Legal Profession Blog

Trespass And The First Amendment

The Iowa Supreme Court affirmed a hate crime conviction

In recent years, in our country, the rainbow flag has come to symbolize support for LGBTQ+ rights. Several individuals in Boone displayed that flag or a decal of it on the front of their properties. Another person entered their premises without permission and taped anonymous notes to the doors urging, “Burn that gay flag.” This individual was later found out and convicted of trespass as a hate crime. See Iowa Code § 716.8(3) (2021). He now asserts on appeal that his conviction violated the First Amendment to the United States Constitution and article 1, section 9 of the Iowa Constitution. We disagree. The statute in question does not criminalize speech, but rather conduct with a specific intent—namely, trespassing on property because of the property owner or possessor’s association with persons of a certain sexual orientation. The individuals’ display of the LGBTQ+ flag or flag decal on their own properties was an exercise of First Amendment rights; the defendant’s surreptitious entry onto those properties to post his harassing notes was not. For these reasons, and because we are not persuaded by the defendant’s other appellate arguments that would require us to construe the hate crime statute implausibly or to overturn a soundly reasoned forty-year-old precedent, we affirm the defendant’s convictions and sentence.

The conduct

In June 2021, renters and homeowners who displayed LGBTQ+ Pride flags or decals in Boone began receiving handwritten notes taped on their front doors.

The first note, discovered on June 16 and shaped like a warning sign, said, “Warning due to high levels of flaggotry an investigation has been launched to control the spread of HIV/AIDS. We are sad to say the bare back orgy has been canceled. Burn that gay flag.” The renters, who displayed an LGBTQ+ Pride flag or decal on their premises, contacted the Boone Chief of Police about the note and filed a police report. They specifically asked for information on whether the Boone Police Department “keep[s] track of crimes against LGBTQ people within the City of Boone” and “how many incidents against LGBTQ people have been reported to the Boone Police so far in 2021 and in each of the past five years.”

On June 19, four additional notes were located, omitting the opening words and stating simply, “Burn that gay flag.” The notes had the same handwriting. The recipients reported that they found the notes to be “alarming, annoying, and/or threatening.”

Video surveillance footage at some of the homes revealed a man approaching with a piece of paper in his hand and leaving a short time later. Based on the surveillance, Robert Geddes was identified as the individual. Geddes did not have prior permission to enter any of the five properties.

MCDERMOTT, Justice (dissenting).

The Iowa Code states that a crime becomes a “hate crime” when it is committed because of either “[(1)] the person’s [(i.e., the victim’s)] race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or [(2)] the [victim]’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Iowa Code § 729A.2 (2021) (emphasis added).

The record in this case tells us almost nothing about the people on whose doors Geddes posted his notes except for one key fact: they each displayed a Pride flag or flag decal on their property. The court thus cannot find that Geddes committed a hate crime under (1) since we have no information about any of the homeowner’s characteristics. We have nothing that tells us, in other words, the homeowner’s race, religion, sexual orientation, or any other characteristic to show that the crime was committed because of the homeowner’s own characteristics. As the majority correctly concludes, “There is no evidence to indicate whether the recipients of Geddes’s notes were themselves members of the LGBTQ+ community or whether Geddes believed they were.”

So we turn to whether Geddes committed a hate crime under the alternative presented in (2). For this, the State must prove that Geddes left the note because of the homeowner’s “association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Id. (emphasis added). So we must ask: Who is the other “person” (or other “persons” since we assume singular nouns can be plural, see id. § 4.1(17)) that the homeowner is associated with?

The record doesn’t provide an answer. We have no information about any homeowner’s actual connection to a person having any of the characteristics mentioned in the statute or about Geddes’s beliefs on this subject. Without being able to identify the homeowner’s association with a person of a certain protected characteristic, then under the plain terms of the hate crime statute, we lack evidence to uphold Geddes’s hate crime convictions. This failure is fatal to the State’s hate crime charge and requires reversal.

(Mike Frisch)

Pressing Need

An attention-grabbing opinion of the United States District Court for the District of Columbia (Chief Judge Boasberg)

In an attention-grabbing development last summer in the classified-documents case against former President Donald J. Trump, the Government raised a potential conflicts issue. This Court thus held a hearing to determine whether attorney Stanley Woodward’s simultaneous representation of Waltine Nauta — one of the former President’s co defendants — and an individual referred to as “Trump Employee 4” gave rise to any ethical conflicts. In the course of seeking a similar conflicts hearing in the Southern District of Florida some days later, the Government publicly released many but not all of the documents related to the hearing conducted in D.C. Believing that newsworthy information may lie behind closed doors, a Press Coalition now seeks to unseal the remaining materials. The Government, for its part, concedes that most of the documents in dispute can be released with minor redactions. It, however, strongly opposes the Application as to one of the filings made in support of its request for a hearing. Although the Court has ordered much material to be released, it draws the line at this last request.

Grand jury secrecy

The Press’s basic error lies in its assumption that all of the relevant materials are now subject to disclosure just because some of them are...

Taking the disclosures made to date and the documents still in dispute together, the Court agrees with the Government that the disputed filings should remain under seal at this time. These documents are “replete with still-secret matters that occurred before the grand jury,” material that is well beyond the scope of the Government’s disclosures in the Southern District of Florida. See Opp. at 8. Since this material does not come within the disclosures made thus far and has not been otherwise authoritatively disclosed by the Government or a grand-jury witness, “Rule 6(e) protections remain intact.” In re New York Times Co., 2023 WL 2185826, at *10 (D.D.C. Feb. 23, 2023). As such, these materials “must be kept under seal” until an authoritative disclosure that covers this information is made. See Fed. R. Crim. P. 6(e)(6).

The judge entered a separate order as to Twitter

As part of the Special Counsel’s investigation into election interference, the Government sought and obtained a search warrant for Twitter’s records associated with the @realDonaldTrump account. After the investigation yielded an indictment of former President Trump, a Press Coalition and Twitter sought to unseal documents associated with the warrant. Since then, large swaths of these proceedings have been unsealed with the Government’s consent, though several documents remain under lock and key. The Court now concludes that further disclosure is not warranted and will thus deny what remains of the Press Application.

A question of balance

As any reader keeping score has observed, the Hubbard analysis in this case is mixed. Ultimately, the undeniable need to protect an ongoing criminal investigation tips the balance toward the Government’s request to continue sealing. There may yet come a time when press access becomes appropriate, but at present the Application is a premature bid for sensitive information pertaining to an active investigation.

(Mike Frisch)

Judicial Watch's Wishing Well

The United States District Court for the District of Columbia (Judge Howell) has granted summary judgment to the FBI in connection with a FOIA demand of Judicial Watch for records relating to a search warrant of Project Veritas

The search warrants about which plaintiff’s FOIA request sought records were executed in connection with a criminal investigation into the theft of a diary belonging to the President’s daughter, Ashley Biden.

The New York Times had reported on the investigation

On November 10, 2021—even before the final updates to the NYT articles were made on November 12—plaintiff submitted to the FBI the FOIA request at issue, seeking records, from October 1, 2021, to “present,” of communications between FBI officials and the NYT regarding what plaintiff described as “the FBI search warrants and raid” on the homes of O’Keefe and [employee]Meads. Compl. ¶ 5. The FOIA request detailed that the requested “communications” included “email (on.gov or non.gov email accounts), text message, or instant chat,” with FBI officials, including “in the offices of the FBI Director, FBI Deputy Director, Office of General Counsel, Office of Public Affairs, and/or the FBI New York Field Office” (“NYFO”).

The court

plaintiff’s “purely speculative claims about the existence and discoverability” of documents through alternate search terms does not overcome the “presumption of good faith” to which the FBI’s conclusion regarding the adequacy of its search is entitled. Shapiro, 40 F.4th at 613–14 (upholding agency search against complaint that the FBI “search[ed] its card catalogues rather than leaf[ed] through every book in the library” because “an agency’s search need only be ‘reasonably expected to produce the information requested’” (quoting Reps. Comm. for Freedom of Press, 877 F.3d at 402); Eddington v. U.S. Dep’t of Def., 35 F.4th 833, 839 (D.C. Cir. 2022) (“[Plaintiff’s] assertions . . . amount to ‘purely speculative claims about the existence and discoverability’ of his requests and are insufficient to overcome the presumption of good faith accorded to the [agency’s] Declaration.” (quoting SafeCard Servs., Inc., 926 F.2d at 1200, and citing Mobley, 806 F.3d at 582)).

