Month: March 2023

AIs could, of course—and probably should—post disclaimers that stress the risk that their output will contain errors. Bard, for instance, includes under the prompt box, “Bard may display inaccurate or offensive information that doesn’t represent Google’s views.” But such disclaimers don’t immunize AI companies against potential libel liability.

To begin with, such disclaimers can’t operate as contractual waivers of liability: Even if the AIs’ users are seen as waiving their rights to sue based on erroneous information when they expressly or implicitly acknowledge the disclaimers, that can’t waive the rights of the third parties who might be libeled.

Nor do the disclaimers keep the statements from being viewed as actionable false statements of fact. Defamation law has long treated false, potentially reputation-damaging assertions about people as actionable even when there’s clearly some possibility that the assertions are defamatory. No newspaper can immunize itself from libel lawsuits for a statement that “Our research reveals that John Smith is a child molester” by simply adding “though be warned that this might be inaccurate” (much less by putting a line on the front page, “Warning: We may sometimes publish inaccurate information”). Likewise, if I write “I may be misremembering, but I recall that Mary Johnson had been convicted of embezzlement,” that could be libelous despite my “I may be misremembering” disclaimer.

This is reflected in many well-established libel doctrines. For instance, “when a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander.”[1] When speakers identify something as rumor, they are implicitly saying “this may be inaccurate”—but that doesn’t get them off the hook.

Indeed, according to the Restatement (Second) of Torts, “the republisher of either a libel or a slander is subject to liability even though he expressly states that he does not believe the statement that he repeats to be true.”[2] It’s even more clear that a disclaimer that the statement merely may be inaccurate can’t prevent liability.

Likewise, say that you present both an accusation and the response to the accusation. By doing that, you’re making clear that the accusation “may [be] inaccurate.” Yet that doesn’t stop you from being liable for repeating the accusation.

To be sure, there are some narrow and specific privileges that defamation law has developed to free people to repeat possibly erroneous content without risk of liability, in particular contexts where such repetition is seen as especially necessary. For instance, some courts recognize the “neutral reportage” privilege, which immunizes evenhanded reporting of allegations and responses in certain situations: “[W]hen a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges,” even when the reporter has serious doubts about the accuracy of the charges.[3] But other courts reject the privilege altogether.[4] And even those that accept it apply it only to narrow situations: Reporting allegations and responses remains actionable—even though the report makes clear that the allegations may be mistaken—when the allegations relate to matters of private concern, or are made by people or entities who aren’t “responsible” and “prominent.”[5] It certainly remains actionable when the allegations themselves are erroneously recalled or reported by the speaker.

The privilege is seen as needed precisely because of the general rule that—absent such a privilege—passing on allegations can be libelous even when it’s made clear that the allegations may be erroneous. And the privilege is a narrow exception justified by the “fundamental principle” that, “when a responsible, prominent organization … makes serious charges against a public figure,” the media must be able to engage in “accurate and disinterested reporting of those charges,” because they are “newsworthy” just because “they were made.”[6]

Likewise, the narrow rumor privilege allows a person to repeat certain kinds of rumors to particular individuals to whom the person owes a special duty —such as friends and family members—if the rumors deal with conduct that may threaten those individuals. (This stems because from what is seen as the special legitimacy of people protecting friends’ interests.[7]) This is why, for instance, if Alan tells Betty that he had heard a rumor that Betty’s employee Charlie was a thief, Alan is immune from liability.[8] But the privilege exists precisely because, without it, passing along factual allegations to (say) a stranger or to the general public—even with an acknowledgement that they “may [be] inaccurate”—may be actionable.[9]

Now a disclaimer that actually describes something as fiction, or as parody or as a hypothetical (both forms of fiction), may well be effective. Recall that, in libel cases, a “key inquiry is whether the challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact.”[10] A statement that obviously contains no factual assertion at all—as opposed to just mentioning a factual assertion about which the speaker expresses uncertainty, or even disbelief—isn’t actionable.[11] But neither ChatGPT nor Bard actually describe themselves as producing fiction, since that would be a poor business model for them. Rather, they tout their general reliability, and simply acknowledge the risk of error. That acknowledgment, as the cases discussed above show, doesn’t preclude liability.

