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Volokh Conspiracy

@volokhc.bsky.social

Law professors blogging since 2002 -- independent until 2014, hosted at Washington Post 2014-17, hosted at Reason 2017-now

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Volokh Conspiracy@volokhc.bsky.social · yesterday

[Eugene Volokh] President Trump's Lawsuit Against Iowa Pollster Ann Selzer Thrown Out

From today's long decision by Iowa state trial court judge Scott Beattie in Trump v. Selzer [UPDATE: link fixed]: J. Ann Selzer … conducted political polls in Iowa for nearly four decades. Three days before the 2024 general election, the Des Moines Register … published a Selzer poll showing Kamala Harris leading Donald Trump in Iowa and Christina Bohannan leading Mariannette Miller-Meeks in Iowa's First Congressional District. The poll proved wrong. This case arises from that error. Donald J. Trump, Mariannette Miller-Meeks, and Bradley Zaun … sue in their private capacities. The Petition pleads a violation of the Iowa Consumer Fraud Act, fraudulent misrepresentation, and negligent misrepresentation, and asks the Court to enjoin the publication of any further deceptive polls.6 Both Defendants have moved to dismiss…. At its core, the Plaintiffs' Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties' arguments, the Court must conclude that the protection is too great and the reach is too far…. [F]alsity alone does not create a category of unprotected speech. The Supreme Court has never recognized that false statements by themselves are not entitled to First Amendment protection, and it refused to do so when squarely presented with the opportunity. The Eighth Circuit held that even knowingly false campaign speech is not excluded from the Amendment's protection…. With a limited number of exceptions to the First Amendment protection, the Plaintiff must proceed under the fraud exception. The speech, however, must meet what the exception demands…. The fraud exception is narrow, and the proof requirements for a fraud claim exist precisely to safeguard protected speech. A false statement alone does not produce liability. Rather, the constitutional exception involves a false claim made to secure money or other valuable consideration…. 1. The Iowa Poll Was Not a Provably False Statement of Fact. A poll is simply an estimate…. It is based on a known methodology, and concerns an event that has not yet happened. Things of that nature are not the sort of things that can be said to be true or false in the manner required by the fraud exception. Opinion polls of random samples of voters are snapshots with margins of error, and campaigns are dynamic. A statement of conjecture about a future state of affairs is not provably false, even when the speaker is alleged to have known better…. 2. No Representation Was Made to Plaintiffs, and No Plaintiff Parted with Anything in Reliance … No Plaintiff pleads that J. Ann Selzer or Selzer & Company communicated with him or her, solicited anything from him or her, or had any relationship with any Plaintiff, arising out of contract or otherwise. No Plaintiff pleads that he or she purchased the Iowa Poll, subscribed to the Register because of the Poll, or gave anything of value to any Defendant because of the Poll. Plaintiffs merely plead that false statements were published to the public and that bad things ensued. Whatever that may be, that is not fraud…. The plaintiffs' answer was that they had actually suffered damages, including campaign expenditures to offset the Iowa Poll, and that this made their case different from U.S. v. Alvarez (2012), where the false statements gained the speaker nothing. The answer confuses two different requirements. That a plaintiff was harmed does not establish that the speech was used to obtain money or property from him. Alvarez itself makes the distinction, explaining that to permit liability for false speech absent any evidence that the speech was used to gain a material advantage would confer a censorial power unprecedented in the Court's cases and in our constitutional tradition. Plaintiffs allege consequences. They do not allege a transaction…. [T]he Iowa Poll and its reporting are fully protected political speech, and the Petition does not allege the elements that would place that speech within the fraud exception. The First Amendment bars [all the claims]. Second, and independently, the Petition states no claim under Iowa law. Count I [violation of the Iowa Consumer Fraud Act] alleges no prohibited act in connection with the advertisement, sale, or lease of consumer merchandise, no ascertainable loss of money or property, and no reliance. Count II [fraudulent misrepresentation] alleges no representation made to induce any Plaintiff to act and no act taken in reliance on the truth of the polls. Count III [negligent misrepresentation] alleges no duty running from a pollster or a newspaper to a candidate. Either ground would require the same result on its own. Robert Corn-Revere and Conor Fitzpatrick (FIRE) represent Selzer. The post President Trump's Lawsuit Against Iowa Pollster Ann Selzer Thrown Out appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 2d ago