And

Although the FBI’s search “did not produce certain materials [plaintiff] believes exist and had hoped to find,” “FOIA is not a wishing well; it only requires a reasonable search for records an agency actually has.” Clemente, 867 F.3d at 118 (quoting DiBacco v. U.S. Army, 795 F.3d 178, 188, 190 (D.C. Cir. 2015)); see also Watkins L. & Advoc., PLLC, 78 F.4th at 445 (“[T]he question . . . ‘is not whether there might exist any other documents possibly responsive to the request, but 24 rather whether the search for those documents was adequate.’” (emphasis omitted) (quoting Weisberg, 745 F.2d at 1485)). The FBI’s search satisfies this standard.

(Mike Frisch)

Without Malice

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a defamation claim

Plaintiff, the former CEO of the Fortune 500 company Tapestry, alleges that he was defamed by an article entitled The Bizarre Fall of the CEO of Coach and Kate Spade's Parent Company, written by defendant and published on the website ProPublica.org on July 22, 2020. Plaintiff asserts causes of action for defamation per se arising from three statements in the article: first, that plaintiff had "used deception" to lure a married woman into an "unwanted romantic relationship"; second, that he had later conducted a campaign of "terrorization" against the woman; and third, that plaintiff had engaged in "sexual perversions" such as photographing "alarmingly young girls" and viewing websites where members could "bid" on young teenagers, and that his predilections were known to "the business world."

The motion court properly held that the article addressed issues of "public interest" within the protection of New York's amended anti-strategic lawsuit against public participation (anti-SLAPP) law (Civil Rights Law § 76-a, as amended by L 2020, ch 250). The article's primary purpose was to probe the reasons that plaintiff, a well-known business executive and former nominee to a United Nations post, had abruptly resigned from his position as CEO of Tapestry (see e.g. Huggins v Moore, 94 NY2d 296, 303 [1999]). Indeed, Supreme Court's determination comports with the statute's express directive to broadly construe the notion of "public interest" (Civil Rights Law § 76-a[1][d]; Aristocrat Plastic Surgery, PC v Silva, 206 AD3d 26, 30 [1st Dept 2022]). We reject plaintiff's efforts to characterize the article as an invasion into the "purely private" matter of his former romantic relationship with a married woman, especially because it was plaintiff himself who aired the existence of the relationship to explain why he was resigning.

As to the dismissal of the complaint, we affirm on grounds different from those articulated by Supreme Court. The motion court held that because plaintiff's claims arose from communications in connection with an issue of public interest, he was required, but failed, to meet a higher pleading standard of establishing by "clear and convincing" evidence that his claims had a "substantial basis in law" (CPLR 3211[g]) — that is, that the article was published with actual malice.

We do not adopt the motion court's finding that a "clear and convincing" standard is appropriate in assessing the adequacy of plaintiff's pleading on a pre-answer motion to dismiss (see Smartmatic USA Corp. v Fox Corp., 213 AD3d 512, 512 [1st Dept 2023]). Nevertheless, we affirm on the grounds that plaintiff failed to show in opposition to defendant's motion that his claims had a substantial basis in law (CPLR 3211[g]; see Smartmatic USA Corp., 213 AD3d at 512.

The subject article flatly contradicts the existence of actual malice with respect to the statement in the article that plaintiff had "used deception" to lure a woman into an unwanted romantic relationship. Reviewing the statement in context, as is required (see e.g. Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 33 [1st Dept 2014]), it becomes clear that, in fact, defendant was not himself reporting that plaintiff had been deceptive in his dealings with this woman. Rather, the article makes clear that defendant asked plaintiff about a decade-old article in which the woman alleged that plaintiff had been deceptive. Defendant then immediately reported, in the very next sentence, that plaintiff denied the allegation. The inclusion of plaintiff's denials "cuts against the allegedly defamatory implication of the . . . article, allowing readers to decide for themselves what to conclude" (Lindberg v Dow Jones & Co., 2021 WL 5450617, *6, 2021 US Dist LEXIS 226987 at *17 [SD NY Nov. 22, 2021, 20-cv-8231 (LAK)] [analyzing issue under New York law]).

We also reject plaintiff's allegations of actual malice as to the two other statements, which were not made in the article proper but by the woman in a 2009 email sent to the office of a Senator regarding plaintiff's nomination to the United Nations post. Plaintiff's allegations ignore how defendant handled the discrepant accounts of plaintiff and the woman — that is, by including a hyperlink to the email itself so that readers could read it themselves and interpret its contents (see id.). Further, defendant included, in the article's text, not only the woman's accusations but plaintiff's denials. In any event, plaintiff's allegations of actual malice rest largely on his own statements — for example, his assertion that it is "inherently improbable" that he would have "terroriz[ed]" the woman or that he would have engaged in "pedophilia" (a word that does not, in fact, appear in either the article or the email).

Plaintiff's remaining arguments as to the adequacy of his actual malice allegations are also without merit. He faults defendant for overreliance on the woman as a source, but the article makes clear that defendant relied on a host of other sources whose reliability plaintiff does not challenge. Plaintiff also provides an excerpt from the article in arguing that Air Mail, a digital newsletter, rejected the article on grounds of inadequate corroboration. The excerpt, however, is taken out of context, and in fact, the article goes on to note that by the time it was completed, defendant "was able to get corroboration on the story from Tapestry itself."

(Mike Frisch)

Appeal Submarined

The United States Court of Appeals for the Fourth Circuit has granted the government's motion to dismiss an appeal of a defendant who had pled guilty to conspiracy charges

Diana Toebbe pleaded guilty pursuant to a plea agreement to conspiracy to communicate, transmit, or disclose Restricted Data of the United States Navy relating to Virginia-class nuclear-powered submarines with the intent to injure the United States or to secure an advantage to a foreign nation, in violation of 42 U.S.C. § 2274(a). At sentencing, the district court calculated her Sentencing Guidelines range and sentenced Toebbe to 262 months’ imprisonment, which was at the bottom of that range.

Here

After carefully reviewing the entire record and considering all the arguments, we conclude that Toebbe has failed to make a sufficient showing to avoid the clear terms of her plea agreement, which she acknowledges she entered into knowingly and intelligently. We also conclude that the government did not breach the plea agreement. Accordingly, we grant the government’s motion to dismiss.

The facts

Diana Toebbe and her husband, Jonathan Toebbe, are highly educated professionals who, during the relevant period, were living in Annapolis, Maryland. Diana Toebbe holds a Ph.D. and worked in Annapolis as a high-school humanities teacher. Jonathan Toebbe worked in Washington, D.C., for the U.S. Navy as a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion Program. In connection with this job, Jonathan Toebbe held an active Top Secret security clearance through the Department of Defense, as well as an active “Q clearance” through the Department of Energy, which granted him access to information involving or incorporating “Restricted Data,” as that term is used in the Atomic Energy Act of 1954. See 42 U.S.C. § 2014(y) 4 (defining “Restricted Data” to include data concerning “the use of special nuclear material in the production of energy”). In particular, he had access to classified information concerning the nuclear reactors used to power Virginia-class submarines, which are state-of-the-art warships costing approximately $3 billion each.

Over a period of several years, Jonathan Toebbe smuggled classified, Restricted Data that related to Virginia-class submarines from his workplace so that he could sell the data to a foreign nation. His wife, Diana Toebbe, knowingly and voluntarily joined the scheme, actively participating in its planning and execution.

Specifically, in April 2020, Jonathan Toebbe sent a package to a foreign government that contained a sample of Restricted Data and instructions for establishing a clandestine relationship to purchase additional material. That foreign government, however, provided the package to the FBI, which initiated a covert operation to identify the sender. Purporting to act on behalf of the foreign government, undercover FBI agents then began exchanging encrypted email messages with Jonathan Toebbe. After the FBI sent $10,000 in cryptocurrency to a payment address provided by him, the undercover agents arranged for him to conduct a “dead drop” of additional Restricted Data.

Thereafter, on June 26, 2021, Jonathan and Diana Toebbe traveled together from Maryland to a park in Jefferson County, West Virginia, where the FBI was conducting surveillance. The Toebbes hiked to the location in the woods that had been selected for the dead drop, and Diana Toebbe provided cover and acted as a lookout while Jonathan Toebbe hid a Ziplock bag that contained one half of a peanut butter sandwich. Inside the sandwich was an SD card (a secure digital memory card) wrapped in plastic wrap, and after the FBI paid an additional $20,000 in cryptocurrency, Jonathan Toebbe sent the agents a decryption code that allowed them to see that the data saved on the SD card was “Restricted Data relating to militarily sensitive design elements, operating parameters, and performance characteristics of Virginia-class submarine reactors.” There was also a typed message that included statements such as “I hope your experts are very happy with the sample provided” and “I want our relationship to be very successful for us both.”

