Have Zoom, Won’t Need to Travel

I’ve done several Zoom talks on various subjects over the last several weeks, and much enjoyed them. They are less engaging, of course, than an in-person talk, but there’s no travel time and no travel cost, so I’m much more open to such invitations than I had been to in-person speaking engagements. So far, I’ve done (among other things)

  • law school talks “at” Arizona, Chapman, Columbia, Duke, Illinois, Texas, and Yale,
  • talks to college classes, in places where I’d normally have a hard time traveling,
  • talks to lawyer groups, including in the Northern Mariana Islands,
  • talks to community groups, such as a local Rotary Club,
  • a conversation with a church pastor,
  • TV and radio programs, and
  • podcasts and videocasts.

I’m teaching again starting late January (I was on sabbatical this Fall), but I expect I’ll still be up for such talks then, and also before then. So if you’re interested, please just drop me an e-mail at volokh at law.ucla.edu. I’d also be glad to talk

  • to school assemblies and classes,
  • to homeschooling groups,
  • and to other groups as well.

I’ve mostly talked about free speech and about religious freedom, but I can also talk about gun rights and gun policy, Internet law, the Supreme Court, and a smattering of other topics. Please let me know if you’re interested.

People sometimes ask me about honoraria, and my answer is that I’d like whatever honorarium your group customarily pays for similar events. If it doesn’t normally pay an honorarium (and most groups don’t), I’ll generally be glad to do it for free; I view it as part of the “service” component of a professor’s job (“research / teaching / service“), and it’s part that I enjoy. With the Northern Mariana Islands group, I realized that the modest honorarium would be just too much trouble to deal with, so I instead asked them to just mail me a locally themed care package; they sent me some very nice small items, which I was pleased to display on the video.

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Trump’s Administration Blinks, Begins Formal Transition Planning

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President Donald Trump is still not conceding that he lost the election, but on Monday, the head of the federal agency responsible for overseeing the transition from one administration to another formally told President-elect Joe Biden they were ready to begin.

This morning, Pennsylvania certified that Biden had won the state. The media and observers called the election for Biden on November 7, and subsequent election tallies have validated that call. But Trump remains insistent that he has been cheated of a win, and his campaign has filed numerous lawsuits that have so far completely failed in an extremely embarrassing fashion. His administration, taking his lead, has been resistant to cooperate with Biden’s transition team.

Emily Murphy, the administrator for the General Services Administration, informed Biden yesterday via a letter that they were ready to assist with the transition. Half of Murphy’s letter clarifies she wasn’t dragging her feet because Trump ordered her to do so but rather because of the pending legal challenges:

Contrary to media reports and insinuations, my decision was not made out of fear or favoritism. Instead, I strongly believe that the statute requires that the GSA Administrator ascertain, not impose, the apparent president-elect. Unfortunately, the statute provides no procedures or standards for this process, so I looked to precedent from prior elections involving legal challenges and incomplete counts. GSA does not dictate the outcome of legal disputes and recounts, nor does it determine whether such proceedings are reasonable or justified. These are issues that the Constitution, federal laws, and state laws leave to the election certification process and decisions by courts of competent jurisdiction. I do not think that an agency charged with improving federal procurement and property management should place itself above the constitutionally-based election process. I strongly urge Congress to consider amendments to the Act.

The announcement also allows Biden’s transition team access to $6.3 million in federal funds used to pay for the cost of changing administrations.

Trump, as is his way, is loudly insisting on Twitter that this still doesn’t mean he lost:

And again this morning:

His campaign is still sending fundraising letter after fundraising letter to try to get people to send them money, and, in the words of a letter sent under Lara Trump’s name just this morning, saying, “It is time for EVERY PATRIOT, like YOU, to step up and DEMAND that every single LEGAL vote is counted. We cannot allow the Democrats to undermine the Election and try to STEAL the White House.” (In reality, a good chunk of some of these donations are actually going to pay off campaign debts.)

Judges have repeatedly swatted down legal challenges, and the Trump team’s claims of fraud have reached the kind of comical depths even a television writer could not possibly have envisioned. It’s within Trump’s right to avail himself of the courts to try to turn this election around, but there is little point in everybody else pretending he hasn’t lost.

Biden has also recently started announcing his cabinet picks, which include Antony Blinken (who served under both Bill Clinton and Barack Obama) as secretary of state, Janet Yellen (former head of the Federal Reserve) as treasury secretary, and former Senator John Kerry as a “special envoy for climate.”

