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.

From Lajara v. McMenamin, decided Wednesday by Pennsylvania Superior Court judge Brandon Neuman, joined by Judges Jack Panella and Carolyn Nichols:

Mother argues the trial court erred by entering paragraph 111 of the final custody order, which allows Child to decline attendance at religious or faith-based events beginning at the age of 14, and prohibits both parents from influencing, restricting, or limiting Child's participation in those events before or after age 14. In doing so, Mother claims this provision "infringe[s] upon the parties' First Amendment right to the free exercise of religion and the parties' fundamental right to parent their child." …

Under the Due Process Clause of the Fourteenth Amendment, a parent has a fundamental right "to make decisions concerning the care, custody, and control of the child." Under the Free Exercise Clause of the First Amendment, an individual has a right to religious freedom. Read together, parents have the constitutionally-protected "right to direct the religious upbringing of their children." [Under Pennsylvania precedent,]

[A] court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime. However, … it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens….

[E]ach parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all period of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in absence of the proposed restriction….

While the harm involved may be present or future harm, the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to 'contradictory' religions would be a patently insufficient 'emotional harm' to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce….

As noted by Mother, "[n]either party in this matter requested the trial court order any form of relief regarding the exercise of their religious beliefs or … [C]hild's attendance and participation in religious activities. No evidence regarding either party's religion or … [C]hild's attendance and participation in religious activities was presented at trial." The trial court explained its reasoning for this provision, stating:

This trial court was forced to anticipate, to the best of its ability and in light of the factors proscribing stability and consistency for … Child, that a high level of conflict is more than likely to arise as it pertains to religious activities. To put it simply, these parents have demonstrated that any disagreement or dispute has and can easily escalate quickly into full scale conflict that does nothing more than cause instability and emotional trauma to … Child.

As such, this trial court proactively prescribed a solution to any issues that may arise regarding … Child's attendance and participation in religious activities. This trial court acknowledges that neither parent raised the issue of religious activities[;] however, the tumultuous history of this case does not produce any optimism on the part of this trial court that they will be able to communicate and cooperate if religious participation becomes an issue. As such, it is in … Child's best interests to preemptively place parameters on his attendance and participation in religious activities….

Though we recognize the parties' behaviors do not produce optimism that religion will not become an issue in the future, based on the record before us, the restrictions set forth in paragraph 111 are contrary to our case law since there is no indication the parties' religious beliefs or practices present a "grave threat of harm," "a substantial threat of present or future, physical or emotional harm to the child[,]" or that the physical or mental health, or safety of the child would be jeopardized absent a restriction. Accordingly, the trial court erred in setting forth paragraph 111 of its January 6, 2026 order. Consistent with precedent, both parents shall be permitted to practice his or her religion with Child during their respective periods of custody, so long as there is no substantial threat of present or future physical or emotional harm to Child….

The post Anticipated Religious Clashes Can't Justify Current Restriction on Parents' Religious Upbringing of Child appeared first on Reason Magazine.

From today's decision by Judge Richard Mark Gergel (D.S.C.) in Bingham v. Wilson:

Plaintiffs filed this lawsuit on behalf of several South Carolina physicians seeking injunctive and declaratory relief against South Carolina's Abortion Ban….  [Plaintiffs] seek an order: "(1) requiring all counsel and witnesses to refer to Dr. Doe using her pseudonym at trial; (2) closing the courtroom to the public and members of the press during Dr. Doe's testimony; and (3) permitting limited redactions to the trial transcript to conceal any educational or professional information that could indirectly identify Dr. Doe." Defendants have not filed any memoranda opposing the instant Motion….

The court refused to close the trial during Dr. Doe's testimony:

The Supreme Court has noted that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open." … "For many centuries, both civil and criminal trials have traditionally been open to the public" ….

