Legal Profession Blog

Conviction Of Former Capitol Hill Officer Affirmed

The United States Court of Appeals for the District of Columbia Circuit affirmed the obstruction of an official proceeding conviction of an on-duty Capitol Hill police officer

Michael Riley, an experienced former Capitol Police officer, appeals his conviction for obstruction of a federal grand jury investigation of the January 6, 2021, attack on the United States Capitol. The day after the attack, Riley tipped off one of the rioters that “everyone who was in the [Capitol] building is going to be charged” and urged him to “take down” a Facebook post acknowledging that he had been inside the building. When Riley learned his communication with that individual might be investigated, he tried to cover it up by deleting direct messages from his Facebook account and calls from his phone’s call log. A jury convicted Riley of one count of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(1) based on the deletions but was unable to reach a verdict on another obstruction count based on the underlying tip. The court sentenced him to a period of probation and a fine.

Riley appeals his conviction. His central claim is that the government failed to establish that an official grand jury
proceeding was foreseeable or that he deleted his Facebook direct messages to affect any such proceeding. He asserts
various other trial errors that he links to those asserted shortcomings. We have considered each of Riley’s challenges and, because none succeeds, we affirm.

Circuit Judge Pillard authored the opinion, joined by Circuit Judges Childs and Garcia. (Mike Frisch)

Wynn Some, Lose Some

The Nevada Supreme Court upheld the dismissal of a defamation claim under the Anti-SLAPP statute

This appeal arises out of a defamation claim brought by appellant Steve Wynn—a prominent figure in Nevada gaming and politics—against respondents the Associated Press and one of its reporters, Regina Garcia Cano (collectively, AP Respondents).  Following national reports alleging years of misconduct by Wynn, Garcia Cano obtained from the Las Vegas Metropolitan Police Department (LVMPD) redacted copies of two separate citizens' complaints alleging sexual assault by Wynn in the 1970s. She wrote an article describing the allegations in the complaints, one of which alleged that Steve Wynn had raped the complainant three times at her Chicago apartment between 1973 and 1974, resulting in a pregnancy and the birth of a child in a gas station bathroom under unusual circumstances (the Chicago complaint).  The Associated Press published the article.

Public interest

Here, the article and its surrounding context point to an issue of clear public interest. The article discusses two new allegations of sexual misconduct by Wynn on the heels of national reports alleging a pattern of misconduct spanning decades. In the weeks preceding publication of this article, Wynn resigned as CEO of Wynn Resorts and as Finance Chair of the Republican National Committee due to the national reports of alleged misconduct; and contemporaneously, Wynn Casinos, the Nevada Gaming Control Board, and other regulators launched investigations into his conduct. The allegations undoubtedly affected his public business and political affairs, and additional reports of sexual misconduct would be of concern to a substantial number of people, including consumers, voters, and the business and governmental entities investigating precisely this kind of behavior. The public had an interest in understanding the history of misconduct alleged to have been committed by one of the most recognized figures in Nevada, and the article directly relates to that interest.

Success on the merits

We therefore hold that to demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the plaintiffs evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice. In other words, while the plaintiff at this prong must prove only that their claim has minimal merit, a public figure defamation claim does not have minimal merit, as a matter of law, if the plaintiff s evidence of actual malice would not be sufficient—even if credited—to sustain a favorable verdict under the clear and convincing standard.

Conclusion

Nevada's anti-SLAPP statutes were designed to limit precisely the type of claim at issue here, which involves a news organization publishing an article in a good faith effort to inform their readers regarding an issue of clear public interest. AP Respondents met their burden under the first prong to establish, by a preponderance of the evidence, that their article was a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern. Wynn, on the other hand, did not establish with prima facie evidence a probability of prevailing on the merits of his defamation claim because he failed to meet the clear and convincing evidence standard under the second prong that is applicable to his public figure defamation claim. We therefore affirm the district court's order granting the renewed special motion to dismiss the complaint.

The case is STEVE WYNN, AN INDIVIDUAL, Appellant, vs. THE ASSOCIATED PRESS, A FOREIGN CORPORATION; AND
REGINA GARCIA CANO, AN INDIVIDUAL, Respondents. (Mike Frisch)

Naming Names

The United States District Court for the District of Columbia (District Judge Cooper) granted summary judgment to the Department of Justice in a FOIA request of Judicial Watch

In this Freedom of Information Act (“FOIA”) case, Judicial Watch seeks from the United States Department of Justice (“DOJ”) employee rosters for the office of Special Counsel Jack Smith. DOJ identified two such rosters and withheld them in full under FOIA Exemptions 6, 7(A), and 7(C).

Law

Judicial Watch does not dispute that the Special Counsel’s investigations can fairly be characterized as enforcement proceedings. Instead, it argues that the withheld records do not relate to the investigation because they are mundane lists of employees that all employers maintain regardless of whether they are investigating potential criminal conduct. Judicial Watch Opp’n Summ. J. & Cross-Mot. Summ. J. (“Judicial Watch Opp’n”) at 3–6. Judicial Watch may be correct that employee rosters are common, and that most employee rosters are not related to ongoing enforcement proceedings. But the fact remains that these employee rosters describe everyone working on active criminal investigations and were created to facilitate those investigations. They therefore relate to enforcement proceedings. Another court in this district reached the same conclusion in Citizens for Responsibility and Ethics in Washington v. DOJ (“CREW”), No. 20-cv-212 (EGS), 2022 WL 4598537 (D.D.C. Sept. 30, 2022), holding that a spreadsheet tab listing the names and salaries of investigators in a different Special Counsel’s office was compiled for law-enforcement purposes because DOJ “needs to track the identities of its members . . . to maintain an organized investigation.” Id. at *2, *4.

Threats

First, it appears logical and plausible that disclosing the rosters would expose SCO employees to threats and harassment. The Special Counsel is investigating the former President of the United States and events surrounding one of the most fraught elections in recent American history. The SCO has attracted “unprecedented public scrutiny and partisan political attacks[.]” First Brinkmann Decl. ¶ 22. “Since the SCO began its work, harassing, vulgar, and/or threatening communications have been received by SCO staff, even including harassing physical mail sent to one SCO staff member’s private residence[.]” Id. SCO employees have also been targeted by “swatting” attacks at their homes, including both the Special Counsel himself and at least one other member of the office. Second Declaration of Vanessa Brinkmann (“Second Brinkmann Decl.”) ¶ 6. An attorney in the SCO was also doxed, meaning that the attorney’s home address was publicly revealed without the attorney’s consent. See id. These threats and harassment are unlikely to end while the Special Counsel’s investigations continue, as harassment of SCO employees “has, if anything, only increased with time and with developments in the SCO’s activities.” Id. ¶ 7.

These threats make it harder for the SCO to do its work by distracting employees and disrupting their work.

The court rejected the various legal contentions of Judicial Watch in support of disclosure.  (Mike Frisch)

Discovery Rule And Use Of Photos By Adult Nightclub

In response to a certified question concerning the application of the discovery rule for statute of limitations purposes, the Massachusetts Supreme Judicial Court provided guidance to the District Court.

The suit

The plaintiffs in this case, a group of professional models, allege that the defendant improperly used their images in social media posts to promote its adult entertainment nightclub between August 2013 and November 2015. They filed suit in the United States District Court for the District of Massachusetts (District Court) alleging defamation and other related tort claims, but not until 2021 -- well outside the three-year limitations period specified by G. L. c. 260, § 2A. To avoid dismissal at summary judgment, the plaintiffs argued for application of the "discovery rule," which would prevent the running of the limitations period until the plaintiffs knew or reasonably should have known that they had been harmed by the alleged tortfeasor.