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Trump’s Administration Blinks, Begins Formal Transition Planning

Trumpbye_1161x653

President Donald Trump is still not conceding that he lost the election, but on Monday, the head of the federal agency responsible for overseeing the transition from one administration to another formally told President-elect Joe Biden they were ready to begin.

This morning, Pennsylvania certified that Biden had won the state. The media and observers called the election for Biden on November 7, and subsequent election tallies have validated that call. But Trump remains insistent that he has been cheated of a win, and his campaign has filed numerous lawsuits that have so far completely failed in an extremely embarrassing fashion. His administration, taking his lead, has been resistant to cooperate with Biden’s transition team.

Emily Murphy, the administrator for the General Services Administration, informed Biden yesterday via a letter that they were ready to assist with the transition. Half of Murphy’s letter clarifies she wasn’t dragging her feet because Trump ordered her to do so but rather because of the pending legal challenges:

Contrary to media reports and insinuations, my decision was not made out of fear or favoritism. Instead, I strongly believe that the statute requires that the GSA Administrator ascertain, not impose, the apparent president-elect. Unfortunately, the statute provides no procedures or standards for this process, so I looked to precedent from prior elections involving legal challenges and incomplete counts. GSA does not dictate the outcome of legal disputes and recounts, nor does it determine whether such proceedings are reasonable or justified. These are issues that the Constitution, federal laws, and state laws leave to the election certification process and decisions by courts of competent jurisdiction. I do not think that an agency charged with improving federal procurement and property management should place itself above the constitutionally-based election process. I strongly urge Congress to consider amendments to the Act.

The announcement also allows Biden’s transition team access to $6.3 million in federal funds used to pay for the cost of changing administrations.

Trump, as is his way, is loudly insisting on Twitter that this still doesn’t mean he lost:

And again this morning:

His campaign is still sending fundraising letter after fundraising letter to try to get people to send them money, and, in the words of a letter sent under Lara Trump’s name just this morning, saying, “It is time for EVERY PATRIOT, like YOU, to step up and DEMAND that every single LEGAL vote is counted. We cannot allow the Democrats to undermine the Election and try to STEAL the White House.” (In reality, a good chunk of some of these donations are actually going to pay off campaign debts.)

Judges have repeatedly swatted down legal challenges, and the Trump team’s claims of fraud have reached the kind of comical depths even a television writer could not possibly have envisioned. It’s within Trump’s right to avail himself of the courts to try to turn this election around, but there is little point in everybody else pretending he hasn’t lost.

Biden has also recently started announcing his cabinet picks, which include Antony Blinken (who served under both Bill Clinton and Barack Obama) as secretary of state, Janet Yellen (former head of the Federal Reserve) as treasury secretary, and former Senator John Kerry as a “special envoy for climate.”

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Netflix’s Hillbilly Elegy Is a Movie Afraid of the Book It’s Based on

hillbilly-large

When J.D. Vance’s Hillbilly Elegy was released in summer 2016, it quickly became an object of fascination: Donald Trump was in the process of claiming the Republican presidential nomination, surprising observers both inside and outside the party who believed he had no chance. While few at that point expected Trump to win the election, his nomination left a kind of anxious uncertainty in the air—particularly about the rural, less-educated people who had backed him in large numbers. What kind of a person, what kind of an American, had voted for Donald Trump? 

There was at least a little bit of condescension to these sorts of questions or, at the very least, a disconnect. The people who covered politics for a living did not understand the lives of many of the voters who had selected a major party presidential nominee. 

Vance’s memoir of growing up with modest means in Appalachia under the wing of a drug-addicted mother and a tough, violent grandmother offered a way in. Vance had struggled under erratic parenting and unstable living conditions before eventually joining the Marines, attending a state college, and, eventually, Yale Law School. He’d shed his self-defeating hillbilly habits and could offer critical insight into the world he’d been born into.  

His book was thus taken as an empathetic, self-critical explanation of their culture, their inclinations, and their flaws from someone who had grown up in that milieu and found a way out. In the headline to a generous, mostly positive review, The New York Times called it “a tough love analysis of the poor who back Trump.”

Trump’s political ascendancy had raised big questions about America’s political psyche: Vance’s book had a distinctive conservative tilt, but it also had answers. 

Trump won the election. The book became a bestseller. Vance was lauded for his insight into the Trump-supporting, working-class Appalachian voters who had proved so critical to the president’s shock victory. The book was optioned for a cinematic treatment: The phenomenon would become a movie. 