[Eugene Volokh] Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students

[1.] Some excerpts from Judge Steven McAuliffe (D.N.H.) Monday in the longish Fosu v. Univ. of R.I. Bd. of Trustees (D.R.I.); there's a lot more in the whole opinion. First, the backstory about the plaintiff: In 2018, URI recruited and hired Dr. Gifty Ako-Adounvo, as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo asked for URI's help to locate employment for Fosu, her domestic partner, and when no outside employment options were found, URI appointed him as a visiting professor for the 2019 spring semester. URI appointed Fosu to a faculty of practice to teach in the Political Science Department for the 2019-2020 academic year. A faculty of practice is a one-year appointment and a non-tenure position. Fosu did not have the academic qualifications to teach core curriculum classes in the Political Science Department. The Chair of the Political Science Department, Professor Marc Hutchison, decided that Fosu could teach elective courses as a faculty of practice. Fosu was to teach a course on the Supreme Court and constitutional law, and he also proposed a course on advocacy, which was approved. During the 2019-2020 academic year, Fosu taught elective undergraduate courses on constitutional law and advocacy and a graduate course…. [2.] The court discussed various bases for Fosu's appointment not being renewed; here's an excerpt of that, though there were other things happening as well. Note that, "[b]ecause Fosu has not responded to defendants' motion [for summary judgment]," the court "accept[ed] as uncontested defendants' recitation of the material facts": On October 26, 2020, Fosu sent an email titled "Declaration of Diversity" to URI President Dooley, along with many others including members of the URI faculty and staff, URI students, law enforcement officials, and government officials. Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused the URI faculty and staff of racism, collusion, unethical conduct, and violations of the law. The email included a boxed warning that "all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present." Fosu also asserted that he and others invoked their Fourth Amendment rights. In the email, Fosu notified President Dooley that Fosu's private corporation, Diversity Think Tank, was "headquartered" at URI and that it was the corporation's goal "to directly target and expose URI's indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy." … [Fosu attached a] "Declaration of Diversity" that purported to be issued by "organized URI students." The Declaration began with a statement that "We as organized URI student, hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from positions of senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students." … The Declaration included 46 "complaints and demands," one of which said: We students will create a White-list of all those white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, self-evident by the fact that no African-American with an ancestry to slavery and no Latino has been hired to a senior leadership position since 1892—and NOT ONE WHITE FACULTY member has expressed a problem with that fact, and the glaring fact that there are NO BLACK FACULTY members in the Criminal Justice Department and only a couple at the Harrington School. You white professors do not need research to find out about systemic racism at URI—you are part and parcel of the creation and maintenance of systemic racism at URI though your self-serving policies, unapologetic excuses, discriminatory behavior and your hegemonic culture of impunity. You should be ashamed of yourselves and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions about diversity and ethics, and we pick who should be on these panels. "The Declaration was signed by four URI students who were identified as Diversity Think Tank trustees, non-student trustees of Diversity Think Tank, and Fosu." This unsurprisingly led to tensions with other faculty members: Several of the faculty expressed concern to the department chair, Professor Hutchison, about the email and the Declaration of Diversity….. [Also, during a] Political Science Department[] meeting[,] … Fosu talked over other faculty and talked about bringing in his army of lawyers. The faculty felt that if they disagreed with Fosu, he labeled them racist…. [In a follow-up e-mail, he] criticized his treatment during the meeting and asserted that the faculty had to stand against racism or they supported racism. He also called out individual faculty members to refute [perhaps meaning "recant"? -EV] their positions during the department meeting. To one female faculty member, Fosu wrote: [R]acism and discrimination are not complex or complicated matters to understand as you mentioned and implied in your job candidate example…. Maybe you should reflect and recognize that the highly qualified Black person who interviewed as your search committee's first choice, likely declined the job because s/he wanted to avoid a perceived impending racial conflict and marginalization after encountering the reality of our intensely all-white environment…. Step out of your personal defensive mode nurtured naturally by white privilege and empathize with Black candidates who walk on this campus…. I experienced that subtle disrespect and suspicious questioning during our meeting on Friday. In response to another faculty member's discussion during the meeting, Fosu wrote: "The main beneficiaries of Affirmative Action have been White women—not Black men and not Black women—cultural hegemony has been very successful at falsely convincing us that Blacks predominately benefit from Affirmative Action." Fosu further wrote that "[w]hat I was discussing with [a male faculty member] on a deeper level before I was interrupted by [the female faculty member] is that we cannot rely on an institution that has been systemically racist for 128 years to produce progressive policies that advance racial equity." Hutchison testified in his deposition