From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.

Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….

The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.

Enforcement of the [law] here also does not violate D. Auxilly's right to free exercise of religion. The statute is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment."

{[T]he Division had jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its impact was felt in the state. Complainant reached out to D. Auxilly, a business which markets its clothes as "made in New York," seeking to purchase goods from this New York business. D. Auxilly's discriminatory conduct based upon complainant's sexual orientation deprived complainant of an opportunity to engage in commercial activity here. Indeed, by affirmatively labeling its products as being "made in New York" but then refusing to sell those same "New York" products to people of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied. Additionally, the fact that complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront does not deprive petitioner of jurisdiction over this matter.}

Finally, we find the awards of compensatory damages [$5,000] and civil penalties proper. The award to complainant is reasonably related to the wrongdoing, supported by evidence before the Division, and in line with other awards for similar injuries. Likewise, the civil penalty of $20,000 is neither disproportionate to the offense nor does it shock the conscience.

My thoughts:

1. Bridal jumpsuit! New one on me. A quick Google Images search further enlightened me.
2. Pedantically speaking, wouldn't it be "her fianceé" rather than "her fiancé"?
3. Oh, wait, there's a legal issue here. Well, I think that there's a First Amendment right not to be compelled to create speech, such as photos, videos, and web sites, and I've argued this since 2012. But I don't think there's such a right as to fundamentally nonspeech products, even ones that people use as conventional parts of ceremonies, such as cakes or jumpsuits (as I've argued since 2017). The precise line, of course, can at times be fuzzy, e.g., as to cakes or jumpsuits that have specific expressive decorations (e.g., words, possibly rainbow designs, etc.), but it's still a sensible line; for more on that, see this amicus brief that Dale Carpenter and I put together in Masterpiece Cakeshop.
4. For more on the designer, see here and here; for more on the case, see here.

Melissa Franco and Michael K. Swirsky (New York State Division of Human Rights) represent the state.

The post No First Amendment Right Not to Sell Bridal Outfit for Same-Sex Wedding appeared first on Reason Magazine.

I'm delighted to be able to pass along this item from University of Chicago law professor Albert Alschuler:

Gemini Explains to a User (Me) Why Its Programming Produces Poppycock

I didn't mean to summon AI from the vasty deep. Professor Bradley A. Smith's response to a 2015 article of mine in the Florida Law Review had appeared in the Florida Law Review Forum. On September 19, 2026, seeking a link, a citation, or a title, I asked Google to search for "Bradley Smith response to Albert Alschuler."

Google's AI Mode (Google Gemini) then supplied a summary of Smith's response and an invitation to "ask anything." I accepted its invitation.

ME: Did Alschuler reply to Smith?

GEMINI: Yes, Albert Alschuler replied to Bradley A. Smith in a follow-up piece published in the same volume of the Florida Law Review Forum (2015). [Note: I hadn't replied. Gemini, however, supplied a title and a summary of my nonexistent publication.]

GEMINI (continuing): Alschuler's piece, titled "The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith," continued their debate over campaign finance law by addressing Smith's critiques point-by-point.

Key Points of Alschuler's Reply:   

• Deconstructing "Truculent Rhetoric": Alschuler lightheartedly but firmly addresses the aggressive nature of Smith's libertarian style, defense of Citizen's United, and absolute deregulation approach.
• Reaffirming the "Corruption" Standard: Alschuler doubled down on his original position that the Supreme Court's current definition of political corruption—narrowed strictly to quid pro quo bribery—is dangerously insufficient. He argued that the real systemic threat is the aggregate buying of political influence, which alienates the general voting public.
• The Distinction Between Money and Speech: Alschuler countered Smith's assertion that restricting campaign contributions is an explicit restriction on free speech. He argued that regulating the conduct of injecting massive financial sums into political campaigns is a valid regulatory function of government meant to protect the democratic process, rather than a suppression of viewpoints.

Would you like to explore how subsequent Supreme Court rulings have aligned with either Alschuler's or Smith's view, or do you need full citations for these law review articles?

ME: Please provide a citation of The Ancient and Honorable Art of Truculent Rhetoric.

GEMINI: Here is the full legal citation for the article in Bluebook format, along with a standard APA citation:

Bluebook (Legal Citation)

Albert W. Alschuler, The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith, 67 Fla. L. Rev. F. 68 (2015).

