From Judge Darrin Gayles (S.D. Fla.) in Trump v. Dow Jones & Co., Inc.:

Those who won our independence believed … that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

New York Times Co. v. Sullivan (1964) (quoting Whitney v. California (1927) (Brandeis, J., concurring)).

Justice Brandeis's words, as relevant today as they were nearly a century ago, formed the "background" behind the Supreme Court's holding in Sullivan: the First Amendment "prohibits a public [figure] from recovering damages for a defamatory falsehood … unless he proves that the statement was made with actual malice[.]" This constitutional protection is not limited to post-discovery motions and trial. Because "[t]he costs and efforts required to defend a lawsuit through [discovery] could chill free speech nearly as effectively as the absence of the actual malice standard altogether[,]" a public figure plaintiff must plausibly allege actual malice at the outset of the litigation.

This Order addresses President Donald J. Trump's second attempt to plead that Defendants … acted with actual malice when they published an article in the Wall Street Journal … linking him to convicted sex offender Jeffrey Epstein …. As with his first attempt, he has failed. Therefore, for the reasons below, … President Trump's Amended Complaint is dismissed with prejudice….

The Article

On July 15, 2025, Palazzolo emailed then White House Press Secretary Karoline Leavitt ("Leavitt") advising her that Dow Jones intended to publish an article (the "Article") about a birthday letter that President Trump purportedly created for Epstein (the "Letter"). President Trump and his team responded quickly. Leavitt called Palazzolo and told him that the "subject matter" of the proposed Article was false. President Trump, through counsel, denied writing the Letter and warned Dow Jones not to publish the story. {President Trump also denied writing the Letter in an interview before publication.} And President Trump directly told Murdoch that he had not signed or sent the Letter. When Murdoch responded that he would "handle it," President Trump thought the WSJ would not print the Article. Two days later, the WSJ online edition published the Article.

The title of the Article—"Jeffrey Epstein's Friends Sent Him Bawdy Letters for a 50th Birthday Album. One was from Donald Trump"—is in bold print, with a subtitle below reading "[t]he leather-bound book was compiled by Ghislaine Maxwell. The president says the letter 'is a fake thing.'" Leading with a picture of President Trump with Epstein, the Article states the following, in pertinent part:

It was Jeffrey Esptein's 50th birthday, and Ghislaine Maxwell was preparing a special gift to mark the occasion. She turned to Epstein's family and friends. One of them was Donald Trump.

Maxwell collected letters from Trump and dozens of Epstein's other associates for a 2003 birthday album, according to documents reviewed by The Wall Street Journal.

Pages from the leather-bound album—assembled before Epstein was first arrested in 2006—are among the documents examined by Justice Department officials who investigated Epstein and Maxwell years ago, according to people who have reviewed the pages. It's unclear if any of the pages are part of the Trump Administration's recent review….

The letter bearing Trump's name, which was reviewed by the Journal, is bawdy—like others in the album. It contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker. A pair of small arcs denotes the woman's breasts, and the future president's signature is a squiggly "Donald" below her waist, mimicking pubic hair.

The letter concludes: "Happy Birthday—and may every day be another wonderful secret."

In an interview with the Journal on Tuesday evening, Trump denied writing the letter or drawing the picture. "This is not me. This is a fake thing. It's a fake Wall Street Journal story," he said.

"I never wrote a picture in my life. I don't draw pictures of women," he said. "It's not my language. It's not my words."

He told the Journal he was preparing to file a lawsuit if it published an article. "I'm gonna sue The Wall Street Journal just like I sued everyone else," he said….

Justice Department officials didn't respond to requests for comment or address questions about whether the Trump page and other pages of the birthday album were part of the agency's recent documents review. The FBI declined to comment….

Among those who submitted letters were billionaire Leslie Wexner and attorney Alan Dershowitz … Wexner declined to comment through a spokesman … Dershowitz, who represented Epstein after his first arrest, said, "It's been a long time and I don't recall the content of what I may have written….

The book was put together by a New York City bookbinder, Herbert Weitz, according to people who were involved in the process. Weitz, who died in 2020, listed Epstein as a client on his website in 2003.

It isn't clear how the letter with Trump's signature was prepared. Inside the outline of the naked woman was a typewritten note styled as an imaginary conversation between Trump and Epstein, written in the third person.

[Description of Conversation]

When he turned 50, Epstein was already wealthy from managing Wexner's fortune and was socializing with Trump, Clinton and other powerful people. He often entertained at this Manhattan townhouse, Palm Beach, Fla., home and private Caribbean island….

Epstein and Trump spent time together in the 1990s and early 2000s and were photographed at social events, including with Maxwell and Melania Trump….

Trump, along with others including Clinton, also appeared several times on flight logs for Epstein's private jet.

A 2002 New York magazine profile of Epstein quoted Trump. "I've known Jeff for 15 years. Terrific guy," Trump said. "He's a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side. No doubt about it—Jeffrey enjoys his social life."

Both men said that they subsequently had a falling-out. Trump has said their friendship ended before Epstein pleaded guilty to procuring a minor for prostitution in 2008, served time in a Florida jail and registered as a sex offender….

Maxwell, a British socialite, was convicted in 2021 of helping Epstein's sex-trafficking and sentenced to 20 years in prison. Maxwell didn't respond to a letter requesting an interview sent to her in prison. Arthur Aidala, an attorney who represented Maxwell, said, "At this point, she is focused on her case before the Supreme Court of the United States." …

Epstein's associations with Trump and many powerful people have been well documented….

On September 8, 2025, the WSJ published an article titled "A Visual Breakdown of the Trump Birthday Letter to Epstein" which compares the signature and typeface, drawing style, third-person point of view, and diction in the Letter with prior communications by President Trump (the "September 8 Article"). The September 8 Article includes President Trump's denial that he wrote the Letter or drew the picture and Leavitt's statement in a social media post that President Trump did not draw the picture in or sign the Letter….

President Trump contends that these statements are false because he (1) did not author, sign, or draw any portion of the Letter or direct anyone else to author it; (2) never made or dictated to anyone any of the statements in the voiceover or had any such conversation with Epstein as portrayed in the Letter; and (3) was not "childhood pals" with Epstein….

The court concluded that Trump hadn't actually alleged "actual malice," which is to say knowing or reckless falsehood:

Here, the Amended Complaint falls short of pleading actual malice. Indeed, the allegations regarding malice are conclusory, vague, sometimes inconsistent with the Article, and often irrelevant to whether Defendants knew or should have known that the statements in the Article were purportedly false.

[a.] Conclusory Language is not Enough

As an initial matter, President Trump's conclusory allegations that Defendants acted with malice because they "knew or should have known" the statements in the Article were false, are insufficient to state a claim. See Reed v. Chamblee (11th Cir. 2025) (finding the plaintiff's conclusory assertions that the defendant acted with actual malice insufficient).

[b.] Denial is not Enough

Though vague, the Amended Complaint appears to allege that by choosing to publish the Article despite President Trump's and his team's denials, Defendants acted with actual malice. In effect, President Trump argues that once he declared the Letter a "fake," Defendants should have disregarded everything else they learned in their investigation and not published the story.

But that is not what the actual malice standard requires and runs afoul of the First Amendment. Indeed, were that the law, any time a public figure or his team denies an accusation, journalists would be immediately blocked from publishing negative or contradictory press—a result that flies in the face of the "American privilege to speak one's mind, although not always with perfect good taste, on all public institutions[.]" Sullivan.

Moreover, the Article did not ignore or minimize President Trump's denial. Rather, it informed readers that President Trump decried the Letter as a fake and denied writing it. By "allowing readers to decide for themselves what to conclude from the [Article], … any allegation of actual malice [is] less plausible." … "[R]eporting perspectives contrary to the publisher's own should be interpreted as helping to rebut, not establish, the presence of actual malice" ….

[c.] The Investigation

President Trump's argument that the WSJ Defendants' investigation was inadequate, and therefore an indication of malice, fares no better. As detailed above, a failure to investigate, without more, does not establish actual malice. Rather, "a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth."

The Amended Complaint comes nowhere close to this standard. Indeed, the Article details a thoughtful and detailed investigation. Before running the story, Defendants contacted President Trump and his team, Justice Department officials, and the FBI for comment.

President Trump and his team responded with his denial, the Justice Department did not respond at all, and the FBI declined to comment. Defendants also attempted to speak with Maxwell; she did not respond to their request and her attorney stated that she was focused on her case before the Supreme Court. In addition, Defendants reached out to other individuals named in the Birthday Book, including Leslie Wexner and Alan Dershowitz, and to individuals involved in binding the Birthday Book, who confirmed that Weitz put the book together. In short, President Trump's allegation that Defendants failed to conduct an adequate investigation is rebutted by the Article and is insufficient to establish actual malice.

{President Trump argues that Harte-Hanks Communications, Inc. v. Connaughton (1989), supports his position that Defendants' purported failure to investigate is enough to support an inference of actual malice. However, in Harte-Hanks, the Supreme Court expressly stated that "[a]lthough failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category. Here, President Trump has not alleged any facts, beyond conclusory allegations, that support an inference that Defendants purposefully avoided the truth.}

Grasping at straws, the Amended Complaint attempts to manufacture flaws with the investigation. First, it alleges that the investigation was lacking because Defendants only reviewed the Letter but did not have a copy in their possession. The Court cannot discern any substantive difference—and certainly not one that would establish actual malice—between Defendants reviewing the Letter before publication and obtaining a copy of the Letter. Defendants reviewed the Letter and later reported on its contents. Nothing in the law suggests that Defendants needed to obtain, retain, or publish a copy.

In addition, President Trump's focus on Maxwell is entirely misplaced. The Eleventh Circuit has found "allegations that the Defendants failed to fully investigate their statements by intentionally choosing not to speak with any witnesses who could have refuted the allegedly defamatory statements" insufficient to plead actual malice. And any argument that Defendants "purposely avoided" the truth by either not disclosing what Maxwell told them or by refusing to speak with her is difficult to reconcile with President Trump's own allegations.

The Amended Complaint alleges that "Maxwell has stated, subject to penalty of perjury for lying to a federal officer, that she did not remember President Trump submitting a letter for Epstein's 50th birthday." Based on this allegation, Maxwell had little to offer to Defendants' investigation. In short, references to Maxwell are a red herring and simply do not establish that Defendants "actually entertained serious doubts as to the veracity of the published account[] or was highly aware that the account was probably false."

