Category: reason

The Supreme Court has granted cert in U.S. v. Hemani, which concerns the constitutionality of 18 U.S.C. § 922(g)(3), which forbids a person from possessing a firearm in or affecting commerce if he “is an unlawful user of … any controlled substance.”  The United States just filed its opening brief, stating: “At issue here is Section 922(g)(3)’s disarmament of a defined class of people—habitual users of controlled substances, i.e., those who regularly and unlawfully use drugs that are subject to the Controlled Substances Act, 21 U.S.C. 801 et seq. That restriction is temporary and limited: a person regains his ability to possess arms as soon as he stops habitually using drugs.”

The ban applies only to someone who “is an unlawful user of or addicted to” a controlled substance, and the U.S. brief states:

courts of appeals have uniformly determined that a person is a “user” of a controlled substance within the meaning of Section 922(g)(3) only if he engages in the habitual or regular use of a controlled substance.   That interpretation reflects the ordinary meaning of Section 922(g)(3)’s text. In this context, the verb “use” means “to take or consume (an alcoholic drink, a narcotic drug) regularly or habitually.”

A radically-more expansive definition of “user” is taken by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), and the United States does not even acknowledge or mention it in its brief.  Defining “Unlawful user of or addicted to any controlled substance,” 27 C.F.R. § 478.11 provides:

An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.  (Emphasis added.)

Drug use “within the past year” is a far cry from “the habitual or regular use” of a drug.  ATF’s regulation is one reason why the Fifth Circuit found § 922(g)(3) violative of the Second Amendment.  In Hemani, the Fifth Circuit granted summary affirmance for the defendant based on its prior precedent U.S. v. Daniels (2025), in which the district court gave the ATF regulation as a jury instruction.  The jury was told that one is an “unlawful user” based on use of drugs “within a matter of days or weeks” or based on a “pattern of use or possession.”

As Hemani noted in his brief in opposition to cert, “Contrary to Petitioner’s claim, the restriction as defined by Section 478.11 does not ‘last[] only as long as the habitual drug use continues.’ … To belabor the point, the term ‘habitual drug use’ is nowhere to be found in Section 478.11.”  His brief also points out that the National Instant Criminal Background Check System (NICS) uses ATF’s definition in determining whether to disapprove firearm transfers.

To be sure, the validity of the ATF regulation is not the ultimate issue in Hermani.  As the Solicitor General states in his brief, “The only dispute is a narrow one: does the longstanding body of restrictions support disarming only people actively under the influence of alcohol or controlled substances, as the Fifth Circuit has held and as respondent contends? Or does the historical record also support temporarily disarming people who habitually use alcohol (and, today, controlled substances)?”  The Court will resolve that issue based on its text-history method set forth in Bruen and applied in Rahimi.

But to support its argument that a person who “is an unlawful user” of illegal drugs is one who habitually and regularly uses drugs, the government should take this opportunity to disown ATF’s overly-expansive definition, and however it resolves the case, the Court should do the same.  The ordinary meaning of the statutory terms governs, not an administrative agency’s expansive gloss on those terms.

The Court in Loper Bright Enterprises v. Raimondo, which reasserted the power of the judiciary to interpret the law and abrogated the Chevron deference doctrine, states that “every statute’s meaning is fixed at the time of enactment.”  It recalled its reasoning in Abramski v. U.S. (2014) in construing the Gun Control Act (GCA) that “criminal laws are for courts, not for the Government, to construe,” and that “ATF’s old position [is] no more relevant than its current one—which is to say, not relevant at all.”  Abramski‘s further remark also applies here: “Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly … a court has an obligation to correct its error.”

More recently in Garland v. Cargill, the Court undertook a meticulous analysis of the GCA’s definition of “machinegun” and held that ATF exceeded its regulatory powers by changing that definition.  More broadly, the pre-Loper Bright handwriting has long been on the wall, as evidenced in U.S. v. Apel (2014), which flatly stated that “we have never held that the Government’s reading of a criminal statute is entitled to any deference.”  As Justice Scalia wrote, concurring in Crandon v. U.S. (1990), “we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.”