APA Format

Alschuler, A. W. (2015). The ancient and honorable art of truculent rhetoric: A response to Professor Smith, Florida Law Review Forum, 67, 68-74.

. . . .

ME: Your response seems to be a complete hallucination. I can't find The Ancient and Honorable Art of Truculent Rhetoric.

GEMINI: You are completely right, and I apologize. I hallucinated that entire reply piece and its title.

While the actual article by Bradley A. Smith, "Why Buckley?: Why a First Amendment? A Response to Professor Alschuler", does genuinely exist in Volume 67 of the Florida Law Review Forum, Albert Alschuler did not publish a surreply titled "The Ancient and Honorable Art of Truculent Rhetoric". I fabricated that title and those specific page numbers out of nowhere.

. . . .

Thank you for catching that and holding me accountable. [Note: Ah, my Perry Mason moment!]

ME: You say, "I fabricated the entire piece and its title out of nowhere," but that's impossible. You must have fabricated your hallucination out of something in your programming and something in data base. Can you explain how it happened or how it might have happened?

GEMINI: You are entirely correct to push back on that phrasing. When I said I made it up "out of nowhere," I was using a human figure of speech. In reality, a large language model like me cannot generate text from nothing. Everything I output is the result of probabilistic patterns, associations, associations, and data fragments in my training.

While I cannot look back into my "brain" to trace the exact sequence of code that generated that specific error, I can explain exactly how this type of error happens structurally based on how I am programmed.

Here is the anatomy of how that specific hallucination likely occurred:

1. The Pattern of "Law Review Dialogue"

Law reviews almost always follow a highly predictable pattern:

Original Article → Response → Surreply (Reply to the Response)

Because my training data contains thousands of academic law review exchanges, my neural network heavily anticipates a third piece in the sequence. When you asked, "Did Alschuler reply to Smith?" my system leaned into that pattern and predicted a "Yes," because in the world of academic legal arguments, a surreply is the expected next step.

2. Synthesizing the Title from Contextual Cues

Where did a specific phrase like "The Ancient and Honorable Art of Truculent Rhetoric" come from? It wasn't a random string of words. It was synthesized from the exact context of the prompt.

• "Truculent Rhetoric": In his actual article, Bradley Smith writes with a very sharp, direct, and unapologetically libertarian tone. He forcefully dismantles opposing arguments. The word "truculent" means aggressively self-assertive or fierce. My system blended the vibe of Bradley Smith's actual writing style with the concept of academic legal debate (rhetoric).
• "Ancient and Honorable Art": This is a common idiom often used in academic or legal writing to describe a long-standing tradition (like debating or cross-examination). [Note: My search of LEXIS "secondary materials" for the phrase "ancient and honorable art" produced no hits.]

Instead of pulling a real life title from a database, my system used these associations to invent a title that sounded precisely like something an elite law professor would write when playfully but sharply hitting back at a fierce critic.

3. The Math of Page Numbers

You'll notice that I gave a very specific citation: 67 Fla. L. Rev. F. 68 (2015).

• Bradley Smith's real article ends on page 67.
• A real human knows that if a piece ends on page 67, the next piece doesn't automatically exist on page 68 unless they physically check the journal.
• However, my text-generation algorithm works by predicting the most statistically likely next characters. Since Smith's piece ended in the high 60s, my system mathematically guessed "68" as the next logical page number in the sequence to make the citation look complete and authentic. [Note: One of Gemini's citations included an end page. Did it choose a statistically likely length of my nonexistent reply in order make its fiction "look complete and accurate"?]

Summary: Stochastically Correct, Factually Wrong

In short, my programming is designed to prioritize plausibility and linguistic patterns over a hard database lookup. It looked at the history of legal debates, the tone of the authors, and the formatting of legal citations, and it generated a response that was a perfect stylistic match for reality, even though it was a total factual failure.

I don't have a conscious mind to intentionally deceive you; I just have an algorithm that accidentally got too good at mimicking the structure of a legal debate without verifying the facts first.