[1] Ringler Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165, 1180 (2000).

[2] Restatement (Second) of Torts § 578 cmt. e; see also Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985).

[3] Edwards v. National Audubon Soc’y, 556 F.2d 113 (2d Cir. 1977). A few later cases have extended this to certain charges on matters of public concern against private figures. Others have rejected the privilege as to statements about private figures, without opining on its availability as to public figures. See, e.g., Khawar v. Globe Int’l, Inc., 965 P.2d 696, 707 (Cal. 1998); Fogus v. Cap. Cities Media, Inc., 444 N.E.2d 1100, 1102 (App. Ct. Ill. 1982).

[4] Norton v. Glenn, 860 A.2d 48 (Pa. 2004); Dickey v. CBS, Inc., 583 F.2d 1221, 1225–26 (3d Cir.1978); McCall v. Courier-J. & Louisville Times, 623 S.W.2d 882 (Ky. 1981); Postill v. Booth Newspapers, Inc., 325 N.W.2d 511 (Mich. App. 1982); Hogan v. Herald Co., 84 A.D.2d 470, 446 (N.Y. App. Div. 1982).

[5] A few authorities have applied this privilege to accurate reporting of allegations on matters of public concern generally, but this appears to be a small minority rule. Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); Tex. Civ. Code § 73.005.

[6] Edwards, 556 F.2d at 120. Likewise, the fair report privilege allows one to accurate repeat allegations that were made in government proceedings, because of the deeply rooted principle that the public must be able to know what was said in those proceedings, even when those statements damage reputation. But it too is sharply limited to accurate repetition of allegations originally made in government proceedings.

[7] Restatement (Second) of Torts § 602.

[8] Id. cmt. 2. Another classic illustration is a parent warning an adult child about a rumor that the child’s prospective spouse or lover is untrustworthy. Id. cmt. 1.

[9] See, e.g., Martin v. Wilson Pub. Co., 497 A.2d 322, 327 (R.I. 1985).

[10] Takieh v. O’Meara, 497 P.3d 1000, 1006 (Ariz. Ct. App. 2021).

[11] See, e.g., Greene v. Paramount Pictures Corp., 813 F. App’x 728, 731–32 (2d Cir. 2020). Even then, a court might allow liability if it concludes that a reasonable person who knows plaintiff would understand that defendant’s ostensible fiction is actually meant to be as roman à clef that conveys factual statements about plaintiff. The presence of a disclaimer wouldn’t be dispositive then. See, e.g., Pierre v. Griffin, No. 20-CV-1173-PB, 2021 WL 4477764, *6 n.10 (D.N.H. Sept. 30, 2021).

The post Large Libel Models: An AI Company's Noting That Its Output "May [Be] Erroneous]" Doesn't Preclude Libel Liability appeared first on Reason.com.

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Last month, police in Virginia’s Fairfax County shot and killed a man suspected of shoplifting sunglasses. This week, the department released body camera footage and fired an officer involved, but questions remain over why a suspected thief had to die.

On February 22, officers responded to reports of a shoplifter at Tysons Corner Center, a large mall outside Washington, D.C. The officers in question were part of the Tysons Urban Team (TUT), a specialized division of the Fairfax County Police Department (FCPD) assigned to the mall around the clock.

Asset protection had alerted police to a shopper, later identified as 37-year-old Timothy Johnson, whom they suspected of swiping some designer sunglasses at Nordstrom with the intent to steal them. Responding officers saw Johnson set off multiple anti-theft alarms and followed him outside to the parking garage. One uniformed and one plainclothes officer chased Johnson into a nearby wooded area where they each discharged their weapons. Johnson was struck once in the chest and later pronounced dead at the hospital.

On Thursday, the FCPD released the full body camera footage of the encounter, plus a shorter narrated video that included both body camera and security camera footage. Chief Kevin Davis also announced that one of the officers who fired his weapon, Sergeant Wesley Shifflett, had been fired, citing “a failure to live up to the expectations of our agency, in particular use of force policies.” The other officer is on restricted duty until the investigation concludes, though Davis did not specify why only one officer was fired or which one wore the body camera.

