Matt Kezhaya (Kezhaya Law PLC) wrote an amicus brief on my behalf in this case (U.S. v. Cherwitz & Daedone) a few weeks ago—many thanks to him for all his work on it!—and I thought I'd pass it along:
Summary of Argument
Under the Government's theory of spiritual coercion, people who at one point believed that volunteering for a religious organization is the path to enlightenment or salvation, but who later become disillusioned with their former beliefs, can be found to have been retroactively "coerced" into providing that labor. The same logic could apply to nuns who had felt religious pressure to do the educational or nursing work that their order was known for, or to monks who had felt religious pressure to do agricultural work that supports the monastery. Any religious organization that runs a monastery, convent, or any other institution where adherents are expected to work as part of their religious vocation could likewise face felony prosecutions.
Such a theory of criminal liability violates the Free Exercise Clause because it is not "neutral." Governments depart from neutrality not just when legislators pass laws designed to suppress religion, but also when courts enforce otherwise-neutral laws in ways that suppress religion precisely because of spiritual or religious qualities. Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence.
The sexual subject matter and conduct inherent within OneTaste's beliefs and practices is beside the point. The forced labor statute is not limited to sexual labor. 18 U.S.C. § 1589. Rather, it generally prohibits any "labor" obtained through "threats of serious harm." 18 U.S.C. § 1589(a)(3). Indeed, the "labor" subject of this charge was ordinary, non-sexual administrative work entailed in running a religious organization that features events and communal living.
To be sure, laws that restrict sexual labor will usually be neutral and generally applicable, precisely because they do not turn on any claims of religious or spiritual coercion. If any business, religious or not, offers its employees' sexual services in exchange for money, that might well violate generally applicable bans on prostitution or pandering. Likewise, if any business, religious or not, conditions employment on the employee's performing sexual services, that will usually constitute civilly actionable quid pro quo sexual harassment. And enforcing such laws would not jeopardize ordinary religious labor, precisely because they are focused on a narrow range of secularly-defined behavior that is seen as harmful (the exchange of sex for money or employment) rather than on a theory of spiritual coercion that can apply to a wide range of labor.
But such laws were not used in this case. The essence of this charge was punishing a particular religious group. The Court should vacate the convictions, or at least reverse and remand for a new trial with proper limiting instructions.
Argument
[I.] A theory of "spiritual coercion" violates the Free Exercise Clause.
The Free Exercise Clause of the First Amendment prohibits governments from targeting specific religious beliefs or practices as such. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). That prohibition bars more than just legislative enactments expressly targeting religion; it extends to criminal prosecutions that apply facially neutral laws in ways that target disfavored religious beliefs. Fowler v. State of R.I., 345 U.S. 67 (1953).
Of course, as Part III will discuss, "neutral" and "generally applicable" criminal statutes may be applied to religious behavior precisely the same way they are applied to secular behavior; otherwise, each of us would "become a law unto himself." Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990); see also Reynolds v. United States, 98 U.S. 145, 167 (1878). But this power cannot be used to target religious actions because of their religious or spiritual character.
The threshold inquiry is whether the ideas are, within OneTaste's scheme of things, "religious." See Patrick v. LeFevre, 745 F.2d 153, 158-59 (2d Cir. 1984). Indisputably, Defendants, OneTaste, and adherents of OneTaste (including the so-called victims) all considered the doctrines subject of this criminal trial to be "religious." See A-977 ("We believed that … your path to God was through your orgasm") (emphasis added); see also A-1053 (adherents of OneTaste seek "something more" beyond ordinary existence believe "Our most potent biological drive, Orgasm, is the key to unlocking this power.").
OneTaste's doctrines addressed distinctions between the physical and spiritual realms in a dichotomy between the "third dimension" and the "fourth dimension." See A-694. They addressed issues of worldly suffering and promised both enlightenment and transcendence through ceremonial rites. A-1114 (orgasm "was more about energy," borrowing from "Buddhist principles like the concept of qi"); see also A-1446 ("OneTaste teachings integrate the principles of mindfulness with the practice of orgasm"); A-1089 (OneTaste teachings included sex "as a ritual practice" and "Magic School … where we had sort of like priests and priestesses of orgasm"); see also A-1426-1427 (PowerPoint presentation outlining "Alchemize shadow into power through orgasm" and "Orgasm Magic: Bringing out the elements of magic [and] Put the principles of OM into practice in creating what you want … [including] Rituals and ceremonies"). Specific ceremonies described in the record include a marriage ceremony at A-891, a foot soaking ritual at A-1085, and a shower ritual at A-1152. The central ritual tenet of OneTaste was ritualistic sexual activity is, OMing, or "Orgasmic Meditation," which adherents of OneTaste regard as a mindfulness practice, a "meditation on sensation without a goal," A-577, A-785.
