Month: October 2025

From McGillvary v. Hartley, decided Tuesday by Judge Ashley Royal (M.D. Ga.):

Pro se Plaintiff Caleb McGillvary is currently serving a 57-year sentence for first-degree murder. In February, 2013, McGillvary rose to internet fame as the “hatchet wielding hitchhiker” after he gave interviews to a local Fresno, California KMPH Fox News TV reporter in which McGillvary described “smash, smash, suh-mash[ing]” Jett Simmons McBride three times over the head with a hatchet after McBride crashed his car into a group of pedestrians and attacked bystanders at the scene (“KMPH Clip”). Fresno authorities concluded that Plaintiff used justifiable force in protection of the bystanders and cleared him of any wrongdoing.

Three months later, after gaining media notoriety for viral news interviews and media appearances, including an interview on Jimmy Kimmel Live!, Plaintiff was arrested for and ultimately convicted of murdering Joseph Galfy, Jr., a New Jersey attorney. Plaintiff’s arrest was unrelated to the hatchet incident.

On January 10, 2023, Netflix released a documentary about McGillvary entitled The Hatchet Wielding Hitchhiker that described his background; interviewed those around him during his rise to fame; and detailed his subsequent murder conviction (the “Documentary”). Five days before the Documentary was released, on January 5, 2023, Defendants created and published an episode on their YouTube channel, “The Behavior Panel,” wherein they analyzed the KMPH Clip and made statements about Plaintiff based on their assessment of his body language and behavior (the “YouTube Video”). This suit arises out of the comments made in the YouTube Video….

There’s a lot more in the opinion, but here’s a short excerpt of the legal analysis:

Defamation …

Plaintiff alleges Defendants made 28 “slanderous and libelous statements with reckless disregard for and/or knowledge of their falsity, with actual malice intending the harm that would result therefrom.” Defendants’ allegedly defamatory statements include telling viewers they will analyze Plaintiff’s body language and behavior from the News Clip to determine whether Plaintiff is a “sociopath” or “psychopath”; commenting on Plaintiff’s “odd behavior for someone who’s killed somebody in the last three hours”; questioning whether Plaintiff has a “personality disorder” and lacks language and relationship skills; questioning the relationship between Plaintiff and McBride, the driver of the car, “be it a drug deal, be it a prostitution situation, whatever was happening there”; commenting that Plaintiff was trying to be a “hero”; calling Plaintiff a “drifter” and a “vigilante”; suggesting because Plaintiff stated in the News Clip he was from “Dogtown,” Plaintiff was “kind of suggesting that he’s a mutt out of the back streets … a bit of a mongrel from the backstreets”; opining that Plaintiff “probably has done some things. We know he gets convicted of murder later …. I don’t think what we’re seeing here is the Johnny Appleseed of goodness running around the country beating up bad guys. I think this was opportunistic…. I’m not sure whether this is a true story of being a savior or it was an opportune moment to be violent with somebody, if it indeed happened”; opining Plaintiff has “been in a whole lot more trouble than we’re aware of at this point with local authorities”; stating he was accused of “killing a guy he had consensual sex with”; and opining that Plaintiff and McBride got into a fight before McBride ran into the crowd of people. Plaintiff contends Defendants’ analysis falsely implies that he is a sociopath or psychopath; he killed someone within three hours before the news interview; he lacks the interpersonal skills, language capacity, and intelligence that would make him a good business partner or leader; he was criminally culpable in his use of force on McBride; he lied about the events and therefore committed perjury at McBride’s arraignment; he is “some kind of glory hog who interjected himself into the interviewer’s dialogue in an act of self-aggrandizement”; that people did not like him because he was a drifter; he promoted vigilantism; he was a prostitute who engaged in a “prostitution situation” with McBride; that his identity is synonymous with that of a mutt or mongrel from the backstreets; and that he engaged in a pattern of criminal activity before the incident….

Here, the context of Defendants’ statements establish that they are rhetorical hyperbole. All reasonable viewers understand Defendants’ comments as expressing their beliefs about Plaintiff’s actions based on their subjective assessments of his body language actions, not as literal assertions….