The bill that resulted in the GCA of 1968 originally would have made it an offense to violate “any rule or regulation promulgated thereunder.”  In Senate debate, based on the argument that only Congress should define crimes, the reference to regulations was deleted.  114 Cong. Rec. 14792-93 (1968).  That remains reflected in the GCA today, § 922 of which makes certain acts unlawful and § 924 of which punishes violations of “this chapter,” not regulations.  Section 926(a) authorizes the Attorney General to “prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter,” but that only includes administrative matters like serial numbers and licenses.

Given the above, the Hemani case makes it all the more timely for the Attorney General, pursuant to the President’s Executive Order of February 7, 2025, to “examine all … regulations … and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the Second Amendment rights of our citizens,” including those promulgated by the Department of Justice and ATF.  DOJ and ATF have in fact been conducting such review, which should result in repeal of the various definitions in § 478.11, like the one at issue here, that purport to expand the reach of the criminal law.

The SG’s brief in Hemani makes the welcome statement at the beginning: “For the Founders, the Second Amendment stood second to none among the Bill of Rights. They regarded the right to ‘keep and bear arms’ for lawful purposes as ‘the true palladium of liberty’ and believed that infringements of the right would put liberty ‘on the brink of destruction.'”  The further briefs that will be filed on both sides will shed light on whether § 922(g)(3) violates the Amendment.  It would help clear the air and assist the Court if the United States would concede in its reply brief that the ATF’s expansive definition in § 478.11 is inaccurate and does not represent the law.

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This week, editors Peter Suderman, Katherine Mangu-Ward, and Matt Welch are joined by associate editor Liz Wolfe to discuss President Donald Trump’s executive order blocking states from enforcing their own artificial intelligence regulations. The panel debates whether a single national framework for AI is necessary to keep American tech companies competitive or whether it represents a serious blow to federalism. They also examine the White House potentially reclassifying marijuana as a Schedule III drug and what that change could mean for the cannabis industry, tax policy, and federal drug enforcement.

The editors then turn to mass shootings in Australia and at Brown University, including the actions of a bystander credited with saving lives at Bondi Beach, and what these incidents suggest about gun control debates. They discuss the U.S. seizure of a Venezuelan oil tanker and threats of land strikes against the Nicolás Maduro regime, and cover the conviction of Hong Kong media tycoon Jimmy Lai under China’s national security law and what it signals for press freedom and U.S.-China relations. A listener asks whether modern socialism reflects moral aspirations that could be redirected toward liberty rather than centralized power.

 

0:00—Trump blocks states from regulating AI

10:31—Reclassifying marijuana as a Schedule III drug

18:39—Mass shootings in the U.S. and Australia

26:59—U.S. seizes Venezuelan oil tanker

36:48—Listener question on optimism for socialism

46:08—Jimmy Lai found guilty by Hong Kong court

57:12—Weekly cultural recommendations

 

Mentioned in This Podcast

“Donald Trump Tries To Override State AI Regulations via Executive Order,” by Jack Nicastro

“Trump Will Let Nvidia Sell Chips to China—but the Feds Will Get 25 Percent of the Profits,” by Tosin Akintola

“Trump’s Plan To Reclassify Marijuana Would Leave Federal Prohibition Essentially Untouched,” by Jacob Sullum

“Stoner King Trump,” by Liz Wolfe

“Shootings at Bondi and Brown,” by Liz Wolfe

“Trump Dares Congress To Take Its War Powers Seriously in Venezuela,” by Matthew Petti

“Trump Is Still Claiming He Saves ‘25,000 American Lives’ When He Blows Up a Suspected Drug Boat,” by Jacob Sullum

“Mark Clifford: A Political Prisoner Fights for Free Speech in China,” by Billy Binion

“Is Free Speech Doomed in Hong Kong?” By Jack Nicastro

“‘I Owe Freedom My Life’: Jimmy Lai Is Imprisoned for Criticizing the Chinese Government,” by John Stossel

“Hong Kong’s Free Press Is Dying,” by Liz Wolfe

• Producer: Paul Alexander
• Video Editor: Ian Keyser

The post Should Libertarians Support Federal AI Regulation? appeared first on Reason.com.

