[Eleven-person juries, noncustodial plaintiffs, and abdicated responsibilities. ] Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Fourth Circuit: Wildcard! Let's instead use a "non-exhaustive list of factors" combined with a brand-new level of "loosened," "quite different," and "more relaxed" constitutional scrutiny. Read the cert petition to learn why the Fourth Circuit's approach is decidedly not cricket and entrenches a circuit split on a question of nationwide importance. Capitol police officer warns a Facebook friend to take down a video of…

[As long as academic institutions place social justice goals ahead of truth seeking and knowledge creation, they will lose the respect of the public and will not live up to their potential.] For my last post in this series related to my new book Habits of a Peacemaker: 10 Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I turn to the role of institutions of higher education. I spend much of Chapter 2 in Habits talking both about how humanity generates knowledge and how we should each responsibly seek after it. I offer practical tips for doing the latter so that we can have more productive discourse. In theory, at least, modern universities should be places that can help with that enterprise. Sadly, too often, they are not playing that role. Many Americans do not trust these institutions or the people in them. And at least part of the problem, in my view, is a lack of understanding by faculty and administrators of the heavy cost that comes from…

The United States Court of Appeals for the Sixth Circuit handed down a major victory for free speech this week in favor of a professor challenging his treatment by the University of Louisville. In Josephson v. Ganzel, a unanimous panel ruled for Dr. Allan Josephson who was subject to adverse actions after he publicly expressed skepticism over some treatments for youth diagnosed with gender dysphoria. The decision is important because it deals with qualified immunity and reaffirms liability for the denial of free speech protections. Writing for the panel (including Senior Judge Ronald Lee Gilman and Judge Allen Griffin), Judge Andre Mathis found that university officials could not claim immunity in the denial of free speech protections for faculty. We previously discussed this case. Josephson was a professor of psychiatry at the medial school and had success at the school after serving as the Division Chief of the Division of Child and Adolescent Psychiatry and Psychology at…

["We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect."] On September 12, the Fifth Circuit decided United States. v. Rahimi on remand from the Supreme Court. All-too-often, people think a Supreme Court decision is the end of the matter. But in reality, the lower court has to actually enter a judgment to carry the Supreme Court's ruling into effect. Here is how the per curiam panel opinion describes Rahimi: The Supreme Court, clarifying its Bruen test, reversed our judgment and held that § 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024). I agree. The Supreme Court did not faithfully apply Bruen. It changed the test! For all of the outrage about the Fifth Circuit's reversal rate, a lower court cannot be faulted for faithfully following precedent. Ditto for when the government changes its position on appeal, thus radically altering the…

[Officials allegedly retaliated against a professor who expressed politically controversial statements about the best treatments for gender dysphoria among youth.] In Josephson v. Ganzel, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of sovereign immunity and qualified immunity to public university officials who allegedly took adverse employment actions against a professor who expressed skepticism about certain treatments for youth diagnosed with gender dysphoria. Judge Mathis wrote for the panel, joined by Senior Judge Gilman and Judge Griffith. His opinion begins: The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on…

With the 3rd U.S. Circuit Court of Appeals’ recent decision in Anderson v. TikTok, it’s time to revisit the interplay between the First Amendment’s right to editorial discretion, Section 230 immunity, and children’s online safety in the context of algorithms. As has been noted many times, the use of algorithmic recommendations is ubiquitous online. And the potential harms to children receiving bad recommendations is significant, as well, as the underlying facts of the TikTok case show. But there are also countervailing speech and consumer-welfare concerns that arise if algorithmic recommendations are not protected under the law.  Ironically, insofar as the 3rd Circuit is right about algorithmic recommendations constituting first-party speech (and thus not receiving immunity under Section 230), this could mean that online platforms that use algorithmic recommendations have a strong First Amendment defense against products-liability claims. TikTok v…