The Government made much of the sexual nature of those beliefs and practices. E.g., A-1229. But it is no business of the government, including the courts, to "prescribe what shall be orthodox in … religion." W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Because OneTaste and its adherents considered these beliefs and practices to be "religious" within their scheme of things, the Free Exercise Clause protects their beliefs and practices from governmental targeting.
And the Government did not seriously contest OneTaste's religiosity; instead, it acknowledged, and even stressed, the spiritual and religious nature of OneTaste's activities. According to the Government's closing arguments, the essence of the charge was that "the defendants indoctrinated the victims to believe that Nicole Daedone was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. Prosecutors took issue that "Nicole Daedone taught that orgasm was God." A-1232. And "[n]early all of them [victims] lived in OneTaste housing and were subjected to these teachings incessantly." A-1234. The complained-of "indoctrination" and "teachings" is the very essence of religion: leading adherents to accept doctrines as spiritual truths. That these supposed victims ordered their lives in accordance with OneTaste's beliefs and practices is evidence of spiritual and religious belief, not of criminally punishable coercion.
Had there been evidence these "victims" were physically coerced into accepting OneTaste's religious doctrines, such physical coercion would certainly have been illegal. But that was not the Government's theory. Each of these so-called victims freely admitted that they voluntarily joined the organization. A-267-268; A-872-873; A-939; A-1152-1153. And they freely admitted that they voluntarily left it. A-882; A-939; A-1107. The "indoctrination" and "teachings" for which Defendants stood trial only describes proselytization, the very essence of religion, which cannot be criminally punished.
Likewise, the prosecution argued that Defendants "disrupted victims' personal relationships and isolated them from their friends and family." A-1222; see also A-1235 (victims "felt like OneTaste was all they had"). More particularly, Defendants did so by encouraging some of their adherents, including these "victims," to live in a commune with other like-minded believers. A-262, 359-60, 775, 893-894, 1004-06. But this disruption likewise stemmed not from physical coercion or threats of violence, of deportation, or of other secular harm. Rather, it stemmed from the adherents' sense of the spiritual value of participating in a particular religious and spiritual community. A-872; A-1008-1009 (Ms. Kandell, particularly, described her time at the commune as "one of the greatest experiences of my life," partly because of "the sense of community" and "the focus of the communal living"); A-1138-1139.
This is a commonplace practice among many religious orders. By definition, any follower of any monastic tradition could be described as having their personal relationships "disrupted" or becoming "isolated" from their less committed friends and family. Volokh, Addiction, 75 Emory L. J. at 1190. Nor does it say anything that a religion discourages association with non-adherents, as many religious groups do. E.g., Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987) ("The harms suffered by Paul as a result of her shunning by the Jehovah's Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred.").
The Government also invited the jury to convict because Defendants "financially harmed victims by driving them into debt and not paying them for their labor." A-1222. More specifically, the Government stressed that Defendants accepted, and even encouraged, these "victims" to volunteer their services to their chosen religious organization. A‑908‑910; A‑1028‑1030; A‑1095-1103. But these "victims" were not coerced or defrauded into performing these volunteer services; they knew full well that their services would be unpaid, and they still chose to volunteer their efforts. A-947-48; A-1152-53; A872-76. This too is commonplace among religions: Under our constitutional tradition, it is a defining feature of religion that it relies on charitable contributions of money, goods, and services from its adherents. See generally James Madison et al., Remonstrance Against Religious Assessments (reproduced in full at Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 63–72 (1947)). Indeed, many religions call for participants to tithe 10% of all their secular income. See Volokh, Addiction, 75 Emory L. J. at 1180 n. 5. But for First Amendment protections, a hostile jury could punish that practice as extortion because of religious pressure constituting "the threat of social ostracism or eternal damnation, or from the promise of community or of eternal." Id., at 1180.