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During his 2024 campaign, President Donald Trump indicated that he supported the Biden administration’s plan to reclassify marijuana under the Controlled Substances Act (CSA), saying “we will continue to focus on research to unlock the medical uses of marijuana [as] a Schedule 3 drug.” Last August, Trump confirmed that his administration was “looking at reclassification,” a move he reportedly discussed last week during a telephone call with House Speaker Mike Johnson (R–La.) that also included cannabis industry executives. The Washington Post reports that Trump is expected to issue an executive order that “directs federal agencies to pursue reclassification,” which MJBizDaily says could happen this week.

Since 1970, marijuana has been listed in Schedule I of the CSA, a category supposedly reserved for substances with a high abuse potential and no accepted medical use—drugs so dangerous that they cannot be used safely even under a doctor’s supervision. That classification has never made much sense, and moving marijuana to Schedule III, a category that includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids, would recognize that it does not meet the criteria for Schedule I. But the practical impact of rescheduling would be relatively modest.

“Symbolically, it suggests that maybe marijuana isn’t as harmful as people thought [and that] maybe it does have some health benefits,” Vanderbilt University law professor Robert Mikos, who specializes in drug policy, told The Washington Post. “On the practical side, though, the impact is pretty muted.”

Placing marijuana in Schedule III would not legalize recreational use, and it would allow medical use only if the Food and Drug Administration (FDA) approved specific cannabis-based products as prescription drugs. Producing and distributing marijuana, even in compliance with state law, would still be federal crimes, albeit subject to somewhat less severe penalties. Reclassifying marijuana nevertheless would be a financial boon to state-licensed marijuana businesses, relieving them of a disability that results in staggeringly high effective income tax rates. It also would make medical research easier by eliminating federal restrictions that are specific to Schedule I.

Under Section 280E of the Internal Revenue Code, businesses that supply Schedule I or Schedule II substances in violation of federal law are not allowed to claim standard deductions for expenses such as advertising, renting retail space, and paying sales staff. Counterintuitively, tax courts have ruled that such businesses can deduct the “cost of goods sold,” which includes expenses directly related to cultivating, processing, and purchasing marijuana. But the inability to claim deductions available to fully legal businesses has long plagued the cannabis industry, making it difficult for marijuana merchants to turn a profit, let alone invest in expansion.

The 280E restriction “often results in tax rates of more than 70% for marijuana retailers in particular,” MJBizDaily noted in 2023. “I cannot emphasize enough that removal of § 280E would change the industry forever,” cannabis lawyer Vince Sliwoski wrote around the same time. “Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses—more than banking access, intellectual property protection problems, lack of bankruptcy, you name it. This would be HUGE.”

Marijuana’s Schedule I status also imposes burdens on researchers interested in exploring the plant’s medical potential. “The moment that a drug gets a Schedule I [designation], which is done in order to protect the public so that they don’t get exposed to it, it makes research much harder,” National Institute on Drug Abuse Director Nora Volkow noted during congressional testimony in 2019. That designation, she explained, requires researchers to complete a “lengthy and cumbersome” registration process. It also entails special storage requirements.

In addition to its tax implications and its impact on research, placing marijuana in Schedule III would acknowledge that the federal government has been exaggerating the drug’s hazards and ignoring its potential benefits for half a century. Schedule I, which includes “heroin and LSD,” is “the classification meant for the most dangerous substances” and is “even higher than the classification of fentanyl and methamphetamine,” President Joe Biden noted in October 2022, when he instructed Attorney General Merrick Garland and the Department of Health and Human Services (HHS) to begin the process of reviewing marijuana’s classification. On Twitter, Biden reiterated that “we classify marijuana at the same level as heroin” and treat it as “more serious than fentanyl,” which he said “makes no sense.”