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Applying these principles, the Supreme Court held that the right to a public trial may give way to a complete closure of the courtroom if: (1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding are considered by the trial court, and (4) findings adequate to support the closure are made by the trial court…. When a party seeks only a partial closure of the courtroom, such as "where an exclusion is temporally limited to a portion of the hearing," a "less demanding" test applies, which permits a court to order closure if the moving party establishes "a substantial  reason"  rather  than  an  "overriding  interest"  justifying  closure….

[T]he Court will not close the Courtroom proceedings during Dr. Doe's testimony. Here there are not sufficient circumstances to warrant closing the courtroom given the public's right to access and interest in the proceedings, especially given the nature of this case. As discussed above, civil trials are presumptively open and are a hallmark of our democratic forum of government as open trials "embod[y] a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." …

The Court takes Dr. Doe's concerns about her safety very seriously. But the Court finds that the public's right of access to access is high in this case given its subject matter. As such, the record before the Court does not warrant closing the proceedings to the public when alternative measures can ensure her safety. The Court therefore will not close the Courtroom during Dr. Doe's testimony….

But it allowed her to proceed as Dr. Doe at trial:

[A]bortion is a divisive issue and there is a long "national history of harassment and violence towards abortion care providers." Women's Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider's motion to proceed pseudonymously because "retaliation is a genuine concern" for abortion providers and there is a serious risk of "harassment, threats, or other retaliatory action taken by those that disagree with access to abortion care"); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting cases). Moreover, the Court finds Dr. Doe's expressed concern of retaliation against herself compelling because she has been the target of threatening mail and doxing by anti-abortion activists…. [This] risk of physical … harm to plaintiff … weighs in favor of allowing her to proceed anonymously….

[Plaintiff's claim is also made stronger] given her previously stated desire to protect her children from harassment and retaliation by remaining anonymous.

The [claim being against the government] weighs in Plaintiff's favor because "[a]ctions against the government do no harm to its reputation, whereas suits filed against private parties may damage their good names and result in economic harm." … [And] the threat of prejudice to Defendants to be minimal since Dr. Doe has proceeded anonymously up to this point and because there is no risk of jury confusion since this is a bench trial. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). Based on the circumstances of this case, the Court finds that Dr. Doe's stated interests in protecting herself against retaliation and harassment can be balanced with the public's interest in the openness of judicial proceedings by allowing Dr. Doe to proceed under a pseudonym at trial.

And the court also concluded that it "will partially redact the portions of the transcript that could indirectly identify Dr. Doe":

Additionally, the Court finds that redaction of selected portions of the trial transcript is an appropriate alternative to sealing the transcript in its entirety. This decision strikes an appropriate balance between the public's right of access to judicial records and proceedings and Dr. Doe's interest in her safety. This is especially true because the public's right to access Dr. Doe's education and professional information is limited, especially given the Court's decision to allow her to proceed anonymously due to her safety concerns. Furthermore, the public will retain access to trial records except for Dr. Doe's identity and the related information that could identify her. The Court also believes that this is a reasonable alternative to closing proceedings and no greater than necessary. Thus, the Court finds that the same safety measures as closing the Courtroom can be achieved with reasonable alternative measure of allowing Dr. Doe to proceed anonymously and redacting the portions of transcript….

As such, it is ORDERED that Counsel and witnesses will refer to Dr. Doe using her pseudonym at trial and that the trial transcript will be partially redacted to conceal any educational or professional information that could indirectly identify Dr. Doe. However, the Court will not close the Courtroom during Dr. Doe's testimony….

This leaves open the possibility that a spectator who knows what Dr. Doe looks like will see her in court and publicly identify her—nothing in the order forbids that—or that identifying information that is orally presented at trial will be publicized by a spectator even if it's redacted from the trial transcript. But presumably the judge concluded that this risk is relatively modest, and is justified by the need to preserve public access to the trial.

The post No Closed Courtroom When Plaintiff Dr. Jane Doe Testifies in S.C. Abortion Ban Challenge appeared first on Reason Magazine.

