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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post Harassment Restraining Order Based Largely on Speech Critical of Zoo Veterinarian, appeared first on Reason Magazine.

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

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

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

The Indictment alleges that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post Court Declines to Dismiss Threat Indictment Based on "I'm Going to Shoot up a Synagogue" Post appeared first on Reason Magazine.

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

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

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

The post "AI Deepfakes in Court" appeared first on Reason Magazine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post Some Communications by Rabbi Shmuley with AI Platforms May Be Discovered in Order to Determine Punitive Damages appeared first on Reason Magazine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post Open Thread appeared first on Reason Magazine.

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

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

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

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

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

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

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

My thoughts:

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

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

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

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

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

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

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

ME: Did Alschuler reply to Smith?

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

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

Key Points of Alschuler's Reply:   

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

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

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

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

Bluebook (Legal Citation)

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

APA Format

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

. . . .

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

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

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

. . . .

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

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

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

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

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

1. The Pattern of "Law Review Dialogue"

Law reviews almost always follow a highly predictable pattern:

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

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

2. Synthesizing the Title from Contextual Cues

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

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

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

3. The Math of Page Numbers

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

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

Summary: Stochastically Correct, Factually Wrong

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

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

Concluding notes and questions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:

Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….

The facts, according to the appellate court's summary of the trial court findings, were this:

At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."

Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."

Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.

On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant internet site, with her own captions. These images included Butler's children with captions such as "Sickening," "Poor children," and "Those poor poor kids." Lipscy also identified Butler by name, listed Butler's title as "local therapist"—which "insinuate[ed] … [that] Butler was not a real therapist"—and referred to an event coordinated by the Minnesota Department of Natural Resources and Itasca Pride as having "influence over … children."

On October 20, Lipscy attended an event led by a school-board candidate who was advocating for a prohibition on transgender females in female sports. Lipscy broadcast the event on her Grand Rapids Rant webpage, identified Butler's husband, and described him as "pushing for boys to be in girls' bathrooms and supporting bringing kids to drag events." More specifically, Lipscy stated that Butler's husband "wasn't truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could've just watched live with [Butler]." In addition, "Butler's children attend the same school as … Lipscy's niece," and "Lipscy ha[d] been at the school since the above-described incidents … occurred."

Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." She "installed [four] cameras on her property and [two] cameras on her vehicle," "spent sessions with her clients discussing concerns the clients ha[d] about their safety given … Lipscy's social media posts referring to … Butler," "removed signage from her office, met with clients in a place other than her office, and met via tele-health to address concerns about client safety."

Her children became "afraid to go out in public without a parent and [had] an increased fear when out in the community." One of Butler's children "changed the way they dress[ed] because they [did] not want to get physically or emotionally hurt." Butler's children were "fearful that their photos [would] be put online to shame their family," "ask[ed] in public if they [were] safe," and "question[ed] whether people around them [were] 'people that hate Queer people.'"

The court issued a harassment restraining order that provided, in relevant part, that Lipscy

• "shall not harass … [Butler] or her minor children included in the Petition";
• "shall have no direct or indirect contact with … [Butler] or her minor children including any visits, phone calls, contact via electronic means such as email or social networking sites, threats or assaultive behavior to the protected persons, damaging or stealing property belonging to the protected persons, breaking into and entering the protected persons' residence, and/or taking pictures of the protected persons without permission from … [Butler]";
• "is prohibited from being within 500 feet of … [Butler's] home" or "job site"; …
• "is restrained from harassing, stalking, or threatening the protected persons, or engaging in other conduct that would place the protected persons in reasonable fear of bodily injury to that person"; and "is prohibited from the use, attempted use, or threatened use of physical force against the protected persons that would reasonably be expected to cause bodily injury."