Subsequently, Jonathan Toebbe conducted three additional dead drops, with Diana Toebbe accompanying him and serving as a lookout during two of the three. Specifically, on July 31, 2021, the Toebbes left behind, at a prearranged location in south-central Pennsylvania, a typed message that proposed that Jonathan Toebbe would provide 51 packages of information over time in exchange for $5 million in cryptocurrency. The message also stated that the material “was slowly and carefully collected over several years” and “smuggled past security checkpoints a few pages at a time” and that one set of information “reflects decades of U.S. Navy ‘lessons learned’ that will help keep your sailors safe.” Then, about a month later, Jonathan Toebbe alone conducted a drop in eastern Virginia, leaving behind an SD card hidden in a chewing-gum package that contained additional Restricted Data relating to Virginia-class submarine nuclear reactors, as well as a typed message indicating that he had told “only one other person . . . of our special relationship” — i.e., Diana Toebbe — and that he “trust[ed] that person absolutely.” The message stated further, “We have cash and passports set aside for th[e] purpose” of fleeing the United States. Finally, on October 9, 2021, both Jonathan and Diana Toebbe returned 6 to Jefferson County, West Virginia, to conduct a drop, which was the fourth dead drop. Immediately after completing it, however, they were arrested by FBI agents.

No relief

While Toebbe finds her sentence to be a heavy one — indeed too heavy for the conduct as she assesses it — her violation of law was a most serious one. She actively participated, for personal financial gain, in a conspiracy to communicate important Restricted Data about the U.S. Navy’s Virginia-class submarines, with actual harmful consequences and potentially catastrophic ones. The U.S. Navy advised the district court that the betrayal by the Toebbes had far-reaching ramifications for the United States and the sailors and the families that serve the United States Navy, enhancing the risk faced by nearly 25,000 active-duty submarine sailors. And as the district court noted, “the damage here has already been done.” In addition, as the Navy stated, her conduct threatened “one of the [United States’] prized strategic advantages.” The gravity of Toebbe’s conduct must not be diminished on the ground that it was not as extensive in the overall scheme as was her husband’s. She knowingly engaged in the full scope of the conspiracy — not only providing cover and lookout but also engaging in planning and strategy — recognizing the significant damage that it could cause to the United States. Indeed, her understanding of the damage is reflected by the millions of dollars that she and her husband demanded and expected from their betrayal.

Clearly, betraying secrets about nuclear submarines is a serious threat to national security. (Mike Frisch)

Basketball Star's RICO Dismissal Affirmed

The United States Court of Appeals for the Fourth Circuit affirmed the decision to grant defendants summary judgment in a RICO claim brought by a promising basketball prospect whose career was derailed by his father's acceptance of a bribe from Adidas

In 2017, Brian Bowen II was a promising high-school basketball player who aspired to play professionally. At the end of high school, Bowen committed to play NCAA Division I basketball for the University of Louisville (Louisville) in exchange for a full, four-year scholarship. Bowen hoped that by playing Division I basketball, he could become a top NBA prospect. Those hopes were dashed when a college basketball bribery scheme unraveled, exposing that Bowen’s father, Brian Bowen Sr., accepted a bribe in connection with Bowen’s decision to play for Louisville. As a consequence, Bowen lost his NCAA eligibility, and Louisville cut him from the team. Bowen sued the central figures in the bribery scheme under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq., to recover treble damages, including lost future professional earnings and the attorney’s fees and costs he incurred trying to restore his NCAA eligibility. The district court granted summary judgment to the defendants, concluding that Bowen did not demonstrate an injury to his business or property, as required for a private civil RICO claim. The district court later denied Bowen’s motion for reconsideration. Bowen appeals both rulings, and we affirm.

Louiville had not revoked the scholarship; plaintiff left the University and enrolled elsewhere

Bowen did not stay at Louisville. Instead, he voluntarily withdrew after his first semester and transferred to the University of South Carolina, where he began practicing with the basketball team. The University of South Carolina declared Bowen ineligible and petitioned the NCAA to reinstate his eligibility, but to no avail. Bowen and his family incurred nearly $30,000 in legal fees for their failed effort to restore his eligibility. After twice declaring for the NBA draft, briefly playing professionally in Australia, and playing several seasons on NBA two-way contracts, Bowen’s professional basketball career has not taken off as he had hoped.

Circuit Judge Rushing, who authored the majority opinion, is a Trump-appointed judge who clerked for then-Circuit Court Judge Gorsuch and Supreme Court Justice Thomas. 

Circuit Judge Heytens, who joined the majority opinion, is a Biden-appointed judge who clerked for Justice Ginsberg.

Circuit Judge King dissented (in my view, persuasively) 

The main issue we must resolve today is whether plaintiff Brian Bowen, II — a former McDonald’s All-American high school basketball player who lost his NCAA eligibility when his father was bribed by defendant Adidas America Inc. and its associates— satisfies the statutory injury requirement for his claims against Adidas and the other defendants under the civil provisions of the RICO Act. On the premise that Brian cannot satisfy RICO’s injury requirement, the district court and the panel majority have deemed the defendants to be entitled to summary judgment. As explained further herein, however, I would rule that Brian’s loss of NCAA eligibility constitutes an injury under RICO. I would therefore vacate the summary judgment award and remand for further proceedings. As such, I respectfully dissent from the decision of my friends in the majority.

The dissent outlines Adidas's efforts to compete with Nike and Under Armour

The Adidas Schemers primarily targeted the parents and guardians of talented young African American athletes — largely from poor backgrounds — and used an array of unlawful means to secure their attendance at Adidas-sponsored NCAA universities. With an utter lack of tact, the Schemers described their secret strategy as the “Soul Patrol” and the “Black Ops.”

In executing the fraud and bribery scheme, the Adidas Schemers travelled extensively to meet with the targeted players and their families. The Schemers would then sometimes secretly offer and make monetary payments to the players’ family members. In order for those payments to be covertly made, the Schemers would sometimes disguise Adidas funds by passing them through youth basketball teams in the Amateur Athletic Union (“AAU”).

The plaintiff was unaware of the scheme

From the perspective of the Adidas Schemers, it was essential to keep Brian in the dark about the bribe payment. And the Schemers needed to keep UofL in the dark as well. The Schemers needed to prevent public disclosure of the bribery not only to protect themselves from criminal liability, but also to keep Brian from being declared ineligible to play NCAA basketball. Put simply, a declaration of Brian’s loss of NCAA eligibility would undermine the Adidas fraud and bribery scheme. Again, the scheme’s primary purpose was to earn Adidas large sums of money by associating it with stellar college basketball players on the very best teams, such as UofL.

The Adidas Schemers were convicted of federal offenses

The veteran and distinguished presiding jurist, Judge Kaplan, [of Jean Carroll v. Trump fame] pronounced that “probably the worst victim, [the] most seriously injured victim, of the Louisville scheme was [Brian] Bowen.”

Majority error

The panel majority’s fundamental error is its failure to appreciate that Brian’s scholarship was only part of the compensation he received from UofL in exchange for his valuable athletic labor. Of great significance to Brian, he was also compensated with college basketball coaching and playing experience. Brian has been clear that he did not commit to UofL simply to obtain a scholarship and pursue an academic degree. Rather, he committed to UofL because he would be compensated with, inter alia, elite coaching and immediate playing time that would prepare him for a career in the NBA. That compensation was exceedingly valuable to Brian — regardless of whether he had an existing or prospective NBA contract — and it was something Brian was actively receiving before he was stripped of his NCAA eligibility. But along with the NCAA eligibility bar, Brian lost all compensation in the form of college basketball coaching and playing experience, thereby suffering a “concrete” and “tangible business loss” in satisfaction of RICO’s injury requirement.

There is ample support for the proposition that college basketball coaching and playing experience constituted valuable compensation to Brian, including the expert evidence of Michael Bratz. Based on his 36 years of NBA experience, Bratz described NCAA Division I basketball as “the proving ground for a player’s career,” where the player would receive an unmatched “level of coaching” and would be “able to play against the best competition and improve his basketball skills.” See J.A. 1218-19

Causation

Strikingly, the Adidas Schemers’ proximate causation argument (that Brian’s injury was caused by the discovery of the bribe, not the bribe itself) is directly at odds with their “but for” causation argument (that Brian was already ineligible to play college basketball by the time the first installment of the bribe was paid, on account of prior NCAA rules violations that had not then been discovered). Suffice it to say I am not at all impressed with those “heads I win, tails you lose” theories as to RICO’s causation requirement. In any event, I adamantly disagree with the rulings of the district court and the panel majority that the Schemers are entitled to summary judgment based on Brian’s failure to satisfy the injury requirement.

