The post Today in Supreme Court History: May 23, 1991 appeared first on Reason.com.

This case arises from allegedly defamatory statements made by Defendant Kyle M. Seraphin on his podcast show, the Kyle Seraphin Show, about Plaintiff Alexis Wilkins ….

Plaintiff Alexis Wilkins [alleges she] "is a patriotic, conservative, Christian, country music artist and published writer, who also works for a conservative advocacy and educational company, PragerU." Since January 2023, Plaintiff has been in a long-term relationship with Kashyap "Kash" Patel, the Director of the … FBI ….

Defendant Kyle M. Seraphin is a U.S. Air Force veteran and former FBI special agent in the FBI's Counterterrorism Division. A self-proclaimed "Podcaster," "Whistleblower," and "Recovering FBI agent," Defendant hosts the Kyle Seraphin Show, during which he "trades on his insider knowledge of the FBI and his experience in law enforcement" to tell his audience the "uncomfortable truth."

The show, which is livestreamed on YouTube, "Rumble," and Defendant's website, garners wide reach. According to Plaintiff's Complaint, Defendant has over 271,800 followers on X, and his posts frequently reach tens of thousands of views and numerous re-posts. Plaintiff also alleges that Defendant receives income through his video sponsorships, paid membership through YouTube, and donations through YouTube.

On August 22, 2025, Defendant stated the following on the Kyle Seraphin Show:

[FBI Director Kash Patel] has had his own little 'honeypot' issue that's been going on of late, so we're just going to acknowledge it real publicly. He's got a girlfriend that is half his age, who is apparently is both a country music singer, a political commentator on Rumble, a friend of John Rich through Bongino, who also now owns a big chunk of Rumble, and she's also a former Mossad agent in what is like the equivalent of their NSA. But I'm sure that's totally because, like, she's really looking for like a cross-eyed, you know, kind of thickish built, super cool bro who's almost 50 years old who's Indian in America.

Like it has nothing to do with the fact that uh we're really close to the Trump administration. Anyway, I'm sure that's totally just like love.

That's what real love looks like.

Plaintiff alleges that, in making this statement, Defendant falsely and maliciously characterized her as a "honeypot"—which she defines as an agent of a foreign government who began a relationship with another for purposes of manipulating and compromising them—and accused her of "conduct[ing] espionage to undermine [] national security" and "committing treason." …

The court concluded that Wilkins had adequately alleged that the statements about her were false factual assertions (rather than opinion or hyperbole); recall that at this stage, the question is just about whether the allegations are legally sufficient—determining their truth or falsity is for later in the case:

First, Defendant asserts that his "sarcastic, humorous, and hyperbolic statements" that Plaintiff is a "honeypot" and "former Mossad agent" are not defamatory as a matter of law. Because these "tongue-in-cheek" comments were given "in the context of a political podcast," a reasonable listener would understand that these "purposefully over-the-top representations" were not assertions of fact, but rather "an effort to make news of the day interesting to listeners," he contends….

A statement is considered defamatory under Texas law if "a person of ordinary intelligence would interpret it in a way that tends to injure the subject's reputation and thereby expose the subject to public hatred, contempt, or ridicule, or financial injury, or to impeach the subject's honesty, integrity virtue, or reputation." …

In First, Defendant's statements here are verifiably false [in context, this appears to mean "verifiable as false," which is to say capable of being proved true or false -EV]. Second, when viewed in context, the Court finds that these statements would reasonably be understood as describing actual facts, rather than "opinion masquerading as fact."

In the episode at issue, Defendant begins by describing himself as a "real whistleblower" and former FBI agent who presents the "uncomfortable truth" during his podcast. As pleaded by Plaintiff, the introduction to the podcast also begins with a voiceover that says, "this program has no time for comforting lies."

In addition, preceding the statements about Plaintiff in his show, Defendant surveyed news reports of undercover and "honeypot" techniques used by the FBI in various investigations. Then, Defendant discussed Director Patel having his own "little honeypot issue that's been going on of late" and proceeded to talk about Plaintiff. After these statements, Defendant continued his criticism of Director Patel by wading into "the Epstein situation," the FBI's New York Field Office, and the "New York Mafia" to "break it down for people so we have this real clear idea of … who's really running the FBI[.]"

