Some colorful lawyer wisdom (see, e.g., Dunn v. U.S. (5th Cir. 1962)); I found versions of this in newspapers going back to 1931, though it may have been a familiar phrase even then.
The post "If You Throw a Skunk into the Jury Box, You Can't Instruct the Jury Not to Smell It" appeared first on Reason Magazine.
From Nunes v. NBCUniversal Media, LLC, decided yesterday by Judges Guido Calabresi, William J. Nardini, and Eunice C. Lee:
Nunes brought a single claim for defamation under New York law based on (as relevant here) a statement made by Rachel Maddow, host of The Rachel Maddow Show ("TRMS") on MSNBC (owned by NBCUniversal), for which Cory Gnazzo served as the executive producer.
In December 2019, Nunes, who was then a congressman and ranking member of the House Permanent Select Committee on Intelligence ("HPSCI"), received something known as the "Derkach Package," from Andrii Derkach—a Russian agent linked to Russian efforts to influence the U.S. presidential election in 2020. The Derkach package was the subject of public discussion over a long period of time, including in a declassified Intelligence Committee Assessment that was released on March 16, 2021.
Two days after that release, on March 18, 2021, Maddow reported on the Derkach package incident, saying on TRMS that Nunes "refused to hand it over to the FBI, which is what you should do if you get something from somebody that is sanctioned by the U.S. government as a Russian agent." Nunes provided the court with evidence that Maddow's statement (the "Statement") was false. More specifically, a former staff member from the HPSCI testified in a deposition that the package, addressed to Nunes, was received by committee staff, placed in a secure location, and turned over to the FBI about two days after its arrival.
The court held that Nunes hadn't introduced enough evidence that Maddow spoke with "actual malice," which means knowing the statement was false or likely false:
[T]he undisputed evidence showed that Maddow and Gnazzo relied on the earlier-published Politico article and that such reliance cannot support a finding of actual malice. The Politico article stated that the Derkach packets had been sent to four people: Nunes, Senators Graham and Grassley, and then-White House Chief of Staff Mulvaney. According to the article, "Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI."
Nunes argues that the Politico reporting does not support Maddow's statement that Nunes "has refused to hand [the Derkach Package] over to the FBI." But that is a natural reading of the Politico article. The dictionary definition of "refuse" cited by Nunes includes this meaning: "to show or express an unwillingness to do or comply with." According to Nunes, this definition shows that a person can "refuse" to do something only if he is "unwilling[ ] to … comply with" a request that he do so, and there was nothing in the Politico article to indicate that he had received any such request. But that is only one possible scenario covered by those words.
Nunes overlooks the other part of the definition that he himself quotes: that a person can be said to have "refused" to do something if he has "show[n] an unwillingness to do" it. Here, the Politico article clearly indicates that Graham, Grassley, Mulvaney and Nunes were all sent the material in question, and none of them gave it to the FBI. A fair paraphrase of this reporting, that Nunes got the Derkach Package but did not turn it over to the FBI, is that he was not willing (i.e., he refused) to give it to the FBI. Of course, the Statement did not parrot the Politico article word for word. But "[l]iteral accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made."
Maddow and Gnazzo's undisputed reliance upon the Politico article defeats Nunes' defamation claim. In New York Times v. Sullivan (1964), the Supreme Court held that a defendant's reliance on a responsible source negates a finding of "the recklessness that is required for a finding of actual malice." "Similarly, this Court has held that where reporters' false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice."
Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable. We therefore agree with the district court's holding that Nunes failed to present evidence that NBCUniversal or its employees acted with actual malice sufficient to defeat summary judgment….
Elizabeth A. McNamara and Jeremy Chase (Davis Wright Tremaine LLP) represent defendant.
The post Devin Nunes Loses Libel Suit Based on Rachel Maddow Show Statements appeared first on Reason Magazine.
School choice in Ohio has taken a big hit. On Thursday, a panel of the state's 10th District Court of Appeals unanimously ruled the state's Educational Choice Scholarship, or EdChoice, program unconstitutional.