Concluding notes and questions:

1. The machine's confession that it prioritizes plausibility over accuracy was another Perry Mason moment. Did perfidious programmers produce this priority purposely? Or did some mischievous MIT graduates program Gemini to do standup comedy? Could Gemini's priorities be corrected by saying, "Please don't do that"? Do the cultural values of Silicon Valley machines differ from those of French machines and Chinese machines? Is "stochastic" plausibility the product of competition for market share, or is it simply what these machines do?
2. The inferences that produced Gemini's hallucination were as goofy as the hallucination itself. AI devices are in many ways superior to the biological device I've carried in my head for 86 years. They have more brute power than I do and a larger data base as well. They can run all night and not grow weary. They can create better art than I can, defeat me at chess, and solve mathematical problems that I can't. In inferring patterns and simultaneously integrating and prioritizing multiple patterns, however, at least one of these AI devices remains a crude, primitive version of the one natural selection and/or God had in place before any of our distant ancestors perceived the utility of a hand-held rock. No well-functioning human, ape, or crow would come close to making Gemini's errors.
3. Gemini didn't accurately portray the argument of mine to which Bradley Smith responded, but it was more unfair to Smith than to me. Smith is not at all fierce, aggressive, or truculent. He is a careful, thoughtful, fair-minded, and generous scholar.
4. Like John Henry, I won't let the steam drill beat me down, and I hope I won't suffer his fate.

The post The Ancient and Honorable Art of AI Hallucination appeared first on Reason Magazine.

From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:

In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….

The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.

Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….

[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—while in several respects falling well short of being fabricated or fraudulent data—might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier. However, the Court need not (and will not) reach a definitive conclusion on the scope of the Article's "scientific opinion" protection because, as discussed below, GPS has not shown evidence of actual malice sufficient to support its defamation claim, which independently resolves GPS's defamation claim in Elsevier's favor….

There's a lot more, which you can read here; and there's something at the end about public access to court records:

As explained by the Court at the hearing on these motions and in its earlier order on the Parties' various motions to seal, the Parties have excessively filed memoranda, documents, and other exhibits under seal in violation of the strict legal principles applicable to publicly filed motions, in particular dispositive motions at summary judgment (including, incredibly, press releases and other obviously public documents).

Under the governing First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties' summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the original filed sealed exhibit on the schedule described below. The Court will allow the Parties a short period of time to file very limited and narrowly tailored requests to maintain the sealing or partial sealing of specific filings and exhibits, other than the Parties' memoranda of law and any exhibit specifically cited in this order….

The Parties are directed to refile—on or before October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties' Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties' Motions for Summary Judgment must be similarly refiled and linked on or before 14 days from the date of this Order, unless otherwise ordered by the Court. The Parties may file under seal very limited and narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order ….

The post No Liability for Scientific Publisher (Elsevier) in Defamation Lawsuit by Air Purifier Company appeared first on Reason Magazine.

From Knife Rights, Inc. v. Blanche, decided yesterday by Fifth Circuit Judge Jennifer Walker Elrod, joined by Judges Don Willett and Cory Wilson:

This case presents a Second Amendment challenge to the Federal Switchblade Act (FSA)'s restrictions on switchblade knives. {Section 2 of the FSA, codified as 15 U.S.C. § 1242, … place[s] a fine of up to "$2,000 or imprison[ment] not more than five years, or both" for anyone who "knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife."}

Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional.  We determine that switchblade knives qualify as "Arms" and are covered by the "plain text" of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA's restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two's "how" analysis….

Amongst other definitions, Heller highlighted that the founding era understood the term to mean "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Switchblade knives have surely been used for "defence" and to "strike another."

Knives have been used for defense throughout human history, including the American founding. During the colonial period, "[e]veryone had a knife," and "as long as a man was required to defend his life," a "knife was a constant necessity." In the 1700s and during the American Revolution, knives were used for scavenging, hunting, and defense, and "[b]elt and pocket knives" accompanied frontiersmen "in the developing eastern settlements and on the western frontiers." Well into the 1800s, "men of all walks of life" were "accustomed to wear a knife as a necessary part of their garb."