That movie arrives today on Netflix, just in time for awards season. Directed by Ron Howard and starring Amy Adams as Vance’s mother Bev, and Glenn Close as his grandmother Mamaw, the movie is certainly a product of top-notch Hollywood talent. Yet it doesn’t work at all. 

The operating theory behind the adaptation seems to have been: What if we took all of the aspects of the book that made people interested—the cultural insights and self-criticism, the ethnographic examination of dysfunctional Appalachian life and its unspoken codes—and completely stripped it away? 

The book was a phenomenon because it was an object of sociopolitical fascination. It was treated as a field guide to what was essentially a foreign culture (at least to a lot of urban, college-educated professionals) hidden in the American hinterlands. The movie, in contrast, is a context-free, episodic story of one guy’s adolescent struggles with a difficult family. In the end, he goes to college. That’s it. 

It doesn’t help that, on-screen, that one guy is bland and boring; the movie’s Vance is played with schlubby dullness by Gabriel Basso and Owen Asztalos, neither of whom have the charisma to stand up to the fireworks produced by Close and Adams. And though both actresses deliver committed performances, the screenplay by Vanessa Williams gives them precious little to play except scene after scene of histrionics. It’s repetitive and context-less. There’s no arc or narrative drive. The movie repeatedly shows us that they are erratic and difficult; it never hints at the reason why. 

Howard may be to blame. At this point, he’s been making movies for more than three decades, and he is, if nothing else, one of Hollywood’s most reliable project managers: He was brought in to salvage the remains of the Han Solo spinoff, Solo: A Star Wars Story, after the original directors were fired mid-production, and he has a long history of producing solid, competent, occasionally cheesy, populist entertainments with strong performances at their center. 

His movies are, above all, studiously inoffensive. Here, he seems to have decided that the book’s political context might spark controversy, turning off some viewers. In some ways that’s understandable, given the tendency of some filmmakers to put politics at the center of their movies at the expense of all else. But the political context was what drew people to Hillbilly Elegy in the first place, what turned it into an event. Without that context, it’s not about anything at all; it’s just a story of a kid with a rough home life who eventually gets into Yale. 

The movie is so studiously apolitical that it seems afraid to have a point or an argument or an idea about the world, which in turn makes it seem afraid of the book it’s based on. Instead of adapting the book’s ideas to the screen, it just ignores them, pretending they don’t exist. Notably, Vance’s military service, a formative life event that in his own telling taught him diligence and discipline, is largely absent, making Vance’s transformation from troubled kid to star student even more mysterious. Coming now, in the twilight of Trump’s presidency, Howard’s Hillbilly Elegy isn’t just a film without any answers; it’s a film that’s too timid to even ask any questions. 

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Netflix’s Hillbilly Elegy Is a Movie Afraid of the Book It’s Based on

hillbilly-large

When J.D. Vance’s Hillbilly Elegy was released in summer 2016, it quickly became an object of fascination: Donald Trump was in the process of claiming the Republican presidential nomination, surprising observers both inside and outside the party who believed he had no chance. While few at that point expected Trump to win the election, his nomination left a kind of anxious uncertainty in the air—particularly about the rural, less-educated people who had backed him in large numbers. What kind of a person, what kind of an American, had voted for Donald Trump? 

There was at least a little bit of condescension to these sorts of questions or, at the very least, a disconnect. The people who covered politics for a living did not understand the lives of many of the voters who had selected a major party presidential nominee. 

Vance’s memoir of growing up with modest means in Appalachia under the wing of a drug-addicted mother and a tough, violent grandmother offered a way in. Vance had struggled under erratic parenting and unstable living conditions before eventually joining the Marines, attending a state college, and, eventually, Yale Law School. He’d shed his self-defeating hillbilly habits and could offer critical insight into the world he’d been born into.  

His book was thus taken as an empathetic, self-critical explanation of their culture, their inclinations, and their flaws from someone who had grown up in that milieu and found a way out. In the headline to a generous, mostly positive review, The New York Times called it “a tough love analysis of the poor who back Trump.”

Trump’s political ascendancy had raised big questions about America’s political psyche: Vance’s book had a distinctive conservative tilt, but it also had answers. 

Trump won the election. The book became a bestseller. Vance was lauded for his insight into the Trump-supporting, working-class Appalachian voters who had proved so critical to the president’s shock victory. The book was optioned for a cinematic treatment: The phenomenon would become a movie. 