Given that the court had found that Lipscy's social media posts referring to Butler were "harassment," and then restrained Lipscy from "harassing" Butler, the order thus forbade Lipscy from continuing to mention Butler. And indeed the appellate court acknowledged this, stating (emphases added) that the HRO

• "allows Lipscy to express her religious views, provided that she does not mention Butler and her children and does not approach Butler, her home, and her workplace," and
• "merely prohibits [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them."

The appellate court upheld the order, reasoning that Lipscy's actions could indeed be found to be harassment, defined by the Minnesota HRO statute as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another":

The district court determined that Lipscy "engaged in harassment," reasoning that Lipscy had: followed, monitored, or pursued Butler and her children; frightened Butler and her children; taken pictures of Butler's children without permission; and used social media to harass Butler on multiple occasions. In making this determination, the district court relied on evidence in the record that Lipscy had reposted pictures of Butler's children from the Itasca Pride webpage to the Grand Rapids Rant internet site with her own captions including: "Sickening," "Poor children," and "Those poor poor kids."

The district court also based its decision on evidence that Lipscy had reposted pictures from the Itasca Pride event while referring to Butler in a manner that questioned Butler's credentials as a therapist and had shared a video of Butler's husband while referring to Butler by name. And the district court made specific findings about how Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." …

And the court held that this doesn't violate Lipscy's free speech or religious freedom rights, because it is directed only at "speech or conduct that … is in violation of one's right to privacy," which Minnesota courts had held is constitutionally unprotected.

I think such an injunction is unconstitutional, at least as to the prohibition on repeatedly naming Butler in posts; for more on such orders, and the appellate decisions that mostly set them aside, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. And while I'm sympathetic to the argument that adults should keep the children out of this, I'm not sure it's constitutional even as to that. But in any event, the Minnesota Court of Appeals thought the injunction was permissible, and I thought it worthwhile to note that.

Sara Jane Baldwin (Gender Justice) represents plaintiff.

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From Berenson v. Gottlieb, decided yesterday by Judges Pierre Leval, Richard Wesley, and Joseph Bianco:

Plaintiff-Appellant Alex Berenson … is an independent journalist and author of a book about the COVID-19 pandemic. Berenson was an active Twitter user during the COVID-19 pandemic, posting about, inter alia, "the public policy response to COVID-19 and the vaccines." See also Appellant's Brief (describing Berenson as "a vocal critic of the public policy response to COVID-19, questioning the underlying evidentiary basis for business and school closures"). Berenson's Twitter follower count rose from approximately 7,000 in January 2020 to more than 229,000 by March 2021. Berenson alleges the existence of a conspiracy by the Biden Administration and Pfizer executives "to pressure Twitter to suspend [his] account and mute his voice as a leading COVID-19 vaccine skeptic." …

In May 2020, Twitter announced that it may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was "concern[ed] about what the new rules might mean for free speech on [Twitter]." In response, Twitter's Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy.

In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to "remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations." Berenson contacted Borrman, "looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines." Borrman allegedly responded that the "points [Berenson was] raising should not be an issue at all," and that Berenson should reach out if he "r[an] into any issues."

On March 1, 2021, Twitter announced a "five-strike policy" to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in permanent suspension. The policy provided that, if a user "believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal."

The next day, Berenson spoke with Borrman, who allegedly reported that "[Berenson's] name has never come up in the discussions around these policies," and that Borrman would "try to ensure [that Berenson would be] given a heads up before an action is taken, but [that Borrman was] not always made aware of them before they're executed."

Berenson alleges that members of the Biden Administration, [Pfizer Board of Directors member and former FDA Commissioner  Scott] Gottlieb, and [Chief Executive Officer of Pfizer Albert] Bourla repeatedly pressured Twitter to suspend his account, citing tweets that Twitter executives, including CEO Jack Dorsey and general counsel Vijaya Gadde, did not believe constituted violations of Twitter's five-strike policy. Berenson received strikes from Twitter in March, July, and August 2021. His Twitter account was permanently suspended with the fifth strike on August 28, 2021.