that Fosu's email caused distress in the department. Faculty were concerned that they would be publicly accused of being racist if they taught about race issues in class. Other faculty told Hutchison that the department could not talk with Fosu because he would not hear any point of view except his own. The targeted female faculty member told Hutchison that Fosu was creating a hostile work environment and bullying female colleagues…. [3.] There were also several student complaints; the court goes through the details, but here's one sample: Vice President of Student Affairs Kathy Collins … summarized [one] student's report, as follows: * Declaration for Diversity was pre-written by Mr. Fosu and taken to class in September, 2020. Students were able to do edits and provide comments in a google doc. None of their comments and edits were accepted into the document. The student [I] spoke with has not "seen the document since September." When students asked if they could edit it, they were told, "no." * The petition that is up on change.org was circulated in class and students were told to sign at the start of a recent class. Students did not write the petition. * Multiple students have requested of Mr. Fosu to have their names removed from documents, emails, etc. They were informed by Mr. Fosu that their names could not be removed. He shared that they were "legally required to be named because" they "reviewed the document." The student also shared: * students are "very fearful about grades" * students are "uncomfortable in class"—especially with the "misogyny" * the student expressed that the class was full of "extreme radicalism" * the student expressed that Mr. Fosu sees students as "collateral damage." Student 4 then met with Hutchison, reporting that Fosu intimidated students into going along with the Declaration of Diversity. The student said that students were not allowed to have a voice. Student 4 reported misogyny in Fosu's treatment of female students. Student 4 also reported that Fosu uses "inappropriate and crude language in class," which made Student 4 uncomfortable, and that they had received inappropriate emails and requests. In addition, the student said that Fosu cancelled classes without warning…. A bit more about Fosu's interactions with students: In December of 2020 and continuing into January of 2021 four of the six URI students who signed the Declaration of Diversity as trustees of Fosu's Diversity Think Tank resigned from the Diversity Think Tank. The students asked Fosu to remove their names from all Diversity Think Tank materials. In their resignation emails, the students explained that they did not agree with Fosu's goals and actions and that he had sidelined the students' interests. Fosu responded to the first student and everyone else on the email list in a long email with multiple references to the student as a white man and saying "[o]nly a person who is very privileged would make a false statement that I do not have the best interests of students." Fosu's response to the resignation of the other three students identified them by name, and, included URI community members beyond Diversity Think Tank. Fosu stated that he forgave the students for their "fabrications, ulterior motives and for the pusillanimity of [their] incoherent email." He also said that that "this collective tantrum from you three, is because I shut down your childhood friend and frat brother [the first student to resign] … [and] [t]he next [he] has a difference of opinion or disagreement with any Black/African American man of my caliber he will know how to speak properly and disagree respectfully." At the end of January, another student resigned from the Diversity Think Tank referencing Fosu's responses as "accusatory, disagreeable behavior." … [4.] The court concluded that the speech was unprotected under the First Amendment under the test applicable to government employee speech: [Under Pickering v. Bd. of Ed. (1968)], the court balances "the value of an employee's speech—both the employee's own interests and the public's interest in the information the employee seeks to impart—against the employer's legitimate government interest in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission." … Fosu's interest in racism at URI … [and] his concerns about diversity in hiring and in the student body at URI are recognized public issues. Nevertheless, under the current rule in the First Circuit, "[s]peech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balancing." Fosu's emails and much of the Declaration of Diversity are insulting to Chief Diversity Officer Almandrez and others and include personal attacks and denigrating remarks about individuals and URI faculty and administration. Those communications generally are entitled to less weight for purposes of balancing interests. On the other side of the balance, URI put Fuso on administrative leave because of his misconduct. Specifically, coercion, intimidation, and retaliation toward students limiting their free pursuit of learning; public expressions of hostility, harassment, and disrespectful and threatening behavior toward colleagues, and disrespect for opinions that are divergent from your own; [and] disruption of departmental processes and overt efforts on your part to interfere with formally sanctioned university processes and procedures…. Fosu frequently was late to class and cancelled class. His students were intimidated by him and afraid of retribution if they did not agree with and participate in his agenda and his company, the Diversity Think Tank. Faculty in the Political Science Department found him to be uninvolved and disruptive when he was involved. Fosu expressed misogynistic views that intimidated his students and faculty in his department…. Therefore, the balance of interests strongly favors defendants. As a result, Fosu has not demonstrated that his speech is entitled to First Amendment Protection…. Steven M. Richard represents URI. The post Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 2d ago