[d.] Omissions

President Trump's argument that the Article omits certain facts does not save his claims. First, how or why the voiceover in the Letter was typewritten or how the voiceover was confirmed to be in the third person are inconsequential details that have no bearing on whether Defendants published the Article knowing its contents were false or with reckless disregard as to its falsity. Moreover, Defendants' decisions about how to investigate and what to include in the Article do not establish malice. "Obviously the author of an article will have to choose which facts to include and which to omit. It is impossible to print all of the facts on which an opinion or belief is based …. Were the courts or criticized [parties] to be allowed to dictate the contents of such articles, censorship would have won out over free speech and the right to dissent."

Finally, the allegation that Defendants intentionally omitted President Trump's denial that he signed the Letter or a discussion on whether the signature on the Letter is authentic, is belied by the Article. It states, multiple times, that President Trump denies writing the Letter and that "[i]t isn't clear how the letter with Trump's signature was prepared." . This is more than sufficient to encompass any denial that he "signed" the Letter or that the signature on the Letter is authentic.

[e.] The September 8 Article

The Amended Complaint's reliance on the September 8 Article to establish malice is equally unavailing. Nothing in the law suggests that a journalist must report on every piece of evidence they uncover before going to print. Moreover, it is unclear why President Trump argues the September 8 Article shows that his signature "could not be more different" than the one in the Letter, when it contains several examples where President Trump's actual signature and sketches are similar to those in the Letter. At bottom, the September 8 Article does not support a finding that Defendants knew or should have known that President Trump did not sign the Letter….

The post Trump vs. WSJ Libel Lawsuit over Trump's Alleged Birthday Wishes to Epstein Thrown out appeared first on Reason Magazine.

From yesterday's decision by Judge Joseph Goodwin (S.D. W. Va.) in W. Va. Rivers Coalition, Inc. v. McCuskey:

The Attorney General of West Virginia has used the State's power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither organization markets goods nor services relevant to the subpoenas. The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.

What these organizations do is argue in public about what coal, oil, and gas do to West Virginia's waters and climate. The State's chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.

The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.

The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives.

The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say. He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand. He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning. Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding. No demand identifies a consumer, a sale, or a statement anyone relied on. The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.

The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. ("WVRC") and 350.org, promote clean waters, reduced carbon emissions, and healthier lives for the people of West Virginia and beyond. They do not sell any service. They do not advertise a certain product of their own. Instead, they promote ideas. Some of that advocacy and some of those ideas are based, in part, on one model. For that, they have been subpoenaed and asked to turn over ten years' worth of information far beyond any use of that one model.

AG McCuskey's actions violate the protections afforded by the United States Constitution. The Plaintiffs, on this record, have only engaged in protected advocacy speech, not commercial speech. The subpoenas issued on the Plaintiffs trespass on their freedom of association, chill their exercise of the First Amendment, and deter others from engaging in similar conduct.

Because Plaintiffs are likely to succeed on the merits of their claim that the subpoenas violate their First Amendment freedom of association, and because the remaining injunction factors also favor Plaintiffs, their Motion for a Temporary Restraining Order, is GRANTED.

Attorney General McCuskey is enjoined from enforcing these investigative subpoenas for the next fourteen days as set out in the Conclusion of this Memorandum Opinion and Order….

A bit more on the plaintiffs:

Plaintiff WVRC is a river advocacy nonprofit corporation organized under the laws of West Virginia, and its "mission is to promote clean and healthy West Virginia waters for all." The nonprofit is committed to "clean water and healthy rivers through research, public education, policy advocacy, citizen water-quality monitoring, and engagement with state and federal agencies." It has a modest staff of 15 and an annual budget of approximately $2 million primarily funded by foundations and other organizations. WVRC regularly submits comments on proposed legislation, permits, and rules concerning water quality. And as this court is familiar, WVRC is a party litigant in multiple cases across the Fourth Circuit that challenge permits and approvals for infrastructure projects, pipeline projects, injection wells, and toxic discharges. Because of its litigation efforts, WVRC coordinates "with other organizations through shared counsel" about litigation strategy.

WVRC also engages in public education and information campaigns, including "statements about the effects of climate change in West Virginia's waters and communities, and about the environmental effects of fossil-fuel extraction, transport, and combustion." It is a member of multiple different coalitions committed to similar goals. To fund ts work, WVRC "solicits charitable contributions from the public through its website, mailings, emails, and events," but it does not publish the identities of its funders.

Plaintiff 350.org is a nonprofit corporation, and its "mission is to build a grassroots movement to end the use of fossil fuels and to accelerate the transition to renewable energy." The organization publishes information about climate change, organizes public demonstrations, and coordinates with other organizations with similar goals. 350.org also "solicits charitable contributions from the public through grant applications and through its website, mailings, emails, and events." Those grants and contributions are subject to opt-in confidentiality in some cases and agreed upon confidentiality in other cases.

And an excerpt from the court's First Amendment analysis (for more on RCP8.5, see this N.Y. Times article):

[T]he Court applies "exacting scrutiny" to compelled disclosures of protected First Amendment speech and association. To be a permissible intrusion on the First Amendment, "there must be 'a substantial relation between the disclosure requirement and a sufficiently important governmental interest.'" …

The subpoenas … "… concern[ ] an investigation into alleged unfair or deceptive acts or practices and other possible violations of the West Virginia Consumer Credit and Protection Act ('WVCCPA')." State code authorizes the Attorney General, if he "has probable cause," to "subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation."

Under West Virginia law, "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are … unlawful." Trade or commerce "means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state." "Unfair methods of competition and unfair or deceptive acts or practices" includes 16 different definitions including "[e]ngaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding."

Deploying these broad definitions, AG McCuskey's theory is that the Plaintiffs, environmental advocacy groups, published information, made comments, and advocated based on a study, the RCP8.5, that has been determined "implausible." According to AG McCuskey, this reliance, and subsequent advocacy, is a deceptive act or practice that affects the energy marketplace of West Virginia.

Begin with common sense—in what way could WVRC and 350.org violate the WVCCPA? They are not financial institutions, lenders, or creditors. They are not businesses seeking to make a profit by engaging with consumers. In fact, both are 501(c)(3) nonprofit organizations. They do not sell services of any kind. As explained, Plaintiffs are advocacy organizations committed to climate issues. Their missions are public education, dissemination of information, advocacy in support of their ideals, and public support of those who align with their beliefs. What little items they sell are merchandise bearing their names and logos. Surely these minimal sales from advocacy organizations are not the transactions the West Virginia legislature sought to protect consumers from….

Plaintiffs do not engage in commercial speech. By virtue of their missions as nonprofit environmental advocacy groups, their interests are not economic. Their interests include public education, funding environmental projects, modeling and projecting the effects of climate change, and contributing to a society that values clean air, clean water, and healthier lives. The fact that their advocacy touches on the economy is insufficient to be commercial speech. Therefore, Plaintiffs' protected speech and advocacy alleged in this case cannot be regulated under the WVCCPA.

Accordingly, I find that the WVCCPA cannot supply a "sufficiently important governmental interest" under the "exacting scrutiny" applied to freedom of association claims. I next turn to the severity of the "disclosure requirement" under the "exacting scrutiny" analysis….

As discussed, the subpoenas broadly assert that a violation of the WVCCPA might have occurred. And in his response, AG McCuskey admits that there may not be any WVCCPA violation. He does, however, have authority to issue subpoenas to investigate "whether a violation … has, in fact, occurred."

That violation, AG McCuskey argues, arises from only a few instances of Plaintiffs using a certain climate projection model, RCP8.5. Any publication born from that model, he asserts, is potentially unfair or deceptive. So to assess the breadth of the subpoenas and the compelled disclosure Plaintiffs are subjected to, the court turns to the subpoenas' demands. It is reasonable to assume that the demands would roughly track the RCP8.5-related violations and the allegations of unfair or deceptive trade practices.

Not so. The subpoenas ask for much more. The 16 categories of demands include every statement Plaintiffs have ever published about a West Virginia energy business with a "Climate Claim." But that demand is not limited to climate-related statements supported by the RCP8.5 model. It includes every climate-related statement that names a West Virginia energy business which is published and supported or informed, at least in part, by any model, study, project, plan, projection, or paper. Demand No. 4 is similarly broad: the subpoena demands every published projection concerning West Virginia and all documents related to those projections, without narrowing it down to those supported by the RCP8.5.

The rest of the demands do not even try to mask their broad and sweeping intentions. Donation requests, payments to third parties, and licensing and funding documents of all projects concerning West Virginia are demanded. Every document projecting costs and damages is demanded, as well as every report, study, model, or paper that the Plaintiffs directly or indirectly supported. Documents pertaining to internal considerations are demanded wholesale. So, too, are all documents pertaining to third-party communication and coordination in any fashion. And even with AG McCuskey's last-minute withdrawal of certain demands for donor information, Plaintiffs will still be obligated to disclose "board affiliation, coalition partners, grantees, agency submissions, internal deliberations and drafts, solicitation totals and targeting."

Plaintiffs call this a fishing expedition. In part, I agree. The subpoenas demand a large share of documents in Plaintiffs' control for the last ten years. But even on a fishing expedition, hoping to just get one bite in the vast and quiet water, a person brings a fishing pole. And in other cases, perhaps, a net. Here, AG McCuskey has abandoned both the fishing pole and the net. Instead, he has brought dynamite to the lake. Tossing a couple in, he hopes to catch something.

As stated, compelled disclosure that invades First Amendment protections can only stand if there is a substantial relation between what must be disclosed and a "sufficiently important governmental interest." Here, I find neither a sufficiently important government interest nor do I find a substantial relationship between the compelled disclosure and the government interest….

And the court also briefly notes plaintiffs' retaliation claim, without resolving it:

Plaintiffs have alleged substantial evidence to support their [retaliation] claim. AG McCuskey has publicly disparaged pro-environmental groups and has called for the DOJ to investigate similar groups. He has joined contentious litigation against environmental advocacy organizations. And the chasm between the subpoenas' demands and the purported basis for investigation suggests a retaliatory motive.

This phenomenon of state and federal investigation into the affairs of advocacy non-profits has begun to permeate our culture. The courts have enjoined civil investigative demands on comparable records. [Citations omitted. -EV]

However, because retaliation concerns the Attorney General's motive, I will reserve judgment on Count One until he can present evidence at a hearing for a preliminary injunction. Having already determined that an injunction is warranted on the basis of Count Two (freedom of association), the court declines to address the remaining counts….

Derek Teaney and Amanda Demmerle (Appalachian Mountain Advocates, Inc.) represent plaintiffs.

The post Court Blocks W. Va. AG's Subpoena to Environmentalist Nonprofits appeared first on Reason Magazine.

The closure of Novaya Gazeta, one of Russia’s last independent newspapers is a chilling reminder that authoritarian governments have always understood the danger posed by journalists who refuse to toe the official line.