The crux of the Government's charge was that the Defendants "forced" the purported victims to perform voluntary services through religious indoctrination and, more generally, made them feel reliant on OneTaste. See A-1236 (victims "felt like their whole world was OneTaste. It was their community, their friends, where they worked, and where they lived. And the defendants did all of this by design"). But such feelings of deliberately induced reliance on a religious community are entirely unremarkable in the religious context. See Volokh, Addiction, 75 Emory L. J. at 1183 (observing that a common technique among many religions is to "slowly lur[e] people into a community and a belief system that they may eventually find emotionally hard to leave, even if they feel some desire to leave").
Many Christians preach eternal damnation without Christ. Buddhists preach eternal suffering without dharma. Latter-day Saints encourage extensive participation in church callings, missionary service, and a tightly integrated congregational life. Countless religious traditions promise spiritual fulfillment, enlightenment, or eternal happiness through faithful adherence to their beliefs and practices. See Volokh, Addiction, 75 Emory L. J. at 1180, 1190. Many religions cause each of us to act and believe in ways non-adherents of our chosen path would find to be irrational or even "rank heresy." See United States v. Ballard, 322 U.S. 78, 86 (1944).
It is no answer for the Government to charge that these so-called victims felt "compelled" to perform the subject services because that compulsion was the product of religious conviction. If each of us are to be entrusted with the right to enter and exit our chosen religions at will, then each of us must also accept the risk that our chosen religions may cause us to donate time, money, or goods. The Court should find that the Free Exercise Clause prohibits this conviction.
[II.] The trial itself was not religiously "neutral."
Government's enforcement action, even under a facially religion-neutral generally applicable statute, violates the Free Exercise Clause when the enforcement of the statute is itself not "neutral," See Masterpiece Cakeshop v. Colorado C.R. Comm'n, 584 U.S. 617, 634 (2018). In Masterpiece Cakeshop, the government sought to enforce Colorado's public accommodations statute in part because of the religious motivations of a baker. Commissioners departed from neutrality by describing the baker's religious beliefs as "despicable" and characterized them as merely rhetorical. Id., at 635. Even "subtle departures from neutrality" on matters of religion are prohibited, not just when a legislative branch enacts a law but also when the executive branch enforces it. See id., at 638.
Just as in Masterpiece Cakeshop, the record in this case is replete with denigration of this particular religion. Ms. Gupta invited the jury to scrutinize OneTaste's vocabulary and the specific doctrines as evidence of wrongdoing. A-1232. She emphasized the specialized use of words or phrases "TurnON" (which seemed [synonymous] with the yoga phrase "state of flow"), "muggles" (meaning non-adherents of OneTaste), "matrix" (referring to "my fake reality of problems"), and "tumescence" (in the specialized spiritual sense of "bad energy that you were holding onto"), and the dichotomy between the "third dimension" (the "concrete world") and the "fourth dimension" ("the higher plane"), and asserted these words or phrases were being used to "indoctrinate the victims." A-1232, A-1235. This argument directly invited the jury to judge unfamiliar or strange religious concepts as proof of religious illegitimacy, which neither prosecutors nor jurors may do. See Masterpiece Cakeshop, 584 U.S. at 639; Fowler, 345 U.S. at 70.
Religions routinely use specialized phrasing like "saved," "possessed," "called," or "enlightened," which may appear unacceptable or incomprehensible to outsiders. That strangeness does not deprive OneTaste of First Amendment protections and certainly cannot underlie a felony criminal conviction, especially when the phrasing refers to spiritual or transcendental concepts. See Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). Quite the opposite: Our natural aversion to other religions is why we have tolerance protections enshrined in the First Amendment to begin with. See Ballard, 322 U.S. at 87; see also Marsh v. Chambers, 468 U.S. 783, 792 (1983).
The prosecutor also described OneTaste as a "sex cult." A-1223, A-1264. That label was inherently pejorative. See United States v. Helbrans, No. S219CR497NSR0102, 2021 WL 4778525, *17 (S.D.N.Y. Oct. 12, 2021) (prohibiting the Government from referring to defendants as being part of a "cult," prohibiting insinuations that "leaders brainwash or force members of the community to behave in or observe their religion in a certain way," and prohibiting "incendiary and irrelevant references" to the religious organization). The prosecutor was using this label as a rhetorical device to persuade jurors that OneTaste's teaching should be regarded with suspicion because they were unconventional. Just like in Masterpiece Cakeshop, this label was employed with the impermissible goal of suggesting the illegitimacy of a particular set of religious beliefs and practices. See 584 U.S. at 635.