The case is Stringer v. Kim, decided Monday by N.Y. trial court judge Richard Latin; Scott Stringer is a former New York Assemblyman, New York City Comptroller, Manhattan Borough President, and prominent candidate for New York Mayor in 2021, and is apparently running for Mayor again. Under New York's "anti-SLAPP statute," plaintiff had to show a "substantial basis" for his lawsuit in order for the case to go forward, and the court said that he did (though of course without deciding the facts): Plaintiff has adequately plead a substantial basis for his claim of defamation. Plaintiff alleges that, on April 28, 2021, Defendant held a press conference in which she falsely accused plaintiff of sexually assaulting her 20 years earlier, while she worked for Plaintiff's campaign. Defendant also allegedly stated that Plaintiff groped her and put his hands down her pants without her consent. Plaintiff further alleges that Defendant repeated these accusations…

[Law students: Take that Choice of Law (often called Conflicts of Laws) course your law school offers; it can be tremendously important.] From Sackler v. ABC, Inc., decided Wednesday by N.Y. trial judge Franc Perry: [This defamation] action is based on the defendants' mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the "N.Y. Post" which is a daily publication that is available worldwide in hard copy and online editions…. Plaintiff alleges that the N.Y. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages,…

The Nevada Supreme Court upheld the dismissal of a defamation claim under the Anti-SLAPP statute This appeal arises out of a defamation claim brought by appellant Steve Wynn—a prominent figure in Nevada gaming and politics—against respondents the Associated Press and...

Here are plaintiff's factual allegations, as reported in Monday's decision by Judge Jacquelyn Scott Corley (N.D. Cal.). in Loggins v. Leland Stanford Jr. Univ.: Dr. [Ameer Hasan] Loggins is a "black, African American, Muslim male[.]" He earned his doctorate degree from the University of California at Berkeley in 2019. Stanford hired him as a lecturer in August 2023. On October 10, 2023, Dr. Loggins led two Stanford class discussions on settler colonialism and sought "to have a difficult dialogue" about "dehumanization, Israel, and Palestine." He "wanted the focus to be on the Palestinian civilians. [Dr. Loggins] also wanted to complicate the ways in which many frame the Israel and Palestine 'conflict,' which is through the frame of Jewish people vs. Muslim people." So, Dr. Loggins "asked whether any Jewish students were present in the classroom, in an effort to speak to the diversity within the Jewish diaspora and…

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a defamation action This case presents the issue of what constitutes a “substantial basis in law” under the anti-SLAPP law. We hold, based on our reading...

1.  Introduction The origins of the aphorism “better late than never” may lie in Livy’s History of Rome (c27-9 BCE). Its first recorded use in English seems to be in Chaucer’s Canterbury Tales (c1387-1400); in The Canon’s Yeoman’s Tale, the Yeoman (pictured right, from the Ellesmere Chaucer) says ([1410]-[1411]). Lest ye lese al; for bet than nevere is late. Lest you lose all; for late is better than never. Nevere to thryve were to long a date. Never to thrive would be too long a time. No doubt there are scholars of Latin or Middle English in the Department of Justice, as the Defamation (Amendment) Bill 2024, long long in the making, has finally arrived, better late than never, though it is very very late indeed. On 1 January 2010, the Defamation Act 2009 came into effect, modernising Irish defamation law and putting it largely on a statutory footing. Section…

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law Editorial Note: All section references below are to Larson’s Workers’ Compensation Law, unless otherwise indicated. Traveling Employee Injured in Fall Down Employer’s Unobstructed Stairs. Acknowledging that generally, traversing stairs is a neutral risk and injuries resulting therefrom are not compensable under the Illinois Workers’ Compensation Act, but construing the state’s rules on traveling employees, an Illinois appellate court affirmed a finding of the state’s Workers’ Compensation Commission that a town’s “blight inspector” was a traveling employee and accordingly, that injuries sustained by him in a fall down unobstructed stairs at a town office building were compensable [see Town of Cicero v. Illinois Workers’ Comp. Comm’n , 2024 IL App (1st) 230609WC, 2024 Ill. App. LEXIS 819, § 7.04 n. 41.1]. The court agreed…