In the body camera video, as the officers pursue Johnson through the parking lot and into the woods, the scene is too dark to easily make out what’s going on. The uniformed officer yells “get on the ground” several times before shots are fired; at that point, he dives to the ground and shouts “Stop reaching!” Moments later, he tells another officer, “He didn’t get any rounds off. I don’t know if he’s armed. He was continually reaching in his waistband, I told him to ‘let me see your hands, let me see your hands.'”

But it’s clear from the footage that during the chase, the officer only ever said “get on the ground.” He didn’t say anything about Johnson reaching until after shots were fired.

At a press conference this week, Davis said, “More often than not, the police body camera footage speaks for itself. This time, it does not.” He acknowledged that state authorities and the department’s Internal Affairs Bureau were still investigating.

Davis told reporters at the time of the shooting that he didn’t know whether Johnson was armed and wouldn’t “speculate why the officers discharged their firearms,” but he did note that Johnson was “very well known to law enforcement in the National Capital Region; he, in fact, has a significant violent criminal history.” This week, Davis admitted, “At the time of the officer-involved shooting, they did not [know his criminal history]. They didn’t even know who he was.” Davis also apologized to Johnson’s family and admitted, “I should have answered that question differently…I should have answered it with much greater sensitivity than I did.”

While body camera footage is certainly a good thing in any case involving an officer’s use of force (and for that matter, most any other case), there are still a lot of unanswered questions. For one, Johnson is barely visible in the moments leading up to the shooting. For another, Davis declined to answer a reporter’s question of whether “the use of force in this case matched the situation,” and it’s still unclear whether Johnson had a weapon. (For her part, Johnson’s mother told The Washington Post that he did not own a gun.)

It’s also not clear why Johnson should ever have been in a position to lose his life over some sunglasses. Davis said in his press conference that the Police Executive Research Forum, a policing research think tank, could only find 18 police departments in the country that have policies regarding foot pursuits. But regardless of policy, when stealing some sunglasses and running away ends in getting shot by the police, it’s hard to argue that the punishment fits the crime.

The post Even After Bodycam Footage Release, Questions Remain Around Alleged Shoplifter Killed by Virginia Police appeared first on Reason.com.

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With the swipe of a pen held by Democratic Gov. Gretchen Whitmer, Michigan on Friday became the first state to repeal a right-to-work law in over 60 years. That’s unfortunate not just for the workers who have lost their choice about whether to associate with a union, but also for the state economy. Michigan will be a less prosperous state without right-to-work, and its workers will be less free.

Right-to-work is a simple policy. At its core, right-to-work is about choice. For private sector workers, the National Labor Relations Act establishes rules for what happens when union membership is mandatory. Once a union is recognized, it speaks for all employees within the bargaining unit. An employer must bargain with that union, and only with that union, to set the terms and conditions that will govern the workplace. Employees who do not wish to associate with the union have no choice but to accept its representation and terms of the contract it negotiates. They cannot negotiate for themselves.

Right-to-work restores some voice to dissenting workers by allowing them to keep their jobs without being forced to pay a union “agency fees.” Agency fees are a portion of dues, which workers must pay to a union for its representational activities. Typically, these fees are 70 percent to 80 percent of the dues payment. In states without right-to-work protections, workers who do not want the union to speak for them can be forced to pay these fees. Right-to-work gives these workers a voice by allowing them to at least not have to pay for their legally mandated silence when it comes to their compensation and working conditions.

Although right-to-work laws are simple, their impacts are broad. The economic impacts of right-to-works have been positive both in Michigan and across the country.

Studies have consistently shown that right-to-work leads to stronger economic growth. A 2002 study by the Mackinac Center for Public Policy (where I am director of labor policy) found gross state product, statewide employment, manufacturing employment, construction employment, and per-capita disposable income all grew faster in right-to-work states from 1970–2002, compared to states without right-to-work. That same study showed lower average annual unemployment, poverty rates, income inequality, and labor costs in right-to-work states. A 2007 Mackinac Center study reached similar findings, as did a later review. These findings have remained more or less consistent in the years since.