(Mike Frisch)

Judicial Privilege

A lawyer against lawyer defamation suit has been dismissed by the United States District Court for the District of Columbia

This is a defamation action brought by one lawyer practicing before this Court, Timothy Parlatore, against another lawyer also practicing before this Court, Eric Montalvo. The case is only the most recent chapter in a dispute that has metastasized beyond recognition. What started as a whistleblower complaint alleging racial discrimination in a U.S. Navy fighter pilot training program; grew into an investigation of Lt. Steven Shaw, the Navy officer who assisted in filing that whistleblower complaint; then evolved into an investigation of the Navy officers who had investigated Lt. Shaw to determine whether they acted for retaliatory purposes and into a second investigation of Lt. Shaw; eventually led to a lawsuit that Lt. Shaw brought challenging the Navy’s actions against him, and a second lawsuit alleging that the Department of the Navy violated the Privacy Act and that the lawyer who represented the investigating officers, Timothy Parlatore, libeled Lt. Shaw; and finally led to the present dispute, which alleges that Lt. Shaw’s lawyer, Eric Montalvo, defamed Parlatore in an email exchange between lawyers involved in the Privacy Act/libel litigation.

The motion now before the Court seeks to close at least one chapter in this unfortunate saga. Defendant Eric Montalvo moves to dismiss Plaintiff Timothy Parlatore’s amended complaint for failure to state a claim and, in the alternative, moves to strike allegedly redundant, immaterial, impertinent, or scandalous material from that complaint. Dkt. 10; Fed. R. Civ. P. 12(b)(6), 12(f). For the reasons explained below, the Court will GRANT Defendant’s motion to dismiss and, accordingly, will not reach his motion to strike.

Judicial privilege

Parlatore’s sole response to this conclusion is unconvincing. He asserts, “[i]t is clear that Virginia’s judicial privilege only applies to statements ‘made in proceedings,’ not extra-judicial statements made in emails.” Dkt. 12 at 4. He, then, continues: “Although Defendant does acknowledge the Virginia standard, he makes no effort to explain how Virginia’s law should be extended to out-of-court statements, and certainly not to impertinent emails.” Id. Yet, if anyone, it is Parlatore who ignores the governing Virginia law. As the Virginia Supreme Court explained in Mansfield v. Bernabei, the “[a]bsolute judicial privilege clearly extends outside the courtroom,” and “‘we have extended the application of the absolute privilege well beyond the actual courtroom.’” 727 S.E.2d at 73 (quoting Lindeman v. Lesnick, 604 S.E.2d 55, 58–59 (Va. 2004). In short, Parlatore’s contention that the privilege does not apply to “out-of-court statements” is squarely foreclosed under controlling Virginia law.

(Mike Frisch)

A Matter Of Public Concern

The Minnesota Supreme Court has held that a Facebook post alleging that a dance instructor had sexually assaulted the poster involves a "matter of public concern" and thus is protected speech unless the dance instructor can establish "actiual malice" in his defamation lawsuit

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution. Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

The court majority

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

Chief Justice Gildea dissented

Based on the totality of the circumstances here, I would hold that the actual malice standard does not apply to Freborg’s speech. Freborg posted on her personal Facebook account that a person she identified by name raped her. Freborg and Johnson knew each other personally, they first met through a personal hobby, they had a personal and private sexual history, and the speech at issue here accuses another of a crime. The mere fact that Freborg made these allegations amid a social movement and included #MeToo in her post does not convert her otherwise private speech into speech on a matter of public concern entitled to heightened First Amendment protection. Accordingly, I dissent.

Justices Anderson and Hudson joined the dissent.

The Court of Appeals opinion is linked here. (Mike Frisch)

Jury Consultant Claims Kicked Out Of Federal Court

The United States District Court for the District of Columbia (Chief Judge Boasberg) granted a motion to dismiss a copyright infringement claim brought by a jury consultant against Proud Boy lawyers and declined to exercise jurisdiction over non-payment claims

While the leaders of the Proud Boys have now been convicted and sentenced for their roles in the January 6, 2021, insurrection, smaller waves from their trial continue to wash ashore. This iteration features a squabble between a jury consultant — Plaintiffs In Lux Research and its owner, Lindsay Olson — and the lawyers representing the Proud Boys. In the lead-up to trial, the Proud Boys — Joseph Biggs, Ethan Nordean, Zachary Rehl, Henry “Enrique” Tarrio, and Dominic Pezzola — sought a transfer of their case out of D.C., arguing that jurors in the District are so prejudiced against defendants in January 6 cases that they could not receive a fair and impartial trial here. To support that effort, one of the defense lawyers, John Daniel Hull — allegedly acting on behalf of all the Proud Boys’ defense lawyers — hired In Lux Research to conduct a jury polling analysis for a $30,000 fee. Plaintiffs delivered a report confirming that the District’s attitude toward defendants involved in the Capitol riot is decidedly negative, but no payment ever arrived.

Once it became clear that they were not getting compensated for their services, Olson and In Lux Research initiated this lawsuit naming thirteen Defendants: eight lawyers and five law firms involved in the Proud Boys’ trial. Plaintiffs assert claims against all Defendants for copyright infringement, breach of contract, and unjust enrichment, and claims against just Hull for intentional misrepresentation and promissory fraud.

All Defendants except Hull and his law firm now separately move to dismiss Plaintiffs’ claims against them. As the Court agrees that Plaintiffs fail to state a claim of copyright infringement against Moving Defendants, it will dismiss that count and decline to exercise supplemental jurisdiction over the remaining non-federal claims against them.

Remaining claims

'These factors weigh against retention here. The Court is dismissing the sole federal claim against the Smith Defendants, Hernandez, the Hassan Defendants, the Metcalf Defendants, the Jauregui Defendants, and Pattis. This case has not progressed in federal court past these Motions to Dismiss, and the Court has developed no familiarity with the issues presented beyond the copyright claim it dismisses. Cf. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir. 2010) (holding that district court appropriately retained pendent jurisdiction over state claims where it had “invested time and resources” in the case). The Court can thus conceive of no undue inconvenience or unfairness to the litigants that would result from its declining to exercise supplemental jurisdiction. Finally, Plaintiffs will not be prejudiced because 28 U.S.C. § 1367(d) provides for a tolling of the statute of limitations during the period the case was here and for at least 30 days thereafter. See Shekoyan, 409 F.3d at 419 (affirming district court finding that because of this tolling, dismissal of pendent state claims “will not adversely impact plaintiff’s ability to pursue his District of Columbia claims in the local court system”) (citation omitted). Plaintiffs may thus proceed in state or local court if they so desire. 

(Mike Frisch)

Ethics Charges Brought Against Indiana Attorney General For Conduct Toward Doctor

The Indiana Supreme Court Disciplinary Commission has filed a complaint against State Attorney General Theodore Rokita for statements made on the Jesse Waters program and elsewhere about Dr. Caitlin Bernard as an "abortion activist doctor - with a history of failure to report" and by making public statements from July-September 2022 prior to a referral to the state licensing investigation of Dr. Bernard, allegedly in violation of statutory confidentiality provisions.

In the Waters interview, this statement is alleged, in part

This is a horrible, horrible scene. Caused, caused by Marxists, socialists and those in the White House who don't, who want lawlessness at the border. And then this girl was politicized - politicized for the gain of killing more babies. All right, that was the goal. And this abortion activist is out there front and center. The lamesteam media, fake news, is right behind. Unfortunately, in Indiana, the paper of record [Indy Star] is fake news. And they were right there jumping in on all of this, thinking it was going to be great for their abortionist movement when this girl has been, uh, so brutalized.

Rokita is alleged to have violated the confidentiality of the licensing proceeding as well as rules on trial publicity, engaging in conduct having no substantial purpose other than to embarrass, delay or burden a third person and conduct prejudicial to the administration of justice.

IndyStar reported on the charges and his response

In Rokita's response filed with the state Supreme Court, he admits that the phrase he used on Watters' show "could reasonably be considered to have violated" those professional conduct rules, but he denies the confidentiality charge. He argues that "no confidentiality should be required" since Bernard first discussed the 10-year-old's story publicly in a way that the state Medical Licensing Board later decided violated patient privacy laws, and questions whether the scope of the confidentiality statute actually applies to the elected position of attorney general or just to employees of the office.

Also from the Indy Star reporting

Former IU law school dean Lauren Robel filed one of the complaints, as did Don Lundberg, a former executive director of the disciplinary commission.

Lundberg told IndyStar that other than this, he has never filed a grievance in his 48 years of practicing law.