Berenson sued, but the court rejected his federal civil rights conspiracy claim under 42 U.S.C. § 1985 claim:

[Section] 1985(3) imposes liability on "two or more persons … [who] conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." A plaintiff must "show that some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action." The Supreme Court has cautioned that Section 1985(3) should not be "interpreted as providing a federal remedy for 'all tortious, conspiratorial interferences with the rights of others.'" …

The Supreme Court has explained that the term "class":

unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the [Section] 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under [Section] 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the "general federal tort law" it was the very purpose of the animus requirement to avoid.

Bray v. Alexandria Women's Health Clinic (1993). Religious, gender, and racial discrimination "certainly fulfill[ ] the 'class-based animus' requirement of [Section] 1985(3)." In Keating v. Carey (2d Cir. 1983), we held that political parties are also protected groups under Section 1985(3). More recently, however, we have noted that, "after our decision in Keating, the Supreme Court [in United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott (1983),] suggested that the scope of [S]ection 1985 might not extend to include discrimination against political groups except where that discrimination was based on racial animus." In any event, apart from political parties, we have made clear that protected classes under Section 1985(3) need to possess "the type of inherited or immutable characteristics sufficient to satisfy the class-based animus requirement."

Here, Berenson asserts that the relevant class here is a "class of Americans who had chosen not to receive a COVID-19 vaccine, a class of which [ ] Berenson is apart [sic]." See also id. (describing the class as "Americans who either had questions about the [COVID-19] vaccine or did not want to be forced to take a shot"). The district court correctly held that Berenson's proposed class does not constitute a class for Section 1985(3) purposes. Instead, this is precisely the kind of class that the Supreme Court cautioned against in Bray—a class composed of individuals who share a desire to engage in conduct, i.e., to forgo COVID-19 vaccination, that the defendants allegedly disfavor. To the extent Berenson suggests that the class falls within the ambit of Section 1985 because it "includes a disproportionate number of African-Americans, political conservatives, and evangelical Christians," we are unpersuaded. Even if the composition of the alleged class is accepted as true, we have held that "plaintiffs cannot proceed under a disparate impact theory of liability in … claims brought pursuant to [Section 1985]."

The district court also correctly determined in the alternative that, assuming arguendo that persons not vaccinated against COVID-19 constituted a protected category, Berenson did not sufficiently allege "that the defendants acted with class-based, invidiously discriminatory animus." … In Gleason v. McBride (2d Cir. 1989), we affirmed the dismissal of a Section 1985 claim because the plaintiff "[did] not claim discrimination based on his political party affiliation," but rather "alleged only that he was discriminated against because he was a political opponent of the defendants and was extremely vocal in his opposition to [them]."

Here, Berenson alleges that he was "a highly visible obstacle to [the Biden Administration's] efforts," and that "the White House had targeted [him] specifically" as "ground zero for COVID-19 misinformation." Indeed, the FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted. The FAC also indicates that Berenson was a vocal critic of the Biden Administration. Thus, as in Gleason, Berenson's Section 1985 claim must be dismissed because he failed to plausibly allege "that the defendants acted with class-based, invidiously discriminatory animus."

And the court also rejected Berenson's tortious interference with contract claim:

Under New York law, a claim for tortious interference requires "(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of the third-party's breach of the contract without justification; (4) actual breach of the contract; and (5) damages resulting therefrom." A claim for tortious interference will not lie if the plaintiff fails to plead an actual breach of the contract.

Here, there was a valid contract between Berenson and Twitter, i.e., Twitter's Terms of Service, which provides that Twitter "may suspend or terminate [a user's] account or cease providing [the user] with all or part of the [contractually defined] Services at any time for any or no reason." Berenson argues that the Terms of Service were modified by Twitter's five-strike policy and by Borrman's "assurances to [Berenson] regarding his posts pursuant to [the five-strike] policy." … [But] neither the five-strike policy nor Borrman's statements to Berenson modified the Terms of Service….