Misappropriation of Likeness …

“Georgia recognizes a right of publicity to protect against ‘the appropriation of another’s name and likeness … without consent and for the financial gain of the appropriator … whether the person whose name and likeness is used is a private citizen, entertainer, or … a public figure who is not a public official.'” …

“In order to navigate between the competing constitutionally protected rights of privacy and publicity and the rights of freedom of speech and of the press, the courts have adopted a ‘newsworthiness’ exception to right of publicity.” “[W]here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.” “[W]here a publisher may be precluded by the right of publicity from publishing one’s image for purely financial gain, as in an advertisement, where the publication is newsworthy, the right of publicity gives way to freedom of the press.” …

Here, all factors weigh against Plaintiff and establish that he cannot maintain a claim for a violation of his right to publicity as a matter of law. The YouTube Video did not intrude on Plaintiff’s private affairs; Plaintiff voluntarily placed himself in the position of public notoriety; and the information is a matter of public record. Defendants analyzed the KMPH news Clip, a matter of public record that Plaintiff acknowledges in his Amended Complaint went viral. There can be “no liability when the defendant merely gives further publicity to information about the plaintiff which is already public.” Plaintiff voluntarily placed himself before the public, allowing the news reporter to interview him and later voluntarily appearing on the late-night television show Jimmy Kimmel Live!. Indeed, Plaintiff acknowledges in his Amended Complaint that he is “famous and widely recognized.”

Plaintiff contends Defendants used his identity solely to further their own commercial efforts to market their YouTube channel and sell its products. But, having analyzed the Video, it is clear Plaintiff’s identity is not being used to sell a product in an advertisement. Defendants do not use Plaintiff’s identity on merchandise. And any use of Plaintiff’s identity to attract web traffic to Defendants’ YouTube channel is merely incidental to the use of Plaintiff’s identity. Defendants do not use Plaintiff’s identity to endorse or sell their products. The “fact that the publisher or other user seeks or is successful in obtaining a commercial advantage from an otherwise permitted use of another’s identity does not render the appropriation actionable.” …

[Trademark] …

Even assuming Plaintiff has a trademark ownership in the words “Smash, Smash, SUH-MASH!” and/or the moniker “Kai the Hatchet Wielding Hitchhiker,” Plaintiff cannot show consumers were likely to believe that Plaintiff approved, sponsored, was affiliated, or was the origin of the YouTube Video. The YouTube Video is not a copy of Plaintiff’s work. Defendants used the public KMPH news Clip to analyze Plaintiff’s body language and behavior….

“[L]ikelihood of confusion occurs when a later user uses a trade-name in a manner which is likely to cause confusion among ordinarily prudent purchasers or prospective purchasers as to the source of the product.” Plaintiff has not pled nor can he establish that any ordinarily prudent purchaser or prospective purchaser would have any confusion that Plaintiff approved, sponsored, endorsed, was affiliated, or was the source of Defendants’ YouTube Video analyzing his body language and behavior….

Copyright …

Plaintiff alleges he created and performed the “dramatic work and spoken words” he used during the KMPH news interview on February 1, 2013. He alleges he registered his copyright to the “dramatic work ‘Smash, Smash, SUH-MASH!'” …

[But plaintiff] has no ownership in the KMPH Clip…. “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” … Plaintiff was an interview subject of the KMPH news interview. He played no role in fixing the clip into tangible expression; KMPH employees “fixed” McGillvary’s performance—recording him using KMPH controlled and operated equipment. Plaintiff consented to the live media interview when speaking with the KMPH Fox News reporter, engaging in a question-and-answer format, wherein he recounted the events on February 1, 2013….

Defendants are represented by Pamela Grimes (Wilson, Elser, Moskowitz, Edelman & Dicker LLP).

The post The Hatchet-Wielding-Hitchhiking-Murderer-Unsuccessful-Intellectual-Property-Litigant appeared first on Reason.com.

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From Chen v. FBI, decided Tuesday by D.C. Circuit Judge Gregory Katsas, joined by Judges Michelle Childs and Harry Edwards:

Yanping Chen alleges that federal officials violated the Privacy Act by disclosing records about her compiled as part of an FBI investigation. The records were published by Fox News. In discovery, Chen sought to compel Catherine Herridge—one of the journalists involved in publishing the records—to identify who had leaked them. Herridge invoked a First Amendment reporter’s privilege to avoid being compelled to testify….

{We recite the facts as alleged in the complaint. Yanping Chen was born in China. In 1987, she moved to the United States to study at George Washington University, from which she eventually obtained graduate degrees. Chen became a lawful permanent resident in 1993 and a citizen in 2001.