When viewed in this context, the Court finds that a reasonable viewer would take Defendant's statements as part and parcel of the show's stated aim of presenting "uncomfortable truths" and a continuance of the factual discussions immediately before and after the statements. Defendant's arguments to the contrary ignore this context.

{The Court is also not persuaded by Defendant's citation to Patel v. Figliuzzi (S.D. Tex. Apr. 21, 2026). There, the court found that a statement that Director Patel has "been visible at nightclubs far more than he has been on the seventh floor of the Hoover building" was mere "rhetorical hyperbole." However, that statement is different in kind from the statement at issue here. Id. (explaining that by saying Director Patel spent "far more" time at nightclubs than his office, the defendant delivered his answer 'in an exaggerated, provocative and amusing way'"). When viewed in context, the Court does not agree with Defendant that the statements here are mere "rhetorical hyperbole."} …

And the court concluded that Wilkins had adequately alleged "actual malice" on Seraphin's part:

Plaintiff has sufficiently pleaded actual malice and so declines to rule on Plaintiff's status as a public or private figure at this stage of the proceedings. Actual malice requires a statement made "'with knowledge that it is false, or with reckless disregard of whether it is true.'" … [R]eckless disregard is a "subjective standard that focuses on the conduct and state of mind of the defendant." … [M]ere negligence is insufficient.

In her Complaint, Plaintiff alleges that Defendant acted with actual malice in making the allegedly defamatory statements. She asserts that Defendant "published his defamatory statements across numerous outlets, knowing that they were false" and "entirely fabricated the story to generate video engagement revenue and to indulge in his obvious animus against Dir. Patel and against Ms. Wilkins."

In support of these allegations, Plaintiff states that she and Defendant met in person approximately two years ago at a political event. Plaintiff alleges that, because of that meeting, which took place before Director Patel became the FBI Director, Defendant knew that Plaintiff was American, not Israeli, that she was not a Mossad agent, and that her relationship with Director Patel began long before he became Director. Plaintiff also alleges that Defendant had never once reached out to her and that she stated publicly prior to Defendant's statements that the allegations regarding her affiliation with Israel are false.

Based on this, Plaintiff contends that Defendant knew she was not part of any foreign intelligence agency, and instead "fabricated this accusation at the expense of [Plaintiff] to obtain personal profit, generating outrage to drive up his viewership." This animus and "malicious intent," Plaintiff asserts, "is further emphasized by [Defendant's] desire to spread this lie 'real publicly.'" Taking these well-pleaded allegations as true and viewing them in light most favorable to her, the Court finds that Plaintiff has sufficiently pleaded actual malice….

Jared Joseph Roberts and Jason C. Greaves (Binnall Law Group PLLC) represent Wilkins.

The post FBI Director Kash Patel's Girlfriend's Defamation Suit Over Allegations She Was Israeli Spy Can Go Forward appeared first on Reason.com.

This consolidated appeal involves claims of defamation, defamation by implication, and false light invasion of privacy relating to the rescission of Luis Jaime Castillo Butters's membership in the National Academy of Sciences. Castillo brought these claims against the NAS and its president, Marcia McNutt, after they made statements concerning Castillo's ouster….

Castillo is a professor of archaeology at the Pontifical Catholic University of Peru. The NAS, a "private, nonprofit organization of the United States' leading researchers," elected Castillo to be an international member in 2012. In the Spring of 2021, a former student of Castillo's filed a complaint with the NAS. She publicly accused Castillo of sexual harassment in Peru and asked the NAS to expel him.

The NAS rescinded Castillo's membership on October 9, 2021. On the 13th, President McNutt informed NAS members by email that Castillo's membership had been rescinded for a Code of Conduct violation. That email mentioned a password-protected website with further information for NAS members. On October 15, the NAS made the news of Castillo's ouster publicly available on the organization's website: "Luis Jaime Castillo Butters; NAS Code of Conduct violation, Section 4; membership rescinded." Section 4 not only requires members to treat others with respect and collegiality but also broadly prohibits all forms of discrimination, harassment, and bullying.