Answer

All of this brings us back to the certified question: under what circumstances does the discovery rule apply to statutes of limitations for claims premised on social media posts? We conclude that the proper application of the discovery rule in the social media context requires a fact-intensive, totality of the circumstances analysis to determine what the plaintiff knew or should have known about the social media publication. This determination must often be left to the trier of fact. As explained infra, however, courts may decide that the defamatory postings are so widely distributed and readily accessible and searchable that the discovery rule does not apply as a matter of law...

In sum, in order to determine whether the plaintiffs knew or should have known of the defamatory postings of their images on social media, and thus the applicability of the discovery rule, it is necessary to consider the totality of the circumstances regarding such postings, including the extent of their public distribution, and the accessibility and searchability of the social media platform upon which they appeared. Whether the ultimate question can be resolved as a matter of law or must be decided by a jury we leave to the District Court, with the benefit of the full record before it.

Conclusion

Our answer to the certified question is as follows. Claims for defamation, violation of the right to privacy, violation of the right of publicity, and related claims that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant's publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant's post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.

(Mike Frisch)

The Common Law Of Burial Grounds

In a lengthy opinion that explores the common law of burial grounds, a majority of the Maryland Supreme Court held that mandamus relief was not available in a legal dispute over a Bethesda plot of land that served as an historic Black burial place

This case concerns a desecrated burial ground in Montgomery County, Maryland. The ground, sometimes known as Moses Cemetery, was a historic Black burial place that contains interments of many individuals, including formerly enslaved persons and their families. After burials ceased in the mid-20th century, the land was sold and eventually developed into an apartment complex and parking lot in the late 1960s. The record suggests that, rather than respectfully disinterring and moving the remains of the deceased, the developers disturbed the ground, removed human remains haphazardly and inconsistently, destroyed grave markers, and ultimately paved a portion of the land into a parking lot. It appears likely that human remains are still interred in the land today, which is currently part of a property known as the Westwood Tower Apartments (“Westwood”).

Since the land was developed, it has changed hands multiple times. Today, it is owned by the Respondent, the Housing Opportunities Commission of Montgomery County (“HOC”). The Petitioners are three descendants of individuals who were buried in Mose  Cemetery; Reverend Olusegun Adebayo, the pastor of Macedonia Baptist Church, which is located near the burial ground; and the Bethesda African Cemetery Coalition (“BACC”), a nonprofit entity that seeks to preserve the history of Black people in the area (together, the “Coalition”).

When HOC sought to sell the land to a property developer, the Coalition filed suit in the Circuit Court for Montgomery County, seeking relief to protect the remains of the deceased and ensure that their memory was respected.

Plaintiff's contention

According to the Coalition, a judgment issued by a court under [Maryland Code Business Regulation] § 5-505 is required whenever a burial ground is sold to be used for a purpose other than burial. Thus, the Coalition asserts that HOC must file an action under BR § 5-505 and obtain a judgment before it can sell the property containing Moses Cemetery.

Majority holding

The Coalition is not entitled to extraordinary relief in the form of mandamus to compel HOC to file a BR § 5-505 action. Courts in Maryland and in other states have developed a common law of burial places that provides the appropriate framework for resolving disputes concerning burial grounds, and so extraordinary relief is not available. Indeed, in comparison to this body of common law, BR § 5-505 is a relatively narrow statute, designed to provide an optional mechanism to make it easier to sell and repurpose certain burial grounds. HOC has no duty to file a BR § 5-505 action, and so extraordinary relief is inappropriate on that basis as well.

This case shall be remanded to the circuit court, at which time the Coalition shall be permitted to seek leave to amend its complaint.

Justice Booth (who I must has deeply impressed me with her thoughtful and well-reasoned opinions here and in the Adnan Syed case also decided today) concurred and dissented

Additionally, I agree with both the Majority and the Appellate Court that the Coalition may have remedies available under other recognized causes of action or claims. Respectfully, given that this case is moot, I am uncomfortable discussing remedies that may or may not be available in the absence of an actual case or controversy that has been decided by the circuit court and briefed on appeal. Remedies are a means of carrying out a substantive right, and they arise pursuant to a particular cause of action or claim. See Dan B. Dobbs & Caprice L. Roberts, Law of Remedies: Damages, Equity, Restitution § 1.1 (3d. ed. 2018) (“The law of judicial remedies determines the nature and scope of relief to be given to a plaintiff who has established a substantive right in court.”)

Accordingly, to the extent that the Majority opinion ventures farther than I am comfortable, I respectfully dissent. As the Majority correctly observes, the General Assembly has enacted a host of Maryland statutes that apply to ensure that human remains are undisturbed and to permit their disturbance where authorized by those statutes. Where the remains are interred in a cemetery, the General Assembly has enacted detailed regulations and protections that apply to the right of interment. See Title 5 of the Business Regulation Article of the Maryland Code. Criminal laws prevent the disinterment of human remains and the desecration of funerary objects, see Md. Code Ann. Criminal Law Article (“CR”) §§ 10-402, 10-403, 10-404. Where disinterment and reinterment are authorized, other statutes describe in detail the manner in which these acts must occur. See, e.g., CR §§ 10-402; Md. Code Ann. Real Property Article (“RP”) § 12-112.

And where human remains have been interred in a burial site on private property, in the absence of an easement or restrictive covenant, the General Assembly has codified processes for the property owner to grant access to the burial site, as well as provisions for maintenance and upkeep. See RP §§ 14-121, 14-121.1, and 14-122. Given that these provisions all require the property owner’s agreement, they do not implicate the Fifth Amendment of the United States Constitution.

I agree with the Majority that there may be equitable remedies available to an individual with standing who seeks to disinter remains that are located in a burial site on private property in order to reinter them elsewhere where the statutory provisions do not provide complete relief. I look forward to considering these and other important legal issues when they are briefed and presented to us in another case.

Justice Hotten, joined by Justice Watts, dissented

Respectfully, I dissent. I would reverse the judgment of the Appellate Court of Maryland and remand the case to that Court with instruction to affirm the judgment of the Circuit Court for Montgomery County, which concluded that the provisions of Md. Code Ann., Bus. Reg. (1992, 2015 Repl. Vol.) (“BR”) § 5-505 are mandatory and that the Housing Opportunities Commission of Montgomery County (“the Commission”), Respondent, must comply with the statute for Moses Cemetery to be sold for a purpose other than use as a burial ground. I disagree with the Majority’s conclusion that a writ of mandamus is unavailable because of the possibility of relief under the “common law of burial places” and because the provisions of BR § 5-505 are optional. Maj. Slip Op. at 39-40, 57.

The majority opinion is like a Trojan horse; it seems more benign than it actually is. The majority opinion creates an appearance of reasonableness but reaches a harsh result. The Majority starts creating the appearance of reasonableness by discussing “the common law of burial places” and stating that it disagrees with the Appellate Court that BR § 5-505 is simply a quiet title statute. See Maj. Slip Op. at 3, 4, 37-38. The Majority indicates that, unlike the Appellate Court and the Commission, it determines that BR § 5-505 is not just a quiet title statute, but that it is also a statute that facilitates sales of burial grounds by removing certain restrictions in the chain of title. See Maj. Slip Op. at 38. In reality, these are just two ways of saying the same thing, as the whole point of a quiet title action is to perfect title, eliminate adverse claims, and thus make property easier to sell.