HHS completed its review in August 2023, recommending that the Drug Enforcement Administration (DEA) move marijuana from Schedule I to Schedule III. The DEA had long taken the position that a drug has a “currently accepted medical use” only if there is enough evidence to pass muster with the FDA. HHS instead applied a more permissive two-part test.

Part 1 asked “whether there is widespread current experience with medical use of marijuana in the United States by licensed HCPs [health care practitioners] operating in accordance with implemented state-authorized programs, where such medical use is recognized by entities that regulate the practice of medicine under these state jurisdictions.” Since 38 states had approved medical use of marijuana, it easily satisfied this prong.

“More than 30,000 HCPs are authorized to recommend the use of marijuana for more than six million registered patients,” HHS noted. That means there is “widespread clinical experience associated with various medical conditions recognized by a substantial number of jurisdictions across the United States.”

Part 2 of the new HHS test asked “whether there exists some credible scientific support for at least one of the medical conditions for which the Part 1 test is satisfied.” After reviewing the relevant literature, HHS concluded that there is “credible scientific support” for marijuana’s use as a treatment for pain, for nausea and vomiting, and for “anorexia related to a medical condition.” That conclusion, it emphasized, is “not meant to imply that safety and effectiveness have been established for marijuana that would support FDA approval of a marijuana drug product for a particular indication.”

Regarding “potential for abuse,” the HHS analysis underlined the slipperiness of the concept, which the CSA does not define. The fact that people like marijuana, for example, counts as one piece of evidence that suggests its potential for abuse. As HHS put it, “there is ample epidemiological evidence that marijuana is self-administered by humans because of its ability to produce rewarding psychological effects, such as euphoria.” But while HHS noted widespread nonmedical use of marijuana, it drew a distinction between use and abuse even in that context—a distinction that has always been anathema to the DEA.

“Evidence shows that some individuals are taking marijuana in amounts sufficient to create a hazard to their health and to the safety of other individuals and the community,” HHS said. “However, evidence also exists showing that the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others.”

Marijuana use “may lead to moderate or low physical dependence, depending on
frequency and degree of marijuana exposure,” HHS said. “It can produce psychic dependence in some individuals, but the likelihood of serious outcomes is low, suggesting that high psychological dependence does not occur in most individuals who use marijuana.” While “experimental data and clinical reports demonstrate that chronic, but not acute, use of marijuana can produce both psychic and physical dependence in humans,” it said, “the symptoms associated with both kinds of dependence are relatively mild for most individuals.”

HHS also noted that “the risks to the public health posed by marijuana are low compared to other drugs of abuse,” such as heroin (Schedule I), cocaine (Schedule II), and benzodiazepines such as Valium and Xanax (Schedule IV). That conclusion was “based on an evaluation of various epidemiological databases for [emergency room] visits, hospitalizations, unintentional exposures, and most importantly, for overdose deaths.” Although “abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder,” HHS said, they are “less common and less harmful” than the negative consequences associated with other drugs.

In “various epidemiological databases” compiled from 2015 to 2021, HHS noted, “the utilization-adjusted rate of adverse outcomes involving marijuana was consistently lower than the respective utilization-adjusted rates of adverse outcomes involving heroin, cocaine, and, for certain outcomes, other comparators. Also, the rank order of the comparators in terms of adverse outcome counts typically placed alcohol or heroin in the first or immediately subsequent positions, with marijuana in a lower place.”

Given the conclusion that marijuana has a “currently accepted medical use,” it plainly did not belong in Schedule I. And given the evidence regarding its relative hazards, HHS decided, placement in Schedule III made sense. “While marijuana is associated with a high prevalence of abuse,” it said, “the profile of and propensity for serious outcomes related to that abuse lead to a conclusion that marijuana is most appropriately controlled in Schedule III under the CSA.”