In 1998, Chen founded the University of Management and Technology (UMT), an educational institution headquartered in Arlington, Virginia. Until January 2018, UMT participated in the Department of Defense’s “Tuition Assistance Program,” which pays a portion of tuition expenses for military students.

In 2010, the Federal Bureau of Investigation began investigating Chen for statements made on her immigration forms. [Details omitted. -EV] In 2016, the U.S. Attorney’s Office for the Eastern District of Virginia decided not to file charges against Chen.

In 2017, Fox News aired a report alleging that Chen had concealed her prior work for the Chinese military. The network later published [various FBI documents]…. The print versions of these reports were authored by Catherine Herridge.

In 2018, DoD terminated UMT’s participation in the Tuition Assistance Program. That decision, along with a broader hit to UMT’s reputation, caused its enrollment and revenue to fall sharply. These losses impacted Chen’s income and the value of her personal investment in UMT.} …

In Zerilli v. Smith (D.C. Cir. 1981), this Court recognized a “qualified reporter’s privilege” based on the First Amendment. Where it applies, the privilege allows reporters to resist civil discovery into the identity of their confidential sources. We identified two considerations as being “of central importance” in determining whether the privilege applies—the litigant’s “need for the information” and her efforts “to obtain the information from alternative sources” [the latter being called the “exhaustion requirement”-EV] We further noted that the “equities weigh somewhat more heavily in favor of disclosure” if, as in libel cases, the journalist is a party and successful assertion of the privilege “will effectively shield him from liability.” …

In Lee v. Department of Justice (D.C. Cir. 2005), this Court held that a litigant may overcome the privilege by showing centrality and exhaustion—even in a case where the reporter is not a party. Like this case, Lee involved an appeal by non-party journalists held in contempt for refusing to identify their confidential sources in Privacy Act litigation.

Applying Zerilli‘s “two guidelines [for] determining when a court can compel a non-party journalist to testify about a confidential source,” we held that the district court had not abused its discretion in requiring the reporters to testify. First, the plaintiff had shown that the information he sought went to the “heart” of the case, given the difficulty in proving intent or willfulness without knowing the identity of the leakers. Second, by deposing numerous witnesses before seeking to compel the reporters’ testimony, the plaintiff had met his burden to exhaust reasonable alternative sources of information.

For the Lee Court, that was the end of the matter. We expressly declined to engage with Zerilli‘s distinction between journalists who are parties to a lawsuit and those who are not, since all the journalists in the case before the court were non-parties. And in response to an objection that we were leaving journalists without enough protection, we explained that a litigant’s power to subpoena a journalist remains constrained by the requirements of centrality and exhaustion, which are not perfunctory, and by “the usual requirements of relevance, need, and limited burdens on the subpoenaed person” embodied in federal procedural and evidentiary rules….

On appeal, Herridge does not contest the district court’s determination that Lee‘s centrality and exhaustion requirements for overcoming the privilege were satisfied. Herridge nonetheless asks us to rule in her favor because … Chen’s Privacy Act claim is frivolous or meritless ….

We reject Herridge’s contention that the Privacy Act claim here is frivolous. Herridge presses two main points: “most” of Chen’s alleged damages were caused by DoD’s independent decision to cut off funds to UMT, and “almost all” of Herridge’s reporting came from sources other than Privacy Act information. But “most” is not all, and Chen does seek damages not flowing from a loss of business after DoD severed its ties with UMT.

Likewise, even if Herridge collected “almost all” of her information from material that was already in the public domain, Chen plausibly alleges that some of it had to have come from Privacy Act violations—such as the disclosure of photographs seized from Chen’s home during the FBI search. And so long as Chen establishes that some Privacy Act violation harmed her, she may recover actual or statutory damages if it was willful….

Herridge more broadly urges that Chen’s claim is simply not that important. In Herridge’s view, regardless of centrality and exhaustion, the reporter’s privilege should prevail if a court determines that the social importance of the news story outweighs the plaintiff’s personal interest in vindicating her claim. Here, for example, Herridge argues that “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues of national security” should outweigh Chen’s merely private interest in recovering perhaps as little as $1,000 in statutory damages.