There are few more revealing characteristics of an authoritarian regime than its determination to silence independent journalism. Governments confident in their legitimacy do not need to fear awkward questions, investigative reporting or newspapers which challenge the official narrative. Those which seek to control every aspect of public life, however, understand that an independent press represents a threat to their authority.

The announcement that Russia’s celebrated independent newspaper, Novaya Gazeta, is to cease operations is therefore about considerably more than the disappearance of another media organisation. It represents another deeply disturbing milestone in President Vladimir Putin’s systematic dismantling of what remains of independent public life in Russia.

For more than three decades, Novaya Gazeta stood as one of the most important remaining symbols of independent Russian journalism. Established in 1993, with financial support from former Soviet leader Mikhail Gorbachev, it emerged during a brief period of optimism following the collapse of the Soviet Union.

Its journalists investigated corruption, exposed abuses of power, documented human rights violations and challenged the increasingly authoritarian direction of Russian politics. It was never an entirely comfortable publication for the Kremlin. That, of course, was precisely its purpose.

Now, editor-in-chief Sergei Sokolov, a beacon of independent journalism in a country where professional courage increasingly carries extraordinary personal risks, has announced that the newspaper can no longer continue.

The editorial team has attributed its demise to sustained pressure from Russian authorities and security services. Sokolov has said that on November 9 the newspaper will switch off its servers, leave its historic premises and bring its operations to an end.

The timing and manner of the closure are particularly significant. This was not simply a newspaper struggling commercially or losing its readership. According to the newspaper, its ability to function had been progressively dismantled: its media registration was revoked, its websites blocked, its printing facilities taken away, its financial support disrupted and its journalists subjected to searches, detention and criminal investigations.

In September, the entire editorial team was designated as foreign agents. In October, Sokolov’s home was searched and he was questioned by investigators. Journalist Oleg Roldugin had already been arrested and placed under house arrest. The newspaper was also ordered to vacate its historic Moscow headquarters.

One does not have to agree with every editorial position taken by Novaya Gazeta to recognise the significance of what has happened. Indeed, that is the very essence of press freedom: journalists must be free to investigate, question and criticise without first obtaining the approval of those they are investigating.

Sergei Sokolov deserves particular recognition. In an increasingly hostile environment, he continued to lead a newsroom whose journalists understood that reporting the truth was not merely a professional obligation but a responsibility to Russian society. His determination to keep the publication operating, even after the invasion of Ukraine in February 2022, deserves admiration.

He inherited a formidable legacy. Former editor Dmitry Muratov, who shared the 2021 Nobel Peace Prize for his defence of freedom of expression, had helped establish the newspaper’s reputation as a fearless investigative publication. Six of its journalists and contributors were murdered, including the internationally renowned investigative reporter Anna Politkovskaya, whose reporting exposed alleged abuses committed during Russia’s wars in Chechnya.

Their deaths remain a terrible indictment of the dangers confronting journalists who challenge powerful interests in Russia. Sokolov’s decision to keep working despite intimidation and the threat of prosecution is a reminder that journalism is sometimes an act of extraordinary personal courage.

Yet the significance of this closure extends far beyond one newspaper and its employees. It illustrates a familiar pattern in authoritarian politics: first discredit independent journalists, then restrict their funding, impose increasingly punitive regulations, criminalise inconvenient reporting and ultimately remove the institutions themselves.

The terminology is often carefully chosen. Journalists become foreign agents. Investigations become threats to national security. Criticism becomes disinformation. Opposition to government policy is portrayed as disloyalty to the nation. It is an approach familiar from the darkest chapters of European history.

An authoritarian regime’s fear of the truth

Putin’s Russia is hardly alone in understanding the political usefulness of controlling information. Throughout history, authoritarian governments have sought to monopolise the means by which citizens receive information.

The Soviet Union perfected the practice through censorship, state-controlled newspapers and the persecution of journalists who refused to conform. Independent thought was treated as a political offence, while propaganda was presented as patriotism.

There is an uncomfortable historical irony in the fact that Novaya Gazeta emerged from the relative openness of the post-Soviet period, only to be extinguished under a Russian president who has increasingly embraced the methods of the political system that preceded it.

The newspaper’s closure is also part of a much wider campaign. Since the invasion of Ukraine in 2022, independent Russian journalists have faced increasingly restrictive censorship legislation, prosecutions and intimidation. Many have fled abroad. Others have been imprisoned or forced into silence.

The Kremlin has not simply sought to influence the national conversation. It has sought to determine which conversations Russians are permitted to have.

A government which controls the media can attempt to control the historical record, the public understanding of military failures, the exposure of corruption and, ultimately, the political choices available to its citizens. Without independent reporting, the public is left increasingly dependent upon information supplied by the very institutions whose actions require scrutiny.

Europe’s responsibility

There should be no complacency in European capitals about what this means.

Freedom of expression is not an optional extra in a democratic society. Nor is it a privilege which governments can withdraw when reporting becomes politically inconvenient.

The European Union has repeatedly condemned Russia’s persecution of independent journalists. In 2022, the then EU foreign policy chief Josep Borrell specifically highlighted the intimidation which had forced Novaya Gazeta to suspend its activities. The European Court of Human Rights also ruled against Russia in cases involving restrictions on the newspaper and other journalists.

Those commitments must now translate into practical support for independent Russian journalism operating in exile and for those journalists who continue to take extraordinary risks inside Russia. The continued existence of Novaya Gazeta Europe, established by journalists who left Russia following the invasion, is encouraging. But it cannot replace the work of an independent newsroom reporting from Moscow itself.

Europe must also remember that defending press freedom means defending the principle universally, including when journalists publish opinions with which European governments or their supporters strongly disagree.

The newspaper may disappear. Its legacy will not.

There is something particularly tragic about the departure of Novaya Gazeta. Its journalists continued working long after many would reasonably have concluded that the personal and professional risks had become intolerable.

Sergei Sokolov deserves to be remembered among those journalists who refused to surrender their professional principles when confronted by an increasingly powerful and intolerant state. His newspaper’s closure should not be interpreted as a victory for the Kremlin. It is, rather, an admission of how profoundly threatened an authoritarian government can feel by the simple act of independent reporting.

Putin may be able to close the offices, disable the servers and remove the newspaper’s name from Russia’s media landscape. He cannot, however, erase the investigations, the testimony, the historical record or the courage of those who produced them. The six journalists who lost their lives because of their work deserve to be remembered. So do those who remain in prison, those forced into exile and those who continue to report despite intimidation.

A government that fears its journalists has something to hide. A government that silences them has something to fear. The disappearance of Novaya Gazeta is not merely a Russian tragedy. It is a warning to every democracy that takes freedom of expression for granted.

And it is a reminder that when independent journalism dies, democracy is invariably among its victims.

A lesson from this lawsuit filed by lefty streamer Hasan Piker against podcaster and CNN contributor Scott Jennings: Never be sarcastic. Never use hyperbole. It will always come back to bite you.

I happen to like hyperbole and sarcasm, though. So, I'm sympathetic to Piker's plight. Still, I'm not 100 percent certain he will—or should—win this case.

Two years ago, Piker, reacting to a debate in which a black conservative commentator complained about "woke" district attorneys, sarcastically summarized the commentator's argument during a Twitch broadcast:

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?

That doesn't seem like the most charitable way to describe the dude's comments. Perhaps Piker has some problems with overreaction. But in any event, it's clear that Piker himself was not professing a yearning to don a white robe.

But context collapse is the internet's love language. And so we got this.

How does Abdul El-Sayed's campaign surrogate Hasan Piker feel about Black Americans?

Watch for yourself. pic.twitter.com/icGiXek7Ok

— Senate Republicans (@NRSC) August 6, 2026

Weaving together fragments of Piker's above comments and several other out-of-context clips, the National Republican Senatorial Committee (NRSC) made it appear as if Piker was himself advocating in favor of the lynching of black people.

Later, Scott Jennings aired the clip on his podcast/syndicated radio show, saying that Piker was "out there calling for Black voters to be lynched." A caption on the video said "PIKER: 'LET'S GO BACK TO A BETTER TIME WHEN LYNCHINGS WERE HAPPENING,'" per Piker's complaint.

Piker certainly has justification to be outraged and to push back against this false characterization. But…is it defamation?

Legally speaking, maybe not. To prove defamation against a public figure, you have to show not only that a harm-causing false statement was publicized but that it was done with "actual malice."

In this case, showing that Jennings acted with actual malice could prove a hard task. To have acted with actual malice, he would have to have had "knowledge that [his statement] was false" or to have acted with "reckless disregard of whether it was false or not."

Even if Jennings did deliberately lie from the get-go, good luck proving that. The clip was circulating already when Jennings aired it, shared by not just some random account but the NRSC. It features real footage of Piker, not an AI-generated deepfake. And it features real statements that Piker made, albeit taken out of context. There's plenty of room for plausible deniability.

But whether Jennings was "reckless" in running with the story will be a thornier question. Given the video's source and it actually featuring Piker talking, Jennings might have good grounds to argue that in the beginning he was not. But Snopes did a debunking, and Piker's people emailed Jennings explaining the true context. Still, Jennings left it up.

That complicates things. Even if Jennings didn't understand originally that the clip was misleading, the full clips should have helped him wise up. And if Jennings was pointed to them and didn't watch them, that would seem to at least constitute recklessness—though of course we haven't heard Jennings' side of the story yet.

Whatever happens, the case highlights how tricky defamation law is. People will always argue that it should be easier to win defamation cases, at least when the defamed party is on their side. But the upshot of that is that journalists and news outlets—and perhaps everyone who ever got fooled by and shared a misleading video clip—would be screwed.

The same rationale that could possibly protect Jennings in this case also allows journalists to publish important stories about people in power even if the people in power dispute the facts or the interpretation of them. It also helps ensure that making honest mistakes won't mean their financial downfall.

In this case, Piker is seeking $72.5 million in damages. "You have to remember, this is not just about Scott Jennings, although he certainly messed up," Piker told his audience on Twitch Tuesday. "This is about truth in the media, OK? I think for far too long we have allowed Republicans to get away with saying whatever they want."

But while defamation law that errs in favor of free speech can seem unfair when it lets someone falsely portray someone else as pro-lynching, the underlying structure actually shields press, podcasters, Twitch streamers, and anyone else who wants to write and talk publicly about politicians, celebrities, and other public figures. That's not to say Jennings shouldn't have, at bare minimum, been more careful. Or that Piker won't win—who knows? But if he loses, believers in free press and free speech should think twice before using this as a jumping-off point to call for changes to defamation law.