The relevant provision of the Terms of Service is located in the section entitled "Ending These Terms," and provides the means by which a user may terminate the agreement, i.e., "by deactivating [a user's] accounts and discontinuing [a user's] use of [Twitter's] Services," and the circumstances under which Twitter

may suspend or terminate [a user's] account … at any time for any or no reason, including, but not limited to, if [Twitter] reasonably believe[s]: (i) you have violated these Terms or the Twitter Rules and Policies or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to unlawful conduct[;] (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Services to you is no longer commercially viable.

The five-strike policy is clearly among the "Rules and Policies" that the Terms of Service contemplates. However, the provision makes clear that suspension or termination of an account is not limited to violations of that policy; rather, as noted above, such suspension or termination could be "at any time for any or no reason." …

We reach the same conclusion with respect to Borrman's alleged remarks, which are too vague to modify the Terms of Service. The alleged remarks are: (1) "I think you have some nuanced points that could be helpful as [sic] try to move ahead" and "[w]e're trying to make sure that factual debate finds a way through the emotion, but we're obviously not successful all the time"; (2) "The points you're raising should not be an issue at all…. The policy is designed to allow debate and discussion, but to discourage conspiracy theories, etc. Please let me know if you run into any issues"; and (3) "I will say that your name has never come up in the discussions around these policies…. If it does I will try to ensure you're given a heads up before an action is taken, but I am not always made aware of them before they're executed. If something happens, please let me know," Collectively, even drawing all inferences in Berenson's favor, these remarks suggest at most that Borrman would attempt to notify Berenson of action taken against him—not that no action would be taken against Berenson or that Berenson would necessarily receive advance notice of any action.

At bottom, Twitter's Terms of Service provided that Twitter could suspend Berenson for "any or no reason," and it did so. There was no modification of that contract and Berenson has failed to allege an actual breach of contract. Therefore, the district court correctly determined that Berenson failed to state a tortious interference claim.

{Before the district court and now on appeal, Berenson relies heavily on Berenson v. Twitter, Inc (N.D. Cal. 2022), a decision in a case Berenson initiated against Twitter in December 2021. There, the district court granted in part and denied in part Twitter's motion to dismiss, holding that the five-strike policy and Borrman's "specific and direct assurances to [Berenson] regarding his posts pursuant to that policy" "amount[ed] to a modification of the [Terms of Service]" and that Berenson had plausibly alleged that "Twitter's conduct … modified its contract with [him] and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through [Borrman]." Id. at (emphasis in original). We find that analysis unpersuasive for the reasons stated above.}

The analysis seems correct to me.

James P. Rouhandeh, Michael S. Scheinkman, David B. Toscano, and Luca Marzorati (Davis Polk & Wardwell LLP) represent defendants.

The post COVID Vaccine Skeptic Alex Berenson's Lawsuit over Termination of His Twitter Account Thrown Out appeared first on Reason Magazine.

U.S. v. Santiago, decided Monday by Judge Chad Meredith (E.D. Ky.), involves this Instagram post:

Santiago is being prosecuted for making threatening interstate communications, in two counts, "one regarding the threat to the President, and one regarding the threat to law enforcement officers." The court allowed the prosecution to go forward:

[T]he question of whether Santiago's speech was a "true threat" or political hyperbole is one that must be determined by a jury, not the Court.

Of course, "courts retain the power to remove a true-threat question from the jury's consideration … if the evidence shows that the speech was protected as a matter of law." But the implication to be drawn from the evidence here is disputed and it is not so clear-cut that the Court can decide it as a matter of law. A reasonable jury could find Santiago's statements to be true threats, and so the matter must be presented to a jury. The First Amendment does not say otherwise because it does not even apply if a jury concludes that the statements were true threats….