[Eugene Volokh] President Trump's Legal Argument in Support of Excluding CNN, MS NOW, and Politico from the White House

Here's an excerpt from the opposition to plaintiffs' temporary restraining order motion (for my view on why the plaintiffs should prevail as to access to the main press briefing room, see this post): While the D.C. Circuit has held that some areas of the White House grounds constitute a nonpublic forum, Sherrill v. Knight (D.C. Cir. 1977), that decision is wrong and should be overruled. But even under Sherrill, the President's actions must be sustained because the President has "compelling interest[s]" in enforcing minimum standards for bona fide journalists and safeguarding national security information…. [T]he President's actions were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs' speech criticizing the President—indeed, the President has not revoked access to other outlets that have equally criticized the President…. Sherrill v. Knight … held that because "White House press facilities hav[e] been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons." While Defendants acknowledge the D.C. Circuit's decision in Sherrill, that case was wrongly decided, and Defendants expressly reserve their right to argue so on appeal. Access to the White House is a privilege, not a right. In Sherill, the D.C. Circuit emphasized that "[t]hese press facilities [were] perceived as being open to all bona fide Washington-based journalists[.]" The reality is much better described by the D.C. Circuit's more recent decision in AP v. Budowich (D.C. Cir. 2025). There, the court acknowledged that there are more journalists who wish to interview the President than he can accommodate; "[i]n deciding which journalists to speak with, the President may of course take into account their viewpoint." Accord Baltimore Sun Co. v. Ehrlich (4th Cir. 2006) (upholding State Governor's press directive that "no one in the Executive Department or Agencies" should speak with two named reporters because the "Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with" that administration). As a result, the court concluded that at least for certain spaces, "the White House may consider journalists' viewpoints when deciding whether to grant access." The same logic and standard should apply to access to White House grounds more generally. "Opening" the "White House" to some journalists should not "transform these spaces into nonpublic fora to which access must be granted on a viewpoint neutral basis." Indeed, there are currently a finite number of hard passes, and yet the White House briefing room and West Wing facilities can accommodate only so many reporters. Under the AP decision, this counsels against the conclusion that the White House is a nonpublic forum. See AP ("These spaces should not be classified as nonpublic fora because access to them is tightly controlled and highly selective…. When access to government property is very limited, considerations of viewpoint may be permissible."). In short, there is no principled way of easily distinguishing between rooms that are a nonpublic forum and those that are no forum at all—particularly where the White House is not obligated to respond to any questions by reporters in the first place. See id. ("The AP's reporting on presidential events through electronic dissemination of news to editors or the public outside the White House is the only communicative activity at issue. But this activity could occur anywhere and therefore lacks the essential connection to the government space required to create even a nonpublic forum."). The reasoning of AP should properly control as to all parts of the White House complex. Note that whatever one may think of the implications of AP's reasoning, it reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that "When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint." Back to President Trump's argument: Yet even under Sherrill, Defendants' decision to deny Plaintiffs continued access to White House grounds complies with the First Amendment because they have at least two "compelling reasons," namely, enforcing minimum standards of professionalism for journalists and protecting classified information…. First, Defendants may lawfully deny access to Plaintiffs because the President has concluded they fail to satisfy the minimum requirements of professionalism. Indeed, the D.C. Circuit has acknowledged that the White House can set standards governing qualifications for journalistic access. Nothing about Sherrill is inconsistent with the President's judgment that reporters who publish classified and sensitive information fail to meet the Sherill standard. Nor does Sherrill prevent the President from concluding that bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment. Cf. Sherrill (five times limiting ruling to "bona fide" journalists"). The President believes basic journalistic standards require calling, asking for comment, and providing a reasonable opportunity for a response. At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information. To be sure, the D.C. Circuit in Sherrill and Karem v. Trump (D.C. Cir. 2020) has held that advanced notice of prohibited conduct and of the consequences of noncompliance are required before a hard pass can be revoked. Defendants submit those holdings should be overruled, but in any event, the White House has satisfied those requirements by providing an explanation of the relevant standards, both generally and with respect to Plaintiffs conduct specifically. Here, the President's letters set out with specificity what is required and how Plaintiffs have failed to adhere to these standards. The letters point out with specificity examples of Plaintiffs' conduct that he determined fell below these standards. The letters also provide Plaintiffs with an opportunity to respond to these concerns and submit materials for the President's reconsideration…. Second, Plaintiffs' reporting gives rise to reasons to doubt their trustworthiness and, in fact, the President has determined that Plaintiffs have reported classified or sensitive information bearing on national security. Defendants have a compelling governmental interest in protecting such information. Indeed, the Supreme Court has recognized that the Constitution vests the President with the "authority to classify and control access to information bearing on national security." Ultimately, the responsibility and "authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief." Here, as explained in the Letters, the President has found that Plaintiffs have engaged in a number of reporting incidents that have threatened national security. Indeed, multiple examples concern reports about the White House complex currently under construction. Cf. Nat'l Park Serv. v. Nat'l Tr. for Historic Pres. in the United States (2026) (weighing increased "risk of foreign actors 'gathering intelligence' on the project"). Such reporting directly raises national security concerns. Indeed, "[t]he release of such information is exactly the type of release that can cause harm to the national security." Furthermore, such reporting incidents also divert resources of national security and other personnel. The "[p]ublication of sensitive security information" and even "misinformation about national security information" requires Defendants to "evaluate whether the leaked information is classified, the source of any leak, and the security implications of any such disclosure." The President therefore has a compelling interest in limiting access to White House grounds to organizations that do not pose such a risk to national security. Defendants "believe that the President's determination to revoke credentials for news outlets and reporters that have caused such interference with government functions would be effective in reducing the amount of information that is published that undermines national security." The motion will be heard today (Wednesday) at 3:30 pm; presumably Judge Timothy Kelly will issue a decision fairly soon. The post President Trump's Legal Argument in Support of Excluding CNN, MS NOW, and Politico from the White House appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 2d ago

[Eugene Volokh] "White House Access Is a Privilege—Not a Right"