The post Hasan Piker's Defamation Suit Against Scott Jennings Isn't As Simple as It Seems appeared first on Reason Magazine.

Jaxton Tayte Collins, a 21-year-old from Montana, had been out drinking at a bar in downtown Helena before he allegedly shoved a man of South Asian descent and told him to "go back to his country." Those comments, along with an alleged shove, could land him in jail for up to five years.

According to reporting from the Billings Gazette, "the complainant told officers he was walking with friends when a man in an orange shirt and wearing a large cross necklace approached his friend, who is of Indian descent and wears a head covering." The man in the orange shirt, later identified as Collins, "allegedly shoved the friend with both hands and "told him to go back to his country." Witnesses characterized the August 7th incident as "an attack," and called it "frightening."​

Officers then arrived on the scene and located Collins nearby. He told cops that he had been at a bar drinking and told the victim to go back to his own country "because he was angry." However, he denied pushing him.​

On Tuesday, Collins was arraigned on one count of misdemeanor assault and one felony charge of malicious intimidation or harassment of civil or human rights. Under Montana law, malicious intimidation or harassment occurs when a person "purposely or knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or offend" causes bodily injury, "reasonable apprehension of bodily injury," or damages property because of another person's "race, creed, religion, color, national origin, or involvement in civil rights or human rights activities." Collins pleaded not guilty on both counts. 

It's certainly plausible that Collins' actions could fall under these criteria. But the question that will likely decide Collins' fate pertains to the alleged shove.

In a statement to Reason, the Foundation for Individual Rights and Expression (FIRE) says, "The First Amendment protects even the most offensive and hateful speech. At the same time, it does not give a free pass to commit assault." 

In Wisconsin v. Mitchell (1993), the Supreme Court upheld an enhanced sentence for a black man who urged his friends to attack a white teenager because of his race, ruling that states can impose harsher penalties for crimes motivated by bias—including racial, religious, and cultural bias—and that someone's words can serve as evidence of that motive.

"So if the defendant assaulted someone because of his race or national origin, the First Amendment likely wouldn't shield him from an enhanced penalty," says FIRE.

Montana's law isn't an outlier, and people have been convicted in other states for less. California, Washington, Michigan, and Illinois all have similar "hate crime" laws that can make it a felony to use force or threaten violence against someone because of their race, religion, or other characteristics.

In 2019, Reason reported on Timothy Trybus, who was convicted of two felony hate crimes in Chicago after drunkenly harassing a woman who was wearing a shirt with a Puerto Rican flag on it. He told her, "You shouldn't be wearing that in America." Tybrus never laid a hand on her, yet his comments upgraded a misdemeanor disorderly conduct charge into two felonies. He was sentenced to two years of probation and 200 hours of community service.

Collins' next hearing is scheduled for April 8, 2027. If convicted, he could face up to five years in prison and a fine of up to $5,000.

Collins' words that night reflect a condemnable kind of nativism that is fundamentally un-American. But so is punishing someone for the content of their beliefs. If Collins did in fact shove the man, that could very well constitute a felony under Montana law. But if he's being prosecuted simply for his words, "that would obviously raise serious First Amendment concerns," says FIRE.

The post Montana Man Faces Felony Charges for Telling Man of South Asian Descent To 'Go Back to His Country' appeared first on Reason Magazine.

I was delighted to sign on to this brief in State v. McMenamy (Mo. Ct. App.) just filed by the ACLU of Missouri Foundation and the Wash. U (St. Louis) First Amendment Clinic, on behalf the ACLU of Missouri and Profs. Jane Bambauer and Lyrissa Lidsky and me. The Introduction:

The First Amendment and article I, § 8 of the Missouri Constitution broadly protect the right to speak to the public about other people. This is true even when the speech "is intended to trouble or annoy, or to make another timid or fearful." United States v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022). And it is true even when speech uses "social pressure and the 'threat' of social ostracism … to embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). While individuals who are the subjects of unwanted speech may be able to limit some speech directed to them, they cannot limit offensive speech about them directed to others. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Contrary to this established law, Matthew McMenamy was convicted and sentenced to 10 years in prison for openly and vigorously criticizing a local police detective he believed had engaged in misconduct. Mr. McMenamy used his public social media accounts and publicly distributed flyers to attempt to draw the community's attention to the detective's actions. He expressed his hope that his revelations would result in the officer's removal.

While Mr. McMenamy's speech was certainly concerning to the detective, the circuit court did not make any finding that either the flyers or any one of the dozens of social media posts submitted as evidence fell within any category of unprotected speech, such as true threats. Nor could the circuit court have done so, as none of Mr. McMenamy's speech was outside the bounds of the First Amendment's protection. His convictions for harassment and stalking violate the First Amendment and should be reversed.

The opening paragraph of the section on the facts (for the full discussion of the facts, read the brief):

In August 2023, Matthew McMenamy began posting on social media about what he viewed as misconduct and racism by a local police detective, who years before had been involved in Mr. McMenamy's involuntary commitment. See State's Exs. 60A–M. Mr. McMenamy sought to publicize one of the detective's public Facebook posts, where the detective wrote: "If black lives matter then why are they shooting and killing each other at an alarming rate." State's Ex. 60B ("Let's make this racist post go viral … #BLM #RacistCop ….); State's Ex. 60A ("The people want answers. Is [detective] a racist? Does he feel that people of color do not matter because of an idea that they murder each other at an alarming rate?"). Many of Mr. McMenamy's posts were aimed at sharing with the public his concerns about the detective's fitness for his position. For example, Mr. McMenamy posted he was "in talks with a billboard company to put [detective's] racist quotes up next to a picture of him in uniform" because "[s]omeone like that shouldn't be a detective, an election [sic] official, or let alone anything near public service." Tr. 736:10–21, State's Ex. 60K. Mr. McMenamy's posts also described his feelings about his prior involuntary commitment and thoughts about hurting his parents before getting help. See State's Ex. 60E (Mr. McMenamy's post that he "had a bad day last Sunday … I still need time to heal but … I am going to counseling and I will be looking for support groups").

And the opening material in the legal argument (again, read the brief for much more):

All of Mr. McMenamy's social media posts and his distribution of flyers were protected by the First Amendment. Harassment and stalking laws may, in some circumstances, be constitutionally applied to protect unwilling listeners from unwanted, one-to-one speech directed to that listener. The government's power to protect an unwilling listener from speech about them directed to the public, on the other hand, is sharply limited, even when that speech is annoying, offensive, or alarming. Unless such speech falls within one of the narrow, historically recognized categories of speech that the U.S. Supreme Court has held may be regulated without violating the First Amendment, such as "true threats," it is presumptively protected.

Here, Mr. McMenamy spoke to the public, and his speech did not fall within any unprotected category. This Court should reverse Mr. McMenamy's convictions. Even if this Court does not find that all Mr. McMenamy's speech is protected from criminal prosecution by the First Amendment, he is at least entitled to a new trial. The circuit court allowed the State to present evidence of more than four months' worth of social media posts to the jury and then instructed the jury it could find Mr. McMenamy guilty based on unidentified "alarming content" in these posts. This means a juror could have convicted Mr. McMenamy based on speech protected by the First Amendment.

[I.] The State's prosecution of Mr. McMenamy for harassment and stalking based on unwanted speech about individuals directed to the public violates the First Amendment.

Speech directed to the public at large is presumptively protected unless it falls into one of the narrow, historic exceptions to the First Amendment. This is because even if some listeners are likely to be offended, others may be willing listeners who find the speech valuable. For this reason, while harassment and stalking statutes may, in some instances, be constitutionally applied to repeated unwanted communications to an individual, they cannot be constitutionally applied to communications to the public about an individual.

[A.] Stalking and harassment statutes were originally intended to limit unwanted communications directed to a specific person.

For decades, laws have "restricted certain kinds of unwanted speech said to a particular person." For example, state and federal criminal harassment statutes were enacted to prohibit unwanted telephone calls to a particular person. Similarly, the federal government and some states have banned certain unwanted mailings into the home. These laws reflect an intention to protect individuals from repeated, unwanted communications to them, particularly in the home.

More recently, states enacted stalking laws to proscribe behaviors such as physically following, surveilling, or engaging in repeated unwanted personal contacts with a particular person. Courts have relied on stalking laws or restraining order laws to ban repeated or annoying letters, phone calls, or personal contact from a particular person. While some of these laws have been struck down in some states, "they have generally been upheld by lower courts; and the U.S. Supreme Court has upheld the federal ban on repeated unwanted mailings."

These laws share something in common: In the vast majority of their applications, they restrict unwanted speech to a person, not unwanted speech about a person. It is in this context—where the laws are being applied to "one-to-one speech"—that they "have generally been upheld against First Amendment challenge." Id.

As the internet has made it easier for communications to reach the public, maintaining this distinction between constitutionally permissible punishment of certain one-to-one speech and constitutionally impermissible punishment of one-to-many speech is critical. Social media is "the modern public square." However, the increased exposure for "upsetting" or "frightening" online speech can bring with it an increased risk of overcriminalization. Online communication "lack[s] many normal contextual clues," including tone of voice and expression. "The ubiquity of this speech raises the possibility of highly discretionary enforcement." Thus, in the context of online speech, courts must exercise particular caution to ensure the state's application of harassment and stalking laws does not exceed the laws' original intention or permissible constitutional boundaries.

[B.] The First Amendment grants broad protection to speech directed to the public at large, even when the subjects of that speech may be alarmed or offended.

The U.S. Supreme Court has consistently recognized a distinction between speech directed to the public at large and interpersonal speech for First Amendment purposes. Even when the content of the speech is subjectively offensive or alarming, the U.S. Supreme Court has typically protected public statements about a person—absent a showing of a narrow and well-established First Amendment exception, such as true threats, fighting words, or defamation.

As now-Justice Alito stated: "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); [citing other cases]. Many courts have endorsed this very point, quoting Saxe, in the context of criminal harassment laws and the closely related harassment restraining order laws. [Citing still more cases].

Unlike prohibitions on speech said to a particular unwilling listener, restrictions on speech to the public deprive a speaker of the opportunity to communicate with willing listeners. Denying access to potentially interested audiences undermines the use of speech to influence opinion and conduct and, as a result, hinders the robustness of public debate—particularly when the restricted speech concerns a matter of political, social, or other concern to the community. One's interest in being free from public criticism is insufficient to overcome protection for speech….