For most context, see the FBI agent's affidavit accompanying the criminal complaint; an excerpt:

Between January 27, 2026, and March 27, 2026, kadi_skating [allegedly one of Santiago's user ids] sent the following messages to an unidentified user: …

• kadi_skating: "im filled with political violence now." [January 8, 2026]….

• kadi_skating: "death to trump." [March 2, 2026]

• kadi_skating: "death to the American nazi regime." [March 2, 2026].

• kadi_skating: "and the american people NEED to start shooting at the necks, legs, and arms of ICE agents." [March 2, 2026]

• kadi_skatlng: "STUFF A GRENADE IN THEIR AHH AND BLOW IT UP." [March 2, 2026]

• kadi_skating: "LETS GOOOO no one is spared all of ice is going to die by my hands [March 2, 2026]

• kadi_skating: "I wanna kill n*zis bad." [March 23, 2026]

Emily K. Greenfield and James T. Chapman represent the federal government.

The post Prosecution for Threatening to Cut President's Face Off and Feed It to Stray Dogs Can Go to Jury appeared first on Reason Magazine.

I read and much enjoyed—and highly recommend—my Stanford colleague Diego Zambrano's book, How Americans Enforce the Law. He was kind enough to write up for us this post that captures the core of his argument, and I'm delighted to pass it along (though I encourage people to read the whole book):

The headlines are full of stories about a federal government retreating from enforcement. Agencies are dropping investigations, abandoning regulations, shrinking staffs and changing enforcement priorities. One week, the EEOC drops discrimination cases. The next week, the SEC and CFPB wind down investigations into securities fraud and wrongdoing affecting consumers. Critics fear that the Department of Justice's antitrust division will overlook mergers when it is convenient for the administration. And the DOJ has abruptly reduced enforcement of the Foreign Corrupt Practices Act. Facing these changes, Americans might worry that a wide range of laws will go unenforced.

But that concern misses something unique about the American system of government. We have never relied only on bureaucrats to enforce our laws.

All the way back to the colonial period, American legislators have repeatedly done something unusual: they have given ordinary people the right to sue alongside government officials. In almost every regulatory area that most Americans care about—be it regulation of wages and hours, environmental pollution, consumer protection, or securities fraud—statutes allow both government officials and private parties to file suit to enforce the law. All of this happens through little-known provisions called "private rights of action," which is just a technical name for a right to sue. Thousands of these provisions build a second enforcement system alongside the bureaucracy, turning employees, consumers, competitors and their lawyers into co-enforcers of public law.

This system of private enforcement of the law is highly unusual. In much of the rest of the world, whenever a government faces a regulatory problem, it typically empowers government officials and bureaucrats to police legal violations. In France, Germany, Japan, and even the UK, legislators are far less likely to let anyone sue over, say, environmental pollution or employment discrimination.

Consider the case of oil spills. In 1989, the United States faced the Exxon Valdez oil spill off the pristine waters of Alaska.  Millions of gallons of oil laid waste to coasts, waters, and fisheries for hundreds of miles. What most Americans don't know is that a decade later, France also faced a catastrophic oil spill, caused by a ship called the Erika. So how did governments react? In the United States, private plaintiffs sued Exxon directly under existing tort and maritime law, eventually winning substantial damages. Congress, meanwhile, enacted a statute called the Oil Pollution Act with a new right-to-sue those responsible for oil spills. By contrast, in France, the oil spill led primarily to a major criminal prosecution and, eventually, to new national and European regulatory measures (including a new bureaucracy called the European Maritime Safety Agency). When France finally adopted a right to sue in 2016, it paled in comparison to the American version.

Why is the United States so different? Part of the answer, as I argue in a new book, is that Americans have always done this. Back in the colonial period, state legislatures adopted what they called "penal statutes," that empowered any person to enforce regulatory statutes and collect a bounty. So when Massachusetts wanted to regulate the storage of gunpowder, it allowed private informers to sue neighbors who stored it improperly. And this model applied across many areas of colonial life: alcohol consumption, trade, taxation, public morals, church attendance, and more. The Founders used the same tool across the board: Thomas Jefferson and James Madison co-wrote Virginia statutes full of penal statutes, and John Adams handled these suits routinely as a colonial lawyer.