As I noted Friday, according to the D.C. Circuit (the federal appellate court with jurisdiction over D.C.), it's * unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but * constitutional to do so as to spaces that aren't generally open to the press, such as interviews in the Oval Office. The key precedent on this in AP v. Budowich (D.C. Cir. 2025), which upheld the exclusion of the AP from the Oval Office (because of AP's refusal to call the Gulf of Mexico "Gulf of America"), but reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint. I stand by this legal analysis, but wanted to pass along the White House's contrary argument that was posted yesterday: Last week, President Donald J. Trump removed CNN, MS NOW, and Politico from the White House grounds after years of false reporting. The First Amendment protects their right to publish; it does not entitle them to a hard pass, briefing room seat, or place in the press pool. Access changes are nothing new. What is new, however, is the sudden claim that it becomes sacred only when the outlets are friendly to the Radical Left. The rule was never "every outlet gets in." It was always "our side stays in." For years, Democrat Administrations have restricted, punished, and locked out the press. 2009: The Obama White House branded Fox News as the "research arm" and "communications arm" of the Republican Party, barred it from a round of exclusive Sunday show interviews, instructed agencies to "skip" including it in pooled coverage, derided it as "really not news," and undertook an all-out effort to isolate the organization. Barack Hussein Obama now calls a Fox ban "unimaginable," but his White House tried it — and his spokesman admitted they were willing to do it. 2010: The Obama Justice Department labeled Fox News correspondent James Rosen a possible "co-conspirator" in a criminal leak case, secretly monitored his emails and phone calls, and tracked his movements — an "unprecedented" level of surveillance and intimidation of a journalist over his reporting. 2011: Obama White House officials restricted the Boston Herald from coverage — writing that pool slots depended on covering Obama "fairly" — after the paper ran a front page Mitt Romney op-ed. 2011: After a San Francisco Chronicle reporter recorded protesters interrupting an Obama fundraiser, White House officials threatened to strip the outlet from access and warned of retaliation if the paper reported on it. 2012: The Obama Justice Department secretly seized two months of telephone records covering more than 20 Associated Press lines used by more than a dozen journalists — targeting them over their reporting. 2023: The Biden White House blocked New York Post reporter Steven Nelson from covering the President's only daytime public event — despite empty seats in the room — after the reporter pressed Biden on his family's shady business dealings. 2023: The Biden Administration restricted more than 440 reporters from White House access through a new, retroactive press credentialing process — with independent and conservative journalists taking a heavy share of the hit. The White House Correspondents' Association barely objected. 2008: In the Obama campaign's final days, senior campaign officials pulled reporters from three prominent outlets off the traveling press plane — restricting them from coverage after the papers endorsed Obama's opponent. 2021: The same media now suing once urged a ban on Fox News. CNN's Brian Stelter repeatedly floated removing Fox News from the White House press tool as a "political tool," and later even suggested Fox News be dropped from cable altogether. --- During the first 100 days of President Trump's second term, the Media Research Center found that 92% of coverage by mainstream outlets was negative compared to nearly 60% positive coverage during the same period under Biden. That's more like a political operation with cameras than a free press holding power to account. No President is required to host a hostile operation on the grounds. Access has always been a privilege — and President Trump is applying that rule. Again, I don't think any of this involved exclusion of outlets based on viewpoint from all of the White House, including the main press briefing room. But I thought I'd note the argument, even though I think it's inconsistent with the D.C. Circuit precedent. The post "White House Access Is a Privilege—Not a Right" appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 2d ago

[Eugene Volokh] 39% of Democratic Voters Think Restaurant Industry "Should Be Publicly Owned and Operated"

From a survey this month of Democratic voters by the Center for Strategic Politics, a self-described progressive organization. Interestingly, the view is much more common among conservative Democrats than Socialist or progressive Democrats; I don't know what to make of that. The support for public ownership and operation is even higher as to grocery stores (46%-44%). But the restaurants result struck me as especially interesting, because the benefits of private owners' variety of decisions (about cuisines, menus, decor, and the like) ought to be so evident there. The post 39% of Democratic Voters Think Restaurant Industry "Should Be Publicly Owned and Operated" appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 3d ago

[Eugene Volokh] Someone Trying to Vanish My Post About a No-Pseudonymity Decision

[1.] First, the backstory: In December, I posted an item about a 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…. I excerpted more of the opinion, which you can read here. Naturally, one can agree or disagree with the court's decision to deny pseudonymity, but in any event, my post passed along that decision. [2.] Then, on July 22, Przybylowski's lawyer (a partner at a small but prominent law firm) sent a letter to Reason, with a "demand" that the post be removed: Following publication of the Article, the United States District Court for the Southern District of New York dismissed the underlying action with prejudice. In light of the sensitive nature of the allegations, the Court also ordered that the filings containing those allegations be sealed. A copy of the Court's order is enclosed as Exhibit B. Because the allegations referenced in the Article have been dismissed with prejudice and the underlying filings have been sealed by the Court, they are no longer part of the public record. Nevertheless, the Article continues to republish and disseminate those allegations, causing ongoing harm to our client. IN LIGHT OF THE FOREGOING, DEMAND IS HEREBY MADE that you remove the Article and all statements referencing the dismissed and sealed allegations in their entirety no later than July 27, 2026. While our client hopes this matter can be resolved promptly and amicably, he is prepared to pursue all available legal remedies to mitigate and remedy the harm caused by the continued publication and dissemination of these allegations, including seeking appropriate injunctive relief and recovery of all damages and other relief available under applicable law. But while the District Court did order (incorrectly, I think) the sealing of some of the court filings, it expressly refused to seal its orders and opinions, including the opinion that I was quoting: [T]he motion to seal the docket in its entirety would have the Court shield from public view decisions already rendered by this Court, which are at the core of the performance of the judicial function. The parties' privacy interests are insufficient to justify the sealing of judicial orders and opinions. I therefore promptly and amicably declined to go along with counsel's demand. Even if the opinion had been retroactively sealed, I believe I would have been within my rights to keep up my post quoting the opinion, under cases such as Florida Star v. B.J.F. (1989). But given that the opinion wasn't sealed—again, the court expressly declined to seal it—it's hard to see how I could be subjected to an injunction or damages by keeping up a post that was reporting on its contents. (Note that the judge had struck from the docket one opinion that she had released on April 15, because she had learned the same day that the parties had "agreed to a settlement in principle" the day before; but that is not the opinion that I was quoting.) And indeed no "legal remedies" have been sought against me since my refusal. [3.] But someone (I don't know who) has sought to do something else about my post since that refusal: A few days ago, the Lumen Database reported that Google had received a request that it "deindex" various web pages, which is to say remove them from its search results. Those pages include my post about the case, a Bloomberg Law article about the case, and several pages that archived opinions about the case or dockets for the case: * https://app.midpage.ai/case/finley-v-[REDACTED]-11062084 * https://cases.justia.com/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/26/0.pdf * https://dockets.justia.com/docket/new-york/nysdce/1:2025cv04383/643215 * https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/28/ * https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/39/ * https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2025cv04383/643215/45/ * https://news.bloomberglaw.com/business-and-practice/ex-pomerantz-associate-denied-anonymity-in-rape-suit-against-him * https://reason.com/volokh/2025/12/15/no-pseudonymity-for-civil-defendant-accused-of-sexual-assault/ * https://storage.courtlistener.com/recap/gov.uscourts.nysd.643215/gov.uscourts.nysd.643215.28.0.pdf * https://www.casemine.com/judgement/us/69e3b6332e996410bea78ed5 * https://www.docketalarm.com/cases/New_York_Southern_District_Court/1-25-cv-04383/Finley_v_[REDACTED]/ * https://www.law360.com/cases/6830d818a5043482d2376c05 * https://www.leagle.com/decision/infdco20260317c21 * https://www.leagle.com/decision/infdco20260416d22 * https://www.pacermonitor.com/public/case/58203472/Finley_v_[REDACTED] There is of course no legal basis mandating the removal of these materials, nor do I see any justification in Google policies for its deindexing those sites voluntarily (as it is generally free to do). And to my knowledge, the attempt to vanish those sites has failed: I don't think Google has indeed deindexed them. Again, the Lumen entry does not indicate who submitted the deindexing request. Still, someone did submit it, and it strikes me as a helpful illustration of how people, whoever they may be, try—even if often without success—to get matters (even matters of public record) hidden from online viewers. For more posts on this general subject, see here. I e-mailed Przybylowski's lawyer (see item 2 above) Thursday night and again Sunday to ask whether he, his colleagues, or his client had a statement on the matter. I have not heard back from them; if I do hear something, I'll update the post accordingly. The post Someone Trying to Vanish My Post About a No-Pseudonymity Decision appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 3d ago