Accordingly, public statements about a person that coerce, annoy, alarm, offend, or embarrass are generally protected by the First Amendment. {The State may have some power to restrict narrowly defined categories of speech that reveals private information about a person that is "almost never relevant to any discussion on either public or private topics" (e.g., nude photos, Social Security numbers). No such speech is at issue here.} In Organization for a Better Austin v. Keefe (1971), a local civil rights organization believed a local real estate broker's practices were improper. After the broker refused to sign an agreement not to solicit property in the organization's community, the organization distributed leaflets critical of the broker's supposedly racist real estate practices at a local shopping center, on the doors of his neighbors, and to people going to and from his church. Some leaflets accused him of being a "panic peddler" that employed tactics to scare white homeowners into selling their properties; others encouraged recipients to call his home phone number to express their disapproval. The U.S. Supreme Court concluded that the organization's "inten[t] to exercise a coercive impact … does not remove [speech] from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper." The U.S. Supreme Court explained, "so long as the means are peaceful, the communication need not meet standards of acceptability," particularly where the target of the speech "is not attempting to stop the flow of information into his own household, but to the public."

While speech that is intended to solicit violence against particular people may be punishable, speech to the public that harshly criticizes its target or that attempts to persuade through social pressure does not lose its protection even if some listeners may react with threats or violence. In NAACP v. Claiborne Hardware Co. (1982), organizers of a boycott of stores owned by white merchants read aloud and published the names of Black residents who weren't following the boycott to place pressure on them. As in Keefe, the U.S. Supreme Court held the disclosures constitutionally protected, noting the First Amendment extended beyond abstract discussions to protect "offensive" and "coercive" speech intended to influence action. This was true even though some of the people who chose not to comply with the boycott were beaten, had their property damaged, or had shots fired into their homes. The U.S. Supreme Court explained that speech designed to persuade "through social pressure and the 'threat' of social ostracism … does not lose its protected character … simply because it may embarrass others or coerce them into action." …

For a couple of articles of mine on the subject, see One-to-One Speech, One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.

The brief was signed by Kristin M. Mulvey, Jonathan D. Schmid, Gillian R. Wilcox, Jason A. Orr (ACLU Missouri) and Lisa S. Hoppenjans, Benjamin J. Wilson, and students Lindsey Bennett. Megan McConnell (Wash. U. First Amendment Clinic).

The post 10-Year "Harassment"/"Stalking" Sentence for Repeatedly Criticizing Police Detective Violated First Amendment, Amicus Brief Argues appeared first on Reason Magazine.

From Calif. Chamber of Commerce v. Bonta, decided today by Judge Richard Tallman, joined by Judges Richard Paez and Mark Bennett:

California Senate Bill (SB) 399 prohibits an employer from subjecting, or threatening to subject, an employee to adverse action if the employee chooses not to attend an employer-sponsored meeting or receive communications from the employer, "the purpose of which is to communicate the employer's opinion about religious or political matters."

The court concluded that the law restricts speech and not just employers' disciplining employees:

It is true that SB 399 facially forbids only the act of "subject[ing], or threaten[ing] to subject, an employee" to discipline for declining to attend certain meetings. But the law only applies to employers who engage in expressive activity at those meetings: namely, "communicat[ing their] opinion. It does not, for example, prohibit taking adverse action against employees who decline to attend a meeting, the sole purpose of which was for employees to fill out their annual tax paperwork. It prohibits adverse action only when the meeting's purpose was for the employer to engage in expressive activity. Thus, the First Amendment applies.

Our conclusion accords with the Eleventh Circuit's recent decision in Honeyfund.com, Inc. v. Governor (11th Cir. 2024). In Honeyfund.com, employers challenged Florida's Individual Freedom Act [part of the Florida Stop W.O.K.E. Act -EV], which forbade subjecting "any individual, as a condition of employment," to "training, instruction, or any other required activity" endorsing certain ideas [related to race, sex, or national origin -EV]. As California does here, Florida defended the law as "a ban on conduct because only the meetings are being restricted," not the underlying speech.

Our sister circuit rejected Florida's conduct-not-speech defense because the only way to know if the law had been violated was to examine the message conveyed at the meeting. Because "the conduct regulated depend[ed] on—and [could not] be separated from—the ideas communicated," Florida's law was "functionally a regulation of speech" implicating the First Amendment.

So too here. If an employer disciplines an employee for failing to attend an employer-sponsored meeting, the only way to know if SB 399 was violated is to "examine the content of the message that is conveyed" at the meeting. We must ask: did the employer express an opinion on political or religious matters?

So "the disfavored 'conduct'"—subjecting absentee employees to disciplinary action—"cannot be identified apart from the disfavored speech"—the employer's opinion on political or religious matters. Further, that California's law (unlike Florida's law) is viewpoint-neutral does not make it content-neutral. Because employers are forbidden from taking adverse action only if they communicate certain messages at the underlying meeting, the law inevitably singles out employers based on their expressive activity….

The court then concluded the law was content-based ("because it applies only when the employer has discussed certain topics: politics and religion") and speaker-based (limited to speech by employers), and was therefore unconstitutional unless it was narrowly to a compelling interest. And it held that the law likely couldn't be justified by an interest in protecting a "captive audience":

In tension here are "the First Amendment rights of speakers" and "the privacy rights of those who may be unwilling … auditors." The State may protect the unwilling auditor's privacy "by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content." As discussed above, that is not what California did here: SB 399 singles out political and religious speech for regulation. Thus, California, "acting as censor, undert[ook] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others." The Supreme Court has said that "[s]uch selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling … auditor to avoid exposure." In such circumstances, California's ability to limit "discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner."

California fails to identify a single case where a content-based restriction has been upheld because employees were deemed a captive audience or had their substantial privacy interests invaded in an essentially intolerable manner. Instead, the State points to cases upholding speech limitations on public transit, at healthcare facilities, and on school premises, which referred to commuters, patients, and students as captive audiences. California contends that employees are equally captive because they are economically dependent on their employer and risk losing their job, with its pay and benefits, should they refuse to listen to their employer's speech. Thus, California argues that employees need as much protection from unwanted speech at work as commuters on public transit, patients at healthcare facilities, and students at public schools.

California's argument goes too far. Both the Supreme Court and our Court have referred to "captive audiences" only when the government acts as a proprietor or in the context of content-neutral time, place, and manner restrictions. Neither court has relied on a "captive audience" theory to identify a compelling interest sufficient to uphold content-based restrictions on nongovernmental speech in a nongovernmental setting. Nor, as far as we can tell, have any of our sister circuits, with the Eleventh Circuit directly rejecting such a theory. Honeyfund.com. A brief review of the key cases on which California relies demonstrates the point.

The first is Lehman v. City of Shaker Heights (1974), in which the City of Shaker Heights sold advertising space on its public transit vehicles but refused to accept paid political advertising…. A four-Justice plurality … conclud[ed] that the city, operating "in a proprietary capacity," had decided to limit the kinds of advertisements displayed based on several prudential factors. One of those factors was "the risk of imposing upon a captive audience"—commuters. To the plurality, the commuters' "captivity" was merely a prudential consideration in the city's decision to not allow certain advertising on its property.

In his solo concurrence in the judgment, Justice Douglas also described commuters as a "captive audience." That was relevant to his analysis because he believed that the commuters' right "to be free from forced intrusion on their privacy preclude[d] the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." To Justice Douglas, the commuters' "captivity" limited the city's ability to turn its transit vehicles into a First Amendment forum.

The Supreme Court has since characterized Lehman as recognizing the government's ability to "bar from its facilities certain speech that would disrupt the legitimate governmental purpose for which the property has been dedicated." Our precedents consider an audience's "captivity" in the same manner as Lehman: as a prudential factor for a government, acting as proprietor, to consider when deciding what speech to allow in a nonpublic forum.

The Supreme Court has also considered an audience's degree of captivity when deciding if content-neutral time, place, and manner restrictions on speech in traditionally public forums are reasonable. The two examples California cites involved such restrictions imposed on public ways near healthcare facilities, in which patients are "held 'captive' by medical circumstance."

In short, these cases reveal that an audience's degree of "captivity" is relevant when the government, acting as a proprietor, excludes certain kinds of speech from nonpublic forums or when evaluating the reasonableness of content-neutral time, place, and manner restrictions imposed by the government acting as a regulator. No federal appellate court, including the Supreme Court, has relied on a "captive audience" theory to identify a compelling interest sufficient to support a content-based restriction on nongovernmental speech in a nongovernmental forum.

Considering the dearth of support for California's position and that the "captive audience" theory has been applied to support content-based speech restrictions only in nonpublic government forums, we conclude that the industry groups are likely to succeed on the merits of their First Amendment claim.

The plain, if at times disquieting, truth is that in our pluralistic society, … we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.

The logic of the decision would also apply to similar laws in Connecticut, Delaware, Illinois, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the Virgin Islands, many of which were enacted within the last several years. (Of course, the Ninth Circuit decision binding precedent is only binding in, of these states, Oregon and Washington; in others it is only potentially persuasive precedent.)

I expect the decision to be quite controversial, and there will probably be an en banc rehearing petition. Note, though, that the panel consisted of two Clinton-appointed Senior Judges and a Trump-appointed judge; this makes it hard to predict how the en banc court (currently split 16-13 between Democrat and Republican appointees) would vote.

Lonnie D. Giamela (Fisher & Phillips LLP) and Todd A. Lyon (Fisher & Phillips LLP) represent plaintiffs.

UPDATE 10/30/2026, 11:18 am: Note that I signed on to an academics' amicus brief in the case, written by Jennifer Safstrom and Ryan Riedmueller (of Vanderbilt Law School's Stanton Foundation First Amendment Clinic), which focused solely on the standing issues (not the First Amendment merits argument).

The post Law Banning Employer Requirements That Employees Listen to Employer's Religious or Political Speech Likely Violates Employer's First Amendment Rights appeared first on Reason Magazine.

In the 20 years between The Lives of Others being in cinemas and the new stage adaptation, its story of state surveillance and control in East Germany has become uncomfortably resonant for the West, says Will Adie.

The post This Story of State Surveillance and Control in East Germany Has Become Uncomfortably Resonant for the West appeared first on The Daily Sceptic.

I appreciate that many people are skeptical about judges. Indeed, it's good that people take with a grain of salt the statements of government officials, including judges. Judges are human, and humans make mistakes and have prejudices and blind spots.

At the same time, judges are generally quite well-trained lawyers, and know a good deal about what they're writing about. Conventional wisdom holds that federal judges generally are particularly well-qualified (of course, with exceptions, as is true for all institutions). Federal judges also generally employ quite well-qualified law clerks, who do much of the  research and initial opinion drafting.

This means that, for all the risk of error and ideological bias, judges generally (though not always) know what they're talking about in their legal analysis. They tend to particularly know more than non-lawyers, but also often more than lawyers who aren't specialists in the particular field. You might assume that some judge is "woke" or "Trumpy" or what have you, but there's a pretty good chance that the judge's legal analysis is still correct.