Lack of clarity

One of the few things that the Majority makes clear is that the common law of burial places cannot prevent the sale of a burial ground. See Maj. Slip Op. at 43-44. Stopping the Commission from selling Moses Cemetery without court approval was the whole point of Petitioners’ filing this action in the first place. The Majority’s foreclosure of Petitioners’ ability to stop the sale of Moses Cemetery begs the questions of what kind of relief the Majority expects Petitioners to seek on remand based on the common law of burial places in the United States. Although the Majority advises that “[c]ourts have enjoined desecration of burial grounds” and that “interested parties need not wait for a burial ground to be the subject of a contract for sale to seek equitable relief in connection with an alleged desecration of the burial ground[,]” the Majority leaves unclear what relief would consist of on remand.

(Mike Frisch)

Vacatur Vacated In Syed Case

The Maryland Supreme Court has found that the rights of the Hae Min Lee's family were violated and remanded the vacatur of Adnan Syed's conviction

The Maryland Constitution requires that crime victims and their representatives be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. It also grants victims and their representatives specific rights, including in some instances the rights to be notified of, to attend, and to be heard at criminal justice proceedings. The General Assembly has enacted a number of statutes that implement these constitutional requirements. In this case, we consider the scope of a crime victim’s rights at a hearing on a motion to vacate a conviction.

In September 2022, the State’s Attorney for Baltimore City moved to vacate Adnan Syed’s 2000 conviction for the murder of Hae Min Lee under a recently enacted statute that allows a court to vacate a conviction if certain conditions are met. See Md. Code, Crim. Proc. (“CP”) § 8-301.1 (2018 Repl. Vol., 2023 Supp.). The prosecutor gave the crime victim’s representative, Young Lee (Ms. Lee’s brother), less than one business day’s notice of an in-person hearing on the motion to vacate. As the prosecutor and the presiding judge were aware, Mr. Lee lives in California. The court denied Mr. Lee’s request for a one-week postponement of the hearing, which would have allowed Mr. Lee to attend the hearing in person in Baltimore.

The requested postponement having been denied, Mr. Lee observed the hearing remotely. Mr. Syed appeared in person. The court allowed Mr. Lee to make a statement at the beginning of the hearing, prior to the presentations by the prosecutor and defense counsel. After Mr. Lee completed his remarks, the court denied Mr. Lee’s attorney’s request to be heard briefly.

At the conclusion of the hearing, the court granted the motion to vacate and ordered the State’s Attorney within 30 days either to schedule a new trial for Mr. Syed or to enter a nolle prosequi (“nol pros”) of the charges. Mr. Lee subsequently noted an appeal of the order vacating Mr. Syed’s convictions and moved for a stay of the circuit court proceedings.  Shortly before Mr. Syed’s response to Mr. Lee’s motion to stay was due to be filed, the State’s Attorney entered a nol pros of the charges against Mr. Syed.

A divided panel of the Appellate Court of Maryland vacated the circuit court’s order and remanded for a new hearing. The Majority first held that the entry of the nol pros did not moot Mr. Lee’s appeal. On the merits, the Majority concluded that Mr. Lee had a right to reasonable notice of the vacatur hearing as well as a right to attend the hearing in person, and that Mr. Lee had been denied both of these rights. However, the Appellate Court held that crime victims and their representatives do not have a right to be heard at a hearing on a motion to vacate a conviction. We subsequently granted Mr. Syed’s petition for writ of certiorari and Mr. Lee’s cross-petition.

As discussed below, we agree with the Appellate Court that the entry of the nol pros did not moot Mr. Lee’s appeal. We also agree that Mr. Lee had the right to attend the hearing on the motion to vacate in person, and that he did not receive sufficient notice of the hearing to reasonably permit him to do so. We further conclude that a crime victim (or victim’s representative) has the right to be heard at a hearing on a motion to vacate, including on the merits of the motion, through counsel (if counsel has been retained). Because Mr. Lee’s rights as the crime victim’s representative were violated and Mr. Lee has made a sufficient showing of prejudice, this case will be remanded to the Circuit Court for Baltimore City for further proceedings. On remand, the parties and Mr. Lee will begin where they were immediately after the State’s Attorney filed the motion to vacate.

The opinion is authored by Biran, J. Hotten, Booth, and Battaglia, JJ., dissent.

Justice Booth

Respectfully, I dissent. In my view, this appeal was rendered moot by the State’s entry of a nol pros following the grant of the State’s vacatur motion. I disagree with the Majority that the nol pros was a legal nullity. That said, because this case presents issues that are likely to recur and evade review, as well as matters of important concern, I would exercise discretion to consider the merits.

With respect to the merits, as I discuss more fully below, in my view, the Majority’s opinion in this case implicates separation of powers concerns. The Majority creates a victim’s constitutional “right to be heard” that was not argued or briefed by the parties and is inconsistent with the plain language of Article 47 of the Maryland Declaration of Rights. The Majority also re-writes the victims’ rights statutes to provide a right where the Legislature has declined to provide one. Respectfully, it is not our role to act as a superlegislature when we think our policies are better.

The dissent would find the right to attend and be heard were satisfied here.

Her concluding observations

I conclude with some general concerns about the Majority’s opinion in this case that are too important to leave unaddressed. In my view, the Majority’s analysis implicates serious separation of powers and fairness concerns that will have a ripple effect beyond this case.

This is the second case over the course of the last twelve months in which the Majority has decided to reach constitutional issues that were not argued or briefed before this Court. Respectfully, I do not agree with this approach. See Clark v. State, 485 Md. 674, 765 (2023) (Gould, J., dissenting, joined by Fader, C.J., and Booth, J.) (disagreeing with the Majority’s decision to “mak[e] new constitutional law without the input of the parties”). In this case, the parties’ arguments all focused upon whether Mr. Lee had a right to be heard pursuant to a statute or a rule. The only briefing presented by any party on a “constitutional right” was contained in a single paragraph in Mr. Lee’s reply brief,  asserting such a right with no discussion or analysis. Of course, given that it was summarily raised in a reply brief and with no actual analysis, neither Mr. Syed nor the State was “given an opportunity to address these important issues.” Clark, 485 Md. at 764 (Gould, J., dissenting). “[T]he Majority is making new constitutional law without the input of the parties.” Id.

To refute this point, the Majority points out that Article 47 is “central[] to questions concerning victims’ rights” and proceeds to cite to generalized references in the briefs to Article 47 as well as arguments in the amicus briefs asserting a general constitutional right. Maj. Slip Op. at 68. The Majority also points to questions raised by one member of the Court during oral arguments concerning Article 47. I will not attempt to engage in a “who said what” in the briefs. They speak for themselves.

The Majority also violates “the Court’s strong and established policy . . . to decide constitutional issues only when necessary.” VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene, 406 Md. 584, 604 (2008) (cleaned up); see also Christopher v. Montgomery County Dept. of Health & Hum. Servs., 381 Md. 188, 217 (2004) (“[W]e adhere to the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground.” (cleaned up)). “This Court has emphasized[]” this policy “time after time[.]” VNA Hospice of Md., 406 Md. at 604; see also State v. Raithel, 285 Md. 478, 484 (1979) (“[N]othing is better settled than the principle that courts should not decide constitutional issues unnecessarily.” (emphasis added)).

Because the Majority concludes that Mr. Lee had a right to be heard at the vacatur hearing pursuant to CP § 11-403(b), there is absolutely no reason to address the constitutional right at all. Dorsey v. State, 356 Md. 324, 342 (1999) (“Since we shall hold that the petitioners had a statutory right to jury trials in the instant cases, we need not and shall not reach the issue of whether they were entitled to jury trials under Articles 5 and 21 of the Maryland Declaration of Rights.”).