"I think it's a serious matter," he said. "To maybe turn the tables a bit on the rhetoric of the right, to me, this was the weaponization of government against a physician who was working within her specialty to assist a young victim of a horrible crime. I think it's an utter abuse of that office."

The commission and the subject of the disciplinary complaint can participate in a “trial-like” proceeding regarding each side’s view of the charges. Both parties can also agree misconduct occurred and submit an agreement to the Supreme Court for review. 

Raw Story reports on recent efforts by Rokita to use his position to go after the doctor and her hospital

The Republican Indiana attorney general is going after a hospital where Dr. Caitlin Bernard works, saying that she violated a patient's rights by describing the story of a 10-year-old rape victim that was pregnant. Bernard never identified the girl.

It is one of several attempts that anti-abortion AG Todd Rokita has used to go after the doctor. The state has strict abortion laws after legal battles failed.

The AG claims in the suit, "Neither the 10-year-old nor her mother gave the doctor authorization to speak to the media about their case."

"The lawsuit named Indiana University Health and IU Healthcare Associates. It alleged the hospital system violated HIPPA, the federal Health Insurance Portability and Accountability Act, and a state law for not protecting the patient’s information," said NBC News.

(Mike Frisch)

Fleeting Victory

The united States Court of Appeals for the Second Circuit denied attorneys fees to couples who had challenged COVID-related limits on the size of their weedings

Plaintiffs are five individuals—two couples, each engaged to be married when they filed suit, and a New York-based minister. During the summer of 2020, the five brought a constitutional challenge to New York regulations issued earlier that year in response to the COVID-19 pandemic, limiting to fifty the number of attendees permitted at non-essential gatherings, including weddings. Eight days before the first of the scheduled weddings, the five sought a preliminary injunction in the United States District Court for the Northern District of New York barring enforcement of the limitation as to their planned gatherings. After expedited briefing and a hurriedly conducted oral argument, the district court granted their motion and preliminarily enjoined the State from enforcing its gathering limit against Plaintiffs just forty-five minutes before the wedding ceremony was to begin. See DiMartile v. Cuomo, 478 F. Supp. 3d 372, 389 (N.D.N.Y. 2020) (Suddaby, J.) (“PI Order”). The first couple held their wedding that afternoon. Within a few days, Defendants appealed, and not long after, we granted their request for a stay pending appeal.

After the second couple announced that—regardless of the outcome of the appeal—they no longer planned to hold a wedding, we dismissed the appeal as moot and remanded with instructions to the district court to vacate the preliminary injunction. On remand, all five Plaintiffs moved for attorney’s fees. The district court denied their motion, deciding that, under 42 U.S.C. § 1988, none were prevailing parties. All five then timely appealed.

On de novo review, we AFFIRM the district court’s order. Its grant of a preliminary injunction in this case was insufficient to confer prevailing party status on any of the five Plaintiffs, including the couple that married during the brief period in which the preliminary injunction was in effect. Our Court’s grant of a stay to Defendants just two weeks after the hurried proceedings in the district court, followed by Plaintiffs’ mooting of the appeal, made their victory too fleeting to make them eligible for a fee award under Section 1988.

As to the wedding that did not take place

Here, Defendants obtained a stay before Giglia and Durolek’s planned wedding ceremony on August 22. The litigation for that couple ended when they mooted their own claims during the pendency of Defendants’ appeal. In their own words, Giglia and Durolek had “their hopes ripped away” by the stay, Reply Br. 5 n.2, and they then “made the difficult decision to postpone their wedding ceremony indefinitely,” Appellants’ Br. 16. The preliminary injunction thus did not modify Defendants’ behavior towards Giglia and Durolek in a way that provided them with any direct benefit. At the end of the litigation, Giglia and Durolek left the courthouse both emptyhanded and unwed.

(Mike Frisch)

This Diamond Ring

The Massachusetts Appeals Court reversed and remanded a matter involving a broken engagement

After calling off their wedding and ending the parties' engagement, the plaintiff brought this action in the Superior Court against his former fiancée, seeking the recovery of an engagement ring and two wedding bands that he had purchased. The defendant counterclaimed for breach of contract seeking funds to complete a dental implant surgery that the plaintiff had promised to pay for during their relationship. We reverse the Superior Court judge's disposition awarding the engagement ring and one wedding band to the defendant and vacate the award of prejudgment interest, which is to be recalculated on remand.

The two became a couple shortly after meeting They travelled and made purchases on plaintiffs dime.

The plaintiff paid for these vacations and expected nothing from the defendant in return. He also often bought the defendant expensive gifts, including jewelry, clothing, shoes, handbags, and artwork. It was the plaintiff's custom to provide the defendant with receipts for the gifts.

An old fashioned marriage proposal

In August 2017, the two went to lunch with the defendant's parents. Once the defendant stepped away from the table, the plaintiff asked her father for permission to marry her, to which the father said yes. Later that day, the plaintiff and defendant had dinner at a restaurant where the plaintiff had arranged ahead of time to be seated at a corner-window table. During dinner, the plaintiff asked the defendant to marry him and presented her with the diamond engagement ring. The defendant said yes and placed the ring on her own left ring finger. The ring was given, and accepted, in anticipation of marriage.

The ring is valued at "over $70,000."

But

As the wedding planning progressed, the plaintiff noticed that he found some traits of the defendant to be troubling. Following their engagement, the plaintiff began to feel that he was routinely subject to verbal abuse. For instance, the defendant would berate the plaintiff over a spilled drink, how he ate oysters, and the time it took him to access messages on his cell phone. She would call him a "moron" and treat him like a child. If something went wrong, he was to blame. If the plaintiff stood up for himself, the defendant would yell at him and storm away. The plaintiff also felt that the defendant did not appreciate any of his accomplishments, and that she did not support him following his cancer diagnosis. Despite these concerns, the plaintiff thought they could fix these issues and make the relationship work

But after a fight over an alleged affair of defendant

The next morning, the plaintiff confronted the defendant about the messages and accused her of having an affair. She denied the accusation and explained that the man was her best friend of over forty years and that their friendship was strictly platonic. A week or two later, the plaintiff called the defendant and ended their engagement by leaving a voicemail message, stating that he felt disrespected and that he could not trust her. This lawsuit followed.

The jury found that there was no affair and deemed plaintiff "at fault"

we conclude that the evidence was insufficient to sustain a finding that the plaintiff was "at fault" for the parties' separation. See Kendall, 413 Mass. at 621 ("the 'clearly erroneous' standard of appellate review does not protect findings of fact or conclusions based on incorrect legal standards"). Although the plaintiff may have largely been motivated by a mistaken belief, we cannot say that he was unjustified or did not have adequate cause to break the engagement under the circumstances presented. Sometimes there simply is no fault to be had. See Gaden v. Gaden, 29 N.Y.2d 80, 88 (1971) ("In truth, in most broken engagements there is no real fault").

The plaintiff is entitled to the return of the engagement ring and wedding band.  Judgment shall enter for the plaintiff on this count.

Justice Milkey dissented in part

Were I the fact finder here, I would not have found the plaintiff at fault for terminating the parties' engagement. After all, although his suspicion that his fiancée was having an affair proved incorrect (according to the unreviewable credibility findings made by the judge), the plaintiff had what I consider an objectively reasonable basis for forming such a belief. And, in any event, after the flurry of accusations and heated responses on both sides caused the relationship to unravel, I do not believe that the plaintiff can be blamed for reaching the eminently reasonable conclusion that this marriage was not destined to be. In this respect, my own views are closely aligned with those of the majority.

But I am not the fact finder, and the trial judge found the plaintiff at fault after hearing testimony from all involved. I do not think that finding fairly can be said to be clearly erroneous on this record.

The rule of law

None of this is to say that I think the defendant here should have kept the ring. To the contrary, my own view is that she should have given it back. But why should my personal view on this issue matter? To me, the ultimate question this case poses is whether such issues should be resolved in courts of law, or instead left to the interplay between private conscience and social norms.

(Mike Frisch)

Defamation In D.C.

One unfortunate consequence of blogging has been learning more about the law of defamation than I ever had cared to.

The District of Columbia Court of Appeals decided two interesting cases involving the local anti-SLAPP provisions yesterday.