Herridge’s proposed balancing test echoes the view advanced by the judges dissenting from denial of rehearing en banc in Lee. As they were in dissent, we are left simply to apply the Lee panel opinion…. Lee held that a district court permissibly found a reporter’s privilege overcome based on findings of centrality and exhaustion in a Privacy Act case, without any broader balancing of private and public interests. And that suffices to foreclose Herridge’s privilege claim here….

Finally, Herridge urges us to recognize, as a matter of federal common law, a reporter’s privilege broad enough to permit the case-by-case interest balancing urged by the Lee dissentals. We decline this invitation to end-run our precedent.

Rule 501 of the Federal Rules of Evidence authorizes federal courts to recognize new privileges “in the light of reason and experience.” But Herridge has provided little cause to think that “reason and experience” support the privilege that she propounds. As to reason, the First Amendment analysis in cases like Zerilli and Lee thoroughly lays out the competing considerations of encouraging newsgathering while also respecting the elemental principle that “the public has a right to every man’s evidence.”

As to experience, Herridge contends that virtually every state has recognized some form of a reporter’s privilege. She attached to her opening brief a chart summarizing the relevant law in every state. But as this chart demonstrates, the privilege varies widely in its scope from state to state, both in the abstract and on the question whether case-by-case interest balancing is appropriate. In short, if the First Amendment itself does not entitle Herridge to disobey discovery obligations imposed on every other citizen in the circumstances of this case, we see little reason to create that entitlement as a matter of judge-made common law.

Andrew Phillips represents Chen.

The post D.C. Circuit Rejects Journalist's Privilege Claim in Privacy Act Case Involving Fox News appeared first on Reason.com.

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It has now been just a little over 20 years since John Roberts was sworn in as chief justice of the United States back on September 29, 2005. So let’s mark this two-decade milestone by taking a closer look at Roberts’ jurisprudence and the mark it has left on American law, especially when it comes to the powers of the president.

Characterizing Roberts’ judicial philosophy is no simple task. Is it accurate to say that he practices judicial restraint by deferring to the policy choices made by elected officials? Yes, we can accurately say that, but only sometimes.

In one of his most famous majority opinions, Roberts led the Supreme Court in upholding the Patient Protection and Affordable Care Act, also known as Obamacare. “It is not our job,” Roberts declared in National Federation of Independent Business v. Sebelius (2012), “to protect the people from the consequences of their political choices.” In other words, the argument went, because Obamacare represented the will of the people as expressed via the agenda of a popularly elected president, the unelected judiciary had no business standing in the way.

Yet Roberts has also led the Supreme Court in thwarting the agendas of popularly elected presidents in other high-profile cases. In Department of Homeland Security v. Regents of the University of California (2020), Roberts wrote the majority opinion stopping President Donald Trump from rescinding the Deferred Action for Childhood Arrivals (DACA) program. In Biden v. Nebraska (2023), Roberts blocked President Joe Biden from imposing his student debt cancellation plan. No deference for either president in those important cases.

But Roberts has also led the Supreme Court in massively expanding executive power, most notably in Trump v. United States (2024), which granted the president broad immunity from criminal prosecution.

So, while both Biden and Trump saw some of their signature presidential policies struck down, the signature policy of President Barack Obama was upheld on deferential grounds, and the presidency itself has emerged stronger than ever in other crucial ways, all thanks to decisions written by Roberts.

Is there a through line connecting such cases? Is there a clear judicial philosophy that accounts for the results? I’ve been following Roberts’s tenure for much of the last two decades, and I’m not sure that there is. Roberts has long extolled the virtues of judicial deference, yet he only does the deferring in select cases. Roberts has put a stop to presidential overreach (sometimes), yet he has also placed a vast protective shield over presidential misconduct. To be generous, I suppose we might say that Roberts’s judicial philosophy contains multitudes.

Next week, the Supreme Court will kick off its 2025–2026 term, and the docket is already packed with momentous cases dealing with the powers of the president. That means that all eyes will be on the chief justice, who may well be in the position to tip the balance in one or more of these matters.

Will we get the version of Roberts that’s more likely to defer to Trump or the one that’s more likely to curtail Trump? Which one of Roberts’s judicial multitudes will step to the fore?

For better or worse, we’re about to find out.

The post After 20 Years as Chief Justice, John Roberts Is Now Friend and Foe to Executive Power appeared first on Reason.com.

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10/2/1967: Justice Thurgood Marshall takes the oath.

The post Today in Supreme Court History: October 2, 1967 appeared first on Reason.com.

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