This post was prompted by a comment I saw on the Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over The Deep Rig post, though this is just one example of a broader trend. The comment quotes an excerpt from the post's excerpt of the judge's opinion:

In short, if the law did not require "clear and convincing evidence" that the defendant subjectively doubted or disbelieved the published statements, it is likely that Byrne's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, under the law as it currently stands, Coomer's evidence is insufficient to meet these standards and summary judgment for Byrne is therefore required….

The comment then says, "Trumpy judge who apparently didn't bother to read Sullivan, which states" (emphasis added by commenter),

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

And the comment continues, "Seems like this is ripe for appeal. This Trumpy judge seems to think the current precedent requires that the defendant 'subjectively doubted or disbelieved the published statements,' when Sullivan has a looser standard."

The trouble with the commenter's analysis is that Sullivan was of course not the last word on the subject—as the judge knew. Indeed, if one searches for "subjective" in the judge's opinion, one sees a longish passage citing authority supporting the judge's analysis:

Actual malice requires proof that the defendant published the challenged statement with knowledge of its falsity or with reckless disregard for whether it was false. See id. [Coomer v. Donald J. Trump for President, Inc., 552 P.3d 562, 581 (Colo. App. 2024)]; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); St. Amant v. Thompson, 390 U.S. 727, 731 (1968). The test for actual malice is a subjective one. Thus, the issue is not whether "a reasonably prudent [person] would have published, or would have investigated before publishing," but rather whether the defendant "in fact entertained serious doubts as to the truth of [the] publication, or was highly aware of its probable falsity[.]" Coomer, 552 P.3d at 591; Diversified Mgmt., Inc. v. The Denver Post, Inc., 653 P.2d 1103. 1105-10 (Colo. 1982) (en banc); Michel v. NYP Holdings, Inc., 816 F.3d 686, 703 (11th Cir. 2016) ("[W]e ask whether the defendant, instead of acting in good faith, actually entertained serious doubts as to the veracity of the published account, or was highly aware that the account was probably false."); Dershowitz v. Cable News Network, Inc., 153 F.4th 1189, 1193 (11th Cir. 2025) ("[A]ll that matters are the speakers' subjective beliefs about the truth of their own statements.").

St. Amant, cited by the court, indeed states,

[The precedents] are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Gertz v. Robert Welch, Inc. (1974) expressly quotes this passage as the Court having "equated reckless disregard of the truth with subjective awareness of probable falsity." The judge in the Coomer / Deep Rig case, whether you view him as "Trumpy" or not, knew the law here, and the commenter (who had elsewhere said he wasn't a lawyer) didn't seem to.

So, again, definitely view judges' work skeptically, and feel free to criticize it. But don't assume that just because you know one precedent in the field you know the law better than the judge. Don't assume that just because you think the judge has some ideological bias, that ideological bias has led the judge into legal error. And if you have some skepticism about the judge's analysis, check the sources that the judge cites in the full opinion; my posts usually just excerpt the opinion, and often don't include citations, but they generally link to the full opinion so readers can consult it directly.

The post Even "Trumpy Judges" and "Woke Judges" Might Know More Law Than You Do appeared first on Reason Magazine.

Why do the ruling classes in China appear so paranoid, asks John MacNab. Surveillance is everywhere, yet Communist Party officials seem to live in a permanent state of paranoia and oversensitivity to perceived slights.

The post When The Party Comes to Town appeared first on The Daily Sceptic.

Immigration and Customs Enforcement (ICE) agents slashed the tires of a couple who were recording the agents in an incident near Portland, Oregon, earlier this month. The agents then drove away without arresting or talking to the couple, video footage shows.

The American Civil Liberties Union (ACLU), which released the footage today, says it is yet another example of ICE agents retaliating against people for protected First Amendment activity. In an administrative complaint on behalf of the anonymous couple, the ACLU and the ACLU of Oregon are demanding an investigation and answers from the Department of Homeland Security (DHS) about why agents tailed, boxed in, and "vandalized" the vehicle of a U.S. citizen.

The stunning video does not resemble any sort of normal law enforcement:

"What happened to us is not unique, and that is what is so terrifying," A.P. and M.P., the unnamed husband and wife, said in a statement provided by the ACLU. "We observe and record public ICE activity in order to shine a light on their abusive behavior and to create a record of what our government is up to. Because of that, they are terrorizing us and anyone else who dares to exercise their First Amendment right to hold our government accountable. We hope that sharing our story will bring attention to their reckless and unconstitutional attacks on our communities."

According to the ACLU complaint, the unnamed married couple was driving in Hillsboro, Oregon, on the morning of October 7 when they spotted an ICE SUV. The couple followed the SUV to a supermarket parking lot, where there were also two other ICE vehicles. The couple lowered their windows and began yelling "This is ICE! This is ICE!" as well as blowing whistles and honking the car's horn.

One ICE agent grabbed a shopping cart and began approaching the couple's car. The complaint states that the couple heard the agent say something to the effect of, "Let's block them in with the cart." As the couple began driving away, several ICE agents began chasing after them on foot. 

The three ICE vehicles chased the couple after they left the parking lot, "driving aggressively and nearly colliding into" their car, according to the complaint. Additional video shows the ICE vehicles swerving aggressively in front of the couple's car and later unsuccessfully attempting to box in their car. "None of the ICE vehicles had their flashing lights or sirens on during this entire sequence of events," the complaint states.

The couple cut through an empty parking lot, and the chase continued down several more streets before the ICE vehicles turned on their emergency lights and sirens. According to the complaint, the couple continued driving for roughly a minute, fearing to pull over on an empty road with no bystanders. 

Video shows that when they stopped at a traffic light, a masked ICE agent exited his vehicle, walked up to the couple's car, stabbed one of its rear tires with a knife, and then walked back to his car. The couple's car moved slowly forward and into a turn lane before stopping again. Then the same agent got back out of his vehicle and stabbed the tire a second time before returning to his vehicle without attempting to speak to the couple.

"All three ICE vehicles turned off their flashing lights and sirens and drove off," the ACLU complaint states.

The complaint notes that the couple "experienced retaliatory action similar to that experienced by many other individuals across the country engaged in these same First Amendment protected activities."

"In particular, individuals around the country have reported being similarly tailed, boxed in, and threatened with or subjected to violence after observing, gathering information about, and recording ICE agents performing their duties in public," the complaint states.

Last October, ICE agents in the Portland area busted out the car windows of a U.S. citizen who had been filming them, dragged her out of her vehicle, and detained her for roughly seven hours before releasing her without charges.

The ACLU of Tennessee filed a class-action lawsuit in May against a federal law enforcement task force in Memphis for harassing legal observers. Memphis residents allege in declarations that they have been violently arrested, surveilled at their houses, pulled over under false pretenses, and jailed for trying to film the task force. In September, the ACLU of Tennessee published videos showing federal agents arresting the lead plaintiff in its lawsuit while he was attempting to film task force operations.

DHS and immigration officers have repeatedly accused videographers and legal observers of obstruction of justice and "doxxing," but civil liberties advocates say the DHS is flat wrong about the law: Every federal appeals court that has considered the issue—nine so far—has firmly upheld the right to record law enforcement in public.

The Supreme Court has also unequivocally upheld the First Amendment right to criticize or oppose police activity, whether verbally or through other expressive activity.

"The right to record publicly visible law enforcement activity is fundamental to our democracy," Scarlet Kim, senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, said in a press release. "Like many people across the country, our clients have been observing and recording ICE activity in their community. These videos have proven critical to exposing ICE's abuses. If we cannot see and document what our own government is doing on our streets, we cannot hold it accountable for running roughshod over our rights."

The ACLU complaint to the DHS Office of Inspector General and two other DHS oversight offices demands that the agents involved in the incident be identified, investigated, and disciplined. The ACLU is also requesting a "comprehensive investigation of a disturbing pattern of ICE agents retaliating against individuals who observe, gather information about, and record ICE activity."

In response to request for comment, the DHS Office of Public Affairs said in a statement attributed to an unnamed spokesperson that the "incident is currently under investigation."

"ICE law enforcement officers are trained to use the minimum amount of force necessary to resolve dangerous situations to prioritize the safety of the public and our officers," the statement continued. "The men and women of ICE are entrusted with upholding the rule of law and are held to the highest standards of professionalism, integrity, and ethical conduct. We have no further comment at this time."

The post Video Shows ICE Agents Slashing Portland Couple's Car Tire Then Driving Off appeared first on Reason Magazine.

From Judge Tom Barber (M.D. Fla.) Tuesday in Coomer v. Byrne:

This highly contentious defamation action arises from The Deep Rig, a documentary film concerning alleged fraud in the 2020 presidential election[, which was financed by defendant Patrick Byrne, who also appeared in the film].…^. Plaintiff Eric Coomer formerly served as director of product strategy and security for Dominion Voting Systems, a supplier of election hardware and software with its United States headquarters in Colorado. Among other things, the film included statements by non-party Joseph Oltmann claiming that he infiltrated a conference call involving members of Antifa and heard comments from a speaker identified by another anonymous participant on the call as "Eric" and "the Dominion guy."

According to Oltmann, the speaker stated on the call in substance that President Donald J. Trump would not win the election because he had "made sure of it." Oltmann clams he later determined through research and by recognizing Coomer's voice that the speaker had been Coomer. Oltmann further stated that he concluded there was a "high probability" Coomer affected the election. Coomer denies participating in any such call or manipulating the results of the 2020 Presidential election and alleges that Oltmann's story presented in the film was false and defamatory.

Coomer sued, and the court earlier held that he had adequately "alleged sufficient facts to avoid dismissal" and to proceed to discovery. But then Byrne sought summary judgment, arguing that, after discovery, Coomer hadn't introduced evidence to support his claim. And the court concluded that Coomer had indeed not uncovered enough evidence to prove "actual malice" by clear and convincing evidence:

[U]nder Colorado law, where the alleged defamatory statement relates to a matter of public concern, a defamation plaintiff must prove actual malice on the part of the defendant, and must do so by clear and convincing evidence, even if the plaintiff is not a public figure. Coomer has expressly conceded that the statements at issue concern matters of public concern, [and] that Colorado's actual malice standard applies ….

Coomer himself asserts that Byrne believed the 2020 election was rigged immediately after the election. Byrne testified that he believed Oltmann's story and remains highly confident that the gist of Oltmann's story was true. Although the actual malice standard focuses on Byrne's subjective state of mind and beliefs, Byrne's statements as to those beliefs are not necessarily dispositive and Coomer may seek to establish Byrne's subjective lack of belief in the story through circumstantial evidence. The relevant question, then, is whether the evidence Coomer points to is sufficient to support a jury finding, under the clear and convincing evidence standard, that Byrne in fact subjectively disbelieved or had serious doubts about Oltmann's story.