That movie arrives today on Netflix, just in time for awards season. Directed by Ron Howard and starring Amy Adams as Vance’s mother Bev, and Glenn Close as his grandmother Mamaw, the movie is certainly a product of top-notch Hollywood talent. Yet it doesn’t work at all. 

The operating theory behind the adaptation seems to have been: What if we took all of the aspects of the book that made people interested—the cultural insights and self-criticism, the ethnographic examination of dysfunctional Appalachian life and its unspoken codes—and completely stripped it away? 

The book was a phenomenon because it was an object of sociopolitical fascination. It was treated as a field guide to what was essentially a foreign culture (at least to a lot of urban, college-educated professionals) hidden in the American hinterlands. The movie, in contrast, is a context-free, episodic story of one guy’s adolescent struggles with a difficult family. In the end, he goes to college. That’s it. 

It doesn’t help that, on-screen, that one guy is bland and boring; the movie’s Vance is played with schlubby dullness by Gabriel Basso and Owen Asztalos, neither of whom have the charisma to stand up to the fireworks produced by Close and Adams. And though both actresses deliver committed performances, the screenplay by Vanessa Williams gives them precious little to play except scene after scene of histrionics. It’s repetitive and context-less. There’s no arc or narrative drive. The movie repeatedly shows us that they are erratic and difficult; it never hints at the reason why. 

Howard may be to blame. At this point, he’s been making movies for more than three decades, and he is, if nothing else, one of Hollywood’s most reliable project managers: He was brought in to salvage the remains of the Han Solo spinoff, Solo: A Star Wars Story, after the original directors were fired mid-production, and he has a long history of producing solid, competent, occasionally cheesy, populist entertainments with strong performances at their center. 

His movies are, above all, studiously inoffensive. Here, he seems to have decided that the book’s political context might spark controversy, turning off some viewers. In some ways that’s understandable, given the tendency of some filmmakers to put politics at the center of their movies at the expense of all else. But the political context was what drew people to Hillbilly Elegy in the first place, what turned it into an event. Without that context, it’s not about anything at all; it’s just a story of a kid with a rough home life who eventually gets into Yale. 

The movie is so studiously apolitical that it seems afraid to have a point or an argument or an idea about the world, which in turn makes it seem afraid of the book it’s based on. Instead of adapting the book’s ideas to the screen, it just ignores them, pretending they don’t exist. Notably, Vance’s military service, a formative life event that in his own telling taught him diligence and discipline, is largely absent, making Vance’s transformation from troubled kid to star student even more mysterious. Coming now, in the twilight of Trump’s presidency, Howard’s Hillbilly Elegy isn’t just a film without any answers; it’s a film that’s too timid to even ask any questions. 

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District Court Rejects Attempt to Bind Social Media Platforms to Anti-Libel Injunction

From Weitsman v. Levesque, decided Friday by Judge Janis L. Sammartino (S.D. Cal.):

[T]he Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction. See Proposed Order (providing that the Court requests that “Google, Yahoo!, Bing, Facebook, Instagram, Twitter, YouTube, and other websites with the same or similar defamatory content about Plaintiffs remove all associated webpages and URLs from their respective search indexes and websites”).

Plaintiffs can request that these third parties voluntarily remove the material in question and/or suspend Defendant’s accounts, and, should Defendant fail to comply with the terms of the injunction, they can return to this Court and seek to hold Defendant in contempt or sanction him. However, the Court will not compel third parties who have not appeared in this matter to act. Any mandatory injunction is … “… an ‘extraordinary’ and ‘drastic’ remedy” …, and Plaintiffs have cited no authority indicating that such a remedy is appropriate as to parties who are not alleged to have committed any wrongful acts themselves and who have not had an opportunity to oppose the requested relief.

During the November 5, 2020 hearing, Plaintiffs’ counsel indicated that the Communications Decency Act of 1996 (“CDA”) may support this request. However, the Court finds that the CDA, in fact, cuts against ordering a third party who has not appeared in the action to remove defamatory speech. See, e.g., Hassell v. Bird, 5 Cal. 5th 522, 541 (2018) (“Even though plaintiffs did not name Yelp as a defendant, their action ultimately treats it as ‘the publisher or speaker of…information provided by another information content provider.’ With the removal order, plaintiffs seek to overrule Yelp’s decision to publish the three challenged reviews. Where, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.”) (citing 47 U.S.C. § 230(c)(1); Barrett v. Rosenthal, 40 Cal. 4th 33, 48, 53 (2006); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Medytox Sols., Inc. v. Investorshub.com, Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014)).