[Eugene Volokh] "Are the Government's Conversations with AI Accessible Under Public Records Laws and FOIA?"

A very interesting forthcoming article by noted media lawyer Steve Zansberg in the Fall 2026 issue of the Communications Lawyer; the Summary: * AI prompts and outputs used by government officials to conduct public business should generally be treated as public or agency records subject to state public records laws and FOIA. * While courts have not yet resolved how these laws apply to AI chatbot conversations, existing legal principles strongly support disclosure when the records relate to official functions. * Practical barriers such as poor retention, high costs, and asserted privileges will likely shape future disputes over access. And an excerpt from the Introduction: In 2025, a combined reporting project between Cascade Public Broadcasting and KNKX-TV exposed that city workers, including the mayor's staff, in two Washington cities utilized ChatGPT to write mayoral letters, generate grant applications, draft policy documents, synthesize public comments, and compose replies to citizens and the media. The joint reporting effort revealed alleged bid-rigging performed through AI prompts and responses, and that half of a letter the mayor of Bellingham sent to state authorities seeking funds for a Native American tribe was actually copied, verbatim, from ChatGPT. That reporting was enabled by the successful use of the Washington Public Records Act. Similarly, in 2025, the Texas Department of Transportation produced numerous conversations between its employees and ChatGPT in response to a records request under that state's public records law. But not all public officials have been willing to provide their AI prompts and results to requesters under state and federal public records laws. As recently reported in Wired magazine, both the "Department" of Government Efficiency and the Department of Housing and Urban Development denied Democracy Forward's Freedom of Information Act (FOIA) requests for the AI prompts and responses used in those agencies' crafting of official policies; HUD cited the deliberative process privilege (FOIA Exemption 5) as grounds for its withholding decision. At the state level, the City of Colorado Springs, Colorado, recently refused to provide a local television station copies of the AI chatbot interactions of that city's mayor, citing two exemptions from disclosure in Colorado's Open Records Act: "work product assembled for the benefit of elected officials" and "deliberative process" materials…. No court has yet published a decision applying either FOIA or a state public records act to government officials' "conversations" with AI chatbots. While disputes over records access percolate their way up through the courts, this article examines what the public's right to know "what their government is up to" is when it uses generative AI to conduct public business…. The post "Are the Government's Conversations with AI Accessible Under Public Records Laws and FOIA?" appeared first on Reason Magazine.