The prosecutor argued, "that's not because OMing was actually spiritual. They connected OMing to spirituality for legal protection, and so people would follow Nicole Daedone's teachings." A-1233; see also A-1381 ("They [Defendants] whittled them [victims] down by … indoctrinating them with so-called spiritual teachings and practices."). But what forms of meditation are "actually" spiritual and what are just "so-called" spiritual is not for secular courts to decide. It is no business of our secular government to "prescribe what shall be orthodox in … religion." Barnette, 319 U.S. at 642. The Government simply cannot put the legitimacy of religious or spiritual ideas on trial. Ballard, 322 U.S. at 86-88. Yet the Government did exactly that by arguing:
It is not okay to teach your employees that their spiritual purpose is to fuck the war out of men and that if they stray from the [path] set by OneTaste and by Nicole Daedone, they will be spiritually ruined.
A-1284.
And while there is a narrow zone in which a properly instructed jury can determine whether people's religious beliefs are sincerely held, United States v. Seeger, 380 U.S. 163, 165 (1965), no such instruction was given to the jury in this case. Quite the contrary, the District Court declined to provide jury instructions that any "alleged threats were covered by the First Amendment." A-1211. The District Court even warned defense counsel against referencing Defendants' First Amendment rights: "I'm not going to let you instruct the jury or even come close to instructing the jury on the First Amendment." A-1212. And the District Court refused to order a mistrial despite that the Government "ask[ed] the jury to hold their spiritual beliefs against them." A-1315-1316 (argument); A-1318 (denial).
The Government's rhetorical devices are a far cry from the neutrality required by Masterpiece Cakeshop. The Government was overtly hostile to Defendants' religion in itself and openly invited the jury to judge the legitimacy of OneTaste's religious doctrines and practices. It is no answer that the jury accepted the Government's invitation because the highest law of the land removes that power from legislator, judge, juror, and prosecutor alike. "If one could be sent to jail because a jury in a hostile environment found those teachings to be false, little indeed would be left of religious freedom." Ballard, 322 U.S. at 87.
[III.] Defendants were not charged with commercial sexual practices.
To be sure, nothing in this argument precludes the application of genuinely neutral laws to regulate commercial sexual behavior. For instance, an organization that sells members' or employees' sexual services for money can still be subject, under Employment Division v. Smith, to neutral and generally applicable bans on prostitution. Such laws can be applied without resorting to arguments about spiritual coercion, or claims that the defendant supposedly "indoctrinat[ed people] to believe that [she] was a guru and that her teachings were the path to enlightenment and spiritual growth." A-1222. It would not matter whether the defendant "taught that orgasm was God." A-977. Commercial sale of certain services that lead to orgasm would be the crime, with no need to address the spiritual significance of the orgasm itself.
Likewise, if an employee claims that an employer required sexual services as a condition of employment, the employee could sue for quid pro quo sexual harassment, again a matter that is entirely religion-neutral. Indeed, the government could even criminalize such quid pro quo sexual harassment. See Tex. Penal Code Ann. § 39.03 (criminalizing sexual harassment under color of public office).
Unlike with the Government's expansive reading of the coerced labor statute, none of this would threaten religions that have a tradition of monasticism, or of religious labor as a calling. None of this would treat religious or spiritual teachings as "coercion." And none of this would treat such teachings as crimes when they lead people to feel moved, or even spiritually or religiously obligated, to perform certain tasks that are given to them by a spiritual or religious community.
Of course, in this case the Government chose not to prosecute under statutes banning commercial sale of sexual services—perhaps because there was no evidence that money was being exchanged in return for sexual activity. But these laws exist, and deal with genuine commercialization of sex. Likewise, laws banning rape and sexual assault exist, and deal with genuine physical coercion of sexual acts. There is no reason for a concern about possible commercialization of sex to be used to justify an overbroad reading of coerced labor statutes, which would apply far more broadly than just to sex.
Conclusion
Because the Government's theory of coercion rested in part on "indoctrination" into religious and spiritual beliefs and threats of excommunication from a religious and spiritual community, these criminal convictions cannot withstand Free Exercise Clause scrutiny….
The post Amicus Brief in OneTaste Criminal Prosecution appeared first on Reason Magazine.
Eljay Crisp-Carr, 20, spent five months behind bars before prosecutors asked to dismiss charges
Ohio prosecutors on Friday dropped charges against a man arrested in connection with the 6 June shooting at Toledo’s Old West End festival that injured 12 people.