California law provides that any licensee of the Department of Alcoholic Beverage Control or agent or employee of the licensee, who sells, gives or delivers to any person any alcoholic beverage between the hours of 2 a.m. and 6 a.m. of the same day, and any person who knowingly purchases any alcoholic beverages between those hours, is guilty of a misdemeanor.  Cal. Bus. & Prof. Code § 25631.  Thus, if it 3 in the morning and you are looking for a drink, you are out of luck in California.  Your luck, however, may soon change as a result of legislation recently passed by the California legislature.   AB 3206 (McKinnor) allows the sale of alcoholic beverages between 2 a.m. and 4 a.m. at an on-sale licensed premises operated in a fully enclosed arena with a seating capacity of at least 18,000 seats located in the City of Inglewood, subject to certain conditions.  If that sounds very specific, it is.  The only arena that fits this…

The California Legislature has banned more food ingredients in the name of food safety. This time, six food dyes are being banned from California’s public schools. Passed unanimously by the California Senate and Assembly, the California Food Safety Act only awaits the governor’s signature to become law. The bill prohibits public schools from serving food and beverages containing synthetic colorings, which California lawmakers believe are linked to neurobehavioral issues experienced by some children. Assembly Bill 2316 bans dyes in schools, including Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2, and Green 3. The ban follows the complete prohibition of the manufacture, sale, and distribution of any foods anywhere in California containing the additives red dye no. 3, titanium dioxide, potassium bromate, brominated vegetable oil, and propylparaben. Jesse Gabriel, the Assembly representative who has sponsored both sets of bills, said the state is responsible for…

Last month, two key legal developments in the area of independent contractor misclassification and compliance highlighted the risks posed to customer service companies that use an independent contractor business model. The first involves a Colorado company using agents to provide customer support through an app-based platform. The company was sued in a proposed class and collective action lawsuit based on the allegation that the company misclassified the agents as ICs and not employees. The second involves a $3 million settlement between a nationwide customer service support company and the U.S. Department of Labor, which sued the company alleging it had misclassified as ICs the workers that provide customer service to its clients. Many companies in the customer service industry use an independent contractor business model. Workers in that type of trade or occupation usually can be classified legally as ICs under federal and most state laws if their relationships with the…

"Only it seems to me that once in your life before you die you ought to see a country where they don't talk in English and don't even want to."* California is a very linguistically diverse state with an estimated 200 plus different languages being spoken.  Within my own family, English is not the primary language spoken at home by any of my grandchildren.  Yet, the California Constitution provides that English is both the "common" and "official" language of the State of California.  Cal. Const. Art. III, Section 6.  The California Constitution further prohibits the legislature from making any law which "diminishes or ignores the role of English as the common language of the State of California".  Interestingly, California's original constitution was written in both English and Spanish.  In fact, Section 21, Article XI of the 1849 Constitution required publication of all laws in Spanish and…

On July 25, 2024, the California Supreme Court ruled in the case of Castellanos v. State of California that Proposition 22, also known as App-Based Drivers as Contractors and Labor Policies Initiative, is constitutional. The statewide ballot measure from 2020 exempts certain app-based drivers from California’s independent contractor classification law. This decision will significantly impact ongoing gig economy litigation as well as potential future litigation. In 2021, drivers for services including Uber Technologies Inc., Lyft Inc. and DoorDash Inc., joined with the Service Employees International Union and its California chapter to challenge Proposition 22. The drivers and union claimed that the voter-approved ballot measure passed in November 2020 must be struck down because it infringed on the California legislature’s power to set workers’ compensation laws. During the May 2024 oral arguments in San Francisco, the justices appeared skeptical of the…