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Volokh Conspiracy@volokhc.bsky.social · 3d ago

[Eugene Volokh] MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing]" Jan. 6 Hearing Witness "to Lie" Wasn't Negligent

From today's decision by Judge Loren AliKhan (D.D.C.) in Passantino v. Weissmann (for an earlier decision in the case, see here): Plaintiff Stefan Passantino brings this action against Defendant Andrew Weissmann, alleging defamation stemming from a September 2023 social media post. In the post, Mr. Weissmann referred to Mr. Passantino—a lawyer—as someone "who coached [a witness appearing before Congress] to lie." … In 2021, the House of Representatives established a Select Committee to investigate the January 6, 2021 attack on the U.S. Capitol. As part of its investigation, the Select Committee interviewed numerous witnesses, including Cassidy Hutchinson, a former special assistant to President Trump who had been serving under the direction of White House Chief of Staff Mark Meadows on January 6, 2021. Mr. Passantino [a former Trump administration senior lawyer] represented Ms. Hutchinson at her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. In early June 2022, after the third deposition, Ms. Hutchinson fired Mr. Passantino and retained new counsel. She subsequently gave a fourth, televised deposition on June 28, which received substantial media coverage. After her fourth deposition, Ms. Hutchinson sent a letter to the Select Committee stating that she intended to "waive [her] attorney-client privilege [with Mr. Passantino] in order to share information with the [C]ommittee that[] [was] relevant to [her] prior testimony." The Select Committee scheduled her for a fifth, closed-door deposition for September 14, 2022. According to Ms. Hutchinson, she had asked a friend to "back channel to the committee and say that there [were] a few things that [she] want[ed] to talk about." … [She also said] that she did "not [want to] let Stefan [Passantino] know that [she was] back channeling for this interview" …. At her fifth deposition, Ms. Hutchinson testified about the preparation she and Mr. Passantino had conducted ahead of her first Select Committee deposition. Specifically, she told the Committee that she and Mr. Passantino had met "for a couple hours" on February 16, 2022 to discuss her upcoming testimony. When Ms. Hutchinson suggested printing out a calendar so that she could "get[] the dates right" with respect to timelines of events, Mr. Passantino said "No, no, no." He told her: "We're going to downplay your role" and "the less you remember, the better." When Ms. Hutchinson brought up an incident that occurred inside the presidential limousine on January 6 (about which she had been told by a colleague), Mr. Passantino said "No, no, no, no, no. We don't want to go there. We don't want to talk about that." Mr. Passantino told Ms. Hutchinson: "If you don't 100 percent recall something, even if you don't recall a date or somebody who may or may not have been in the room, ['I don't recall' is] an entirely fine answer, and we want you to use that response as much as you deem necessary." Ms. Hutchinson then asked, "if I do recall something but not every little detail, … can I still say I don't recall?" to which Mr. Passantino replied, "Yes." The morning of the first deposition, Mr. Passantino reminded Ms. Hutchinson to "[j]ust downplay [her] position," telling her that her "go-to [response was] 'I don't recall.'" Ms. Hutchinson also discussed a line of questioning from her first deposition about the January 6 incident in the presidential limousine. She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, "I'm f[*****]. I just lied." Mr. Passantino responded, "You didn't lie…. They don't know what you know, Cassidy. They don't know that you can recall some of these things. So you saying 'I don't recall' is an entirely acceptable response to this." He concluded, "You're doing exactly what you should be doing." Ms. Hutchinson explained that, in the moment, she "[felt] like [she] couldn't be forthcoming when [she] wanted to be." Id. 56:3-4. Ms. Hutchinson did, however, state: "I want to make this clear to [the Select Committee]: Stefan [Passantino] never told me to lie." She recalled him saying to her: "I don't want you to perjure yourself, but 'I don't recall' isn't perjury. They don't know what you can and can't recall." Ms. Hutchinson then reiterated to the Select Committee, "[H]e didn't tell me to lie. He told me not to lie." Mr. Passantino acknowledges that the deposition transcript accurately reflects Ms. Hutchinson's statements at her fifth deposition, although he disputes the veracity of her account except to the extent Ms. Hutchinson testified that he instructed her not to lie. At the Committee's final public session on December 19, 2022, Representative Zoe Lofgren stated that the Committee had "obtained evidence" that "one lawyer told a witness the witness could in certain circumstances tell the Committee that she didn't recall facts when she actually did recall them." After the Committee released the transcripts of Ms. Hutchinson's closed-door depositions, multiple news outlets identified Mr. Passantino as the "lawyer" that Representative Lofgren had referenced. Nine months later, Mr. Weissmann—a former prosecutor who now serves as a "political pundit" for MSNBC—posted the following on Twitter (now known as X): Mr. Weissmann made the post in response to an alert that Mr. Hunt had received a subpoena in an unrelated case. Mr. Weissmann had approximately 320,000 followers on X at the time…. Passantino sued, but the court granted judgment for Weissmann: The court concludes that Mr. Passantino has failed to plead the requisite level of fault …. "If the plaintiff [in a defamation suit] is a private figure, then negligence is the applicable fault standard." "But if the plaintiff is a public figure," then the plaintiff must demonstrate "that the defamatory statement was made with 'actual malice,' i.e., 'with knowledge that it was false or with reckless disregard of whether it was false or not.'" … Because the court concludes that Mr. Passantino fails to plead facts sufficient to establish negligence, the court assumes without deciding that Mr. Passantino is a private figure. To allege negligence, a plaintiff must plead facts showing