The court concluded that Castillo had adequately alleged that these statements were false and had a defamatory meaning:

In the [district] court's view, Castillo's allegation that he did not violate the Code of Conduct was insufficient. Instead, Castillo needed to allege that the defendants rescinded Castillo's membership for a reason unrelated to a Code of Conduct violation.

[T]he issue of falsity relates to the defamatory facts implied by a statement. For instance, the statement, "I think Jones lied," may be provable as false on two levels. First, that the speaker really did not think Jones had lied but said it anyway, and second that Jones really had not lied. It is, of course, the second level of falsity which would ordinarily serve as the basis for a defamation action, though falsity at the first level may serve to establish malice where that is required for recovery.

The district court considered only the first level, that is whether Castillo claimed the proffered reason for Castillo's membership rescission was false, which he did not. At the underlying second level, however, the question is whether Castillo violated the Code of Conduct. Because Castillo denied that he violated the Code of Conduct, he has effectively as well as expressly alleged that both the October 13 and October 15 statements were false….

[Moreover, a]fter summarizing a D.C. Court of Appeals decision that a certain statement was capable of a defamatory meaning, the district court then wrote: "Here, by contrast, Defendants stated only that they rescinded Plaintiff's membership because he violated the Code of Conduct, which could have meant anything from harassment to bullying to discrimination to treating others with disrespect."

To the extent the district court held the October 13 and the October 15 statements are not capable of a defamatory meaning, we disagree. The October 15 statement that Castillo violated Section 4 of the Code of Conduct is capable of a defamatory meaning because Section 4 proscribes odious conduct, to wit, sexual harassment. That Section 4 encompasses some less serious conduct—such as "treating others with disrespect"—does not defeat the commonsense conclusion that the statement could be "reasonably understood in [a] defamatory sense," The October 13 statement may not have specified which section of the Code of Conduct Castillo supposedly violated, but considering that other sections of the Code likewise proscribe serious forms of ethical or scientific misconduct, that distinction is inconsequential. Moreover, members of the scientific community both inside and outside of the NAS would also likely understand that the NAS would not expel a member absent a serious transgression of the Code of Conduct….

The parties briefed whether Castillo adequately alleged the defendants were negligent in publishing the allegedly defamatory statements [which is another necessary element of a defamation claim under D.C. law]. We do not reach this issue because the district court did not pass upon it. On remand, the district court should determine in the first instance whether Castillo alleged facts that plausibly suggest negligence.

But Judge Ginsburg, joined by Judge Pan, concluded that Butters hadn't adequately alleged defamation by implication as to McNutt's comments

[On October 15], ScienceInsider published a story about the revocation of Castillo's NAS membership under the subheading: "Sexual harassment investigation triggered ejection of Luis Jaime Castillo Butters." It further said this was the "third time in 5 months that the prestigious academy has ejected a member for sexual harassment." McNutt, presumably contacted by ScienceInsider to provide a comment, was quoted as saying NAS "members need to be role models not only in what they have achieved, but also in setting the highest standards for professional conduct." …

Defamation by implication is "an area fraught with subtle complexities." Courts have required "an especially rigorous showing where the expressed facts are literally true." This court has summarized the analysis as follows:

[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.

For example, an article that includes "suggestive juxtapositions, turns of phrase, or incendiary headlines" may indicate the author intended or endorsed a defamatory meaning….

[McNutt's "need to be role models"] statement alone provides no indication that McNutt intended or endorsed a defamatory implication. As the defendants argue, any possible defamatory inference necessarily arises from other parts of the ScienceInsider article, for which neither the NAS nor McNutt is responsible.

Castillo's claim of defamation by implication also lacks any supporting factual allegations about "the particular manner … in which the true facts [were] conveyed." The allegation that "McNutt encouraged and fueled the production of the article by providing the statements quoted" is conclusory; the allegation that the NAS and McNutt failed to "correct the implication that [they] indeed revoked Castillo's membership due to sexual harassment" charges is a negative inference, not affirmative evidence that they intended or endorsed a defamatory inference. In sum, the Second Amended Complaint contains no allegation that, when viewed most favorably to Castillo, renders plausible his claim of defamation by implication.