Eljay Crisp-Carr, 20, had faced more than 50 felony charges stemming from the shooting, including 25 counts of attempted murder. He was released after spending about five months behind bars.
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Novaya Gazeta will turn off its servers and leave its office on Moscow's Potapovsky Lane on 9 November, ending more than 30 years of work, the editorial staff said in a statement published on 30 October. The paper will publish one final issue.
The closure removes what The Economist called Russia's "last free newspaper." Novaya Gazeta had repeatedly exposed evidence of Russia's aggression against Ukraine: in 2015, it published a memo that, it said, apparently reached Putin's administration in February 2014 with a plan to annex Crimea and eastern Ukraine, and in 2017 it published a witness account backing the identification of a Russian colonel linked to the downing of MH17. Some 1,500 journalists have left Russia since the full-scale invasion, and over 100 independent media projects now work from exile, according to a CEPA report. Novaya Gazeta kept working in Moscow through the war, until pressure rose sharply this year and, the paper says, left it with no office and no money.
The eviction became public on 29 October, when The Insider reported a letter to readers from editor-in-chief Sergei Sokolov and journalist Irina Gordienko. The newsroom had worked in the Potapovsky Lane building for 29 years, according to The Insider, or 30, according to the paper. The letter said the paper had very little time to leave and had no new office. The reasons for the eviction and the position of the building's owner have not been made public.
According to the statement, the platform the paper used to collect reader donations was shut down at the same time as the eviction letter arrived. Banks cited internal corporate rules, but the editors called this a coordinated campaign and blamed the FSB, the Justice Ministry, and the Prosecutor's Office.
The museum of Anna Politkovskaya, set up in 2021 in her former office in the same building, will also close, according to The Insider. On 7 October, the 20th anniversary of her murder, the museum received the restored memorial plaque from the Moscow building where she was shot.
The statement lists six colleagues killed for their work: Igor Domnikov, Yuri Shchekochikhin, Anna Politkovskaya, Stas Markelov, Anastasia Baburova, and Natalya Estemirova. It also recalls the attack on Nobel Peace Prize laureate Dmitry Muratov, who nearly lost his sight, and says no criminal case was opened. Columnist Elena Milashina was abducted and beaten in Chechnya in 2023.
Earlier this year, in April, security officers raided the newsroom for 13 hours, and Oleg Roldugin, whom the paper calls its managing editor, was detained in a criminal case over the alleged illegal use of personal data, The Insider reported. The paper says Roldugin was in effect taken hostage for working as a journalist and that his trial is coming. In mid-October, Sokolov's apartment was searched. In early September, the Justice Ministry added Novaya Gazeta to its "foreign agents" register, listing more than 100 journalists and contributors, according to the statement.
Novaya Gazeta suspended publication in March 2022 after warnings from the media regulator Roskomnadzor. In September 2022, a Moscow court stripped the paper of its media license, Reuters reported. Then-editor-in-chief Dmitry Muratov called the ruling "a political hit job, without the slightest legal basis."
Meanwhile, staff who left Russia launched Novaya Gazeta Europe in Riga, according to RFE/RL.
Euromaidan Press has drawn on Novaya Gazeta's reporting, including its interview with Oleg Sentsov, and marked Politkovskaya's legacy in 2019.
Scraping copyrighted material from internet could ‘potentially’ amount to acquisition of property by government, Anne Twomey says
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Altering copyright law to allow AI companies to scrape music, books and journalism could trigger a constitutional breach, Coalition senators and the recording industry have warned, as they raise new fears it could open Australia to massive legal action and compensation claims from rights holders worldwide.
The attorney general’s department admitted it was “extremely alive” to the issue, and Australia’s leading constitutional expert, Anne Twomey, agreed there was “potentially” a concern – depending how legislation was drafted – that granting AI companies permission to scrape copyrighted material from the internet could amount to an acquisition of property by the government.
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In November 2023, three engineers left a South Korean semiconductor testing-components company for a Chinese employer offering twice their previous salaries. According to South Korea’s Intellectual Property Office, they allegedly took proprietary probe-card designs, arranged for a Korean design firm to modify them, and used the technology to develop products in China. By December 2025, […]
The post What Taiwan can teach South Korea about China’s chip tech theft appeared first on Asia Times.