Garland, the official directly charged with rescheduling drugs under the CSA, accepted that recommendation in May 2024. The proposed rule was posted by the DEA, the agency to which the attorney general historically has delegated scheduling decisions, and it had a DEA docket number. But it was signed by Garland alone and not by Anne Milgram, then the DEA’s administrator, which reflected internal opposition to the move.

The DEA’s resistance likely explains why the rule, which was supported by a large majority of commenters, was not finalized during the eight remaining months of the Biden administration. Judging from the Post‘s report, Trump plans to start over again, so it is not clear exactly how long it will take to reschedule marijuana this time around, assuming that does in fact happen.

MJBizDaily notes “significant opposition” from the DEA and “highly placed health officials,” saying critics of the move were responsible for leaking the news of Trump’s plan. DEA Administrator Terrance Cole “is said to be skeptical and may push for a lengthy review of health and science data,” the outlet reports. It also notes that “major anti-reform groups” such as Smart Approaches to Marijuana are expected to “challenge marijuana rescheduling through the courts.”

Assuming Trump follows through on his plan, it would be a “partial victory,” cannabis lawyer Shawn Hauser told CNBC, noting that it would not resolve the conflict between federal prohibition and state laws that allow medical or recreational use of marijuana. “This [is] the beginning of a new era of public health policy,” Hauser said. “If implemented, it dismantles nearly a century of outdated drug policies that fly in the face of science and medicine.”

Brian Vicente, founding partner of Hauser’s law firm, emphasized the tax impact. “This monumental change will have a massive, positive effect on thousands of state-legal cannabis businesses around the country,” he told Cannabis Business Times. “One dominating inequity cannabis businesses face is the inability to deduct regular business expenses, since they sell a Schedule I substance. Rescheduling releases cannabis businesses from the crippling tax burden they have been shackled with and allows these businesses to grow and prosper. We work with hundreds of licensed cannabis businesses, and the ability to deduct ordinary operating costs under the Schedule III proposal is a game-changer for them.”

Other cannabis industry observers are less enthusiastic. High Times Publisher Josh Kesselman, founder of RAW Rolling Papers, worries that rescheduling could pose new legal perils for state-licensed marijuana businesses. Potential charges include “selling a prescription drug without a license, misbranding a drug, illegal distribution, and conspiracy,” he told CBS News. Chris Fontes, founder and CEO of High Spirits, “echoed those concerns, saying many cannabis businesses would be unable to legally operate in a Schedule III framework without FDA approval and licensure.”

The concern that rescheduling will expose the cannabis industry to new legal risks seems overblown to me. People who produce and sell marijuana, even with state permission, are already committing multiple federal felonies every day, meaning they are subject to heavy criminal penalties and civil forfeiture. Although an annually renewed congressional spending rider bars the Justice Department from targeting state-licensed medical marijuana suppliers, prosecutorial discretion is the only protection for businesses that serve the recreational market. While that would still be true with marijuana in Schedule III, a new policy of targeting those businesses for violating FDA regulations would be just as politically perilous as going after them under current law.

Two dozen states, accounting for most of the U.S. population, have legalized recreational marijuana, and polls indicate that a large majority of Americans oppose the federal ban. In this context, a new crackdown on state-legal marijuana suppliers, whatever form it took, would be widely controversial.

Fontes’ skepticism is nevertheless understandable, since his company sells seltzers and gummies that contain hemp-derived THC, a product category that Congress accidentally legalized in 2018 but recently decided to ban, effective next November. That decision illustrates the contradictions of federal cannabis policy.

Congress has sought to protect medical marijuana providers from federal interference even as it leaves in place the prohibition that authorizes their prosecution. During his first term, Trump proposed eliminating that protection. But last year, Trump supported legalization of recreational marijuana in his home state of Florida, and he said he also favored legislation that would remove barriers to marijuana banking.

Those positions did not stop Trump from signing the appropriations bill that included the ban on psychoactive hemp products, and they did not stop his administration from defending a federal law that makes it a felony for cannabis consumers to possess guns—a policy at the center of a Second Amendment case the Supreme Court will hear this term. And now Trump is pushing a reform that falls far short of repealing the federal marijuana ban that Congress just voted to extend.