Judge Henderson dissented as to the McNutt statement in the ScienceInsider article:

The majority concludes that none of "the content of the [ScienceInsider] article beyond the [defendants'] statements" is relevant because the article was written by a third party. But the defamatory content of a third-party news article is absolutely relevant in an implied defamation case to the extent the defendant "impliedly adopt[s]" the "stigmatizing allegations contained in [the] news[ ] article." …

As for the article, ScienceInsider published its piece the same day that NAS publicly announced it had expelled Castillo for violating Section 4 of its Code of Conduct that prohibits, among other things, sexual harassment. The ScienceInsider article recounted at length the sexual harassment allegations lodged against Castillo by his former student, Marcela Poirier, the complaint Poirier lodged with NAS and the subsequent "[s]exual harassment investigation [that] triggered [Castillo's] ejection" from NAS. The article stated that Castillo's ouster from NAS "mark[ed] the third time in 5 months that the prestigious academy has ejected a member for sexual harassment."

"The ejection," the article continued, "was confirmed by [an] NAS spokesperson." And after summarizing the earlier sexual harassment cases—one involving an astronomer and the other an evolutionary biologist—the article quoted McNutt with the following statement: "NAS President Marcia McNutt says the removals should convey that '[NAS] members need to be role models not only in what they have achieved, but also in setting the highest standards for professional conduct.'" …

The majority does not dispute that the ScienceInsider article was "capable of defamatory meaning." "Its very title indicated" that NAS revoked Castillo's membership "because of sexual misconduct." See J.A. 57 ("Leading Peruvian archaeologist ousted by U.S. Academy of Sciences[:] Sexual harassment investigation triggered ejection of Luis Jaime Castillo Butters."). And the body of the article made the connection explicit: Castillo's "ouster … marks the third time in 5 months that the [NAS] has ejected a member for sexual harassment."

The sole question, then, is whether it is plausible at this stage to conclude that NAS's and McNutt's statements in the article "intend[ed] or endorse[d]" that defamatory inference. With no difficulty, I conclude that it is….

For more on this dispute between the majority and the dissent (and on other matters), read the whole opinion.

Milton Johns represents Butters. Thanks to Andy Patterson for the pointer.

The post Professor's #TheyLied Defamation Case Against National Academy of Sciences (Related to Sexual Harassment Allegations) Can Go Forward appeared first on Reason.com.

This case stems from a Texas Tech University law student allegedly making a celebratory statement {in the clinic program offices} after Charlie Kirk's assassination while she was working at a legal clinic at the school. The school … reprimanded her and reported her to the state bar for acting unprofessionally, in violation of the school's honor code [on the grounds that she had] {"fail[ed] to uphold professional or fiduciary obligations including, but not limited to, performance related to clinical programs"}.

The alleged celebratory statements were said to be:

"I'm in such a good mood."

"That mother fucker got shot."

"I'm in the best mood ever."

"They got him."

"This is great."

The student, Fisher, denied making those statements, and the Honor Council report that initially considered the matter appeared ambivalent. But the Dean concluded that Fisher had made such statements; here's an excerpt from his letter to the bar:

The Dean's Office recommends against Ms. Ellen Fisher's admission to the Bar.

We do so for three related reasons. First, Ms. Fisher, as a clinical student with a supervised practice card, disrupted our clinical spaces with a celebration of a political assassination. Second, she has refused to take responsibility or show any remorse for her unprofessional actions. And, third, she has displayed dishonesty when discussing this incident in our Honor Code proceedings.

On September 10, 2025, Ms. Fisher celebrated a political assassination in the Law School's clinical suite during work hours. This occurred while Ms. Fisher was a clinical student with a supervised practice card and thus able to represent clients in our clinics under our professional supervision. The celebration was loud, overheard by others, and adversely affected the operation of the clinic.