Paul Nowak says ‘hundreds, if not thousands’ of employers could sign access agreements as ‘transformative’ rules come into force
The TUC general secretary, Paul Nowak, is predicting a wave of union recognition deals in the private sector over the next year as “transformative” rules on accessing workplaces come into force.
From Friday, as part of Labour’s Employment Rights Act, unions will have the right to enter workplaces or communicate with staff electronically. From January, employers will be obliged to inform workers of their right to join a union.
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South Korean Special Prosecutor Cho Eun-suk on Thursday demanded the death penalty for former president Yeon Suk-yeol, who touched off a national crisis by declaring martial law in December 2024.
The post South Korean Prosecutor Seeks Death Penalty for Conservative Ex-President appeared first on Breitbart.
A Sullivan County judge heard oral arguments Thursday to determine whether New York Attorney General Letitia James should be removed as special prosecutor in the reopened criminal investigation into an alleged gang rape at Cornell University.
The proceeding ended without an immediate ruling from Judge James Farrell.
The hearing stems from a challenge filed by defense attorney Andrew Miltenberg, who represents Gillio Lopes, one of the men accused in the case.
Lopes is one of seven former Chi Phi fraternity brothers who are accused in a lawsuit of drugging and raping a female Cornell student at their fraternity house in October 2024.
LETITIA JAMES FACES NEW PUSH TO BOOT HER FROM CORNELL RAPE PROBE OVER ALLEGED BIAS: COURT DOCUMENTS
Defense counsel argued that social media comments posted by James prior to her official appointment as "special prosecutor" demonstrate a pre-existing bias and a presumption of guilt that undermines the prosecution's neutrality.
"What this young woman has been forced to endure is horrific and unacceptable," James had posted on social media. "I’m holding her in my heart and in my prayers. To her, and to all survivors: you’re not alone. We stand with you."
TISH JAMES CONFRONTED ON CAMERA OVER TRUMP'S ACCUSATION OF BIAS IN CORNELL RAPE CASE
Arguing before the court, Miltenberg pointed to those public declarations of support as proof of a pre-determined bias.
"Whether it affects all or just one, either the court determines the statements made by AG James take her out of contention to be neutral party reviewing case or not," Miltenberg argued, calling the initial public statements an "original sin" for the case.
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In a statement sent to Fox News on Thursday, a spokesperson for James' office said, "As indicated in our motion before the court, these claims are without merit. The Office of the Attorney General remains committed to conducting an investigation guided only by the facts, the evidence, and the law."
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Representing the state, Assistant Attorney General Kaitlin Vigars defended Gov. Kathy Hochul's appointment of James and pushed back against the disqualification effort, emphasizing that public statements alone do not meet the legal threshold for removal.
Vigars argued that to warrant disqualification, there needs to be a showing of actual prejudice rather than speculative claims of bias.
CORNELL SEXUAL ASSAULT CASE REVIVES SCRUTINY OF A LITTLE-KNOWN NEW YORK LAW ON INTOXICATED VICTIMS
Farrell peppered Vigars with questions about the circumstances leading up to James’ appointment, including if Hochul was aware of James’ social media comment, if James and Hochul were standing together when the governor made remarks about the "brave young woman," if that runs afoul of professional conduct, and if the purpose of appointing the AG was to avoid bias.
Farrell also raised broader procedural concerns during the arguments, noting the potential for conflicting legal rulings if challenges proceed piecemeal across jurisdictions.
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"If multiple judges come down with decisions that’s chaos," Farrell said from the bench, "and the court should not fashion chaos."
Hochul appointed James as special prosecutor on Oct. 1 after stepping in to bypass the local Tompkins County district attorney, who had previously declined to bring charges.
CORNELL RAPE ACCUSER CAN REMAIN 'JANE DOE'; JUDGE WARNS THREATS COULD LEAD TO FEDERAL CHARGES
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With no decision rendered at the conclusion of Thursday's arguments, the judge is expected to issue a formal written ruling in the coming days on whether James will remain as special prosecutor or if the investigation must be reassigned.
Hochul later said on Thursday that all sexual offense complaints at Cornell University are now being referred to New York State Police, rather than Cornell University Police, unless otherwise requested by that individual.
"Every student deserves to feel safe on their campus," she said in a statement, in part. "And when someone reports sexual assault, they deserve to be heard, treated with compassion, and know their allegations will be taken seriously and thoroughly investigated by law enforcement trained to support survivors.