The Majority’s decision to establish new constitutional rights is particularly troubling here because in doing so, the Majority is calling into question the constitutionality of several statutes enacted by the General Assembly that, by their express terms, do not include a victim’s right to speak. See CP § 8-301 (petitions for writ of actual innocence); CP § 8-110 (JUVRA); CP § 8-301.1 (vacatur). I would think that prior to embarking on such an undertaking that will invariably cause a sea-change in the manner in which post-sentencing hearings must now occur involving incarcerated individuals’ liberty interests, it would be prudent to hear the Attorney General’s position.

Putting aside the fairness implications, the Majority’s constitutional underpinning—that the plain language of Article 47 creates a broad substantive victim’s right to be heard and interprets Article 47(b) as placing conditions or limitations on the General Assembly’s authority to implement this right—is in direct contravention of the express language of Article 47, in which the voters conferred upon the General Assembly the authority to determine the circumstances in which a victim’s right to be heard would be established. These are policy decisions that are within the discretion of the General Assembly, not this Court.

What is more, in undertaking the constitutionally delegated functions of the Legislative Branch, the Majority is attempting to tie the General Assembly’s hands when it enacts future legislation. The Majority instructs the Legislature that it may not enact future legislation that does not comport with how the Majority believes a victim’s right to be heard should be implemented. See Maj. Slip Op. at 65 (“We conclude that the General Assembly may not create a new criminal justice proceeding without affording victims the rights to notice, attendance and to be heard at such new proceeding unless the General Assembly makes clear on the face of the legislation or in unambiguous legislative history that it finds it would not be practicable to provide one or more of those rights to victims with respect to the new criminal justice proceeding.”). The Majority’s veering into the legislative lane is significant and profound.

Finally, in crafting how it believes the victim’s right to be heard should be implemented, without any authority, the Majority creates a new victim’s right to be heard that transcends anything that the General Assembly has enacted to date. As discussed above, where the General Assembly has created such a right, it is a right to address the court. See CP § 11-403. It is not a right to participate in the process. The Majority describes in some length and detail how it envisions a victim should be permitted to address the court at a vacatur hearing, expounding (again, based upon policy and without any authority) that a victim’s right “includes the right to address the merits of the vacatur motion after the prosecutor and the defense have made their presentations in support of the motion.” Maj. Slip Op. at 71. The Majority instructs—again without any authority— that “if the victim believes the State has not met its burden of proof” under the vacatur statute, “the victim must have the right to explain why the victim believes that to be the case and to ask the court to deny the motion.” Id. The Majority adds that “in a case like this one where the prosecutor and defendant both seek a vacatur, the victim’s attorney can help the court.” Maj. Slip Op. at 72. The Majority’s new hearing requirements harken back to the days of yore before victim-initiated prosecutions were constitutionally abolished. See supra note 2. Respectfully, if the General Assembly wishes to confer that authority upon victims or their counsel, it may do so.

For the above reasons, I respectfully dissent.

The oral argument is linked here. (Mike Frisch)

Not Going Better

The dismissal of misleading advertising claims brought against Coca-Cola has been reversed by the District of Columbia Court of Appeals

Earth Island Institute appeals the dismissal of its suit against the Coca-Cola Company, brought under the D.C. Consumer ProtectionProcedures Act, D.C. Code §§ 28-3901 to 28-3913 (“CPPA”). Earth Island alleges that Coca-Cola engages in deceptive marketing that misleads consumers into thinking that its business is environmentally sustainable, or at least that it is currently making serious strides toward environmental sustainability. In fact, in Earth Island’s telling, the sheer scale on which Coca-Cola relies on single-use plastics in its packaging—and the scale on which it intends to continue using them—renders it an environmental blight and a fundamentally unsustainable business. At a more granular level, Coca-Cola touts its efforts to increase the recyclability of its products and to use more already-recycled material when making those products. Those statements, Earth Island argues, mask the reality that recycling is not a viable means of mitigating the environmental harm that Coca-Cola inflicts via its mass production of single-use plastics—less than ten percent of recyclable plastics are in fact recycled in the United States. Earth Island’s claims amount to what is sometimes called greenwashing: companies deceptively billing themselves as environmentally friendly, in an effort to generate profits, when they are in fact far from it.

Survives a motion to dismiss

We reverse. Earth Island has stated a facially plausible misrepresentation claim, and none of the trial court’s three bases for dismissal fatally undermines it. On the first point, even aspirational statements can be actionable under the CPPA because they can convey to reasonable consumers that a speaker is taking (or intends to take) steps that at least have the potential of fulfilling those aspirations. Earth Island alleges that Coca-Cola neither takes nor intends to take any such steps, and if that is correct, then its representations could mislead reasonable consumers. On the second point, Coca-Cola’s various claims about its plastic packaging are very much statements about its “goods and services,” a term that the CPPA defines broadly to include “any and all parts of the economic output of society, at any stage or related . . . in the economic process.” D.C. Code § 28-3901(7). And on the third  point, the CPPA does not require that misleading representations be contained in a single statement in order to be actionable; a series of statements can in combination be misleading even when, taken individually, they fall short of that. While we caution that a litigant cannot unfairly strip isolated statements out of their context and then cobble them together to form an unrepresentative tapestry of what has been conveyed, that caveat does not rescue the trial court’s dismissal here.

Earth Island has plausibly alleged that Coca-Cola’s statements, when viewed in their surrounding context, mislead consumers into believing that it is an environmental steward, when it is in fact an environmental scourge. Whether Earth Island can ultimately substantiate those claims is a different question for another day. For pleading purposes, Earth Island’s complaint survives a motion to dismiss.

Associate Judge Deahl authored the opinion. (Mike Frisch)

Cockfighting Ban Upheld

The United States Court of Appeals for the Ninth Circuit upheld a federal prohibition on cockfighting in the Northern Marianas

Evidence that Congress may have also sought to prevent the spread of avian flu by restricting, and ultimately prohibiting, cockfighting reinforces the conclusion that the prohibition serves significant federal interests.

Thus, Congress’s interests in regulating animal fighting to relieve its burden on interstate commerce, ensure the humane treatment of animals, and prevent the spread of avian flu are significant, not illusory, as Salas suggests. Because these federal interests outweigh any intrusion into the CNMI’s internal affairs, neither § 103 nor § 105 preclude § 2156 and its 2018 Amendment’s application to the CNMI.

The challenge to the regulation

In his complaint, Salas advanced three legal theories as to why the Covenant precluded the application of the [Animal Welfare Act]’s federal prohibition on cockfighting to the [Commonwealth of the Northern Marianas Island]. First, Salas argued that because § 2156 was not a law of general application in 1978, it did not apply to the CNMI under Covenant § 502. Second, Salas asserted that § 2156 did not apply to the CNMI under § 105 because it could not be made applicable to the several states. Finally, Salas contended that the 2018 Amendment intrudes into the internal affairs of the CNMI in violation of Covenant § 103, which preserves the CNMI’s right of local self-government.

Wonder what the Supremes might do with this one. (Mike Frisch)

The Right To Bear Switchblades

The Massachusetts Supreme Judicia Court has this bon mot today

Since 1957, G. L. c. 269, § 10 (b) (§ 10 [b]), has prohibited people from possessing certain spring-release pocketknives, commonly known as "switchblades." In this case, we are asked to decide whether § 10 (b)'s prohibition against carrying a switchblade knife violates the Second Amendment to the United States Constitution, considering the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen).1 We conclude it does. Accordingly, we reverse the denial of the defendant's motion to dismiss.