that a defendant failed "to observe an ordinary degree of care in ascertaining the truth of an assertion before publishing it to others." … Mr. Passantino … contend[s] that the transcripts [of Ms. Hutchinson's testimony] "showed that Mr. Passantino had done nothing to obstruct or shape Ms. Hutchinson's testimony and indeed showed the opposite as [Ms. Hutchinson] stated that 'Stefan [Passantino] never told me to lie' and that 'he told me not to lie.'" The court assumes as true Mr. Passantino's allegation that Mr. Passantino "had done nothing to obstruct or shape Ms. Hutchinson's testimony." … Mr. Passantino's direct quotations from the transcript fail to show that Mr. Weissmann had reasonable notice that his statement was false. Mr. Passantino relies on Ms. Hutchinson's statements stressing that "Stefan [Passantino] never told me to lie." But taking those statements as true does not resolve the relevant question: whether a reasonable person in Mr. Weissman's shoes could have concluded that Mr. Passantino "coached [Ms. Hutchinson] to lie." To "coach" means "to instruct, direct, or prompt." It is perfectly possible to direct or prompt someone to lie without expressly stating as much. Indeed, Mr. Weismann acknowledges Ms. Hutchinson's full account of Mr. Passantino's statements—including that Mr. Passantino expressly told her not to lie—but he argues that Mr. Passantino nonetheless coached her to make false statements to the Select Committee by telling her to say she did not recall answers to their questions even when she did…. The court concludes that Mr. Passantino's claims about the message of the transcript are not only legally conclusory, but also incorrect. The transcript, far from contradicting Mr. Weissman's statement, supports it. Ms. Hutchinson's statements indicate that Mr. Passantino repeatedly prompted Ms. Hutchinson to lie. For example, Mr. Passantino's advice included telling Ms. Hutchinson that "Your go-to, Cass, is 'I don't recall,'" even when she asked about answering "certain questions that [she] would recall." When Ms. Hutchinson told Mr. Passantino, "I'm f[*****]. I just lied," Mr. Passantino purportedly responded, "You didn't lie…. They don't know what you know, Cassidy. They don't know that you can recall some of these things. So you saying 'I don't recall' is an entirely acceptable response to this." He concluded, "You're doing exactly what you should be doing." In other words, the transcript reflects that even as Mr. Passantino nominally instructed Ms. Hutchinson not to lie, he repeatedly urged her to say "I don't recall" based on the unverifiability of that response—not based on its truth. He encouraged her to say "I don't recall" whenever the Committee would not know the difference, even when Ms. Hutchinson indicated to him that she did in fact recall relevant information. Second, Mr. Passantino suggests that Mr. Weissman should have known that Ms. Hutchinson had "self-interested, political motives" to "distance herself from her prior testimony" by blaming Mr. Passantino. Although Mr. Passantino describes "aspects of Ms. Hutchinson's testimony" as "contradictory and uncredible," he does not allege any facts that would require a reasonable reader to inquire further. A reasonably careful person may rely on sworn testimony without taking additional steps to verify it because the deponent both speaks from personal knowledge and swears to tell the truth under penalty of perjury. Mr. Passantino asserts in his opposition brief that "many reasonable readers" would have interpreted Ms. Hutchinson's September 14 testimony as that of "a fabulist who wanted to distance herself from her prior testimony so that she could spread inflammatory gossip and hearsay." But the court rejects this assertion, which is untethered from any facts in the complaint and wholly speculative. Moreover, the standard for negligence is not whether "a reasonable reader could view Ms. Hutchinson's testimony as being consistent with" Mr. Passantino's pleaded truth; it is whether a reasonable reader should have known that Mr. Passantino's pleaded truth was the objective truth or at least should have had sufficient doubts as to trigger an obligation to inquire further. Even assuming the truth of Mr. Passantino's pleadings, Mr. Weissmann "had reasonable grounds for believing that [his] communication was true." Lest there be any doubt, a reasonable person attempting to verify Mr. Weissman's statements would have found ample sources of support. Representative Lofgren told the public at a highly publicized congressional hearing that the Select Committee had "obtained evidence" that "one lawyer told a witness the witness could in certain circumstances tell the Committee that she didn't recall facts when she actually did recall them." And numerous mainstream media outlets promptly identified Mr. Passantino as the lawyer in question. Mr. Passantino argues that there is "no record evidence that [Mr. Weissmann] actually viewed or otherwise knew of these media articles." Nevertheless, Representative Lofgren's statement and the public reporting on it reflect and support the objective reasonableness of Mr. Weissman's statement because large swaths of people, including reporters held to a higher standard of care, drew the same conclusions from the same testimony. While Mr. Passantino cites other media articles to show that "many did, in fact, question Ms. Hutchinson's credibility," those articles at most demonstrate that reasonable minds could have differing views on the matter. Mr. Passantino does not allege that a reasonably prudent person should have sought out articles that assessed Ms. Hutchinson's credibility, let alone that such articles rendered Mr. Weissman's amply supported statement negligent. The court accordingly concludes that Mr. Passantino fails to plead any facts that could support a claim that Mr. Weissmann was negligent for purposes of his defamation claim.… Meryl C. Governski and Linda E. Halfacre (Dunn Isaacson Rhee LLP), Jonathan I. Kravis (Munger, Tolles & Olson LLP), and Faith E. Gay, Corey Stoughton, and Rachel Slepoi (Selendy Gay PLLC) represent defendants. The post MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing]" Jan. 6 Hearing Witness "to Lie" Wasn't Negligent appeared first on Reason Magazine.

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