Right-to-work states also are more likely to create job opportunities. From 2020 to 2021, 867,104 people moved to a right-to-work state away from a state that wasn’t. One reason for this might be that job opportunities are more prevalent in right-to-work states. Companies looking for new locations often consider right-to-work as one key factor. Right-to-work is one way that states can compete economically without having to resort to corporate welfare programs.

In October 2022, the unemployment rate in right-to-work states was 3.4 percent, compared to 3.9 percent in states without the law. Since the pandemic, right-to-work states have added 1.6 million jobs, while other states have lost 809,000 jobs.

Anyone who thinks manufacturing is important should favor right-to-work. A 2021 Harvard study found that the share of manufacturing employment in the economy was 28 percent higher in right-to-work states, compared to neighboring states without right-to-work. The study also showed that average wages and labor compensation weren’t negatively affected by the passage of the law. A similar study conducted by the Mackinac Center in 2022 shows similar results.

Michigan’s economic conditions in the 10 years before right-to-work and the 10 years that followed offer an excellent case study on the positive impact of right-to-work. According to the federal Bureau of Labor Statistics, in the 10 years before right-to-work, Michigan’s unemployment rate averaged 8.5 percent. In the following decade, it was 6 percent. Michigan’s labor force lost 350,657 people from 2002–12, but it gained 90,648 people from 2012–2020. Inflation-adjusted income growth went from 0.06 percent to 21.9 percent.

In nearly every measurable way, Michigan has been better off.

Right-to-work gives workers greater choice about how to manage their lives and offers significant economic benefits for the state they call home. The 60,000 private sector workers in Michigan who have opted out of union membership are not the only ones who will be hurt by the repeal of right-to-work. Union members are also likely to find they are worse off.

The reasons for this lie in simple market forces. In a right-to-work state, a union’s financial stability requires it to please its members. If the union fails to deliver services that justify the price of dues, workers may opt out, denying the union revenue. This incentive is gone once right-to-work is repealed. A union is guaranteed that nonmembers will pay agency fees that are the vast majority of union dues. Repealing right-to-work gives unions a guaranteed income stream, which removes the incentive for them to provide the best services possible to the employees they represent. Repealing right-to-work, then, harms both those who would voluntarily pay the union and those who would not.

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Standing in front of a large American flag at an event touting civics education “on topics including rights and responsibilities of citizens…and also understanding the philosophical underpinnings of the American republic,” Florida Gov. Ron DeSantis (R) made a case for abrogating press freedom.

He supports Florida House Bill 991, DeSantis explained, in its plan to make it easier to sue journalists for defamation, perhaps most controversially by changing the legal status of anonymous sourcing. “If somebody is defamed…if [the journalist is] using anonymous sources, that can be a presumption that that was done with malice,” DeSantis said Thursday. “I think what’s happened is particularly corporate media outlets have relied on anonymous sources to smear people.”

But don’t worry, H.B. 991’s discouragement of anonymous sourcing isn’t “going to cause much of a difference in terms of free speech,” DeSantis added. It will merely “cause some people to not want to put out things that are false, that are smearing somebody’s reputation.”

Of course, it will also cause some people not to want to put out things that are true but unflattering to public figures like DeSantis—or, to point to the obvious case of anonymous sourcing proving correct, President Richard Nixon.

This bill isn’t all bad, and there’s a fair critique to be made of overreliance on anonymous sources where trivial matters are concerned. But, on balance, this legislation is an attack on the freedom of the press, and its support from DeSantis suggests that on an important constitutional matter, there’s not much daylight between him and his presumptive presidential primary rival, former President Donald Trump.

H.B. 991 is in some regards reasonable. For instance, it provides that you don’t become a public figure merely by giving an interview to the press; defending yourself “publicly against accusations;” being the subject of a viral video or photo; or holding “public employment other than elected office or appointment by an elected official.”

In other words, being a teacher or DMV clerk doesn’t make you a public figure. Nor does, say, becoming the “Central Park Karen” or the “ain’t nobody got time for that” woman. In a defamation suit, H.B. 991 says that absent some other sort of fame—some willful entrance into public life, like cultivating celebrity or running for office—these people should be treated like private figures who enjoy a stronger standard of reputational protection.