Reasoning

While both Heller and Bruen involved handguns, Second Amendment protections subsume more than just firearms. See Caetano v. Massachusetts, 577 U.S. 411, 411-412 (2016) (per curiam) (stun guns constitute arms under Second Amendment). Indeed, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Heller, 554 U.S. at 582...

In short, folding pocketknives not only fit within contemporaneous dictionary definitions of arms -- which would encompass a broader category of knives that today includes switchblades --- but they also were commonly possessed by lawabiding citizens for lawful purposes around the time of the founding. Setting aside any question whether switchblades are in common use today for lawful purposes, we conclude switchblades are "arms" for Second Amendment purposes. Therefore, the carrying of switchblades is presumptively protected by the plain text of the Second Amendment.

History

the Commonwealth has not met its burden of demonstrating a historical tradition justifying the regulation of switchblade knives under § 10 (b).

(Mike Frisch)

You Do Know How to Whistle, Don't You Steve?

The United States Court of Appeals for the District of Columbia Circuit denied whistleblower compensation to an attorney who blew the whistle that led to substantial sanctions imposed on his client

Suspecting his client of committing a crime, an attorney blows the whistle, intending to subject his client to a possible investigation and enforcement action by the Securities and Exchange Commission (the “Commission”). Can such an attorney then collect a whistleblower award from the Commission on the grounds that the disclosure of his client’s information was reasonably necessary to serve his client’s interests? We agree with the Commission that the answer to that question is no.

Doe's role

The Commission’s preceding investigation was prompted, in part, by a whistleblower tip filed by Petitioner John Doe. As the Defendants’ securities fraud scheme was unfolding, Doe was employed as in-house counsel at a company (the “Company”). The Company was owned and controlled by Individual 1 and provided assistance in connection with the Defendants’ securities offering. Doe worked on legal and administrative matters that were necessitated by the securities offering.

During the course of his employment at the Company, Doe came across information that indicated that Individual 2 was misappropriating money invested in the securities offering. Individual 2 did not own, control, or play any formal role at the Company.

After Doe's blow

Although Doe’s whistleblower tip did not mention the Company or Individual 1, both were investigated by the Commission as a result of Doe’s tip and ultimately subject to enforcement actions. The Commission’s investigation and  enforcement actions resulted in judgments against Individual 1, Individual 2, the Company, and other corporate entities, along with sanctions collectively totaling tens of millions of dollars.

Compensation is authorized when the disclosure is permitted by state bar ethics rules

The Commission denied Doe’s application, reasoning that Doe’s disclosure of his client’s information was not permitted by any applicable state bar rule. We affirm the Commission’s sound determination that Doe’s disclosure of his client’s information was not reasonably necessary to serve his client’s interest because the record shows that, when he filed his tip, Doe suspected his client of wrongdoing and intended to subject his own client to an investigation by the Commission.

Doe asserted reliance on Florida bar rules

We hold that substantial evidence supports the Commission’s finding that Doe did not reasonably believe that disclosing the Company’s information to the Commission was “necessary” to “serve [his] client’s interest.” Id. The record demonstrates that at the time he filed the tip, Doe believed that the Company was implicated in the securities fraud scheme. In reporting on the suspected wrongdoing, then, Doe was reporting on his own client. Common sense therefore dictates that Doe could not have reasonably believed that he was acting in his client’s best interest. Indeed, Doe’s own statements illustrate as much. Doe noted in his application for reconsideration, for example, that while he did not yet have “smoking gun” proof of misconduct by his client at the time that he filed his whistleblower tip, he had “suspicions” that his client was implicated in the securities fraud scheme.

Conclusion

At bottom, having repeatedly stated to the Commission that he believed at the time he submitted his tip that his client was implicated in wrongdoing, Doe cannot now unring the bell. We hold that the Commission’s determination—based on Doe’s own statements—that Doe could not reasonably have believed that his disclosure was necessary to serve his client’s interests was supported by substantial evidence and was not arbitrary or capricious.

For these reasons, Doe’s petition for review is denied.

Circuit Judge Wilkens authored the opinion. (Mike Frisch)

Counsel Disqualified In Dominion Defamation Suit

The United States District Court for the District of Columbia (Magistrate Judge Moxila Upadhyaya) has disqualified defendant's counsel in a defamation action brought by Dominion  for alleged false statements concerning the 2020 election based on her violation of court orders

From June 2023 until March 2024, all counsel and Parties in the case (including Byrne) seemingly abided by the Amended Protective Order (“Protective Order”) governing discovery. ECF No. 46. Before even her first appearance in this case on March 12, 2024, however, Byrne’s new counsel, Stefanie Junttila [Lambert] (“Lambert”), began openly violating orders, including by disseminating protected discovery material. ECF Nos. 71; 75; 82; 102; 108; 113. Due to Lambert’s actions, thousands of documents (“Dominion’s Litigation Documents”) which all Parties, including Byrne himself, had agreed to keep confidential, have now been shared widely in the public domain. Lambert and Byrne continue to evade the Protective Order and this Court’s March 19, 2024 Order (“Status Quo Order”) that prohibits further dissemination until resolution of this Motion.

Remedy

The remedy Dominion seeks, Lambert’s disqualification from serving as Byrne’s counsel in this case, is extraordinary and rarely granted outside of cases involving conflicts of interest. Nevertheless, the record clearly shows that Lambert deliberately violated multiple court rules and orders and continues to do so despite having had ample warning of the consequences and assuring the Court she would comply. Lambert’s repeated misconduct raises the serious concern that she became involved in this litigation for the sheer purpose of gaining access to and publicly sharing Dominion’s protected discovery. Because Lambert’s “truly egregious misconduct” has already and will undoubtedly continue to “infect future proceedings,” this is the rare case in which disqualification is warranted.

Specifics

At the March Hearing, Lambert did not dispute that she: 1) signed an Undertaking verifying that she would comply with the Protective Order; 2) gained access to Dominion’s Litigation Documents; and 3) disseminated those documents in the manner Dominion alleged. ECF No. 78 at 18:1–15, 19:8–25:18. She also disclosed details about the scope of her alleged breach for the first time. Id. at 31:19–32:4. She reported that she not only gave Leaf documents, but that she also gave him a username and password to the entire repository of Dominion’s Litigation Documents. Id. Lambert did not represent that she asked Leaf to sign an Undertaking pursuant to the Protective Order.

After Leaf gained access to Dominion’s Litigation Documents, Leaf created an X (formerly Twitter) account and shared links so that the public could download the documents. ECF No. 82 at 6–7. Leaf’s posts sharing the documents remain publicly available.

A second hearing in May

On May 16, 2024, the Court held a hearing to entertain more fulsome argument on Dominion’s Motion, which had not been fully briefed at the time of the March Hearing. At the May Hearing, Dominion chronicled Lambert and Byrne’s actions and argued that Lambert’s actions violated the Protective and Status Quo Orders and her ethical obligations as Byrne’s counsel. ECF No. 102. This included a detailed presentation in which Dominion offered a timeline of Lambert and Byrne’s misconduct using social media posts, interviews and other statements. Id.10

Although Lambert disagreed about Dominion’s characterizations of these actions, she did not dispute either the underlying conduct or the authenticity of any of the documents Dominion cited in its presentation. ECF No. 103 at 33:10–35:24.

After that hearing

Despite assuring the Court that they understood and would comply with all of its orders, Lambert and Byrne continued to disregard them.

Impact

Because of Lambert and Byrne’s actions, Dominion’s Litigation Documents are now widely available to the public. As Dominion points out, the documents and related commentary have been viewed hundreds of thousands of times...

