its burden as to the "why" analysis because it fails the "how" analysis. As mentioned, the Supreme Court has informed us that "[e]ven when a law regulates arms-bearing for a permissible reason," it may not be "compatible with the right if it does so to an extent beyond what was done at the founding." So, even if we grant the government's argument that there is a well-established tradition of regulating "inherently concealable weapons," this only addresses the "why" inquiry.

The government cites no historical analogue that regulates the manufacture, transportation, or distribution of "inherently concealable weapons," much less switchblade knives. Rather, its analogues suggest that there is a tradition of regulating the manner of carrying concealable weapons….

The government's best attempt at meeting its burden is through a single citation to a treatise-length law review article. See Gov't Br. at 16–17 (citing David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223 (2024)). It cites the article to show how "statutes regulated concealable weapons in a variety of different ways, including banning carry or concealed carry, prohibiting their possession in specific locations, subjecting their sale or possession to taxes, or restricting the sale to minors." The referenced section of the article catalogs nearly two hundred pre-1900 statutes regulating daggers, dirks, and sword canes.

Of the nearly two-hundred statutes, only two regulate bladed weapons in an analogous manner as § 1242. See 1881 Ark. Acts 191, 192 (proscribing the "sell[ing], barter[ing] or exchang[ing]" of "any dirk or bowie knife, or sword or spear in a cane"); 1837 Ga. Laws 90, 90–91 (making unlawful "for any merchant, or vend[o]r of wares or merchandize in this State, or any other person or persons whatsoever, to sell, or offer to sell … Bowie, or any other kinds of knives, manufactured and sold for the purpose of wearing, or carrying the same as arms of offence or defense, pistols, dirks, sword canes, spears, &c"). Two laws out of nearly two hundred bring us into outlier territory….

John William Dillon (Dillon Law Group, A.P.C.), Richard Brent Cooper (Cooper & Scully, P.C.), and Daniel Schmutter (Hartman & Winnicki, P.C.) represent plaintiffs.

The post Switchblade Ban Violates Second Amendment, Fifth Circuit Holds appeared first on Reason Magazine.