One involved this suit

Plaintiffs/appellants are Col. (Ret.) L. Morgan Banks, III, Col. (Ret.) Debra L. Dunivin, and Col. (Ret.) Larry C. James. All three are retired military psychologists who were mentioned prominently in a report (“the Report”), published in 2015 on the American Psychological Association (“APA”) website, concluding that certain APA officials colluded with the U.S. Department of Defense (“DoD”) “to support the implementation by DoD of the interrogation techniques [directed at persons detained following the events of September 11, 2001] that DoD wanted to implement without substantial constraints from APA” ethical guidelines. The Report identifies each of the appellants by name as a key participant in the alleged collusion. Appellants filed the underlying action for defamation per se, defamation by implication, and false light invasion of privacy in 2017, naming as defendants the APA, which authorized and financed the Report; David H. Hoffman, the lead of a team of lawyers who conducted the underlying investigation and prepared the Report; and the law firm in which Hoffman is a partner, Sidley Austin LLP, and its affiliated entity Sidley Austin (DC) LLP (together, “Sidley”).

Remand ordered by the Court

This matter is an appeal from the Superior Court’s dismissal of a defamation action pursuant to the special-motion-to-dismiss provisions of the District of Columbia Anti-SLAPP Act.  In challenging the dismissal, plaintiffs/appellants argue inter alia that the D.C. Anti-SLAPP Act is invalid because its enactment violated the District of Columbia Home Rule Act (the “Home Rule Act”).  For the reasons set out below, we agree that the Home Rule Act, and in particular its preservation of Title 11 of the D.C. Code, precluded the Superior Court from giving effect to the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss provisions. Accordingly, we reverse the judgment of dismissal and remand for further proceedings consistent with this opinion. In light of the discovery limitations the Superior Court implemented, we also vacate the court’s rulings on the “public official” and “republication” issues discussed below and remand as to those issues as well.

The other suit involved a book published about the so-called Deep State 

In 2019, appellant Salem Media Group, Inc., published a book titled Obstruction of Justice: How the Deep State Risked National Security to Protect the Democrats (hereinafter, Obstruction of Justice). The book details its author Luke Rosiak’s investigative journalism into the activities of  appellees Imran Awan, Abid Awan, Jamal Awan, Tina Alvi, and Rao Abbas. These five individuals, whom the parties have referred to collectively as “the Awans,” are former information technology support staff employed by the U.S. House of Representatives. As previously had been reported in the news media, the Awans were investigated for alleged violations of House policies and possible crimes relating to equipment procurement, IT security, and other job-related matters. The Awans sued Salem for defamation, intentional infliction of emotional distress (IIED), and unjust enrichment based on Rosiak’s statements in Obstruction of Justice regarding their alleged misconduct.

The court

First, Salem contends the court erred in failing to dismiss the Awans’ defamation claim for lack of sufficient proof of malice on Salem’s part. Recognizing that the goal of compensating persons who are harmed by the publication of libelous falsehoods may be in tension with the core First Amendment goal of protecting vigorous speech and debate about issues of public interest, the Supreme Court has held that certain plaintiffs asserting defamation claims directly implicating that constitutional concern must prove the defendants acted with a heightened degree of culpability in publishing the injurious lies. Specifically, plaintiffs who are considered to be “public figures” must prove the defendant defamed them with “actual malice,” a more demanding fault standard than the simple negligence standard that otherwise would apply to claims of defamation asserted by private figures. In the present case, Salem contends the Awans had to prove it published the libels in Obstruction of Justice with actual malice because each of them was a “limited-purpose public figure,” a term used to describe a person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Alternatively, Salem argues that the Awans became “involuntary public figures,” a term reserved for persons who are so central and well known with respect to a particular public controversy that they become public figures even if they do not desire or seek the public’s attention.

The Awans were employed as IT support staff at the House of Representatives and had no involvement with the press prior to the government investigations. We conclude that the trial court properly found, on the evidence before it, that the Awans were not limited-purpose or involuntary public figures based either on their voluntary actions with respect to the public controversy surrounding them or their centrality and prominence with respect to that controversy. The trial court therefore did not err in rejecting Salem’s special motion to dismiss the defamation count of the Awans’ complaint for lack of proof of actual malice.

Second, Salem argues that the trial court erred in denying its special motion to dismiss the Awans’ IIED claim. Such a claim requires a plaintiff to prove that the defendant engaged in “extreme and outrageous conduct” that “intentionally or recklessly” caused the plaintiff to suffer “severe emotional distress.” We agree with Salem that, in accordance with the Anti-SLAPP Act, the court should have dismissed this claim for lack of sufficient evidence that Salem’s publication of Obstruction of Justice amounted to “extreme and outrageous” conduct.

Lastly, the Awans’ unjust enrichment claim seeks disgorgement of the profits Salem earned through its defamatory publication of Obstruction of Justice. We agree with Salem that this equitable remedy is not available for the defamation alleged in this case. We therefore reverse the denial of Salem’s special motion to dismiss the unjust enrichment count.

(Mike Frisch)

A Hard Pass

The United States District Court for the District of Columbia (Judge Bates) has denied injunctive relief to a journalist who covers the White House

Simon Ateba, a journalist covering the White House for Today News Africa, an online publication focusing on American politics and the relationship between the United States and African countries, challenges a recent change in White House policy related to access for journalists. The new policy alters the requirements for obtaining a “hard pass”—a special press credential that allows a journalist to enter the White House press areas “on-demand.” Karem, 960 F.3d at 106. Ateba, who previously held a hard pass, lost his credential under the new rule.

No irreparable harm

Because the White House policy does not limit what Ateba can publish, his bare assertion that the policy violates the freedom of the press does not suffice to establish a likelihood of irreparable harm. And Ateba has not demonstrated the hard pass policy is likely to chill his newsgathering activities to the detriment of his readers. Ateba has indicated that, despite the difficulties he faces without a hard pass, he “will continue to cover the White House” and remains “determined to continue providing quality coverage for his readers.” Compl. ¶ 81. The evidence suggests he will be able to do so: “For his first three years covering the White House, Mr. Ateba obtained a temporary daily press pass . . . .” Id. ¶ 39; see Opp’n at 25. And since his hard pass expired, he has only tried to seek entry to the White House one time. Ateba asserts that on the prior two occasions the White House held a press briefing in August, he was not aware in time to request a day pass. Ateba Decl. ¶ 13. It is not clear to the Court whether this was a failure of Ateba’s diligence or the White House Press Office’s advance planning. In any event, the fact that the White House was willing to clear an 11:00 a.m. request for access, see Fleischer Suppl. Decl. ¶¶ 2–3, suggests Ateba could cover most if not all press briefings, allowing him to gather the news and deliver it effectively to his readers. See Getty Images, 193 F. Supp. 2d at 123 (finding no irreparable harm when it was unclear how the challenged regulation would affect journalists’ right of access to Guantanamo Bay).

Ateba also argues that his speech (and that of other journalists) will be chilled because his “efforts to fight the White House’s de facto policy of never calling on him made [him] unpopular with colleagues in the press corps,” and accordingly the new policy “requires” him and other journalists to “self-censor so that they can ingratiate themselves with their colleagues” who decide whether he can obtain the press gallery credential that is now a prerequisite to obtaining a White House hard pass. Mot. at 20. This alleged harm is too speculative to support relief, particularly in light of the evidence Ateba supplies of his own behavior—years of acting in ways that disgruntle other correspondents, despite the contemporaneous cost to his relationship with the White House. See Compl. ¶¶ 46–53. While self-censorship could possibly be a “long-term effect” of the hard pass policy, the evidence at this stage does not support a finding that First Amendment interests are “threatened or in fact being impaired.” NTEU, 927 F.2d at 1255 (internal quotation marks omitted).

Finally, in reply, Ateba argues that he suffers a competitive harm because he is at a “disadvantage to the other White House journalists who are allowed to have hard-pass access.” Reply at 20. The Court has found on the evidence before it that Ateba retains access to the White House facilities on substantially similar terms. Indeed, he has the very access most reporters do in terms of entry. To the extent “Mr. Ateba’s competition gets more—and more efficient—access to the White House press areas and the President,” id. at 19, any resulting competitive harm is unlikely to “accrue ‘in the absence of preliminary relief’—that is, before the district court can resolve the case on the merits.” Singh, 56 F.4th at 109 (quoting Winter, 555 U.S. at 20).

In sum, the Court concludes that Ateba has not demonstrated a likelihood of irreparable harm. Hence, a preliminary injunction is not warranted.

(Mike Frisch)

Gets And the Law

It has been a busy week for decisions involving the get - a Jewish bill of divorce.

The New Jersey Appellate Division reversed a restraining order against a separated wife who had "pressed" for a get

Defendant L.B.B. appeals from the entry of a final restraining order (FRO) entered against her in favor of her estranged husband, plaintiff S.B.B., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25- 17 to -35. The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassment was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protected free speech, we reverse.