Vouchers Hurt Ohio (VHO), a coalition of public school districts, banded together in 2022 to sue the state over the EdChoice program, which uses public funds to finance scholarships for K-12 students to attend private schools. Under EdChoice's "Traditional Plan," which has been around since 2005, students can receive annual scholarships as high as $6,166 for elementary and middle school and $8,408 for high school. The scholarship's "Expansion Program," which state lawmakers created in 2013, awards maximum scholarship amounts identical to the Traditional Plan, "but scale based on a family's income," according to EdChoice, an educational freedom nonprofit. The organization says the scholarship program supports more than 100,000 Ohio families.
The VHO argues that the EdChoice scholarship program drains funding from the public school system, depriving Ohio students of much-needed resources. Its website states "private school vouchers create a system of state-funded discrimination" and that school choice is a "myth." Interestingly, the Court of Appeals of Ohio's 10th Appellate District largely concurred.
The court's ruling came down to Article VI, Section 2 of the Ohio Constitution, which says that the state must secure a "thorough and efficient system of common schools."
The panel held that the EdChoice voucher program violates this mandate by funding a "competing system of uncommon schools." Writing for the court, Judge David Leland took the argument further, contending that EdChoice schools "actually end up depriving families of choice." He cited private schools' selective admissions process and urban concentration, calling the defendants' appeals to choice "a fundamental misnomer," because the choice to admit students rests with the schools, not the families.
Keith Neely, an attorney at the Institute for Justice who represents families using EdChoice in the case, argues that the program funds families rather than a competing school system.
He also challenges the court's rationale that the state's obligation to fund public schools implicitly prohibits them from funding other forms of education. "I think that's just fundamentally wrong as a matter of constitutional interpretation and also just as a matter of public understanding," he tells Reason.
The court "seemed to take the view that any dollar spent on other educational programs like scholarships is a dollar that could be spent on public schools instead, but that's not how budgeting works," he says.
Neely says that public education funding is separate from the scholarship program and that every funding decision has tradeoffs. If the court finds that EdChoice's school voucher program violates the state's obligation to fund public schools, what stops it from reaching the same conclusion for other programs, like the Jon Peterson Special Needs Scholarship or the Cleveland Scholarship program, which provides private school tuition scholarships for K-12 students living in the Cleveland Municipal School District?
Neely also points to Simmons-Harris v. Goff (1999), where the Ohio Supreme Court partially reversed a lower court's ruling and found that school choice was constitutional under the same public-education clause. The court invalidated the Cleveland scholarship program in question, finding that it was "improperly enacted by the legislature," according to the Institute for Justice. However, the Ohio Legislature later reenacted the program.
The families using the EdChoice scholarship program—as well as the state's attorney general—plan to appeal to the Ohio Supreme Court, and Neely is optimistic that history will repeat itself in this case. He tells Reason, "When you look at what the Constitution says, and you look at what the court said in Simmons-Harris, I think the only conclusion that the Ohio Supreme Court can walk away with is that programs like the Educational Choice Scholarship program are constitutional." Families will be able to keep their scholarships while the litigation is pending.
This case is just one battle in a nationwide war on school choice. A recent report from Reason Foundation, the nonprofit that publishes Reason, found that 80 percent of public-school students live in states with "weak or ineffective open enrollment laws." These laws "allo[w] students to transfer to public schools other than their residentially assigned one, provided space is available," writes Jude Schwalbach, senior policy analyst at Reason Foundation. Several states are also holding out against the Education Freedom Tax Credit, a new federal tax credit that offers a dollar-for-dollar tax refund for donating to K-12 scholarship programs.
The court's decision reflects the broader rationale fueling that opposition: that education dollars going to anything other than public schools are taken from ordinary students. For decades, policymakers have invested in that premise, yet student outcomes have little to show for it. The real myth isn't school choice; it's that giving families more options means betraying students' education.
The post Ohio Court Strikes Down a Scholarship Program That Supports More Than 100,000 Families appeared first on Reason Magazine.
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