I’m not sure this distinction is right exactly as written. Protection for people who give a man-on-the-street interview or unwillingly become viral memes makes sense, but police officers strike me as public employees who should be treated as public figures because of their unique role, which includes legally protected use of force. Some critics have also argued H.B. 991’s delineation could violate Supreme Court precedent. Still, the underlying idea—of specifying what it means to be a public figure in a digital era where sudden, unsought notoriety is possible in a way it wasn’t in the very recent past—seems fair.

It’s also fair to say that sometimes the media goes overboard with anonymous sourcing. I’ve thought this myself, especially during the Trump administration, when comments from unnamed “people close to the president” were regularly the basis of high-profile but objectively low-stakes coverage of White House personal drama which mostly told us what we already knew: that Trump was petty, deceptive, and ill-equipped for his office. A story doesn’t have to rise to the significance of Watergate to justify reliance on sources who won’t consent to be named, but that hardly means every snippet of anonymous gossip deserves publication.

And yet, as ever where basic individual rights are concerned, there is—or should be—a yawning gap between this is a dumb or imprudent or risky way to exercise that right and we should make this functionally illegal, which is what H.B. 991 very nearly does with anonymous sourcing.

That’s not the only problem with the bill, either. Its provision that an “allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity” is automatically enough for a defamation suit is similarly troubling for its likely effects on free speech.

So is its mention of “any one presentation to an audience” or “utterance on the Internet” as bases for defamation cases. As a New York Times editorial notes, that could mean, respectively, “statements made at school board hearings and other public meetings” or “a tweet or a Facebook post written by anyone.” It’s not as bad as the United Kingdom’s prosecutions for “grossly offensive” tweets, but it’s a move in that direction of chilling public speech.

It’s a move, too, in the direction Trump wants to go. “One of the things I’m going to do if I win,” he said in 2016, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

This was always a fantasy, because the relevant legislation, like H.B. 991 itself, is overwhelmingly set at the state level and therefore isn’t under the president’s purview. But the animosity undergirding the threat, and Trump’s ability as president to curtail press freedom using tools also employed under the Obama and Biden administrations, is quite real.

That animosity is apparently something DeSantis shares. If elected president, he may well reach for the same anti-press tools of surveillance and suppression of dissent. And in the meantime, as a governor, he might well “open up” Florida’s defamation laws, doing in real life what Trump only imagined.

The post Trump's Anti–First Amendment Skylarking Is DeSantis' Anti–First Amendment Action appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

D.C.-area friends, come and join us on Friday, March 31 to commemorate a real American hero, Robert T. Meyer, who violated a Nebraska law banning instruction in a foreign language and fought his case all the way to the U.S. Supreme Court, which, in 1923, ruled in his favor and gave us one of its most stirring and all-too-rare defenses of individual liberty. Click here to RSVP! Or click here for a nice little article on the exciting backstory to Meyer v. Nebraska.

New on the Short Circuit podcast: Professor Katy Ramsey Mason of the University of Memphis joins the show to talk crime free rental ordinances, which force landlords to evict tenants after anyone in a household is merely charged with (not convicted of) a crime.