Ms. Fisher's actions were unprofessional and also constitute a violation of the Law School's Honor Code, Section 2.H (Violation of Professional Duties), which prohibits "failing to uphold professional … obligations" related to "clinical programs." To state the obvious, we expect our clinical law students engaged in supervised practice under our supervision to display the same levels of professionalism in our clinical spaces that law firms expect from their attorneys in their law offices. The disruptive celebration of a political assassination in our clinical spaces is a reprehensible act radically inconsistent with widely recognized professional expectations in law firm spaces. Therefore, we also view this conduct as severe enough to constitute a violation of the Honor Code….

The Dean's Office has 100% confidence in its fact-finding that Ms. Fisher celebrated an assassination in the clinical suite in a disruptive fashion on September 10, 2025. Notably, on September 16, Professor Metze's administrative appointment as a clinical director was terminated and he was given modified instructional duties with limited student contact precisely because of his admitted failure to take any steps to correct Ms. Fisher's celebration of a murder in his office. Professor Metze later retired from the law faculty at the end of calendar year 2025 in the face of further disciplinary proceedings supported by Texas Tech University and the Texas Tech University System for this same admitted failure to perform basic job responsibilities on September 10.

At no point, to my knowledge, during his employment with TTU did Professor Metze ever retract his admission that Ms. Fisher celebrated a murder in his office on September 10, though he would later claim that he could no longer recall details of what happened that day when the Honor Code investigation of Ms. Fisher began. Professor Terri Morgeson continues to corroborate Professor Metze's account, confirming Ms. Fisher's misconduct.

The Honor Council majority found by clear and convincing evidence that Ms. Fisher celebrated a murder in the hallway of our clinical suite. The Honor Council did not find by clear and convincing evidence that Ms. Fisher also celebrated the murder in Professor Metze's office, though a majority seem to agree that a celebration of the murder did take place in that office.

The Dean's Office concurs in the Council's finding on the disruptive hallway murder celebration but believes the Council reached the wrong result on the question of the disruptive office murder celebration. The Dean's Office believes the Council reached the wrong result principally because it failed to follow a recommendation from the Dean's Office on which witnesses should be called to testify and thus failed to hear from crucial witnesses who would have provided important testimony on this point. Significantly, in our inquisitorial process, the Honor Council must call all relevant witnesses since there is no "prosecutor" to rely on to present a case for responsibility. The Dean's Office continues to believe that Professor Metze's admissions and Professor Morgeson's detailed corroboration establish that Ms. Fisher celebrated a murder not just in the clinical hallway but also in Professor Metze's clinical office….

Notably, Ms. Fisher has refused to take responsibility for any of her misconduct or express any form of remorse for it. Instead, she has responded with repeated acts of dishonesty in an effort to avoid accountability, denying that the disruptive conduct in both the clinical hallway and the clinical office took place.

As we all know, often "the cover-up is worse than the crime." Had Ms. Fisher taken responsibility for her disruptive misconduct and expressed remorse rather than respond with repeated falsehoods, we would be offering a different recommendation today on her admission to the Bar. I will also note that Ms. Fisher has received an extraordinary degree of grace from our Honor Council in both its fact-finding and in its recommended sanction, which, frankly, in my opinion, she does not deserve, given her dishonesty, and which will only further reinforce her lack of character and fitness for the practice of law.

Fisher sought an injunction "to prevent Dean Nowlin from entering a reprimand and annul all disciplinary action against her," but the court held that such a request was precluded by state sovereign immunity:

"Sovereign immunity bars private suits against nonconsenting states in federal courts." And state sovereign immunity also "precludes suits against state officials in their official capacities."

That said, there are two primary exceptions. "First, Congress may expressly abrogate state sovereign immunity." And second, Ex parte Young "permits suits for prospective … relief against state officials acting in violation of federal law." "Here, Congress has not abrogated Texas's sovereign immunity, and the State has not consented to suit. Young is the whole ballgame."

The Fifth Circuit has explained that "Ex parte Young created a narrow doorway through the sovereign immunity defense" and "[t]o turn the key on the Ex parte Young door, a plaintiff must sue the right defendants and ask for the right remedy."