Coomer points to circumstantial evidence that includes the improbable nature of Oltmann's allegations, the lack of independent investigation by Bryne and the lack of corroboration for Oltmann's story, published reports and opinions rebutting claims of election fraud, and Coomer's denials and other suits for defamation filed prior to the publication of the film. It would be reasonable to conclude from a totality of the evidence that, had Byrne acted reasonably, he would have concluded that Oltmann's story was probably false and that Coomer probably did not attempt to tamper with or "rig" the 2020 Presidential election. However, the question for the jury at trial would not be whether Byrne reasonably should have reached that conclusion. It would be whether he did in fact reach that conclusion or at least harbored serious doubts about Oltmann's story or was highly aware it was probably false….

[R]egardless of whether a finding of actual malice might be supportable under the preponderance standard, the evidence is insufficient to support the same conclusion under the much higher clear and convincing standard. Byrne's lack of skepticism, failure to investigate, and disregard for government reports and conclusions by others debunking claims of fraud the 2020 election are equally consistent with negligence and a belief that there was essentially a coverup going on, in line with the grand conspiracy theory portrayed in the film.

Coomer points out that Byrne did not include Oltmann's story in his own book of the same title, but Byrne explained that he wanted to present an argument based on publicly available information, which, unlike a single witness's account of an unrecorded phone call, would be taken seriously as supporting a nationwide investigation. Any inference from the totality of this evidence to a conclusion that Byrne actually disbelieved or seriously doubted Oltmann's story would be weak at best and insufficient to support a finding of actual malice by clear and convincing evidence….

Allowing a jury to infer from evidence that a reasonable person would have doubted Oltmann's story to a conclusion that it is not only possible, but highly probable and free from serious or substantial doubt that Byrne, did, in fact, have serious doubts about it would require the Court to ignore not only the standards just discussed but human nature as well.

The world has always had people with zealously held beliefs who are quite vocal and eager to share their views with anyone who will listen. These people are frequently labeled, pejoratively, as extremists, fanatics, "kooks," "crazies," conspiracy theorists, and the like. They typically have a lot to say on their subjects of interest, and modern technology has given them a powerful microphone to convey their thoughts well beyond the limits of their own communities or personal echo-chambers.

They may make statements that reasonable people consider to be wrong, and sometimes their statements are, in fact, objectively and demonstrably wrong. But those with zealously held beliefs hold firm even when overwhelming objective evidence may be to the contrary. This is because they genuinely and sincerely believe what they say with every fiber of their being, even when objective evidence may suggest otherwise. Many are highly intelligent and sophisticated people, but they never seriously doubt the truth of their statements and remain steadfast in their beliefs no matter what. While these speakers sometimes espouse beliefs and make statements many might consider to be extreme, offensive, irresponsible, and factually wrong, their beliefs are, nonetheless, sincerely held and those speakers believe everything they say is completely true.

Even aside from extreme examples, people in general are hardly paragons of reason and often do not reach or maintain their beliefs by dispassionate assessments of the evidence. They believe what they do, especially on important political, moral and religious issues, as a result of unconscious biases, predispositions, prior emotional, philosophical, and political commitments and intuitions, as well as a disinclination to exert the effort or risk the emotional discomfort involved in exposing themselves to contrary evidence and viewpoints.

As John Kenneth Galbraith observed, "[f]aced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof." Operating within an echo chamber while believing oneself to be well-informed and reasonable has become increasingly easy to do in the age of slanted news sources and targeted media constantly telling their constituencies what they want to hear.

Of course, people with sincerely or even zealously held beliefs may make statements that are both untrue and inflict serious harm on others. Under the actual malice standard, unless it can be proven that the speaker subjectively believed his or her statements to be untrue, the law imposes no liability. That is a policy choice that might deserve reexamination by the appropriate decision makers—the United States Supreme Court and the Colorado courts. As [this] Court noted in the Trump Media & Tech. Group Corp. v. WP Co. LLC (M.D. Fla. 2026) case, the actual malice standard has been criticized by courts and commentators on a number of grounds, with which [this] Court largely agrees.

In short, if the law did not require "clear and convincing evidence" that the defendant subjectively doubted or disbelieved the published statements, it is likely that Byrne's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, under the law as it currently stands, Coomer's evidence is insufficient to meet these standards and summary judgment for Byrne is therefore required….

Peter Ticktin and David Lawrence Perry II (The Ticktin Law Group) represent Byrne.

The post Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over <i>The Deep Rig</i> appeared first on Reason Magazine.

From Judge Paula Xinis (D. Md.) yesterday in Shuma v. Whibley:

Appellant Shane Shuma ("Shuma") and Appellee-Debtor Erin Whibley ("Whibley") were students at Dickinson College during the 2020–21 school year. Shuma made an ill-advised YouTube video satirically opining on the "reasons why the Holocaust was a good thing." The video spread through campus, and an uproar followed. School administrators publicly condemned it, the matter was widely reported in the student newspaper, and students spoke out against Shuma.

In one of Whibley's classes, a lively discussion ensued about Shuma. One student disclosed that she overheard Shuma at a club event saying things that were "absolutely unacceptable to, to say to anyone" and that "there were some threats involved," and she expressed her frustration that his behavior continued "after reporting on Shuma and knowing people who have reported on him in terms of Title IX behavior or just Title IX in general." Another student echoed that she had heard from multiple people that Shuma had written articles in the student newspaper that expressed "racist sentiment." A third student described that Shuma had written an article arguing that "white privilege is not real … is not a thing."

After this conversation, Whibley initiated an online petition to advocate for Shuma's expulsion. The petition described Shuma as the subject of "multiple Title IX issues," and that he had written "racially charged [newspaper] articles." She also described Shuma as a "serial offender." The petition garnered 811 signatures in the first few days, and ultimately over half the Dickenson student body signed it.

Shortly after the posting, Whibley learned that Shuma had no such Title IX complaints filed against him. Within days, Whibley corrected the online petition to eliminate to the claim about Title IX. She further explained in the modified petition that "Shuma has not been in violation of any Title IX statutes," and that she did "not wish to slander [Shuma]," but simply share what she heard from other students.

Shuma sued Whibley for defamation in Pennsylvania state court. After settlement negotiations broke down, Whibley declined to defend the case, and default judgment was entered against her. The state court next concluded that Shuma was entitled to no damages, but upon Shuma's urging, scheduled a damages trial for October 31, 2023.

Days before the trial was set to begin, however, Whibley filed for bankruptcy in the District of Maryland, which triggered an automatic stay of the Pennsylvania case. Shuma next initiated an adversarial proceeding in the bankruptcy case in which he averred that any debt Whibley incurs as part of the Pennsylvania defamation action was not dischargeable in bankruptcy [i.e., couldn't be cancelled the way bankruptcy cancelled most other debts -EV] because her conduct had been willful and malicious. The adversarial proceeding advanced to trial solely on whether Whibley defamed Shuma with the intent to injure him, thus rendering the debt nondischargeable….

Bankruptcy Judge Lori Simpson ruled in Whibley's favor, and the district court affirmed:

Section 523(a) of the Bankruptcy Act enumerates certain exceptions to the dischargeability of debts in bankruptcy. Relevant here, subsection 523(a)(6) states that any debt arising from "willful and malicious injury by the debtor to another entity" is not dischargeable. Importantly, a debt stemming from "a deliberate or intentional injury" is not dischargeable; but a debt can be discharged when arising from "a deliberate or intentional act that leads to injury." …

[T]he Court discerns no error, let alone clear error, in the Bankruptcy Court's factual finding that Whibley did not possess the requisite intent to injure Shuma. The Bankruptcy Court credited Whibley's testimony explaining why she relied on her classmates' reports about Shuma, and next when she learned of their inaccuracy, corrected the public record. The Bankruptcy Court likewise was permitted to credit Whibley's explanation that her prior experiences with sexual assault made her more disposed to believing the reports of Shuma's misconduct, even though such belief ultimately was misplaced.

Last, the Court discerns no error in the Bankruptcy Court's conclusion that Whibley's timely correction of the petition further corroborates a lack of intent to injure Shuma by defaming him. Shuma may feel that Whibley's corrective statement did not go far enough, but mere disagreement with the Bankruptcy Court does not render clearly erroneous the Bankruptcy Court's factual findings regarding Whibley's lack of intent….

The weight of the evidence demonstrates that Whibley posted the petition not to harm Shuma but to protect the student body from Shuma's opprobrium. Whibley plausibly pointed to legitimate reasons why she believed her statements to be true at the time and promptly corrected the petition when she learned she was wrong. Shuma otherwise adduced no meaningful evidence to suggest that Whibley possessed the requisite intent sufficient to meet his burden. All of which supports the Bankruptcy Court's conclusion that the debt remains dischargeable in bankruptcy.

It's not clear to me exactly what "protect the student body from Shuma's opprobrium" means, but here are the passages of the bankruptcy judge's opinion that the court cites there:

In the parlance of Dickinson students, Title IX is a euphemism for sexual assault. All evidence before the Court establishes, and Defendant does not dispute, that the classmate's statements were not true. Perhaps because of Defendant's naiveté, biases and prejudices or because the classroom context lent the discussion an air of credibility, the Defendant did not dismiss her classmate's comments as idle gossip or seek to investigate further. She simply believed them.

The following day Defendant drafted and published an online position on change.org seeking to pressure the Dickinson administration into expelling Plaintiff from the college. In addition to rebuking Plaintiff for his statements in the video, Defendant stated in the petition that Plaintiff has also been reported multiple times for Title IX issues and had written racially charged articles in the Dickinstonian, the college newspaper.

The phrase racially charged in one sense appears to be a code word for racist. That said, it is nebulous to the point of meaningless and appears to reflect the sensitivities and suspicions of the speaker more than the content described.

However, Defendant's statement that Plaintiff had been reported multiple times for sexual assault was an objectively false statement of fact. After calling for Plaintiff's expulsion, the Defendant concluded her statements with a call to action saying, "We can longer accept a slap on the wrist as an acceptable punishment for this serial offender."

On February 24, 2021, the local ABC affiliate, WHTM, published an article about the video and the response by the Dickinson community. The article does not mention Defendant's petition, but includes an anonymous statement by a group of students rebuking Plaintiff for the video. The anonymous statement also stated that Plaintiff authored numerous inflammatory columns in the college newspaper.

The anonymous statement further alleges that the video was not the first time Plaintiff had made such statements, but it was merely the first time such comments were caught on film. Neither the ABC article nor the anonymous statement contained therein make any mention of any sexual assault allegations against Plaintiff….