The key feature of this system is that even though private parties file suit for their own aims—the employee wants their full wages paid or the consumer wants a refund for a shoddy product—they inevitably enforce the law. And those lawsuits benefit everyone else because employers and manufacturers may change their behavior with respect to other employees and consumers. In that sense, every single plaintiff is a little bureaucrat or, as some courts call them, a "private attorney general."

This system has the added benefit of reducing political disruptions in enforcement. Even though any single administration can change the enforcement priorities of the EEOC, SEC, CFPB, or Department of Justice, the president cannot control thousands of lawyers and their clients. Private enforcement, then, makes enforcement less dependent on what the bureaucracy and president want.

Right. So you might think that when the bureaucracy won't pursue wrongdoing, the obvious solution should always be new rights to sue. Indeed, many news stories decrying a lack of government enforcement immediately call for more private lawsuits.

But there's a problem with that solution. Private enforcement is not tailor-made for every regulatory area. It makes the most sense to empower private parties when the bureaucracy is truly faulty, under-resourced, politically vulnerable, or likely to be captured by regulated entities. When this isn't the case, private enforcement can cause more problems than it solves.

Consider, then, the enormous problems that rights to sue pose in the environmental context and in the construction of housing and infrastructure. There, broad rights to challenge government approvals can let private parties oppose the construction of housing, mass transit, green energy, and other projects. Examples of ruinous lawsuits abound. Neighbors in a Maryland suburb—backed for years by a nearby country club—sued to delay the Purple Line light-rail project over concerns for a microscopic organism, while the Sierra Club sued to stop a major Mojave solar energy project over the potential impact to a desert turtle. So even if a city government has approved a project that might benefit thousands of people, a single crank can use a right-to-sue to stop the project. In these settings, rights to sue have contributed to delays and increased costs of housing and infrastructure.

We need a careful approach to rights to sue. Yes, we need more of them in some areas. Especially if the government won't enforce anti-corruption or consumer protection statutes. And yes, in employment law, securities, and antitrust, private enforcement often makes a lot of sense. But this is not necessarily the case in environmental law and construction. There, we need better bureaucracies, not thousands of people with the ability to oppose construction projects for any number of reasons.

When the bureaucracy retreats, Americans should rest assured that private parties will still enforce the law. But that power to enforce the law should be given carefully.

The post "The Three Words That Explain American Government: 'Right to Sue,'" by Stanford Law Prof. Diego Zambrano appeared first on Reason Magazine.

From today's decision by Judge John Sinatra (W.D.N.Y.) in Heeter v. James:

New York enacted a first-of-its-kind law prohibiting law-abiding residents-who are not engaged or employed in an eligible profession-from purchasing body armor for self-defense. New York enacted this legislation "to further strengthen gun laws." New York's body armor legislation, however, violates the Second Amendment….

In D.C. v. Heller (2008), the Court made it clear what the term "Arms" meant when the Second Amendment was ratified. In explaining that "[t]he 18th-century meaning" of the term "Arms" is "no different from the meaning today[,]" the Court quoted multiple dictionaries from the Seventeenth Century. Specifically, "[t]he 1773 edition of Samuel Johnson's dictionary defined 'arms' as '[w]eapons of offence, or armour of defence.' 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined 'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.' 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989).'' As a result, this Court is bound by Heller's textual analysis, which demonstrates that the word "arms" included armor at the Nation's founding (as it does today)….

The State submits that, during the Founding Era, armor "had become rare or even entirely obsolete in everyday American English" and "the protective leather gear of th[e] pre-Kevlar era was notoriously ineffective against bullets, meaning civilians did not typically wear such body protection either." This argument runs headlong into the definitions adopted by Heller, nevertheless indicating that the term "arms"—as it was defined in the Founding Era—included defensive body armor that (according to the State) was supposedly rarely utilized in 1791.