First, the right defendants. To be the right defendants under Ex parte Young, the individuals must be "officers of the state … clothed with some duty in regard to the enforcement of the laws of the state … who threaten and are about to commence proceedings, either of a civil or criminal nature." In short, the defendant "must have some connection with the enforcement of the law being challenged." … [T]he official must have "more than the general duty to see that the laws of the state are implemented"; it must be a "particular duty to enforce the statute in question"; the official must have "demonstrated willingness to exercise that duty"; and "the state official, through her conduct, compels or constrains persons to obey the challenged law." Even so, plaintiffs "need only show a scintilla of enforcement by the relevant state official." …

[T]he only defendants who have even a scintilla of enforcement authority to effectuate this relief are Dean Nowlin, who sent the reprimand to the Texas Board of Law Examiners; Dean Gonzales, who has appellate review of Honor Code violations; and the Board of Regents….

Second, the right remedy. Ex parte Young's narrow carveout permits courts to "command[ ] a state official to do nothing more than refrain from violating federal law." So the doctrine is limited to "prospective relief to stop future harms." It "does not permit judgments against state officers declaring that they violated federal law in the past." Nor can it be used to attack or undo a state official's past actions.

Accordingly, injunctions that are packaged as prospective relief but require "the voiding of a final state" official's action are "quintessentially retrospective and thus out of bounds under Young." …

Fisher … seeks two remedies: (1) an injunction annulling the defendants' disciplinary action against her and (2) enjoining the defendants to inform the Texas Board of Law Examiners that any and all disciplinary outcomes against Fisher are officially retracted.

Like invalidating or voiding a state agency order, annulling defendants' past disciplinary action against Fisher is "quintessentially retrospective." Namely, to annul is to "declare or make legally invalid or void." Thus an annulment can only reach what has been, not what will be. To conclude otherwise would impermissibly conflate retroactive and prospective relief. So her first remedy it is "out of bounds under Young."

Because the Court lacks jurisdiction to order Dean Nowlin, Dean Gonzales, and the Board of Regents to annul the past action, it cannot order them to tell the Texas Board of Law Examiners that they have done so. Such would be a lie. That too is barred by Ex parte Young. {The Texas Board of Law Examiners is owed the truth. And our dues. But maybe not sovereign immunity anymore under Galette v. New Jersey Transit Co., 607 U.S. --- (2026).}

In sum, Ex parte Young's narrow doorway is locked to Fisher as to these requests.

Fisher argues that her injunction is warranted to return this case to "the last uncontested status of parties." For example, in Doe v. Texas Christian University, the learned Judge O'Connor issued a temporary restraining order against TCU that ended a suspension.

Suspensions and reprimands are different, as are Title IX and the First Amendment. Doe centered on a Title IX claim, and Congress abrogated the States' Eleventh Amendment immunity for purposes of Title IX. Section 1983 does not do to the states what Title IX does. Besides, suspending a student is a continuing course of conduct. And the courts under Ex parte Young can enjoin the future action of continuing a suspension. But there is no future action with a reprimand.

Likewise, Shah v. University of Texas Southwestern Medical School—which Fisher does not cite—is inapplicable. In Shah, a medical student was dismissed, sued UT Southwestern alleging his dismissal was unlawful, and asked for preliminary injunctive relief because Shah feared UT Southwestern would disclose Shah's disciplinary record to the other medical schools he was applying to. On that record, Judge Fitzwater granted preliminary injunctive relief because there was "an imminent threat that defendants will disseminate" Shah's disciplinary record to third parties and "send notice to the schools that he was dismissed." The future issue was not focused on harm to the plaintiff's reputation but rather on conduct of the school.

But here, Dean Nowlin has already informed the Texas Board of Law Examiners and State Bar of Texas about the reprimand. The Defendants' conduct has already occurred. So there is no future or ongoing action by the Defendants to enjoin.

The Eleventh Amendment's jurisdictional bar therefore remains as to the relief Fisher seeks in this motion.

But the Court must note that circumstances might change. It is possible the Defendants would take future action (like suspending Fisher or preventing her from graduating) that Fisher might believe to be unlawful. Some of those actions might fit within—instead of fight—Ex parte Young. But no such request is before the Court. Nor is there any indication that those harms are forthcoming. For that reason, the Court lacks jurisdiction over this motion and "cannot proceed at all" on the requested injunctive relief….