The article is here; from the Introduction:

According to the Supreme Court of the United States, I am the lead singer of The Slants. I am not. I have never been. I am the bassist—the founder, the bassist, and the person who spent the better part of a decade fighting the federal government over the right to use our band's name. Anyone who has ever listened to our music, attended one of our shows, or spent a few moments searching our name would know this. But the Supreme Court's opinion in Matal v. Tam says otherwise, and because it does, so do the law review articles, the IP textbooks, and the classroom discussions that have built up around the case in the years since it was decided.

I raise this not to embarrass anyone. I raise it because it is a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should understand: The legal record of a landmark case is not the same thing as what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has calcified in the legal literature—about what this case was, how it developed, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.

This article is that account.

Almost a decade has passed since the Supreme Court unanimously struck down the disparagement provision of Section 2(a) of the Lanham Act. In that time, Matal v. Tam has been cited in hundreds of law review articles, briefed in subsequent First Amendment cases, and assigned in IP and constitutional law courses across the country. Scholars have analyzed the decision's doctrinal implications, its impact on subsequent cases like Iancu v. Brunetti, and its effect on the registration of marks by marginalized communities. What they have not done—because they could not—is tell the story of how the case was actually made.

That story is more complicated, and more instructive, than the legal literature suggests. Matal v. Tam is taught as a First Amendment case. It was not designed as one. It became one through a sequence of institutional interventions—each of which narrowed the legal question, foreclosed certain arguments, and ultimately transformed a trademark dispute about cultural identity into a constitutional referendum on government speech regulation. Understanding that transformation is not merely historically interesting. It changes how practitioners should approach impact litigation involving marginalized communities, how law professors should teach the case, and how future litigants should think about what they are actually fighting for when they bring a case that institutions decide to use for their own purposes.

The errors in the legal record are the place to start, because they are evidence that something is missing.

The post Journal of Free Speech Law: "How <i>Matal v. Tam</i> Became a First Amendment Case: The Record and the Reality" by Simon Tam appeared first on Reason Magazine.

Here's what happens when I search for "mason soiza spammer with a gold lamborghini"; that headline is the title of a Times (London) article:

The article thus doesn't show up in the search results, though other items that point to it do show up. I get similar results when I search, without a site:thetimes.com limitation, for "web entrepreneur faces inquiry over online sale of painkillers" (another article about Soiza). And I get similar results when I search for site:thetimes.com "mason soiza":

The DMCA complaint specifically targeted, among other items, these Times pieces:

https://www.thetimes.com/uk/healthcare/article/web-tycoon-mason-soiza-24-faces-inquiry-over-online-sale-of-painkillers-3jhjzd5kz

https://www.thetimes.com/business/companies-markets/article/mason-soiza-spammer-with-a-gold-lamborghini-58gxblv9c

The claim in the DMCA complaint was that the Times articles infringed the copyright in an OnlyFans page, https://onlyfans.com/angiestonex. That claim appears not to be accurate, yet Google did indeed deindex articles in a major newspaper based on the claim. (The newspaper would presumably be able to file a DMCA counternotification and get the matter reconsidered, but they may have been unaware of the situation.)

Interestingly, the DMCA complaint also targeted one of my posts, ttps://reason.com/volokh/2018/11/10/forged-uk-court-order-aimed-at-vanishing/ ("Forged U.K. Court Order Aimed at Vanishing Newspaper Article About English Businessman Mason Soiza"), but that post has not been removed from Google search results.

The post Google Blocked <i>Times (London)</i> Articles About Businessman Mason Soiza, Apparently Based on Unjustified DMCA Demands appeared first on Reason Magazine.

As a free speech absolutist, Elon Musk is making a mistake going after Nitter, says Dr R P. He should instead be praising the site that helps users speak freely, uninhibited by login screens that undermine their privacy.

The post Musk’s Perplexing Battle With Nitter and the Problem With Locking the Internet Behind Login Screens appeared first on The Daily Sceptic.