Lambert and Byrne’s actions have led to serious threats to Dominion and its employees. For example, a Dominion employee in Belgrade was “doxed” in a video posted to X which Byrne retweeted. ECF No. 82 at 16–17 (citing ECF No. 82-10). Another Dominion employee’s work address in Denver was posted online after being pulled from the leaked documents. Id. at 17.

The court found multiple violations of governing ethics rules and rejected counsel's justifications

Dominion has raised a plausible narrative that Lambert became involved in this litigation so that she could gain access to Dominion’s documents and use them for improper purposes. ECF No. 75 at 3, 21–22. After thoroughly reviewing Lambert’s conduct, responses, and representations to this Court, the Court does not disagree. It is undisputed that Lambert entered the case without giving notice for months, gained access to Dominion’s documents, shared the documents with Leaf and used them in her own criminal case while hiding these actions from even McGlinchey, all before she entered her formal appearance. Lambert has failed at every opportunity to show the Court that she will act in accordance with its rules and requirements.

Lambert’s conduct in the past few weeks continues to exacerbate this concern. At best, Lambert failed to inform the Court and Dominion that Case, another attorney, had access to Dominion’s Litigation Documents and, at some point, became involved in this litigation. ECF No. 113. This failure is severe, as the Court clearly and repeatedly prohibited Lambert from sharing Dominion’s Litigation Documents with anyone else, and at the very least required her to inform the Court if anyone else gained access to the documents. But even more troubling, Dominion has put forth another plausible narrative that Lambert and Case have orchestrated a series of new moves to disseminate Dominion’s Litigation Documents and other discovery publicly in contravention of this Court’s orders. ECF Nos. 108; 113. According to Dominion, Lambert has clearly enabled Case to access Dominion’s Litigation Documents and Case seeks to use the documents outside this litigation. ECF Nos. 113 at 3–7; 113-4 at 3. But even more concerningly, Lambert and Case now seek to publicly release Poulos’ deposition—which is not yet, as far as the Court is aware, publicly available. ECF Nos. 108 at 2–10; 113 at 3–7; 116 at 25. Dominion’s well-founded concern about Lambert’s continued involvement in this litigation was that she would find other ways to circumvent Court orders. It now appears that is exactly what she has done. Lambert has no response to this theory. ECF Nos. 111, 117.

Also

Lambert currently faces two sets of felony criminal charges in Michigan for allegedly attempting to interfere with voting equipment. On August 3, 2023, Lambert was indicted in Muskegon County, Michigan on four felony charges related to alleged tampering with voting systems following the 2020 U.S. election. ECF Nos. 75 at 14, 75-17, 75-18. Then, on May 8, 2024, Lambert and her client, Stephanie Scott, a clerk in Adams Township, Michigan, were indicted on felony charges related to allegedly “mishandling voter data without authorization in search of fraud.”

Mueller He Sued

The United States Court of Appeals for the District of Columbia Circuit held that a person discussed in the Mueller report has standing to bring an equitable claim for alleged errors

In 2017, Special Counsel Robert S. Mueller III began investigating allegations of Russian government interference in the previous year’s presidential election. To that end he empaneled a grand jury. One of the witnesses who testified before it was Giorgi Rtskhiladze.

When the Department of Justice released a redacted version of Mueller’s final report, it included information that allegedly injured Rtskhiladze. So he sued, seeking both equitable and monetary relief. He also filed a separate application to obtain a copy of the transcript of his grand jury testimony.

The district court decided that Rtskhiladze lacked standing to bring his equitable claims; that he failed to state a claim for damages; and that he was not entitled to obtain a copy of the transcript.

We hold that Rtskhiladze has standing to bring all his claims. So we remand for the district court to consider the merits of the equitable claims that it dismissed for lack of standing. However, we agree with the district court that Rtskhiladze has failed to state a claim for damages. We also agree with the decision to deny Rtskhiladze’s request to obtain a copy of the transcript of his grand jury testimony.

Errors alleged

First, it falsely called Rtskhiladze “Russian” when he is a Georgian-American. Id. Second, it inaccurately quoted the text that Rtskhiladze sent to Michael Cohen. Third, Rtskhiladze says the footnote was vaguely drafted and created false insinuations about his conduct.

Harm

DOJ does little to dispute that Rtskhiladze has alleged an injury caused by the Mueller Report. More saliently, DOJ says that the court cannot equitably redress any such injury. According to DOJ, the (accurate) Senate Report eliminated the ongoing effects of the (inaccurate) Mueller Report.

We disagree. A government report (like the Senate Report) does not extinguish the harm from an earlier government report (like the Mueller Report) “where reputational injury derives directly from an unexpired and unretracted government action.”

Damages

On appeal, Rtskhiladze has forfeited any argument that he plausibly alleged “intentional or willful” conduct by DOJ. Instead, he cites common-law defamation precedents. But this is not a defamation suit, and the Privacy Act’s explicit text requires Rtskhiladze to allege “intentional or willful” conduct. 5 U.S.C. § 552a(g)(4). So here, common law cases are not on point.

Because Rtskhiladze has not even attempted to meet the Privacy Act’s requirements, we affirm the district court’s dismissal of his damages claim.

Panel

SRINIVASAN, Chief Judge, WALKER and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER

(Mike Frisch)

Sex Assaults Not Medical Care

Alleged sexual assaults by a doctor are not medical care and are not properly brought as medical malpractice cases, according to a Utah Supreme Court decision reversing dismissal of claims by multiple plaintiffs

Ninety-four former patients of David Broadbent, an obstetrician and gynecologist (OB-GYN), have sued him, alleging that Broadbent sexually assaulted them under the guise of providing medical treatment. Their claims against Broadbent include sexual battery, sexual assault, and intentional infliction of emotional distress.

Broadbent and the other Defendants in this case moved to dismiss the Plaintiffs’ claims in the district court. They argued that the Plaintiffs had essentially alleged a medical malpractice action but had failed to comply with the prelitigation requirements of the Utah Health Care Malpractice Act (the Malpractice Act or Act). The district court agreed and dismissed the case...

The district court granted the motion to dismiss, concluding that the Plaintiffs had alleged injuries that arose from health care rendered by Broadbent—thus implicating the Malpractice Act—and that they had failed to comply with the Act’s prelitigation requirements.

Not health care

We hold that the Plaintiffs have not asserted claims within the bounds of the Malpractice Act because they do not allege injuries arising out of or related to health care provided by Broadbent. Indeed, the crux of the Complaint is that their injuries were caused by actions that were not medical treatment and had no medical purpose.

The Salt Lake Tribune reported on related criminal charges.

The same source noted that the allegations led to his removal from a "Best Of" list of doctors

Seeing her former gynecologist listed as one of the area’s top fertility doctors in Utah Valley Magazine has reopened old wounds for Stephanie Mateer.

In 2021, she spoke out in a podcast and accused OB-GYN David Broadbent of sexually abusing her during an exam more than a decade earlier. Since her public disclosure, more than 120 women have alleged similar misconduct in lawsuits and in reports to the Provo Police Department. They allege that Broadbent inappropriately touched their breasts, vaginas and rectums during exams — often without warning or explanation, and in ways that hurt them and made them feel violated.

So Utah Valley Magazine’s decision to include Broadbent in its “Best Of” issue was confusing and painful, Mateer said. The magazine had invited readers to vote for their favorites across a number of categories — from medical care to shopping spots — and published the selection of Broadbent as the third top provider in its “fertility” category.