This does not mean that Fisher has no case. Under section 1983, she may still seek monetary damages against the individual defendants. {And this is a separate reason why the Court will not issue injunctive relief to preserve the last uncontested status quo. As Judge O'Connor has explained, injunctive relief is necessary when preserving the last uncontested status quo if it is the only way to "prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." Despite the fact that more money has been known to cause more problems, money is still a meaningful remedy that precludes the need for injunctive relief here.}

"Federal courts are courts of limited jurisdiction." They are not the courts of universal justice. Accordingly, the Court may only act where the Constitution or a statute permit it. Here, the Eleventh Amendment prohibits Fisher's requested relief, so the Court DENIES the motion for a temporary restraining order and preliminary injunction.

I don't have much of an opinion on the Eleventh Amendment question. But I am quite troubled by the law school's actions here.

Even if you do agree that the student did engage in "disrupti[ve]" and "unprofessional" speech, consider just how broad law schools' authority would be on that standard. Nothing in the standard would be limited to celebrating assassinations, or praising violence more broadly: A wide range of speech on contested matters—race, sex, religion, sexual orientation, gender identity, abortion, affirmative action, and more—may be seen by some as disruptive and unprofessional. It's easy to imagine some students, faculty members, and deans so labeling, for instance, celebration of a court decision or election result that they see as racist or anti-trans or Islamophobic or what have you. That's not a standard, I think, that's compatible with the First Amendment rights of students in public universities.

Perhaps a clinic ought to have some authority to eject students (essentially firing them as employees) based on disruptive or unprofessional speech in its offices, just as law firms would generally have such authority. I'm not sure how far that would extend, since even that power can easily be abused and is quite dangerous in what is after all primarily a higher educational institution, not an ordinary law firm. But even assuming such a power, that still doesn't justify recommending that the student be denied a license to practice, which would keep her from working in any law firm, whatever its ideological views.

Finally, I appreciate that one of the three reasons given for the recommendation is that the Dean viewed her as dishonest in the investigation. But the report makes clear that this was just one of the reasons; and the focus on the other reasons shows that she likely wouldn't have been treated that way based on dishonesty in some other context, in the absence of her statements about the Kirk killing.

The post Law School Recommended Against Student's Bar Admission, Partly for Alleged "Celebration" of Charlie Kirk Assassination in Law School Clinic appeared first on Reason.com.

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[1.] To proceed pseudonymously, a "plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." These are the "two most important factors," id., because a plaintiff must establish "a need for the cloak of anonymity."

The district court's determination that Doe failed to show she reasonably feared severe harm was not an abuse of discretion. Doe's interactions with public officials do not establish that the media or community members would retaliate against her in a severe manner, and Doe failed to identify other probative evidence rendering her fears reasonable. Rather, she expresses concern about what "could" or "probably would" happen. But bare assertions are insufficient to establish a reasonable fear of severe harm. Likewise, the district court did not abuse its discretion in determining that Doe's fear of "social stigma" does not amount to severe harm. The prospect of being publicly linked to an unpopular viewpoint alone does not warrant anonymity absent evidence linking disclosure to a severe injury.

[2.] The district court did not abuse its discretion in evaluating Doe's vulnerability. The district court properly considered the factors suggesting Doe was particularly vulnerable and those suggesting she was not particularly vulnerable, and reasonably concluded that it was appropriate to give "little weight" to her vulnerability.

{The dissent argues that the district court erred by failing to analyze Child 1's vulnerability as a factor supporting her own pseudonymity and Doe's privacy interests…. "[F]ear of severe harm is irrelevant if the plaintiffs do not reasonably fear severe harm." As described, Doe failed to identify probative evidence supporting the reasonableness of her fear of severe retaliation.

Moreover, after oral argument, Plaintiff's counsel informed the court that Plaintiff and her child do not share the same last name, further attenuating Doe's fear that disclosure of her name would yield severe retaliation against Child 1.} {The district court properly acknowledged that Federal Rule of Civil Procedure 5.2(a)(3) presumptively requires pseudonymizing the names of children, like Child 1, with only initials "[u]nless the court orders otherwise." This appeal only pertains to Doe's pseudonymization.}

[3.] The district court's determination that anonymization "may" result in

prejudice to a Defendant was not based on a clearly erroneous factual finding…. Doe had not affirmatively agreed to disclose her identity to all the Defendants and failed to respond to one Defendant's objections to anonymization based on the lack of knowledge of her identity. Therefore, the district court's determination that anonymization might prejudice Defendants was not based on a clearly erroneous assessment of the evidence.