“Removing cannabis from its Schedule I classification validates the experiences of tens of millions of Americans, as well as those of tens of thousands of physicians, who have long recognized that cannabis possesses legitimate medical utility,” said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws. “But while such a move potentially provides some benefits to patients, and veterans especially, it still falls well short of the changes necessary to bring federal marijuana policy into the 21st century.”

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In recent weeks, President Donald Trump has inflated his previous claims about how lucrative tariffs have been for the United States.

Trump’s new figure: An astonishing $18 trillion.

Trump first used the “$18 trillion” figure during a cabinet meeting on December 2, then repeated it during comments to reporters on December 3 and in an interview with Politico on December 8. He also brought it up, unprompted and somewhat bizarrely, during the announcement on December 4 of a new peace treaty that aims to end hostilities between Rwanda and the Democratic Republic of the Congo.

On Sunday, Trump revisited the $18 trillion claim while speaking to reporters at the White House. “Because of the tariffs, we’ve taken in more than 18—think of this—more than $18 trillion. There’s never been anything like it,” Trump said. Moments later, he repeated the claim, stating that “we took in more than $18 trillion in 10 months.”

That figure is utterly fantastical—and Trump’s explanation is more than a little confusing. More on that in a moment.

First, it is necessary to swat aside the most outlandish interpretation of this claim—one that is being made by some of the president’s supporters, including some prominent conservative media personalities. They seem to believe that Trump is saying the federal government has collected $18 trillion in tariff revenue this year.

That is both factually wrong and logically absurd.

Start with the facts: Over the first 11 months of this year, the federal government collected $236 billion in tariffs and duties. That number comes directly from the Treasury Department’s monthly reports. And even though it represents a huge increase in tariff collections—Trump’s tariffs are the biggest tax increase since 1993—it plainly does not amount to trillions in new revenue.

In fact, Trump’s tariffs are expected to generate about $2.3 trillion over the course of the next decade (if the Supreme Court doesn’t strike them down or Congress or some future administration doesn’t undo them), according to the Yale Budget Lab. That’s 10 years of higher tariffs and the total is still nowhere near $18 trillion.

Logically, getting $18 trillion in tariff revenue in a single year is impossible. The U.S. imported about $3.3 trillion of goods last year. You’d have to tax those imports at nearly 600 percent to get $18 trillion in new tariff revenue. Of course, if you taxed imports at that level, you’d end up with roughly the same amount of imports as tariff revenue: zero.

So, no, that is not happening.

Part of the confusion here is the carelessness with which the president uses phrases like “we took in.” Is he talking about the government? If not, then what? Unfortunately, this tendency extends beyond talking points. The Trump administration has repeatedly and intentionally blurred the line between the government and the private sector, and that seems to be what is happening here too.

When Trump says “we took in,” he seems to be referring not to tax revenue from the tariffs but a combination of tax revenue and various investment deals that have been promised by private businesses and foreign governments. Those investments are not being “took in” by the federal government in any way. They are fully private. One might also wonder if they will actually materialize, when the money will actually be spent, or whether such investments would have occurred even without Trump’s tariff threats.

For the president, however, such distinctions and considerations are not a factor.

Still, after accounting all of that, Trump’s $18 trillion figure seems to be wildly exaggerated, even when compared to the Trump administration’s own numbers. 

In April, the White House launched a website tracking the “Trump effect” that is meant to track the “new investment in U.S. manufacturing, technology, and infrastructure” since Trump returned to office.

As of Monday, the White House’s official tally was $9.6 trillion.

How do you get from there to $18 trillion? Only the president seems to know. Or maybe, possibly, he’s just making it all up.