The husband had received a number of "weird" and "alarming" telephone calls

Two days later, on March 14, 2021, plaintiff received a message from his sister in Israel. The message contained a photo of himself that he had posted as his "status" on the WhatsApp messaging app. Above the photo was written:

This man has refused to give his wife a get. His name is [S.B.B.]. He is holding his wife chained for over a year and a half. He lives in Elizabeth NJ. If you see him, tell him to free his wife. #FREE[L.B.B.].

In addition to his sister, plaintiff received the photo from one other person he knew.

When plaintiff saw the photo, he was "shock[ed]," "embarrassed," and "scared." Plaintiff explained that the photo would give community members the impression that he was "a get refuser" which "[could] be dangerous for [him]." Plaintiff testified that he had witnessed his father "[getting] beat[en] up" because "he was a get refuser." Additionally, plaintiff denied the accusation and was adamant that he was not a get refuser, having given the get to the Chief Rabbi of Elizabeth. His "understanding" was that the get would be provided to defendant "within [twenty-four] to [forty-eight] hours after the civil divorce [was] done in court." He also suggested that the Chief Rabbi had the discretion to give the get to defendant at any time. He explained his view that only a "beth din" could declare someone a get refuser.

Between March 14 and 15, 2021, plaintiff received numerous communications, including approximately ten "private or anonymous" calls, none of which he answered. In addition to the anonymous calls, on the afternoon of March 14, 2021, plaintiff received a message on WhatsApp from the Chief Rabbi's son. The message contained a video showing defendant speaking to the camera, saying:

Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach . . . the community Rabbi[] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha on his head.

Several friends also sent the video to plaintiff.

"Bracha" translates as blessing.

The court

Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant's speech does not fall within the narrow category of incitement exempted from First Amendment protection. Likewise, because the judge's finding of a privacy violation relied upon the same factual finding, the record does not support the finding that the manner of defendant's communication violated subsection (a) of the harassment statute.

Yesterday, the Connecticut Supreme Court declined to enforce a get

The principal issue in this appeal requires us to consider the extent to which a Connecticut court may enforce the terms of a ‘‘ketubah,’’ which is a contract governing marriage under Jewish law, without entangling itself in religious matters in violation of the first amendment to the United States constitution. The plaintiff, Jon-Jay Tilsen, appeals from the judgment of the trial court dissolving his marriage to the defendant, Miriam E. Benson. On appeal, the plaintiff contends that the trial court improperly (1) denied his motion to enforce the terms of the parties’ ketubah as a prenuptial agreement on the ground that doing so would violate the first amendment, and (2) issued certain financial orders that were based on a clearly erroneous finding as to his earning capacity, were not based on his net earning capacity, and did not reflect his current financial circumstances. We disagree and, accordingly, affirm the judgment of the trial court.

The husband is a rabbi; the wife an attorney

The parties moved from Israel to the United States to further the plaintiff’s career opportunities as a Conservative rabbi. He found employment in the United States as the rabbi of a Conservative synagogue in New Haven, where he served for nearly twenty-eight years, until March, 2020, when the synagogue elected not to renew his employment contract during the pendency of this action. The defendant, who is educated and trained as an attorney, worked as a Social Security disability attorney, a paralegal, and a nonprofit executive. At the time of this action, she was unemployed and had not worked as an attorney since 2015, despite efforts to find employment. While married to the plaintiff, the defendant was the primary caregiver to the parties’ four children, all of whom are now adults, with the youngest reaching the age of the majority three days after the trial court rendered judgment. The defendant also assumed numerous volunteer responsibilities in connection with her role as the rabbi’s wife, including hosting weekly dinners and other social events, organizing children’s groups and other educational programming for the synagogue, and attending and leading certain services at the synagogue.

(Mike Frisch)

In The Long Run, We Are All Dead

An adjunct professor who had sued colleagues and the entire SUNY system for denying him an interview for a "more desirable" academic position had summary judgment against him affirmed by the United States Court of Appeals for the Second Circuit.

Plaintiff-Appellant John Heim, an adjunct professor of economics, appeals from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, J.) granting summary judgment to his colleagues Betty Daniel and Adrian Masters (together, “Defendants”) who, as the relevant decision-makers in the Economics Department at the State University of New York at Albany (“SUNY Albany” declined to interview Heim for more desirable positions he believes he was qualified for. Heim’s challenge is premised on the allegation that Defendants rejected his candidacy in substantial part because he is a proponent of traditional Keynesian economics, an approach that Defendants consider to be outdated.

Although we accept that factual premise underlying Heim’s appeal, we disagree with the legal theory it supports: that, under the First Amendment, a public university’s hiring decisions cannot be informed by methodological preference. Rather, applying the employer/employee interest-balancing framework first set forth in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), we hold that a public university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions outweighs Heim’s asserted interest in competing for academic positions unencumbered by university decision-makers’ assessment of the approach or methodology underlying his academic speech. We therefore AFFIRM the judgment of the district court.

The academic debate is irrelevant

The merits of that debate are not for us to assess; judges are neither qualified nor commissioned to resolve academic debates among scholars in any particular discipline. What matters is that the debate exists at all, and that Heim– who practices traditional Keynesian economics– is on one side of it, while his colleagues at SUNY Albany – who do not – are on the other.

The court concluded that the decision to not offer either full-time or tenure track employment was grounded in hostility to Keynes

The undisputed facts compel the conclusion that the content of Heim’s academic scholarship was central to Defendants’ assessment of his qualifications. It is therefore impossible for a reasonable jury to conclude that Defendants “would have taken the same action in the absence of” that speech.

Thus

As a result, the outcome here hinges on whether the First Amendment forecloses decision-makers within a public university from making hiring decisions based on such content-driven assessments.

But on balance

We do not minimize Heim’s interest in retaining the freedom to perform scholarship as he wishes, or in competing for positions that might better facilitate that scholarship; nor do we suggest that the decision not to hire an applicant based on the applicant’s views on academic debates can never prevail over the employer’s interests under Pickering. But we are tasked here with balancing (1) an employee’s asserted interest not simply in speaking freely through his scholarship, but in being considered, without regard to the content of that scholarship, for advancement from a job where he is already empowered to do that research and entrusted to espouse his views as a teacher; against (2) a university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions.

In this case, considering both “the nature of the speech and . . . the nature of the public services performed” by this particular public employer, Blum, 18 F.3d at 1011, the latter interest is the weightier. Defendants have decided to prioritize, for purposes of scarce tenure-track positions, a particular methodology. Heim does not dispute that their decision was the product of a learned and strategic choice, made by experts in their good faith professional judgment, free from any influence from political entities in the state or other governmental or university officials outside the relevant discipline. Compare Dube, 900 F.2d at 597. That is, and must be, permissible. If the Supreme Court’s (and this Court’s) enthusiastic endorsement of the First Amendment principles supporting a university’s academic freedom is to be given any practical bite, decision-makers within a university must be permitted to consider the content of an aspiring faculty member’s academic speech, and to make judgments informed by their own scholarly views, when making academic appointments.

(Mike Frisch)

With The Utmost Respect

The District of Columbia Court of Appeals has issued its opinion explaining the reasons for disqualifying a candidate for the local Attorney General election for failure to meet the statutory "active employed as an attorney" requirement

No one disputes that Mr. McDuffie meets the predicate requirements of D.C. Code § 1-301.83(a)(1) to (4), requiring that a person running for the office of Attorney General be “a member in good standing of the [D.C.] bar . . . for at least 5 years,” as well as “a registered qualified elector,” and a “bona fide resident of the District of Columbia.” Likewise, no one disputes that he has not, for at least five of the last 10 years, been “actively engaged” as an attorney practicing law, a judge of a court in the District, or a law professor in a school in the District so as to satisfy the experiential qualifications of D.C. Code § 1-301.83(a)(5)(A), (B), or (C). Thus, the only question is whether Mr. McDuffie satisfies the experiential requirement of § 1-301.83(a)(5)(D)—i.e., whether, during the relevant timeframe, he has “been actively engaged . . . as . . . [a]n attorney employed in the District of Columbia by . . . the District of Columbia.”

Service on the City Council does not count

We do not doubt that Mr. McDuffie’s legal training, skill, and experience inform how he approaches the job. Nevertheless the job itself cannot be defined as an attorney role. As noted above, supra note 7, Councilmembers are by definition not required to be attorneys and they perform distinctly legislative work. This work deserves the utmost respect, and we do not mean to imply with this opinion that we have a normative or policy view regarding the eligibility of Councilmembers to run for the office of Attorney General. But if the Council desires Councilmembers to be experientially eligible based on their work as such, it must legislate this result. For the reasons discussed above, we do not understand this to be either what the statute plainly says or how the statute can reasonably be inclusively interpreted.