Utah Valley Magazine’s social media pages have been flooded with comments in the last three days from Utahns who have questioned why the publication recognized someone who has been accused of sexual assault by so many women.

“Shame on you for allowing David Broadbent to be one of the winners,” one woman wrote. “This list has no merit as long as he is included,” another wrote. “Shows where your morals align.”

Further

In response, the magazine on Tuesday removed Broadbent’s name from the online list and apologized. It plans to issue an apology in its next print issue. Founding Editor Jeanette Bennett said in a statement to The Salt Lake Tribune that the magazine’s decision has led to a “difficult learning lesson.”

(Mike Frisch)

The Return Of The Spear

The United States District Court for the District of Columbia (Senior Judge Lamberth) has ordered that Jacob Chansley's spear and helmet be returned

Defendant Jacob Anthony Chansley stormed the Capitol on January 6, 2021. In that respect, he was like thousands of others that day. But he stood out to the entire world because of his “unmistakable outfit” of “a horned coyote-tail headdress; red, white, and blue face paint; gloves; and no shirt.” United States v. Chansley, 525 F. Supp. 3d 151, 155 (D.D.C. 2021). In addition, he had armed himself with a serious weapon: “a six-foot pole with an American flag ziptied to the shaft and a metal spearhead fixed to the top.” Id.

Mr. Chansley has completed his prison sentence and much of his term of supervised release. Now, he has moved for the return of his property seized and still held by the government, including his spear and helmet. Since the government has not established that it still needs these items as evidence and has not sought their forfeiture, the Court will GRANT Mr. Chansley’s motion.

Key

According to the government, the property includes a spear and a helmet sported by Mr. Chansley on January 6th. Opp’n ¶ 15. The government has not sought forfeiture of any of these items. Id. ¶ 14. It argues that it would like to retain the evidence until it is assured of the finality of this case. Id. ¶ 15.

The court notes that tthere may have been a different result if the government had sought civil forfeiture.

Look for the Ebay sale that is doubtless in our future. (Mike Frisch)

"A Significant And Imminent Threat"

The New York Appellate Division for the First Judicial Department rejected efforts to set aside gag orders in the fraud case against Donald Trump. 

Petitioner’s contention that the conclusion of trial constitutes a change in circumstances warranting termination of the remaining Restraining Order provision is unavailing. Courts are empowered to protect against the “‘unfair administration of justice’” (United States v Trump, 88 F4th 990, 1008 [DC Cir 2023], quoting Landmark Communications, Inc. v Virginia, 435 US 829, 844 [1978]). The fair administration of justice necessarily includes sentencing, which is “a critical stage of the criminal proceeding” (People v Outley, 80 NY2d 702, 712 [1993]). Indeed, under the CPL, a “criminal action . . . terminates with the imposition of sentence or some other final disposition in a criminal court” (CPL 1.20[16][c]), neither of which has occurred here. Accordingly, since the underlying criminal action remains pending, Justice Merchan did not act in excess of jurisdiction by maintaining the narrowly tailored protections in paragraph (b) of the Restraining order. Contrary to petitioner’s contentions, the People’s evidentiary submissions in opposition to his motion in Supreme Court demonstrate that threats received by District Attorney staff after the jury verdict continued to pose a significant and imminent threat.

(Mike Frisch)

Unfiltered: Four Emojis And An Expletive

The United States Court of Appeals for the District of Columbia Circuit has held that the "off topic" restriction by use of a "keyword" filter of the National Institute of Health violates the First Amendment

Appellants are the nonprofit People for the Ethical Treatment of Animals (“PETA”) and two animal rights advocates, Madeline Krasno and Ryan Hartkopf, who use social media to advocate against animal testing. They frequently commented on the official Facebook and Instagram pages of appellee National Institutes of Health (“NIH”), criticizing NIH’s funding of research conducted on animals. Those efforts ran headfirst into NIH’s social media moderation policy, which prohibits, as relevant here, “off-topic posts.” To enforce this policy, NIH deployed keyword filters—which automatically hide all comments with the chosen keywords— to filter out comments containing words that frequently appeared in posts that it considered “off-topic,” such as the terms “animal,” “testing,” and “cruel.” Appellants’ and all other users’ comments containing those words were thus filtered out and not viewable to the public. Appellants argue that NIH’s policy violates the First Amendment.

We must decide what type of forum NIH’s comment threads are and whether NIH’s social media moderation policy, as implemented through its keyword filters, is constitutional. The district court held that the comment threads were limited public forums and upheld NIH’s speech restrictions as reasonable.

We agree that NIH’s comment threads are limited public forums because the government has signaled its intent to limit the discussion on those threads to specific subjects. But we hold that NIH’s “off-topic” restriction, as implemented through its keyword filters, is not reasonable in light of the purpose of the forum and is therefore unconstitutional under the First Amendment.

The words

On Instagram, the following words were filtered: “PETA, #stopanimaltesting, #stoptesting, #stoptestingonanimals, animal(s), chimpanzee(s), chimps, monkey(s), experiment, hurt(ing), kill, stop, test(ing), testing facility, tortur(ing), pedos, rapist,” as well as four emojis and an expletive.

Holding

we hold that NIH’s off-topic restriction, as currently presented, is unreasonable under the First Amendment. We therefore do not separately address whether the specific keywords used to implement the off-topic rule are, by themselves, viewpoint discriminatory.

(Mike Frisch)

Failure To Respond To Excommunication Evidence Was Ineffective Assistance

The Utah Supreme Court affirmed a murder conviction but vacated the sentence and remanded for further proceedings

We agree that Lovell did not receive the representation the United States Constitution guarantees him. Lovell’s two attorneys provided ineffective assistance when they failed to object to, among other things, testimony regarding Lovell’s excommunication from the Church of Jesus Christ of Latter-day Saints (the Church). This prejudiced Lovell’s ability to have a fair sentencing hearing. Lovell is entitled to a sentencing hearing free from this improper and prejudicial evidence. We therefore vacate Lovell’s sentence and remand for further proceedings.

The crime

In 1985, Lovell kidnapped Joyce Yost and raped her. See State v. Lovell (Lovell I), 1999 UT 40, ¶¶ 3–8, 984 P.2d 382. Yost reported these crimes to the police. Id. Lovell then attempted to hire two individuals to kill Yost to prevent her from testifying against him. Id. ¶¶ 4–5. After those attempts failed, Lovell kidnapped Yost and killed her in a canyon outside of Ogden. Id. ¶¶ 6–7.

Evidence

Unlike in Vallejo, Lovell’s mitigation case did not rely on religion. Indeed, it appears that the defense carefully attempted to avoid wading into religious waters during its direct examination of Newton. During Newton’s direct examination, the defense elicited minimal testimony about religion, limited to Newton forming a relationship with Lovell as his “clergy leader” and as a “religious volunteer” at the prison. Newton’s direct examination was the most overtly religious when counsel asked Newton to describe his discussions with Lovell. Newton volunteered that when he and Lovell would meet, they would talk about things Lovell had “read in the Bible and the Book of Mormon.” At no point during their examination of Newton did Lovell’s counsel seek to talk about repentance or the Church as an organization. In fact, at no point did counsel even identify the Church, much less that Newton had been Lovell’s bishop. This testimony only came in through the State’s questioning.

To be sure, Lovell’s counsel asked the next two witnesses, Lovell’s former Church bishops Webster and Thompson, about Lovell’s status with the Church. Both witnesses testified that Lovell had been excommunicated and that they were not aware whether Lovell had asked to rejoin the Church.