From today's Eleventh Circuit opinion in Netchoice v. Attorney General, by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:

The State of Georgia recently enacted SB 351 to restrict minors' ability to create accounts on social-media platforms. The law requires platforms within its ambit to verify the ages of all their users, to prohibit minors under the age of 16 from creating accounts without their parents' consent, and to limit the personal data they use to display ads to users under 16.

The court held that Netchoice hadn't introduced enough evidence to show the law was facially unconstitutional:

Even in First Amendment cases, where the facial-challenge bar is lower than it otherwise might be, the plaintiff [in a facial challenge] must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Netchoice v. Moody …

To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data—either hard facts or, at the very least, sufficient briefing—necessary to conduct the Moody-required comparative analysis. It hasn't done so here. Indeed, NetChoice hasn't provided even a full list of its own members to which SB 351 applies. Instead, it has provided only an exemplary few: SB 351, NetChoice says, "regulates some websites operated by NetChoice members, including: (1) Dreamwidth; (2) Meta (Facebook and Instagram); (3) Nextdoor; (4) Pinterest; (5) Reddit; (6) Snap Inc. (Snapchat); (7) X; and (8) YouTube," as well as "new members … such as Tumblr." And though NetChoice contends that, in addition to its own members, SB 351 regulates "other covered 'social media' websites," it doesn't name any that (in whole or in part) host unprotected speech. In that respect, we think, NetChoice makes the same mistake that it made before in Moody: treating the law as having "certain heartland applications" and "mostly confin[ing its] battle to that terrain."

We've learned the facial-challenge lesson the hard way. In Moody, the Supreme Court, even while largely agreeing with our merits analysis, faulted us for "mostly confin[ing] [our] analysis" to "certain heartland applications" instead of "address[ing] the full range of activities the law[ ] cover[ed]." The Court went on to observe that even if it were to attempt the facial analysis itself, it couldn't "undertake the needed inquiries" because the "parties ha[d] not briefed the critical issues [t]here, and the record [wa]s underdeveloped." The Court therefore vacated and remanded our case … "to consider the scope of the laws' applications, and weigh the unconstitutional as against the constitutional ones." In turn, … we … remanded [the case] to the district court[] for further development of the issues pertinent to the facial-challenge analysis.

We are similarly stymied here. For the foregoing reasons, we conclude that NetChoice has failed to satisfy Moody because it hasn't adequately addressed the "full range" of SB 351's applications, and the record before us does not permit the weighing Moody requires.

The court also rejected Netchoice's vagueness challenge:

The district court held, and NetChoice contends before us, that SB 351's requirement that social-media platforms use "commercially reasonable" age-verification mechanisms renders the statute unconstitutionally vague.

The problem, as NetChoice candidly acknowledges, is that "the district court raised this issue sua sponte." … In granting injunctive relief on a theory that NetChoice never pleaded, the district court erred. See Clark v. Sweeney (2025) (holding that courts "transgress[ ] the party-presentation principle" when "granting relief on a claim that [the plaintiff] never asserted and that [the defendant] never had the chance to address").

And the court rejected Netchoice's 47 U.S.C. § 230 objection to the advertising restrictions:

Section 230 prohibits treating a social-media platform as "the publisher or speaker of any information provided by another information content provider." … [But] SB 351's advertising provision doesn't treat social-media platforms as publishers or speakers of information provided by others. Rather, it regulates how social-media platforms themselves act by forbidding them from targeting minors with ads based on personal information. This type of regulation falls outside § 230's ambit, which preempts laws that seek to hold social-media platforms "liable for information originating with a third-party user."

John Henry Thompson, Christopher Michael Carr, Riley B. Liu, Elijah J. O'Kelley, and Logan B. Winkles of the Georgia AG's office represent the state.

The post Eleventh Circuit Rejects Netchoice's Challenge to Georgia Law Restricting Under-16-Year-Old Social Media Access appeared first on Reason Magazine.