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From today’s decision by Judge Jeannette Vargas (S.D.N.Y.) in Finley v. Przybylowski:

Plaintiff and Defendant are attorneys who met seven years ago as summer associates at different prominent law firms in New York City…. [Plaintiff] alleges that Defendant violently raped and sexually assaulted her on the night they met, causing her physical, professional, and psychological damage. Defendant denies all allegations of nonconsensual conduct…. Defendant claims that he and Plaintiff engaged in consensual sexual activity in May 2018. Defendant attests that he was “terminated from [his] employment with a top law firm on October 13, 2025 as a result of the Plaintiff’s Complaint and false allegations,” and that he fears that it would be “nearly impossible” to obtain employment with his name attached to this lawsuit, He also claims to fear that his physical safety could be placed at risk….

Defendant sought to proceed under a pseudonym, but the court said no:

[T]he economic and reputational harms that Defendant has faced and may face as a party to this action, substantial though they may be, are outweighed by the public interest in access to judicial proceedings…. This Court agrees that “[a]llegations of sexual assault are paradigmatic examples of highly sensitive and personal claims.” … Yet courts in this District routinely deny motions seeking anonymity brought in the context of sexual assault absent a heightened showing of harm. For example, with respect to claims brought by adult plaintiffs who allege they are the victims of sexual abuse, a claim that such victims have and will continue to suffer physical or psychological damage, an invasion of privacy, or reputational harm is generally not sufficient to entitle a plaintiff to proceed anonymously.

“The rule is the same for a plaintiff as for a defendant who is accused and who might want to keep his or her identity confidential.” Any defendant accused of perpetrating a violent sexual assault potentially suffers harm to their reputation. Yet “[c]ourts have put weight on the right of the public to know the identity of the litigants as well as on the interest of the accused to be able publicly to confront the accuser.” Accordingly, “something more is required to rebut the presumption of public access, at least in cases involving adult sexual assault.” “[T]hat something more frequently has to be evidence of real (and not conclusory) harm that is substantial and that will flow directly from and is directly linked to disclosure of the party’s name.” “Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously.”

[The risk of] “retaliatory physical or mental harm to the party seeking to proceed anonymously or[,] even more critically, to innocent non-parties” [may cut in favor of pseudonymity -EV]. However, “the risk of social stigmatization and embarrassment is insufficient to proceed anonymously[,] and courts have consistently rejected anonymity requests predicated on harm to a party’s reputational or economic interests.” Although Defendant attests that his physical safety is at risk, Defendant’s statements are conclusory and lack any specificity or evidentiary support….

Plaintiff Finley would [also] be prejudiced by Defendant’s anonymity in this action. “[F]undamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity.” The same concerns are at stake in unidirectionally anonymous actions where the parties are reversed. Additionally, by keeping Defendant’s identity non-public, “information about only one side may thus come to light,” both prejudicing the non-movant and hindering “the judicial interest in accurate fact-finding and fair adjudication.” …

[Moreover, Defendant’s] name has been on the public litigation docket since May, he alleges that he has already been fired from his job as a result of external knowledge of the claims against him, and it has been over seven years since Plaintiff has begun disclosing his identity to other parties….

“[I]n nearly all civil and criminal litigation filed in the United States Courts, one party asserts that the allegations leveled against it by another party are patently false, and the result of the litigation may quickly prove that.” Yet we retain “the existence of a common-law right of access to judicial records” anyway, because “[t]he notion that the public should have access to the proceedings and documents of courts is integral to our system of government.” Just as “it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature,” so too it does not follow that the public has an interest in maintaining the anonymity of every person who is accused of sexual assault or other misconduct of a highly personal nature. This is in part because “sexual assault and discrimination” are “issues … of the type that further the public’s interest in enforcing legal and social norms[,] … and the public interest in sexual assault and discrimination is very high.” The Court’s presumption of public access favors disclosure of Defendant’s name.

The court also rejected defendant’s motion to seal the case:

“If the purported falsity of the complaint’s allegations were sufficient to seal an entire case, then the law would recognize a presumption to seal instead of a presumption of openness.” … “[S]ealing an entire case file is a last resort” ….

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