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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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