• Separation-of-powers buffs may recall the Supreme Court’s Seila Law decision in 2020. That decision held that the statute protecting the Director of the Consumer Financial Protection Bureau from removal (other than “for cause”) unconstitutionally limited the President’s removal power. Does that mean that the CFPB’s civil investigative demand to a (different) law firm was void ab initio? Second Circuit: No. Then was the demand unenforceable because the CFPB’s funding structure violates the Constitution’s Appropriations Clause? Second Circuit: Also no, and the Fifth Circuit’s contrary holding is unpersuasive. Then perhaps the Consumer Financial Protection Act violates the nondelegation doctrine? Second Circuit: Still no. Surely, though, this particular civil investigative demand was unduly burdensome? Second Circuit: We would agree with you if today were Opposite Day, but today is not that day.
• While most of us were doing sad Zoom happy hours and binging on Tiger King in the early days of the COVID-19 pandemic, entrepreneurial lawyers representing students and parents sued just about every university for refunds when they shut down in-person facilities. Because the great thing about America is that everyone gets their decade in court, three years later in a suit against NYU, two judges of the Second Circuit decide that parents who paid their kids’ tuition don’t have standing to sue, a different two judges say maybe a student can sue so please start this all over again, one judge has some concerns about conflating merits and standing questions, and one judge thinks we should just be done with this all.
• Former federal inmate, a devout Muslim, sues under the Religious Freedom Restoration Act, alleging that when he would try to perform his required daily prayers during shift breaks at the prison commissary where he worked, his guards—who also said “There is no good Muslim but a dead Muslim” and put a sticker on his back reading “I love pork bacon”—would follow him and deliberately interfere by making noises, talking loudly, and kicking boxes. Guards: What gov’t official could possibly know that violated the law? Third Circuit (over a dissent): You two. You could have known. No qualified immunity.
• Fourth Circuit (2021): This petitioner’s state court death sentence was defective. We rely on evidence introduced in his federal habeas proceedings. Supreme Court (2022): Reconsider in light of Shinn v. Martinez Ramirez, where we said you can’t do that. Fourth Circuit (2023): Same answer because the State didn’t properly raise the argument that the evidence was inadmissible. Dissent: But have you heard of the “tipsy coachman” rule?
• New IJ cert petition: The Fifth Amendment says that the gov’t must pay just compensation when it takes private property for public use. But the Fifth Circuit recently held, in a one-page opinion, that this requirement doesn’t matter if the legislature hasn’t chosen to enforce it. That, says IJ’s petition, is both wrong and contrary to quite a bit of precedent. And Judge Oldham, joined by four other Fifth Circuit judges, seems to agree, writing that “barring Supreme Court intervention . . . [t]he panel decision is an insuperable obstacle to any plaintiff asserting any federal takings claim against any State in federal or state court.” Sounds like a big deal!
• In which the Fifth Circuit, sitting en banc, upholds a nationwide preliminary injunction against President Biden’s mandate that federal employees get vaccinated against COVID-19.
• In Knick v. Township of Scott, the Supreme Court eliminated the requirement that takings plaintiffs exhaust their state-court remedies before suing in federal court, in part because that rule created a “preclusion trap” that prevented property owners from ever getting to federal court. But that, says the Fifth Circuit, is cold comfort for this plaintiff, which filed its case in state court before Knick and is therefore squarely caught in that same preclusion trap.
• More breaking news on the Fifth Circuit‘s e-cigarette docket: the FDA’s denial of an application to market menthol-flavored e-cigarettes is stayed.
• Allegation: During a 2015 traffic stop (over a minor infraction), Houston police officer approaches with gun drawn and then shoots motorist five times as he reaches for his wallet. Officers drag the man from the vehicle, handcuff him, and do not seek medical attention for six minutes. He dies. Officer: In fact, the motorist pulled a gun. And yet! Seven officers searched the vehicle and did not find a gun. Rather, an investigator who took another look 22 days later found one in plain view on the back seat. Fifth Circuit: The district court’s grant of qualified immunity to the officer is reversed. The claims against the city were properly dismissed, however; just because the officer was promoted and awarded a certificate of bravery for the incident doesn’t mean the city approved of any excessive force.
• Man calls 911 to report that a store clerk pulled a gun on him and threatened him. When Saginaw, Mich. police arrive, they arrest him for filing a false police report. He spends 18 days in jail before being released and all charges against him are dropped. Sixth Circuit: And since they decided he was a “f*cking liar” before he even spoke, dismissed his story as “bull sh*t” before talking to any witnesses, and are alleged to have deliberately avoided reviewing video evidence that could have confirmed his story, there’s enough for this to go to a jury.