Prejudice

The prosecution’s cross-examination of Newton suggested to the jurors that they could look to the Church and its leaders, who “are the living oracles of God” according to Church doctrine. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, TEACHINGS OF THE LIVING PROPHETS STUDENT MANUAL 45 (2016) (quoting Joseph Fielding Smith, The First Presidency and the Council of the Twelve, 69 THE IMPROVEMENT ERA 977, 978 (1966)). A juror who was a faithful Church member might reasonably have believed that Lovell’s excommunication and the fact that he had not been readmitted could be interpreted as evidence of divine guidance that he was not remorseful. Or, at the very least, that Lovell did not believe that he could demonstrate to the First Presidency that his remorse was genuine.

(Mike Frisch)

The Apprentice: Your Moment Of Zen

The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of an Americans with Disabilities action on the basis of the ministerial exception

The ministerial exception protects the “freedom of a religious organization to select its ministers.” HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012). Alexander Behrend, who lived and worked at San Francisco Zen Center (the Center) as a Work Practice Apprentice (WPA), argues that he was not a  minister. But the exception broadly ensures that religious organizations have the freedom to choose “who will preach their beliefs, teach their faith, and carry out their mission.” Id. at 196. Behrend’s role as a WPA clearly fits that broad exception, so we affirm the district court’s grant of summary judgment.

Plaintiff became associated with the center after an automobile accident

Behrend’s schedule as a WPA included meditation, lunch with other students, dharma talks, and a range of work duties. His work duties began in guest services, where he checked guests in, prepared guest rooms and conference spaces, cleaned, answered guests’ questions, and began each day praying with the guest services team. He then worked in the kitchen cooking and washing dishes, and again spent a few minutes each morning in front of an altar with the rest of the crew. Finally, Behrend was assigned to the maintenance crew in September 2018, but that work exacerbated his PTSD symptoms. Behrend sought accommodations, including moving off the maintenance crew, but eventually the Center “made a decision to end [his] participation in the Program.”

Leadership position not required

Both our precedent and that of the Supreme Court proscribe a rule by which only those who are high up in a religious organization can qualify as ministers. This makes sense: if leadership was a requirement, cloistered nuns or monks might very well be disqualified.

Conclusion

The religion clauses of the First Amendment give the Center the freedom “to select, supervise, and if necessary, remove a minister without interference by secular authorities.” Id. at 747. Because Behrend had a “role in … carrying out [the Center’s] mission,” he qualifies for the ministerial exception.

(Mike Frisch)

A Morally Weighty Case

An impassioned dissent from the denial of rehearing en banc in the United States Court of Appeals for the Ninth Circuit

GRABER, Senior Circuit Judge, with whom Senior Circuit Judge PAEZ joins, respecting the denial of rehearing en banc:

I regret this court’s denial of rehearing en banc.

In 1939, Nazis stole a painting by Camille Pissarro from the Cassirers, a prominent Jewish family, in Germany. In 2000, the sole remaining heir, Claude Cassirer, discovered the painting in a Spanish museum that is an instrumentality of Spain. Spain refused to return the painting, and Claude filed this action against the museum’s foundation (“TBC”) in 2005.

The only remaining question before this court is whether, applying California’s choice-of-law test, California law or Spanish law applies. We must ask, in the context of this particular dispute, which jurisdiction’s interest in enforcing its laws would be more impaired by applying the other jurisdiction’s law. That inquiry favors applying a new, specific, modern law that will frustrate the purpose of the other jurisdiction’s law only minimally. The test disfavors applying an old, general, isolated law that will eviscerate the purpose of the other jurisdiction’s law.

The answer here is clear: California’s law applies.

The dissent contends that there was no finding of good faith; rather, defendant lacked actual knowledge of the theft.

Moreover, TBC clearly lacked good faith. Spain bought the painting from Baron Hans Heinrich ThyssenBornemisza. The district court concluded that the Baron held the painting in bad faith, because of several “red flags” found on the painting itself.

The world is watching

The case also has attracted unusually intense media coverage the world over. Articles have been published in essentially every major newspaper in the United States along with many smaller domestic papers, as well as publications in Spain, Germany, the United Kingdom, France, the Netherlands, Italy, Mexico, Canada, Colombia, Brazil, Argentina, Australia, New Zealand, Israel, South Africa, Hong Kong, Bangladesh, Thailand, and regional publications in Europe and Asia more generally. The media understandably have recognized the moral dimension, too, and have characterized the case as “perhaps the highestprofile case of World War II art restitution.” The Nazis forced a Jewish woman to hand over a priceless painting.  years later, judges said her family can't have it back., Business Insider (Jan. 11, 2024); see, e.g., Editorial: It’s outrageous that a Spanish museum refuses to return Nazi-looted art to the rightful heirs, L.A. Times (Jan. 13, 2024) (“It is shameful that the museum and the Spanish government refuse to do what is just and moral, which is to
return the painting that Lilly Cassirer hung on the wall of her apartment in Berlin.”); ‘The Pissarro case’: a moral dilemma for Spain, El Pais (Jan. 12, 2024); Madrid’s Thyssen Museum hangs on to Pissarro painting looted by Nazis, Le Monde (Feb. 2, 2024) (“Although a California appeals court ruled in favor of the cultural institution against the descendants of the despoiled Jewish family, the legal victory is causing unease.”); Jewish groups in Spain are troubled by their government’s decision to cling onto a painting looted by the Nazis, Business Insider (Jan. 24, 2024) (“In a shock[ing] legal decision earlier this month, a California court determined that Spain has the right to hold onto a valuable painting looted by the Nazis rather than returning it to the family of the Jewish woman it was stolen from.”).

The world is watching. We should apply the law correctly to this high-profile and morally weighty case. Nor is the contrary result unfair to Spain or its instrumentality, TBC. TBC may have lacked actual knowledge that the painting was stolen, but there is no unfairness in requiring TBC to relinquish it. As described above, despite several
strong red flags suggesting that the painting had been stolen by Nazis, TBC voluntarily chose not to investigate at all the
painting or its provenance. Nothing required TBC to investigate, but TBC bore the risk that its rightful owner would make a claim.

(Mike Frisch)

Fashionable Use

A fashion model who asserted claims against Ralph Lauren Corp. and HBO had the dismissal of the case affirmed by the New York Appellate Division for the First Judicial Department

Plaintiff, a fashion model, alleges that she was featured without her permission in Very Ralph, a documentary film about designer Ralph Lauren. Plaintiff also alleges that she was featured, again without her permission, in the trailer for the documentary, which aired on HBO’s cable TV network and internet streaming services. As relevant to this appeal, plaintiff commenced this action against HBO, alleging that it knowingly, and without her consent, used her image in the film for advertising and trade purposes in violation of Civil Rights Law §§ 50 and 51

No liability

Plaintiff, who acknowledges the film is a “documentary about Ralph Lauren,” fails to allege any facts to support her conclusory assertion that the film is a disguised advertisement for defendant Ralph Lauren Corp. Further, plaintiff does not show that the matters as to which she claims to need discovery – any Ralph Lauren/HBO agreements, including profit-sharing agreements, regarding the film – would advance her position, as it is the “content” of the work, rather than a defendant’s profit from it, that bears on whether “a newsworthy use, as opposed to a trade usage” is at issue for
purposes of section 51 (Stephano, 64 NY2d at 184-185; see Ward, 10 Misc 3d at 654).

Supreme Court also properly dismissed the action as against HBO on grounds that, to the extent the film uses plaintiff’s image, it does so in an “isolated,” or “fleeting and incidental” manner. Such uses, “even if unauthorized, are insufficient to establish liability” under section 51

(Mike Frisch)