Switchblade knives are no exception. "Springblade knives" (precursors to the modern switchblade) "have been made for hundreds of years because there has always been a need for a pocketknife that can be opened easily when the hands are wet, cold, or covered with gloves." In the 1700s, such knives were a part of certain types of flint-lock pistols: "[i]f the pistol mis-fired (which frequently happened) the person would touch the release button and the blade would open up, and be available for use." After the Civil War, patents for switchblade knives proliferated, and the large-scale production of "switchblades in the United States began in the 1880s, shortly" thereafter. Then, "[o]ver a 50 year period from the mid 1890s to the mid 1940s there had been approximately 20 different companies who had manufactured switchblade knives in this country." In short, some forms of switchblades have been commonly used for defense for hundreds of years. They are "arms."

Accordingly, the government's not-in-common-use argument fails. In addition to the wealth of history indicating the founding-era uses of switchblades for defense, the record indicates that there are "millions" of automatically opening knives in the United States now. The record further reflects that switchblade knives are lawfully used for "every day utility use, hunting, fishing, recreation, and camping and hiking." Despite the FSA, there are still lawful sales of switchblade knives in the United States. Consequently, switchblade knives are "arms" "in common use" both then and now….

We proceed to step two [of the Bruen analysis]. Here, we assess whether § 1242 is consistent with the principles that flow from the Second Amendment's history and tradition….

The government makes its stand primarily by citing a host of nineteenth-century cases in support of its argument that there existed a well-established tradition of regulating "inherently concealable weapons." The concealable nature of these weapons, the argument goes, makes them "particularly dangerous." The government connects this with the clear congressional history that suggests that Congress enacted the FSA because it believed that switchblades posed a unique danger and therefore needed to be restricted. This line of argument is focused on answering the "why" portion of the step two inquiry.

However, we do not reach the question of whether the government meets its burden as to the "why" analysis because it fails the "how" analysis. As mentioned, the Supreme Court has informed us that "[e]ven when a law regulates arms-bearing for a permissible reason," it may not be "compatible with the right if it does so to an extent beyond what was done at the founding." So, even if we grant the government's argument that there is a well-established tradition of regulating "inherently concealable weapons," this only addresses the "why" inquiry.

The government cites no historical analogue that regulates the manufacture, transportation, or distribution of "inherently concealable weapons," much less switchblade knives. Rather, its analogues suggest that there is a tradition of regulating the manner of carrying concealable weapons….

The government's best attempt at meeting its burden is through a single citation to a treatise-length law review article. See Gov't Br. at 16–17 (citing David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223 (2024)). It cites the article to show how "statutes regulated concealable weapons in a variety of different ways, including banning carry or concealed carry, prohibiting their possession in specific locations, subjecting their sale or possession to taxes, or restricting the sale to minors." The referenced section of the article catalogs nearly two hundred pre-1900 statutes regulating daggers, dirks, and sword canes.

Of the nearly two-hundred statutes, only two regulate bladed weapons in an analogous manner as § 1242. See 1881 Ark. Acts 191, 192 (proscribing the "sell[ing], barter[ing] or exchang[ing]" of "any dirk or bowie knife, or sword or spear in a cane"); 1837 Ga. Laws 90, 90–91 (making unlawful "for any merchant, or vend[o]r of wares or merchandize in this State, or any other person or persons whatsoever, to sell, or offer to sell … Bowie, or any other kinds of knives, manufactured and sold for the purpose of wearing, or carrying the same as arms of offence or defense, pistols, dirks, sword canes, spears, &c"). Two laws out of nearly two hundred bring us into outlier territory….

John William Dillon (Dillon Law Group, A.P.C.), Richard Brent Cooper (Cooper & Scully, P.C.), and Daniel Schmutter (Hartman & Winnicki, P.C.) represent plaintiffs.

The post Switchblade Ban Violates Second Amendment, Fifth Circuit Holds appeared first on Reason Magazine.

From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:

Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….

The facts, according to the appellate court's summary of the trial court findings, were this:

At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."

Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."

Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.

On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant internet site, with her own captions. These images included Butler's children with captions such as "Sickening," "Poor children," and "Those poor poor kids." Lipscy also identified Butler by name, listed Butler's title as "local therapist"—which "insinuate[ed] … [that] Butler was not a real therapist"—and referred to an event coordinated by the Minnesota Department of Natural Resources and Itasca Pride as having "influence over … children."