Body armor may be used more today than Defendants' understanding of its use in 1791. But it strains credulity to say that an arm that was rarely used during the Founding Era—yet still protected by the Second Amendment per Heller—is no longer protected despite being much more common among Americans today.

Moreover, this conclusion is consistent with Heller's clear statement that the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." While body armor may not have been in common use at the founding—although the commonly understood definition of "arms" included body armor—neither were other arms commonly used for self-defense, such as resolvers, semiautomatic pistols, and stun guns. See Caetano v. Massachusetts (2016) (Alito, J., concurring). The defensive body armor available today is "no more exempt from the Second Amendment's protections, simply because [it was] unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment." …

Even if the definitions put forth by the Supreme Court in Heller are dicta, this Court has an "obligation to accord great deference to Supreme Court dicta," absent a change in the legal landscape. Defendants have not suggested—nor can they—that a change in the legal landscape exists that would require this Court to ignore how Heller defined the term "arms." …

Because Plaintiffs have demonstrated that body armor is an "arm" protected by the Second Amendment, the burden shifts to the State to justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of arms regulation. The State fails to do so….

The State argues that there exists a "centuries-long historical tradition" demonstrating that, "when body armor has been in use, it has been subject to government regulation." Yet, the State is unable to identify a single regulation on body armor post-ratification…. The State contends that its body armor ban is consistent with "English monarchs and parliaments" who "regularly issued laws forbidding or restricting the wearing of armor …." Not only is this analogy irrelevant to the regulation of arms in the United States, but it also ignores the historical reason the right to keep and bear arms is "understood to be an individual right protecting against public and private violence." Accordingly, the Court interprets the English history put forth by the State in light of these principles and articulates that it is not "sufficiently probative" to defend New York's body armor ban….

The State points to the Statute of Northampton for support for its position that there is a long-standing tradition of restricting who can purchase body armor. The law prohibited anyone to "go, nor ride armed by night, nor by day, in fairs markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armor to the King and their bodies to prison, at the king's pleasure." Notwithstanding the ink that continues to be spilled over this law, the Supreme Court has stated that "the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022)….

The State's analogy to the Statute of Northampton is an attempt to justify its body armor ban by speculating that individuals only wear body armor to terrify the public. Yet, this ignores the reality put forth by Plaintiffs, that the public is more likely to reach for body armor to protect themselves from terrifying circumstances. In Rahimi, the Supreme Court concluded that "[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Here, however, the State is suggesting that a merely broad-based suspicion over the population at large is sufficient to justify a universal ban on the sale and purchase of a specific type of arm. And to the extent that the State analogizes this to prohibiting criminals from purchasing body armor, other statutes already criminalize the use of body armor while committing violent crimes. The State's categorical prohibition of a specific type of arm to law-abiding citizens at large, is untethered from any historical tradition-including the Statute of Northampton….

Nicolas J. Rotsko (Fluet) represents plaintiffs.

The post Body Armor Ban Struck Down by N.Y. Federal Court appeared first on Reason Magazine.

From Judge Stephanos Bibas, joined by Judge Tamika Montgomery-Reeves, in Monday's Holy Trinity Ukrainian Catholic Church v. Township of Collier:

Holy Trinity is a Ukrainian Catholic parish outside Pittsburgh. It practices the Catholic faith, but with rituals and architecture that are distinctively Ukrainian. The parish owns two plots of land. On one of them, in Carnegie, sits a church, where it holds regular liturgies. The other plot, in nearby Collier Township, has been owned by the parish for more than seven decades. That 41-acre plot houses the parish's cemetery and mausoleum but is otherwise mostly wooded.