• “Steven Moss was sentenced to 15–45 years in prison after an entrapment hearing for which his attorney, David Steingold, arrived entirely unprepared, and a bench trial that lasted only 20 minutes. At every step along the way, from his failure to investigate and interview witnesses to his failure to meaningfully test the prosecution’s case, Steingold failed to conduct himself in the manner consistent with effective representation.” Which would be an absolutely killer first paragraph for Moss if it had appeared in the Sixth Circuit‘s panel opinion considering his ineffective-assistance claim, instead of in the dissent.
• Legally blind prisoner in Tennessee is stabbed by gang members. He sues the prison (and others), alleging civil-rights violations. District court appoints him pro bono counsel, but he files a flood of complaints against the lawyer and she withdraws. Now pro se, he has (understandable) difficulties complying with discovery and other deadlines, so district court dismisses the case for his failure to prosecute it. Sixth Circuit: It looks like the district court might have overstepped, since the blind, incarcerated plaintiff doesn’t appear to have been deliberately flouting his discovery obligations. Judge Readler, concurring in the judgment: Based on the district court’s threadbare analysis, I’ll agree that dismissal was improper. But let’s be real: The plaintiff effectively fired his free lawyer (from “a well-equipped Nashville law firm”) who was doing a perfectly fine job representing him, and then he started missing deadlines and filing frivolous documents. Not great.
• If you’re going to appeal to the Sixth Circuit, Tennessee attorney fired from the state Board of Professional Responsibility allegedly because of your anti-Muslim tweets, remember that court-watchers are going to look up what your tweets were. Apparently, things like “Where’s the evidence that ‘Islam is a religion of peace’? They’ve gone to war against every society they’ve encountered for 1000s of years.” This is the “Streisand effect,” a form of “situational irony.” (One of the attorney’s First Amendment claims can proceed.)
• South Dakota police arrest man based on a warrant that was mistakenly left active. Obviously, inactive warrants don’t supply probable cause. Suppress the meth they found? Eighth Circuit: The exclusionary rule is supposed to deter intentional police misconduct, not paperwork goofs. So, no.
• California-based fast-fashion upstart Honey Bum sues larger rival Fashion Nova for organizing a group boycott against it, alleging Fashion Nova threatened to stop purchasing from clothing vendors who continued selling to Honey Bum. Ninth Circuit: A group boycott requires that the clothing vendors have conspired with each other to boycott Honey Bum. Here they were just sort of independently bullied into it.
• This Ninth Circuit decision contains three judges, yet generates four opinions, but it’s easy to discern the holding: You see, Parts I, II, and III(A) of the lead opinion have three votes, Part III(B)(i) has two votes, and Part III(B)(ii) has two votes, but not the same two votes as the other bit with two votes, except for footnote 16, which has one vote—we have this all written down, but we can show it to you tomorrow if you want to see it.
• Tribe: We have “aboriginal title” to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the “sovereign” (the U.S.) has never properly taken them away, so they’re still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There’s still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits.
• Woman on the state of Oklahoma’s Death Row: The federal district court denied my habeas petition. Would you please certify my appeal on ten issues for why my sentence should be thrown out? Tenth Circuit (2017): Sure, we’ll take a look. Tenth Circuit (2023): But you still lose on all of them. Dissent: OMG there were so many errors in her trial.
• Mining company files an application with the Bureau of Land Management to mine certain claims in Wyoming. The Interior Secretary then sits on the application and soon afterward Congress orders the office to not consider any more. Repeatedly. For 26 years. Company then sues. Does it have a claim that the application should have been initially processed but was unreasonably delayed? District court: It’s time barred. Tenth Circuit: The case can proceed due to the repeated violations doctrine.
• Some people say a Florida Man is stubborn as a mule. He’ll pick fights that don’t need to be picked and continue them long past the point of any conceivable personal benefit. Cross a Florida Man and he’ll hold a grudge against you until the day he dies. I forget where I was going with this. (Ed.: We suspect these reflections by our summarist, himself an erstwhile Florida Man, may have been inspired by these two unpublished cases from the Eleventh Circuit.)

Law students! Come to IJ’s annual Law Student Conference, a two-day event hosted in our Arlington, Va. office on June 3 and 4 that will focus on our recent First Amendment retaliation work. (Like this and like that and also see here. And don’t sleep on this.) Students who aren’t local will receive a travel scholarship. The program includes a dinner cruise on the Potomac River along with an opportunity to meet a few of our clients (as well as this newsletter’s beleagered profreading staff). Click here to have a look at the agenda and to register. Registration includes a simple application that is due by Monday, April 17. Apply today! Spots will go fast!

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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