"What Jane Doe described is horrifying. Survivors should be able to trust the institutions responsible for protecting them. We cannot afford to let them down."
Research finds 55% of lawyers are using AI in legal practices, up from 37% last year, though efficiency gains aren’t as high as expected
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More than half of Victoria’s lawyers have reported using AI in their work, according to a new study, but just over a quarter say they have reduced fees as a result of efficiency gains.
They also say clients seeking advice from chatbots have added to their workload, forcing them to correct errors made by AI.
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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.
Russia and Ukraine have maintained a localised ceasefire around Oleshky in the southern Kherson region, creating an opportunity to deliver humanitarian assistance to civilians who have spent months effectively isolated from regular supplies of food, medicine and drinking water.
Ukrainian Human Rights Commissioner Dmytro Lubinets said on 29 October that neither side had reported violations of the agreement and that teams were continuing to clear mines from roads intended for humanitarian convoys.
According to Associated Press, the six-day arrangement began on 27 October and is expected to remain in force until 1 November.
The first substantial humanitarian delivery is scheduled for Friday, 30 October.
An estimated 1,700 to 2,000 civilians remain in Oleshky, many of them elderly residents whose health, mobility or personal circumstances have prevented them from leaving.
The town is situated on the Russian-occupied eastern bank of the Dnipro River, opposite Ukrainian-controlled Kherson.
Its geographical position has made it particularly vulnerable to the consequences of the fighting, while damaged infrastructure, mines and military restrictions have complicated access for humanitarian organisations.
The agreement has attracted attention because of the involvement of US First Lady Melania Trump.
In a White House statement issued on 23 October, her office announced that she had worked with Russian and Ukrainian representatives to secure arrangements for a temporary cessation of military activity.
The statement described her as the intermediary in the negotiations, covering the timing of the ceasefire, humanitarian access, evacuation procedures and operational coordination.
Lubinets subsequently acknowledged her involvement and said communication with his Russian counterpart, Yana Lantratova, had helped maintain the arrangement.
The White House originally announced 29 October as the starting date, but Ukrainian officials later reported that the ceasefire had taken effect at 3am on 27 October.
By Thursday, both sides were describing the agreement as holding without recorded violations.
The participation of the American First Lady is an unusual feature of international humanitarian diplomacy, which is more commonly conducted through governments, international organisations or specialist humanitarian agencies.
However, the immediate significance of the agreement will be determined by whether assistance reaches residents and whether those wishing to leave can do so safely.
Oleshky has experienced prolonged humanitarian difficulties under Russian occupation.
The town suffered extensive disruption following the destruction of the Kakhovka dam in June 2023, which caused severe flooding across communities along the Dnipro.
Subsequent fighting, damage to infrastructure and restrictions on movement further complicated access to essential goods.
According to Ukrainian officials, normal deliveries of food to the town have been effectively interrupted since late May 2026.
Residents have faced shortages of medicines and clean water, while the presence of mines has made movement beyond residential areas hazardous.
The remaining population is believed to consist largely of older people and residents requiring medical attention.
For these civilians, humanitarian access is not simply a matter of replenishing household supplies.
It may determine whether individuals can receive essential treatment, obtain prescription medicines or leave areas where normal medical and social services have ceased functioning.
The ceasefire provides for humanitarian teams to assess residents’ needs and arrange transport for those who wish to leave.
The White House has indicated that residents should be able to choose their destination, including Ukrainian-controlled territory or Russia.
Ensuring that such decisions are genuinely voluntary is particularly important in occupied territory.
International humanitarian law provides protections for civilians under occupation, including restrictions concerning forcible transfers and deportations.
A credible evacuation process therefore requires clear information, freedom from coercion and practical arrangements allowing residents to travel safely.
The presence of journalists accompanying the mission may provide additional documentation, although media access does not replace independent humanitarian monitoring.
Russian and Ukrainian representatives have also been coordinating mine clearance along routes intended for humanitarian vehicles.
Until those routes are confirmed safe, the delivery of assistance and movement of civilians remain dependent on operational conditions.
The agreement remains geographically limited.
Russian strikes continued elsewhere in Ukraine on 29 October, killing civilians in several cities, including Dnipro.
The continuing attacks demonstrate that the localised humanitarian arrangement does not represent a broader change in Russian military operations or the strategic direction of the war.
Nevertheless, the pause has also brought some relief to residents of nearby Ukrainian-controlled Kherson, where repeated attacks have disrupted daily life.