(Mike Frisch)

Mayor Of McBee

The South Carolina Supreme Court affirmed the reversal of a decision by a local election commission to overturn the results of closely-contested elections.

Locus

McBee is a small town in Chesterfield County in the Pee Dee region of eastern South Carolina. The town's residents, many descendants of its patriarch Colonel "Bunch" McBee, and other students of correct pronunciation of local names will appreciate the readers of this opinion observing that the correct pronunciation of the word McBee is "MAK-bi." See Claude Neuffer & Irene Neuffer, Correct Mispronunciations of Some South Carolina Names 113 (Univ. of S.C. Press 1983) (including a short statement of the history of the town and noting, "The unknowing often say mak-BEE . . .").

The contest

Glenn Odom defeated Charles Short in the 2020 mayoral race by ten votes. James Linton and Robert Liles defeated Hewitt Dixon and Charles Sutton in the town council race by similar margins. The losing candidates from each race challenged the election results based on the allegation Sydney Baker violated section 7-15-330. 

Majority holding

The losing candidates bore the factual burden of proving Baker violated the statute. No witness testified Baker violated the statute and Baker herself denied violating the statute. No factfinder may take the denial of a fact, find the denial not credible, and treat its credibility finding as evidence of the fact. Finally, the dissent attributes to us "a rather selective view of the facts." However, the dissent has not recited a single piece of evidence that would support a finding Baker requested an application for another voter. Under that circumstance, our standard of review requires we reverse.

Dissent

ACTING JUSTICE HEARN: Because I believe election commissions are better equipped to determine an election's validity than this Court, and that evidence supports the factual findings here, I dissent. The McBee Municipal Election Commission ("Commission") invalidated the town's 2020 election after hearing from witnesses and determining their credibility. That decision was not made in a vacuum; rather, it was reached after a lengthy hearing which resulted in credibility determinations, together with substantial knowledge of Baker's relationship with Odom7 as well as the recent tortured history of municipal elections in McBee. Sitting in its appellate capacity, the circuit court determined there was "no evidence" to support the decision of the Commission and reversed. Under a rather selective view of the facts, the majority affirms the circuit court. I would honor our standard of review and reinstate the decision of the Commission.

(Mike Frisch)

I Never Promised You The Rose Garden

The Maryland Supreme Court enforced a $7 million "bad boy" post-nuptial agreed upon payment for an act of adultery that took place after a reconciliation from a prior act of adultery. 

The parties

Petitioner and Respondent were married on March 25, 2006 in the District of Columbia. Both parties have college degrees. Respondent was employed as an event planner and served as the White House Social Secretary between February 2017 and January 2021, earning between $130,000 and $200,000 per year. Petitioner was a wealth manager who earned between $70,000 and $122,000 per year. Petitioner has a wealthy family, including his paternal grandmother, Rachel Mellon, who left him a substantial inheritance after she passed away in March 2014.

On June 2, 2014, Respondent discovered that Petitioner was involved in an extramarital affair. The parties separated. Although Respondent was “uncertain if she wanted to remain in the marriage[,]” the parties worked toward “build[ing] trust” and ascertaining the reason for Petitioner’s infidelity. The parties consulted a priest and a therapist beginning in the late summer. Upon Respondent’s request, Petitioner: (1) provided her with the passwords to his financial and email accounts; (2) transferred a portion of his inheritance into an account held with Respondent as tenants by the entirety; (3) converted to Catholicism; (4) sold the car he had used with his affair partner; and (5) underwent a vasectomy. During the autumn of 2014, Respondent introduced the idea of a postnuptial agreement to Petitioner. Thereafter, the parties each retained two attorneys to prepare the Agreement. Petitioner retained Deborah Cochran, Esq., an estate law attorney, and Julie Day, Esq., a family law attorney. Respondent retained Alison Noll, Esq., an estate law attorney, and Ann Luu, Esq., a family law attorney.

They reached an agreement that contained an adultery penalty but

After the parties entered into the Agreement, Petitioner engaged in another extramarital affair in October 2018. The parties separated on April 14, 2019, after Petitioner advised Respondent that he no longer wished to remain married to her.

The court

A foundation of many marriages is the vow that spouses will, for better or for worse, remain faithful to one another. We hold that Maryland law allows spouses to allocate marital assets in a postnuptial agreement based on whether a spouse engaged in adultery, thereby causing the breakdown of the marriage.

Policy

We hold that the public policy in Maryland currently supports spouses negotiating in good faith to condition a transfer of marital assets upon the dissolution of the marriage when a spouse commits adultery.

And

we hold that the $7 million lump sum provision in this case is valid and enforceable. Petitioner argues that the provision is overly broad because it imposed the same $7 million “penalty” to conduct ranging from trivial physical contact to sexual relations. Petitioner also claims that the $7 million lump sum is excessive because it “awarded [Respondent] more than 100% of the marital estate.” These arguments are unpersuasive.

A profile on Respondent from USA Today

First Lady Melania Trump on Wednesday announced the appointment of Anna Cristina Niceta Lloyd to fill the all-important position of White House social secretary for the Trump administration.

Niceta Lloyd, known as Rickie, who helped organize the inaugural celebrations for President Trump, will join the first lady in planning and execution of social events at the White House, including state dinners, social calendar events such as the White House Easter Egg Roll , official administration policy-related events, and FLOTUS projects.

Trump said Niceta Lloyd has plenty of experience, including a link to a past first lady, Jacqueline Kennedy: She is married to Thomas Lloyd, a grandson of the late Bunny Mellon, wife of Paul Mellon, both of whom were friends and mentors to Mrs. Kennedy, who hired garden designer Bunny to design and plant the White House Rose Garden, backdrop to many a White House event.

(Mike Frisch)

A Noun, A Verb, A Sanction

Another well-earned condemnation of the erstwhile America's Mayor by the United States District Court for the District of Columbia (Judge Howell) in his defamation case

Defendant Rudolph W. Giuliani is taken at his word that he understands these obligations. He assured this Court directly that he “understand[s] the obligations” because he has “been doing this for 50 years[.]” Transcript of May 19, 2023 Mot. Hearing (“May 19 Hrg. Tr.”) at 67:21–68:6, ECF No. 75. In this case, however, Giuliani has given only lip service to compliance with his discovery obligations and this Court’s orders by failing to take reasonable steps to preserve or produce his ESI. Instead, Giuliani has submitted declarations with concessions turned slippery on scrutiny and excuses designed to shroud the insufficiency of his discovery compliance. The bottom line is that Giuliani has refused to comply with his discovery obligations and thwarted plaintiffs Ruby Freeman and Wandrea’ ArShaye Moss’s procedural rights to obtain any meaningful discovery in this case.

Rather than simply play by the rules designed to promote a discovery process necessary to reach a fair decision on the merits of plaintiffs’ claims, Giuliani has bemoaned plaintiffs’ efforts to secure his compliance as “punishment by process.” Id. at 75:12. Donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery in a straight-forward defamation case, with the concomitant necessity of repeated court intervention.

Default was in his stars

The seriousness of Giuliani’s multiple discovery violations over the course of this litigation, coupled with his concession that he is “desirous to avoid unnecessary expenses in litigating what he believes to be unnecessary disputes” and that “liability in this case . . . should be treated as though there is default liability,” Giuliani Superseding Stip. at 1 & ¶ 6, make plain that Giuliani has no interest in participating in discovery and that an entry of default is warranted. See Sec. & Exch. Comm’n v. Hollywood Trenz, Inc., 202 F.R.D. 3, 7 (D.D.C. 2001) (“In those cases where a court orders a dismissal or enters a default judgment, the party typically has engaged in a pattern of disobedience or noncompliance with court orders[.]”); see also WMATC, 776 F.3d at 4 (holding that default judgment is appropriate if the litigant’s misconduct is accompanied by “willfulness, bad faith, or fault”) (citation omitted). Accordingly, default judgment is the only sanction against Giuliani

Additional sanction

With respect to Giuliani’s obligations to reimburse plaintiffs’ attorneys’ fees and costs, Giuliani is directed: (1) to reimburse such fees and costs associated with plaintiffs’ successful first motion to compel discovery, in the amount totaling $89,172.50, with interest on that amount from July 25, 2023; (2) to reimburse such attorneys’ fees and costs associated with plaintiffs’ motion for sanctions, pursuant to Rule 37(e); and (3) to ensure the Giuliani Businesses reimburse such fees and costs associated with plaintiffs’ successful motion to compel discovery from the Businesses, in the amount totaling $43,684. Should the Giuliani Businesses fail to timely reimburse plaintiffs the $43,684, Giuliani will bear that cost as a sanction under Rule 37(b)(2)(A), with interest on that amount to accrue from September 20, 2023.