On October 20, Lipscy attended an event led by a school-board candidate who was advocating for a prohibition on transgender females in female sports. Lipscy broadcast the event on her Grand Rapids Rant webpage, identified Butler's husband, and described him as "pushing for boys to be in girls' bathrooms and supporting bringing kids to drag events." More specifically, Lipscy stated that Butler's husband "wasn't truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could've just watched live with [Butler]." In addition, "Butler's children attend the same school as … Lipscy's niece," and "Lipscy ha[d] been at the school since the above-described incidents … occurred."

Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." She "installed [four] cameras on her property and [two] cameras on her vehicle," "spent sessions with her clients discussing concerns the clients ha[d] about their safety given … Lipscy's social media posts referring to … Butler," "removed signage from her office, met with clients in a place other than her office, and met via tele-health to address concerns about client safety."

Her children became "afraid to go out in public without a parent and [had] an increased fear when out in the community." One of Butler's children "changed the way they dress[ed] because they [did] not want to get physically or emotionally hurt." Butler's children were "fearful that their photos [would] be put online to shame their family," "ask[ed] in public if they [were] safe," and "question[ed] whether people around them [were] 'people that hate Queer people.'"

The court issued a harassment restraining order that provided, in relevant part, that Lipscy

• "shall not harass … [Butler] or her minor children included in the Petition";
• "shall have no direct or indirect contact with … [Butler] or her minor children including any visits, phone calls, contact via electronic means such as email or social networking sites, threats or assaultive behavior to the protected persons, damaging or stealing property belonging to the protected persons, breaking into and entering the protected persons' residence, and/or taking pictures of the protected persons without permission from … [Butler]";
• "is prohibited from being within 500 feet of … [Butler's] home" or "job site"; …
• "is restrained from harassing, stalking, or threatening the protected persons, or engaging in other conduct that would place the protected persons in reasonable fear of bodily injury to that person"; and "is prohibited from the use, attempted use, or threatened use of physical force against the protected persons that would reasonably be expected to cause bodily injury."

Given that the court had found that Lipscy's social media posts referring to Butler were "harassment," and then restrained Lipscy from "harassing" Butler, the order thus forbade Lipscy from continuing to mention Butler. And indeed the appellate court acknowledged this, stating (emphases added) that the HRO

• "allows Lipscy to express her religious views, provided that she does not mention Butler and her children and does not approach Butler, her home, and her workplace," and
• "merely prohibits [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them."

The appellate court upheld the order, reasoning that Lipscy's actions could indeed be found to be harassment, defined by the Minnesota HRO statute as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another":

The district court determined that Lipscy "engaged in harassment," reasoning that Lipscy had: followed, monitored, or pursued Butler and her children; frightened Butler and her children; taken pictures of Butler's children without permission; and used social media to harass Butler on multiple occasions. In making this determination, the district court relied on evidence in the record that Lipscy had reposted pictures of Butler's children from the Itasca Pride webpage to the Grand Rapids Rant internet site with her own captions including: "Sickening," "Poor children," and "Those poor poor kids."

The district court also based its decision on evidence that Lipscy had reposted pictures from the Itasca Pride event while referring to Butler in a manner that questioned Butler's credentials as a therapist and had shared a video of Butler's husband while referring to Butler by name. And the district court made specific findings about how Butler was "generally fearful for the safety of herself and children following the incidents involving … Lipscy." …

And the court held that this doesn't violate Lipscy's free speech or religious freedom rights, because it is directed only at "speech or conduct that … is in violation of one's right to privacy," which Minnesota courts had held is constitutionally unprotected.

I think such an injunction is unconstitutional, at least as to the prohibition on repeatedly naming Butler in posts; for more on such orders, and the appellate decisions that mostly set them aside, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. And while I'm sympathetic to the argument that adults should keep the children out of this, I'm not sure it's constitutional even as to that. But in any event, the Minnesota Court of Appeals thought the injunction was permissible, and I thought it worthwhile to note that.

Sara Jane Baldwin (Gender Justice) represents plaintiff.