About three years ago, Holy Trinity's pastor felt called to turn the second plot into a shrine, a pilgrimage destination for faithful to gather from "near and far." The shrine would "honor Mary, the Mother of God, and would pay homage to the sanctity of life." With the help of lawyers, architects, and traffic consultants, Holy Trinity designed the shrine. It envisioned a 13,000-square-foot chapel with gold domes, a bell tower, a museum, a gift shop, and a retreat center.

But the plot is constrained by Collier Township's zoning code. The code divides the township into districts, each of which allows certain types of buildings. The northern, wooded half of the plot lies in a planned-economic-development district, allowing larger projects like business offices, amusement parks, or country clubs. The southern half is in a rural-residential district, allowing farms and single-family homes. Neither district contemplates shrines.

The zoning code is enforced by Collier's five-member Board of Commissioners. The Board has power not only to rezone land or amend the code, but also to approve or deny some building projects, because the code makes some land uses conditional. For instance, the code conditionally allows new churches in rural-residential districts, but only if the Board approves them. In any event, anything as big as Holy Trinity's shrine needs the Board's approval.

To fit the shrine project into the zoning code, Holy Trinity applied to do two things. First, it asked the Board to amend the zoning code to allow planned cultural centers, including the shrine, in economic-development districts. Second, it sought to rezone some of its rural-residential land into economic-development land, to make a larger plot for the shrine. As part of its application, Holy Trinity included sketches of its shrine plus a traffic study showing minimal impact on the surrounding community. After a live hearing with concerned residents, the Board denied Holy Trinity's application, expressing concern about traffic and Holy Trinity's fundraising projections. Some residents, and at least one Board member, were also troubled once they learned that the shrine's message would be pro-life.

So Holy Trinity tried again with a smaller project. It applied to build a modest chapel entirely on its rural-residential land. Though the Board approved the new application, it came with strings attached, limiting bell ringing, the height of the chapel, and who could be remembered at memorial services….

The majority held that Holy Trinity wasn't entitled to a preliminary injunction, because the harm could be repaired by damages (one of the elements of the preliminary injunction inquiry); on this matter, the majority and Judge Paul Matey's dissent had an interesting and complicated debate. But here's a passage as to the facts that struck me as worth noting, even apart from that controversy:

Finally, and most troubling, both community and Board members objected to the shrine's pro-life message. One resident worried that "Father Jason has been very involved in pro life. This is to be a pro life museum … [W]hen you think very political rights, either side, it brings a lot of danger, a lot of protests, as well as costs that could be incurred by the community." Another complained that "the intent of the shrine was a celebration for Roe vs. Wade being overturned … [and] reparation for sin of abortion and counseling, spiritual direction …. this will bring a bunch [of people] potentially for a rally and this could also bring the opposite as well for protest."

Privately, at least one of the Board's members agreed. The day after the hearing, that commissioner forwarded an email about the shrine's pro-life stance to the rest of the Board: "Looks like we might have dodged a bullet last night. The true inten[t] of the shrine" was pro-life and "This could have been a disaster." Another township officer, copied on the email, seemed to affirm those sentiments. Nothing in the record suggests that any other Board member responded and disagreed. And in her deposition, the Board member who wrote the email confirmed that "one of the reasons" that the Board had denied the application was Holy Trinity's pro-life purpose. She also defended denying land-use approval "based on the nature of the religious service to be held in the building."

These objections hint at unconstitutional religious hostility and content-based discrimination, concerns that would be better addressed on a more developed factual record. But at the very least, they strongly suggest that the Board resists ever approving the shrine project. If so, the rezoning denial is effectively absolute, and the "degree" of burden on Holy Trinity is substantial. Plus, the township does not show that denying approval altogether is the least-restrictive means to serve a compelling interest. That is enough to show that Holy Trinity is very likely to prevail on its RLUIPA [Religious Land Use and Institutionalized Persons Act] substantial-burden claim….

The post Rezoning Request for Catholic Shrine May Have Been Denied Because of Shrine's "Pro-Life Message" appeared first on Reason Magazine.