The Court fervently hopes that the third parties in question will voluntarily remove the posts in question given the Court’s determination that the posts are defamatory and the Court’s injunction against Defendant’s making or continuing to make the statements in question, but the Court cannot order the third parties to do so.

Quite correct, I think, for the reasons the court mentioned, and also because of the Due Process Clause and the First Amendment: For a court to order someone to do something (especially to take down speech that the target may otherwise choose to publish), that someone must at least be made a party to the case and given an opportunity to defend its own rights in court before an injunction is issued.

I also wrote about other aspects of Judge Sammartino’s decision below.

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District Court Rejects Attempt to Bind Social Media Platforms to Anti-Libel Injunction

From Weitsman v. Levesque, decided Friday by Judge Janis L. Sammartino (S.D. Cal.):

[T]he Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction. See Proposed Order (providing that the Court requests that “Google, Yahoo!, Bing, Facebook, Instagram, Twitter, YouTube, and other websites with the same or similar defamatory content about Plaintiffs remove all associated webpages and URLs from their respective search indexes and websites”).

Plaintiffs can request that these third parties voluntarily remove the material in question and/or suspend Defendant’s accounts, and, should Defendant fail to comply with the terms of the injunction, they can return to this Court and seek to hold Defendant in contempt or sanction him. However, the Court will not compel third parties who have not appeared in this matter to act. Any mandatory injunction is … “… an ‘extraordinary’ and ‘drastic’ remedy” …, and Plaintiffs have cited no authority indicating that such a remedy is appropriate as to parties who are not alleged to have committed any wrongful acts themselves and who have not had an opportunity to oppose the requested relief.

During the November 5, 2020 hearing, Plaintiffs’ counsel indicated that the Communications Decency Act of 1996 (“CDA”) may support this request. However, the Court finds that the CDA, in fact, cuts against ordering a third party who has not appeared in the action to remove defamatory speech. See, e.g., Hassell v. Bird, 5 Cal. 5th 522, 541 (2018) (“Even though plaintiffs did not name Yelp as a defendant, their action ultimately treats it as ‘the publisher or speaker of…information provided by another information content provider.’ With the removal order, plaintiffs seek to overrule Yelp’s decision to publish the three challenged reviews. Where, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.”) (citing 47 U.S.C. § 230(c)(1); Barrett v. Rosenthal, 40 Cal. 4th 33, 48, 53 (2006); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Medytox Sols., Inc. v. Investorshub.com, Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014)).

The Court fervently hopes that the third parties in question will voluntarily remove the posts in question given the Court’s determination that the posts are defamatory and the Court’s injunction against Defendant’s making or continuing to make the statements in question, but the Court cannot order the third parties to do so.

Quite correct, I think, for the reasons the court mentioned, and also because of the Due Process Clause and the First Amendment: For a court to order someone to do something (especially to take down speech that the target may otherwise choose to publish), that someone must at least be made a party to the case and given an opportunity to defend its own rights in court before an injunction is issued.

I also wrote about other aspects of Judge Sammartino’s decision below.

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District Court in Ninth Circuit Issues Anti-Libel Injunction, but Stresses Need to Keep It Narrow

In Weitsman v. Levesque, decided Friday, Judge Janis Lynn Sammartino (S.D. Cal.) awarded $950,000 in compensatory damages in a libel case, plus $50,000 in punitive damages (both based on a default judgment, since defendant didn’t appear). It seems quite unlikely that plaintiff will be able to recover much of those damages from the seemingly unemployed defendant.

Judge Sammartino also allowed an injunction against libel, following the rule that most courts have adopted in recent decades (see my Anti-Libel Injunctions article), and that some Ninth Circuit district courts have likewise adopted (though with some dissent); but she also took care to keep the injunction suitably narrow, in a way that I think is worth highlighting:

In arguing that prior restraint is not an issue, Plaintiffs rely heavily on Lothschuetz v. Carpenter, a [1990] Sixth Circuit opinion [allowing permanent injunctions in libel cases]. Plaintiffs cite no New York cases to support their argument. {Although this action was transferred to this District from New York, the Court continues to apply New York substantive law to Plaintiffs’ state law claims, including Plaintiffs’ damages requests. See, e.g., Ravelo Monegro v. Rosa (9th Cir. 2000). Plaintiffs’ Supplemental Briefs only assess the issue of compensatory and punitive damages under New York law. Nor did any Party assert during the November 5, 2020 hearing a belief that any other law should apply to the compensatory or punitive damages issues before the Court.}