The absence of reported violations around Oleshky suggests that the two sides retain the ability to coordinate narrowly defined humanitarian measures when political and operational arrangements are in place.
That does not necessarily imply an increased willingness to compromise over territory or broader security questions.
The agreement is scheduled to expire on 1 November, leaving only a limited period for delivering aid and facilitating departures.
Its effectiveness will depend on the quantities of assistance delivered, the number of residents reached and whether evacuation arrangements operate as intended.
It will also be necessary to establish what protection, if any, is available to civilians who remain after the ceasefire ends.
A successful operation could provide a model for similarly limited humanitarian arrangements elsewhere along the front.
However, extending such cooperation would require further political consent and practical security guarantees.
For Oleshky’s remaining residents, the immediate question is more urgent: whether several days without fighting can provide the assistance and safe passage that months of war have denied them.
Activists and MEPs want notoriously corrupt foreign officials to face EU visa-bans and asset-freezes, in a proposal backed by Estonia.
People guilty of “serious corruption” including “bribery, misappropriation of public funds, and the laundering of their proceeds” should be added to an existing EU list of global human rights abusers, said 71 MEPs in a letter to EU leaders dated 21 October.
The human rights blacklist includes Russian judges who tormented dissidents, Taliban virtue-enforcers, African warlords, and extremist Israeli settlers among the 151 individuals and 34 entities it names.
But the fact the EU did not have “corruption” as a criterion for inclusion, unlike similar legislation in Western allies Australia, Canada, the US, and UK, left a loophole, the MEPs warned.
“This allows corrupt foreign officials already sanctioned by other Western partners to continue to benefit from EU institutions and its financial systems,” they said.
The anti-corruption bolt-on would have a moral and a strategic value, said Polish rightwing MEP and former interior minister Mariusz Kamiński, who co-signed the letter.
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Ministry of Justice figures show recalls rose 27% in year to June despite emergency measures to ease overcrowding
More people were recalled to jails in England and Wales in the first half of this year than were released, despite government efforts to reduce the prison population, according to figures released on Thursday.
Ministry of Justice (MoJ) data shows that 12,338 people were recalled to custody between the beginning of April and the end of June, while 12,278 people were released. It continues a trend set between January and March, when 13,193 people were returned to prison and 12,977 released.
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© Photograph: Tolga Akmen/EPA
© Photograph: Tolga Akmen/EPA
© Photograph: Tolga Akmen/EPA
The European Commission will not help journalists facing jail in Egypt even though its multi-billion-euro EU-Egypt deal signed in 2024 is conditional on human rights.
On Thursday (29 October), it read out a prepared statement, noting the importance of independent media outlets and that its agreement with Egypt includes a commitment to universal values of democracy, rule of law and human rights.
The statement was read after Cairo cracked down on Lina Attalah, chief editor of the independent media outlet Mada Masr.
The journalist was convicted on Wednesday by a court in Cairo for operating a website without a licence even though she had made multiple attempts over the years to obtain such a licence.
Her latest application for a licence has been pending without response since 2023 and her site has been blocked in Egypt since 2017.
She was fined some €48,000 and ordered to shut down the outlet, highlighting a pattern of abuse against journalists and civil society throughout Egypt, a country deemed an essential partner for the EU in its efforts to curb migration.
As of early October, Egypt has imprisoned 25 journalists.
In response, the commission at a press briefing re-read its short statement on the importance of independent media in Egypt.
Asked if this also means it would press Egypt to drop its case against Lina Attalah, a commission spokesperson said he would not “go further than what we have already put out there”.
Pressed if the crackdown against her is a demonstration of the values cited in its €7.4bn agreement with Egypt, he deferred to another spokesperson before walking off the stage. No other comment was made on the matter.
The response has drawn criticism from rights defenders.
“We don’t need the EU to tell us that Egypt jails journalists. We need to know what it’s going to do about it,” said Claudio Francavilla of Human Rights Watch.
He said the EU has been funnelling billions to Egypt, conditioned on “concrete and credible steps” on human rights.
The exact wording of the agreement, which is published here, says that assistance to Egypt requires it “to make concrete and credible steps” towards respecting effective democracy, the rule of law, and guarantees respect for human rights.
“Egyptian authorities don’t seem to have read the memo. Lame statements like this one are hardly a reminder,” Francavilla said of the commission’s reaction.
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