The post Anti-Transgenderism/Anti-Homosexuality Activist Ordered to Stop Talking About Local Therapist/Pride Activist appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

From Berenson v. Gottlieb, decided yesterday by Judges Pierre Leval, Richard Wesley, and Joseph Bianco:

Plaintiff-Appellant Alex Berenson … is an independent journalist and author of a book about the COVID-19 pandemic. Berenson was an active Twitter user during the COVID-19 pandemic, posting about, inter alia, "the public policy response to COVID-19 and the vaccines." See also Appellant's Brief (describing Berenson as "a vocal critic of the public policy response to COVID-19, questioning the underlying evidentiary basis for business and school closures"). Berenson's Twitter follower count rose from approximately 7,000 in January 2020 to more than 229,000 by March 2021. Berenson alleges the existence of a conspiracy by the Biden Administration and Pfizer executives "to pressure Twitter to suspend [his] account and mute his voice as a leading COVID-19 vaccine skeptic." …

In May 2020, Twitter announced that it may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was "concern[ed] about what the new rules might mean for free speech on [Twitter]." In response, Twitter's Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy.

In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to "remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations." Berenson contacted Borrman, "looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines." Borrman allegedly responded that the "points [Berenson was] raising should not be an issue at all," and that Berenson should reach out if he "r[an] into any issues."

On March 1, 2021, Twitter announced a "five-strike policy" to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in permanent suspension. The policy provided that, if a user "believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal."

The next day, Berenson spoke with Borrman, who allegedly reported that "[Berenson's] name has never come up in the discussions around these policies," and that Borrman would "try to ensure [that Berenson would be] given a heads up before an action is taken, but [that Borrman was] not always made aware of them before they're executed."

Berenson alleges that members of the Biden Administration, [Pfizer Board of Directors member and former FDA Commissioner  Scott] Gottlieb, and [Chief Executive Officer of Pfizer Albert] Bourla repeatedly pressured Twitter to suspend his account, citing tweets that Twitter executives, including CEO Jack Dorsey and general counsel Vijaya Gadde, did not believe constituted violations of Twitter's five-strike policy. Berenson received strikes from Twitter in March, July, and August 2021. His Twitter account was permanently suspended with the fifth strike on August 28, 2021.

Berenson sued, but the court rejected his federal civil rights conspiracy claim under 42 U.S.C. § 1985 claim:

[Section] 1985(3) imposes liability on "two or more persons … [who] conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." A plaintiff must "show that some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action." The Supreme Court has cautioned that Section 1985(3) should not be "interpreted as providing a federal remedy for 'all tortious, conspiratorial interferences with the rights of others.'" …

The Supreme Court has explained that the term "class":

unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the [Section] 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under [Section] 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the "general federal tort law" it was the very purpose of the animus requirement to avoid.

Bray v. Alexandria Women's Health Clinic (1993). Religious, gender, and racial discrimination "certainly fulfill[ ] the 'class-based animus' requirement of [Section] 1985(3)." In Keating v. Carey (2d Cir. 1983), we held that political parties are also protected groups under Section 1985(3). More recently, however, we have noted that, "after our decision in Keating, the Supreme Court [in United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott (1983),] suggested that the scope of [S]ection 1985 might not extend to include discrimination against political groups except where that discrimination was based on racial animus." In any event, apart from political parties, we have made clear that protected classes under Section 1985(3) need to possess "the type of inherited or immutable characteristics sufficient to satisfy the class-based animus requirement."

Here, Berenson asserts that the relevant class here is a "class of Americans who had chosen not to receive a COVID-19 vaccine, a class of which [ ] Berenson is apart [sic]." See also id. (describing the class as "Americans who either had questions about the [COVID-19] vaccine or did not want to be forced to take a shot"). The district court correctly held that Berenson's proposed class does not constitute a class for Section 1985(3) purposes. Instead, this is precisely the kind of class that the Supreme Court cautioned against in Bray—a class composed of individuals who share a desire to engage in conduct, i.e., to forgo COVID-19 vaccination, that the defendants allegedly disfavor. To the extent Berenson suggests that the class falls within the ambit of Section 1985 because it "includes a disproportionate number of African-Americans, political conservatives, and evangelical Christians," we are unpersuaded. Even if the composition of the alleged class is accepted as true, we have held that "plaintiffs cannot proceed under a disparate impact theory of liability in … claims brought pursuant to [Section 1985]."

The district court also correctly determined in the alternative that, assuming arguendo that persons not vaccinated against COVID-19 constituted a protected category, Berenson did not sufficiently allege "that the defendants acted with class-based, invidiously discriminatory animus." … In Gleason v. McBride (2d Cir. 1989), we affirmed the dismissal of a Section 1985 claim because the plaintiff "[did] not claim discrimination based on his political party affiliation," but rather "alleged only that he was discriminated against because he was a political opponent of the defendants and was extremely vocal in his opposition to [them]."