However, based on this Court’s own review of relevant authorities—some of which are cited by Plaintiffs elsewhere in their briefs—it does appear that New York courts have approved permanent injunctions against future libelous statements where the libel is “part of ‘a sustained campaign,'” Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73, 141 (2019), and where the libelous statements injure a business interest or other property right. [Citations omitted.] … Defendant has been making these statements for more than four years, since October 2016, despite the initiation of this litigation and the issuance of an arrest warrant. Accordingly, it is clear that the False Statements are part of a sustained campaign to injure Plaintiffs’ interests, including their business interests. Therefore, the Court agrees with Plaintiffs that, on the facts of this case, a permanent injunction would not be an impermissible prior restraint on First Amendment-protected speech….

However, the Court finds that a number of modifications to Plaintiffs’ Proposed Order are necessary in order for the requested relief to comply with the First Amendment. See Carroll v. President & Comm’rs of Princess Anne (1968) (“An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order…. In other words, the order must be tailored as precisely as possible to the exact needs of the case.”)….

[A.] [N]ot all of the statements identified in the Proposed Order as False Statements are alleged in the [Complaint]. Based on the Court’s careful review of the [Complaint] and its exhibits, the Court believes the following statements from the Proposed Order have been determined to be libelous and properly may be enjoined:

  1. Plaintiff is a “murderer”;
  2. Plaintiff conspired, assisted, helped, or aided in the murder of Michele Harris;
  3. Plaintiff assisted, helped, or aided Calvin Harris or any other person in disposing of Michele Harris’s body;
  4. Plaintiff was paid money by Calvin Harris or other person in connection with murder or disappearance of Michele Harris;
  5. Plaintiff assisted, helped or aided Calvin Harris or any other person from being found guilty, convicted, arrested, detained, liable, responsible, and/or suspected of murdering Michele Harris;
  6. Plaintiff’s equipment was used to dispose of Michele Harris’ body;
  7. Plaintiff was involved in the disappearance of Michele Harris;
  8. Plaintiff sold or sells illegal drugs;
  9. Plaintiff is or has been involved with Joaquín “El Chapo” Guzmán;
  10. Plaintiff engaged or engages in money laundering; …
  1. Plaintiff has raped one or more people…

Accordingly, the following statements, which do not appear in the [Complaint], were not adjudged libelous in the Court’s February 14, 2020 Order:

  1. Plaintiff bribes or have bribed one or more government officials;
  2. Plaintiff is or has been involved with covering up the death of Michael Burke;
  3. Plaintiff has employed or does employ mostly pedophiles;
  4. Plaintiff fooled the Environmental Protection Agency (“EPA”) by removing two feet of contaminated soil at the Jamestown Yard….

Accordingly, to enjoin these statements might well be an unconstitutional prior restraint, and the Court therefore declines to extend the injunction to these statements.

[B.] Moreover, the Court is concerned that enjoining variations of, depictions of, or statements that “convey the message” of the False Statements, or statements that “partial[ly] refer[]” to the False Statements, is a slippery slope that would potentially result in an unconstitutional prior restraint. For example, Plaintiffs provide the exemplary statement: “‘Did the #VicePresident of @UpstateShred admit that he is tracking my IP address? #Binghamton @nyspolice @WBNG12News #CrimeNews #CalHarris.” However, none of the False Statements allege that Plaintiffs track Defendant’s Internet Protocol address. Thus, the Court does not agree with Plaintiffs that this statement falls within the scope of the properly enjoined statements.

And, while the Court is disturbed by Defendant’s posting of “images or photos of Weitsman and/or his family, including his wife and their minor child,” the Court does not believe the posting of personal images alone falls within the scope of the False Statements such that this act is properly subject to the requested injunctive relief. See, e.g., Brummer v. Wey (N.Y. App. Div. 2018) (refusing to enjoin speech that, “as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff”). With a heavy heart, the Court must conclude that it cannot extend the injunction to statements other than the False Statements themselves….

The ruling stresses another important limitation, but that’s worth a separate post.

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District Court in Ninth Circuit Issues Anti-Libel Injunction, but Stresses Need to Keep It Narrow

In Weitsman v. Levesque, decided Friday, Judge Janis Lynn Sammartino (S.D. Cal.) awarded $950,000 in compensatory damages in a libel case, plus $50,000 in punitive damages (both based on a default judgment, since defendant didn’t appear). It seems quite unlikely that plaintiff will be able to recover much of those damages from the seemingly unemployed defendant.