Instead, reviewing the petition and amended petition in their entirety together with the evidence of the general climate at Dickinson in reaction to the video, it appears that Defendant and others held the opinion that Plaintiff was someone who repeatedly stoked racial tensions and that the video was merely the most egregious and inexcusable in a series of such offenses. The bulk of the original petition conveys that Defendant believed that Plaintiff repeatedly expressed thoughts and opinions that should not be allowed to be expressed at Dickinson.

The statement in the original petition regarding Title IX reads as an unrelated aside. The upshot of the original petition is that Defendant wants Plaintiff removed from Dickinson because she believes that he is a bigot and that she does not feel safe with Plaintiff on campus. Nowhere else in the original petition does Defendant label Plaintiff a racist, misogynist or the like. In fact, Defendant states that the reason she does not feel safe with Plaintiff on campus is not because she is a female, but because she is a Jewish student….

The Bankruptcy Judge's opinion is labeled "Virtual Judge's Ruling," but I take it that means a judge who is present remotely, not actually a virtual judge.

Justin Philip Fasano (McNamee Hosea, P.A.) represents Whibley.

The post Cancellation, Defamation, Bankruptcy, Discharge appeared first on Reason Magazine.

FIRE has billed itself as a nonpartisan organization that fights speech restrictions that are seen as left-wing, right-wing, and no-wing. Some have, however, argued that FIRE mostly fights left-wing restrictions (and thus mostly protects right-wing speakers), and goes after only a few right-wing restrictions as supposed "tokens" to hide its true nature.

To test that, I used Westlaw to find all 2025 and 2026 court opinions that mention FIRE as a lawyer for a party, and tried to classify them. Note that I'm not including cases where there has been no court decision yet or cases where the last court decision was before 2025. I'm also not including the many cases where FIRE has filed amicus (friend-of-the-court) briefs: This is partly to keep the list manageable, but chiefly because amicus briefs, while potentially valuable (I file plenty myself), don't represent the same level of commitment of resources as representing a party would.

Here is the list of the 23 cases that I found that meet my criteria, listed in reverse chronological order by the date of the most recent decision in the case that I could find. For each restriction, I've tried to indicate whether it's a restriction that basically comes from the right, from the left, or from neither direction; sometimes, as you can see, it's difficult to figure that out. I may have missed some cases, but I think this should be a pretty complete and at least representative list:

Case	Challenged restriction	Restriction coming from …
Meeks v. Lawrence (M.D. Tenn.)	Firing of government employee for post critical of Charlie Kirk after his assassination	Right
Streever v. Mullin (D.D.C.)	ICE warning and investigation for critical letter sent to ICE official	Right
Mastriano v. Gregory (W.D. Okla.)	Libel lawsuit over allegations of errors in Ph.D. thesis	Right (plaintiff is conservative legislator)
Stanford Daily Publishing Corporation v. Rubio (N.D. Cal.)	Deportation of noncitizens for anti-Israel views	Right
Pernell v. Florida Board of Governors of State University (11th Cir.)	Florida's Individual Freedom Act ("Stop WOKE Act"), which bars university instructors from promoting or endorsing eight listed concepts about race and sex (viewpoint-based restriction; vagueness).	Right
Spectrum WT v. Wendler (5th Cir.)	Ban on drag shows on campus	Right
Nazarene v. Dehmer (D.N.J.)	Ban on board members discussing board business in public	None; defending apparently conservative school board member
Reges v. Cauce (9th Cir.)	Retaliation against professor for criticism of land acknowledgments on class syllabus	Left
Robinson v. Damphousse (W.D. Tex.)	Professor's off-campus pro-Palestinian talk	Right
Rosado v. Bondi (N.D. Ill.)	Government's alleged jawboning of Facebook and Apple to remove ICE-monitoring content	Right
Coble v. Ballentine (N.C. Ct. App.)	Harassment restraining order barring critic from speaking about former mayoral candidate	Right? (speaker was apparently criticizing right-wing candidate from the left)
Kershnar v. Kolison (W.D.N.Y.)	University's firing of philosophy professor for podcast comments on adult-child sex	Neither
NetChoice, LLC v. Bonta (9th Cir.)	California Age-Appropriate Design Code Act aimed at social media speech to children	Neither
Hogarth v. Hayes (E.D.N.C.)	Bans on ballot selfies	Neither
B. A. v. Tri County Area Schools (6th Cir.)	School banning "Let's Go Brandon" slogan as vulgar	Left?; defending conservative speech
I.P. v. Tullahoma City Schools (E.D. Tenn.)	High school student posting memes with images of principal	Neither
Donnelly v. Des Moines Register (S.D. Iowa)	Trump supporters' consumer fraud lawsuit over election poll	Right
Fellowship of Christian University Students v. Eltife (W.D. Tex.)	Law requiring public universities to ban expressive activity at night and at the end of the semester	Right, though representing conservativish organization
Volokh v. James (2d Cir.)	Law requiring social media platforms to post "hateful conduct" policies	Left
Phillips v. Collin County Comm. College Dist. (E.D. Tex.)	Firing of college professor for public statements about COVID policies	Right
Jensen v. Brown (9th Cir.)	Discipline of professor for conceerns about change to math curriculum	Left?
Students Engaged in Advancing Texas v. Paxton (W.D. Tex.)	Texas SCOPE Act restricting minors' use of social media	Neither
Palsgaard v. Christian (E.D. Cal.)	College requiring pro-DEI teaching	Left

 

One can't expect complete partisan balance, of course, since much depends on where most of the speech restrictions are coming from in 2025-26; which litigants already have lawyers of their own; which cases happened to be decided during the relevant time; and so on. But I think it's fair to say here that FIRE is challenging restrictions coming from all parts of the ideological spectrum.

To be sure, some people argue that the real reason FIRE is going after right-wing speech restrictions and thus protecting left-wing speakers is just to give it political credibility for its real mission, which is protecting right-wing speakers. Based on my knowledge of the people at FIRE, I doubt that this is so: I think they really do want to protect speakers with a wide range of ideological views.

But in any event, one reason people have long protected speakers they disagree with is precisely to build protection for the people they agree with. To quote the noted liberal Justice Hugo Black (in a statement also adopted by Justice Powell's majority opinion in Healy v. James (1972)),

I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.

Even if an organization defends speakers it disagrees with simply because it wants that to lead to more protection for speakers they agree with—again, I don't think that's FIRE's motivation, but even say that it were—that strikes me as a perfectly worthy mission for a pro-free-speech organization.

Note that I was once engaged on a consulting project for FIRE (several years ago now); I have gotten honoraria from them for various talks, and will likely be getting more in the future; I am being represented by them in Volokh v. James; I have been represented by them in First Amendment Coalition v. Chiu; I have represented them in amicus briefs in various other cases; and I am friendly with various people there. If this leads you distrust my analysis, you can certainly go through the cases yourself and tally your own results. I was not asked by anyone to put up this post, and I didn't discuss this post with them before putting it up.

The post Foundation for Individual Rights and Expression Cases (2025-26) and Their Ideological Valence appeared first on Reason Magazine.

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.

A Pennsylvania man put up Halloween decorations around his property. He had no idea they would unleash the horrors of government jawboning. 

Mark, whose real name is being withheld, is a homeowner in Bristol Borough, a suburb near Philadelphia. He decorated his home with a small graveyard, two monster scarecrows, and five mannequins hanging from a large tree on his property. One additional mannequin was lashed to the tree. The faux bodies were wrapped in black plastic secured with duct tape. 

Now local officials are haunting Mark.

At an October 12 borough council meeting, a neighbor complained about Mark's decorations, concerned the display looked too close to lynching. Karla Scott said the decorations are "very offensive, not just to the black people in the community, but the community as a whole." Scott told FOX 29 that her "mind went back to what my ancestors went through being hung from trees with nooses around their neck." (In the televised story, the reporter gives a trigger warning and then blurs the very decorations viewers are supposed to judge as either offensive or old-fashioned spooky fun.)

After Scott voiced her concerns, Council President Ralph DiGuiseppe said Mark had broken no ordinance and that Mark told the borough he would not take the decorations down. "They're just Halloween decorations," Mark told the Bucks County Courier Times. "I think it's been blown out of proportion." 

Despite acknowledging that Mark had violated no ordinance, DiGuiseppe noted a zoning inspector nevertheless visited his house immediately after the decorations went up. 

"Our borough inspector did stop there and talk to him. But we were unsuccessful….[Mark] feels they're Halloween decorations, and he won't take them down," DiGuiseppe told Scott at the meeting. DiGuiseppe then turned to another official who said, "We'll continue our efforts."

The decorations have divided the community, with some residents saying they're simply Halloween decorations and others saying they're racially insensitive. After receiving a complaint from a resident, the local NAACP chapter said in a statement on Facebook, "Something can be legally permissible and still be profoundly harmful." The statement also called for "continued engagement by borough leadership and voluntary reconsideration of the display. This is not about restricting Halloween celebrations or freedom of expression. It is about historical awareness, empathy, and respect for our neighbors."

But Mark's insistence that he would not take them down hasn't been respected by the borough. He was also contacted by Bristol Borough Manager James Dillon and other members of the council, according to Fox News Digital, which also did not publish any pictures of the display. Mark again said he would not take the decorations down. When the mayor of Bristol Borough, Frank Peranteau, reached out to him, Mark invited the mayor to have dinner with his family to discuss the matter. In an email to Reason, Peranteau said he wasn't there to try and change Mark's mind and "found him to be a genuinely caring person with no signs of prejudice." 

Nevertheless, things get spooky when government officials won't take no for an answer when contacting a law-abiding resident to "voluntarily" take down his constitutionally protected expression on his own property. This behavior by borough leadership and staff looks very much like jawboning, which is when government officials try to chill private citizens from exercising their constitutional rights through pressure or indirect threats. 

While Scott and other community members may prefer there be a rule to prevent such decorations, an ordinance banning "offensive" lawn displays would be dead on arrival, constitutionally speaking. It would be viewpoint discrimination and a direct violation of the First Amendment.

Mark says he may have considered removing the display if Scott would have approached him and explained how she felt, according to Peranteau. "He told me that he was upset at the way things were handled in the beginning and he may have considered removing the display then had it been different," the mayor said, "but it was a matter of principle at that point."

Talking with your neighbor may resolve more than summoning government ghouls.

The post Government Officials Admit His Halloween Decorations Are Legal. Why Won't They Leave Him Alone? 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.

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 article examines how editorial disputes, legal restrictions and institutional decisions shape the way Palestinian history, suffering and political expression are presented to the public.