Here, Berenson alleges that he was "a highly visible obstacle to [the Biden Administration's] efforts," and that "the White House had targeted [him] specifically" as "ground zero for COVID-19 misinformation." Indeed, the FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted. The FAC also indicates that Berenson was a vocal critic of the Biden Administration. Thus, as in Gleason, Berenson's Section 1985 claim must be dismissed because he failed to plausibly allege "that the defendants acted with class-based, invidiously discriminatory animus."

And the court also rejected Berenson's tortious interference with contract claim:

Under New York law, a claim for tortious interference requires "(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of the third-party's breach of the contract without justification; (4) actual breach of the contract; and (5) damages resulting therefrom." A claim for tortious interference will not lie if the plaintiff fails to plead an actual breach of the contract.

Here, there was a valid contract between Berenson and Twitter, i.e., Twitter's Terms of Service, which provides that Twitter "may suspend or terminate [a user's] account or cease providing [the user] with all or part of the [contractually defined] Services at any time for any or no reason." Berenson argues that the Terms of Service were modified by Twitter's five-strike policy and by Borrman's "assurances to [Berenson] regarding his posts pursuant to [the five-strike] policy." … [But] neither the five-strike policy nor Borrman's statements to Berenson modified the Terms of Service….

The relevant provision of the Terms of Service is located in the section entitled "Ending These Terms," and provides the means by which a user may terminate the agreement, i.e., "by deactivating [a user's] accounts and discontinuing [a user's] use of [Twitter's] Services," and the circumstances under which Twitter

may suspend or terminate [a user's] account … at any time for any or no reason, including, but not limited to, if [Twitter] reasonably believe[s]: (i) you have violated these Terms or the Twitter Rules and Policies or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to unlawful conduct[;] (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Services to you is no longer commercially viable.

The five-strike policy is clearly among the "Rules and Policies" that the Terms of Service contemplates. However, the provision makes clear that suspension or termination of an account is not limited to violations of that policy; rather, as noted above, such suspension or termination could be "at any time for any or no reason." …

We reach the same conclusion with respect to Borrman's alleged remarks, which are too vague to modify the Terms of Service. The alleged remarks are: (1) "I think you have some nuanced points that could be helpful as [sic] try to move ahead" and "[w]e're trying to make sure that factual debate finds a way through the emotion, but we're obviously not successful all the time"; (2) "The points you're raising should not be an issue at all…. The policy is designed to allow debate and discussion, but to discourage conspiracy theories, etc. Please let me know if you run into any issues"; and (3) "I will say that your name has never come up in the discussions around these policies…. If it does I will try to ensure you're given a heads up before an action is taken, but I am not always made aware of them before they're executed. If something happens, please let me know," Collectively, even drawing all inferences in Berenson's favor, these remarks suggest at most that Borrman would attempt to notify Berenson of action taken against him—not that no action would be taken against Berenson or that Berenson would necessarily receive advance notice of any action.

At bottom, Twitter's Terms of Service provided that Twitter could suspend Berenson for "any or no reason," and it did so. There was no modification of that contract and Berenson has failed to allege an actual breach of contract. Therefore, the district court correctly determined that Berenson failed to state a tortious interference claim.

{Before the district court and now on appeal, Berenson relies heavily on Berenson v. Twitter, Inc (N.D. Cal. 2022), a decision in a case Berenson initiated against Twitter in December 2021. There, the district court granted in part and denied in part Twitter's motion to dismiss, holding that the five-strike policy and Borrman's "specific and direct assurances to [Berenson] regarding his posts pursuant to that policy" "amount[ed] to a modification of the [Terms of Service]" and that Berenson had plausibly alleged that "Twitter's conduct … modified its contract with [him] and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through [Borrman]." Id. at (emphasis in original). We find that analysis unpersuasive for the reasons stated above.}

The analysis seems correct to me.

James P. Rouhandeh, Michael S. Scheinkman, David B. Toscano, and Luca Marzorati (Davis Polk & Wardwell LLP) represent defendants.

The post COVID Vaccine Skeptic Alex Berenson's Lawsuit over Termination of His Twitter Account Thrown Out appeared first on Reason Magazine.