Judge Sammartino also allowed an injunction against libel, following the rule that most courts have adopted in recent decades (see my Anti-Libel Injunctions article), and that some Ninth Circuit district courts have likewise adopted (though with some dissent); but she also took care to keep the injunction suitably narrow, in a way that I think is worth highlighting:

In arguing that prior restraint is not an issue, Plaintiffs rely heavily on Lothschuetz v. Carpenter, a [1990] Sixth Circuit opinion [allowing permanent injunctions in libel cases]. Plaintiffs cite no New York cases to support their argument. {Although this action was transferred to this District from New York, the Court continues to apply New York substantive law to Plaintiffs’ state law claims, including Plaintiffs’ damages requests. See, e.g., Ravelo Monegro v. Rosa (9th Cir. 2000). Plaintiffs’ Supplemental Briefs only assess the issue of compensatory and punitive damages under New York law. Nor did any Party assert during the November 5, 2020 hearing a belief that any other law should apply to the compensatory or punitive damages issues before the Court.}

However, based on this Court’s own review of relevant authorities—some of which are cited by Plaintiffs elsewhere in their briefs—it does appear that New York courts have approved permanent injunctions against future libelous statements where the libel is “part of ‘a sustained campaign,'” Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73, 141 (2019), and where the libelous statements injure a business interest or other property right. [Citations omitted.] … Defendant has been making these statements for more than four years, since October 2016, despite the initiation of this litigation and the issuance of an arrest warrant. Accordingly, it is clear that the False Statements are part of a sustained campaign to injure Plaintiffs’ interests, including their business interests. Therefore, the Court agrees with Plaintiffs that, on the facts of this case, a permanent injunction would not be an impermissible prior restraint on First Amendment-protected speech….

However, the Court finds that a number of modifications to Plaintiffs’ Proposed Order are necessary in order for the requested relief to comply with the First Amendment. See Carroll v. President & Comm’rs of Princess Anne (1968) (“An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order…. In other words, the order must be tailored as precisely as possible to the exact needs of the case.”)….

[A.] [N]ot all of the statements identified in the Proposed Order as False Statements are alleged in the [Complaint]. Based on the Court’s careful review of the [Complaint] and its exhibits, the Court believes the following statements from the Proposed Order have been determined to be libelous and properly may be enjoined:

  1. Plaintiff is a “murderer”;
  2. Plaintiff conspired, assisted, helped, or aided in the murder of Michele Harris;
  3. Plaintiff assisted, helped, or aided Calvin Harris or any other person in disposing of Michele Harris’s body;
  4. Plaintiff was paid money by Calvin Harris or other person in connection with murder or disappearance of Michele Harris;
  5. Plaintiff assisted, helped or aided Calvin Harris or any other person from being found guilty, convicted, arrested, detained, liable, responsible, and/or suspected of murdering Michele Harris;
  6. Plaintiff’s equipment was used to dispose of Michele Harris’ body;
  7. Plaintiff was involved in the disappearance of Michele Harris;
  8. Plaintiff sold or sells illegal drugs;
  9. Plaintiff is or has been involved with Joaquín “El Chapo” Guzmán;
  10. Plaintiff engaged or engages in money laundering; …
  1. Plaintiff has raped one or more people…

Accordingly, the following statements, which do not appear in the [Complaint], were not adjudged libelous in the Court’s February 14, 2020 Order:

  1. Plaintiff bribes or have bribed one or more government officials;
  2. Plaintiff is or has been involved with covering up the death of Michael Burke;
  3. Plaintiff has employed or does employ mostly pedophiles;
  4. Plaintiff fooled the Environmental Protection Agency (“EPA”) by removing two feet of contaminated soil at the Jamestown Yard….

Accordingly, to enjoin these statements might well be an unconstitutional prior restraint, and the Court therefore declines to extend the injunction to these statements.

[B.] Moreover, the Court is concerned that enjoining variations of, depictions of, or statements that “convey the message” of the False Statements, or statements that “partial[ly] refer[]” to the False Statements, is a slippery slope that would potentially result in an unconstitutional prior restraint. For example, Plaintiffs provide the exemplary statement: “‘Did the #VicePresident of @UpstateShred admit that he is tracking my IP address? #Binghamton @nyspolice @WBNG12News #CrimeNews #CalHarris.” However, none of the False Statements allege that Plaintiffs track Defendant’s Internet Protocol address. Thus, the Court does not agree with Plaintiffs that this statement falls within the scope of the properly enjoined statements.

And, while the Court is disturbed by Defendant’s posting of “images or photos of Weitsman and/or his family, including his wife and their minor child,” the Court does not believe the posting of personal images alone falls within the scope of the False Statements such that this act is properly subject to the requested injunctive relief. See, e.g., Brummer v. Wey (N.Y. App. Div. 2018) (refusing to enjoin speech that, “as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff”). With a heavy heart, the Court must conclude that it cannot extend the injunction to statements other than the False Statements themselves….

The ruling stresses another important limitation, but that’s worth a separate post.

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Overbroad Injunction Used to Try to Vanish Articles About Daughter’s Property Lawsuit Against Father

Alex Daoud had been mayor of Miami Beach from 1985 to 1991, but was then convicted of bribery and various other charges. Some years later, he arranged a real estate deal together with his daughter, Kelly Hyman (a lawyer and occasional political commentator)—but that went bad, and led her to sue him. The case dragged on for years, and unsurprisingly got a good deal of media coverage, such as in the Miami Herald, on the local CBS affiliate, and in the Real Deal (South Florida Real Estate News).

Hyman also alleged that Daoud or people working with him had posted various derogatory things about Hyman and her family (which includes her husband Paul Hyman, a retired federal bankruptcy judge), at sites named “atrociousattorney.com,” “avariciousadulteress.com,” “despicabledaughter.com,” and the like. As a result, the parties entered into an Agreed Order to Take Down Internet Posting Related to Kelly Hyman, Paul G. Hyman, Jr., [and other family members], in which Daoud was ordered to remove such posts.

So far, that’s fine; parties are generally entitled to enter into such agreements. But here’s the twist: After imposing the obligations on Daoud (who was a party to the agreement), the order went on to purport to bind third parties, who weren’t parties (and to my knowledge weren’t even notified that their rights were being adjudicated):

FURTHER ORDERED AND ADJUDGED that within ten (10) of being furnished a copy of this Order any internet-related services, internet service provider, host provider and/or search engine shall

remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit, and/or [the Hymans] and/or any website or posting defamatory, slander, or any statements against [the Hymans] … including, but not limited to the Sites [listed earlier in the order].

remove and cause to be removed any derogatory references to Kelly Hyman including, but not limited to any reference to Hyman as an “adulteress,” “blackmailer,” “whore,” “despicable,” “liar,” and/or any derogatory and/or negative comment about Kelly Hyman.

remove or cause to be removed any derogatory reference to Paul G. Hyman, Jr., including, but not limited to any reference to him as “prenup paul,” any judicial complaint and/or any derogatory comment about him including but not limited to any alleged misconduct.

remove and cause to be removed statements, documents, videos, and/or postings about this lawsuit, Kelly Hyman v. Arnold Daoud; related to the house located at 1750 Michigan Ave, Miami Beach, Florida; any communication between Kelly Hyman and Arnold “Alex” Daoud; and/or any libelous, defamatory, and/or slanderous websites, videos, internet posts and/or social media posts about [the Hymans], which was or is created directly or indirectly by Daoud.

And Google has indeed been asked, on the strength of this order, to deindex not just items that may have been posted by Daoud, but also mainstream media articles (see here and here):

https://ift.tt/3ftXZbK
https://ift.tt/3m2m5Nj

Notorious Father Faces Eviction—By Daughter


https://ift.tt/2UZdP4B
https://ift.tt/3ftsLS5
https://ift.tt/2KyoUrr

And Google was also asked to deindex two items that criticize Judge Paul Hyman, which do not appear to be linked to Daoud, and which in any case consist of copies of documents filed in other matters:

https://ift.tt/33aZZ3S
https://ift.tt/3fC3xkE

This appears to be the court’s fully approving an order proposed by Ms. Hyman’s lawyers.

I expect that Google will see through this, and will realize that it’s not actually bound by the order (despite what the order says), because it had never been made a party to the case (and wasn’t acting in concert with a party). And I expect that Google will also conclude that it shouldn’t deindex the mainstream media pages (and the criticisms of Judge Hyman) even voluntarily, because there’s no basis for thinking that there’s anything false and defamatory there.

Still, I think the court erred in approving the overbroad agreed order, which on its face purports to bind entities that had never agreed to it. (I have e-mailed Kelly Hyman and her lawyers to get their side of the story, but haven’t heard back from them.)

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