[4.] The district court did not abuse its discretion in weighing the public interest factor against pseudonymity. The court properly invoked precedents describing the "paramount importance of open courts," which is the source of the presumption that parties will litigate under their real names. Nor does the fact that the public could scrutinize the legal issues in this case without Plaintiff's identity require that the district court weigh the public interest factor in favor of anonymity.

Moreover, the value of open courts extends beyond permitting public scrutiny of the legal issues in a given case. The public's interest in having justice delivered openly, not "in a corner nor in any covert manner," is heightened in cases involving high-stakes, constitutional issues.

Judge Patrick Bumatay dissented:

First, in analyzing "the anonymous party's vulnerability to … retaliation," the district court failed to consider the vulnerability of other individuals affected by the litigation—namely, Jane Doe's minor child. Consideration of vulnerability beyond the plaintiff is a necessary piece of any pseudonymization analysis…. [C]ourts regularly grant anonymity to plaintiffs when "identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties."

These concerns are even greater when the litigation involves family members, especially minor children. Courts must recognize "the special, intimate, and loving relationship between parent and child." And a child is often more susceptible to harm than an adult. So we must give special attention to concerns that the lack of pseudonymity may harm minor family members.

That's why courts commonly "allow parents who are suing on behalf of their minor children to proceed pseudonymously," especially "when the case involves highly personal information about the children." If we didn't, "the protection afforded to the minor" as a matter of course "would be eviscerated unless the parent was also permitted to proceed using initials." We thus shouldn't force parents to choose between pursuing their or children's rights and risk exposing their children to retaliation or harm. The youth of affected individuals, then, is "a significant factor in the matrix of considerations arguing for anonymity."

Heightened risk to a minor child is precisely the situation here. Jane Doe is suing on her own behalf and on behalf of her child. This case involves highly personal information about her child, including his vaccination status and his learning disabilities.

Forcing Doe to proceed as a named plaintiff clearly risks all this becoming public. Linking Jane Doe to her child will be easy enough. That Jane Doe does not share a last name with her minor child does not materially affect this analysis. Either way, revealing Jane Doe's identity would make her child's identity open to discovery by people in the community, risking the retaliation or abuse that anonymity seeks to prevent. Because the district court failed to consider Jane Doe's child's vulnerability, it abused its discretion….

Second, the district court didn't consider whether pseudonymity should have been granted "to preserve privacy in a matter of sensitive and highly personal nature." Jane Doe is challenging California's enforcement of its Compulsory Vaccine Law against her and her child and cites deeply personal—and controversial—religious beliefs as her reason. And "religion is perhaps the quintessentially private matter."

"[B]y filing suit," Jane Doe has "made revelations about [her] personal beliefs and practices that," under the circumstances, could well "invite[] an opprobrium analogous to the infamy associated with criminal behavior." "This suit—challenging a government activity—forces [Jane Doe] to reveal [her] beliefs about a particularly sensitive topic that could subject [her and her family] to considerable harassment."

Indeed, Jane Doe has already faced criminal sanction for seeking to adhere to her faith. Thus, the district court failed to appropriately account for the sensitive nature of this litigation…. [A]nonymity is often granted when there is "a combination of both the plaintiff's religious beliefs and expected public hostility to the specific remedy that the plaintiff is seeking" ….

Few things in recent times can engender as much public hostility as challenges to vaccine mandates. After all, one of the authors of SB-277, which removed religious exemptions from California's Compulsory Vaccine Law, once posted an article on social media suggesting that "opting out of vaccines should opt you out of American society," while comparing being "willfully unvaccinated" to being a "drunk driver." …

The majority doesn't disagree that the district court should have analyzed Jane Doe's child's vulnerability but bafflingly asserts that Jane Doe's concerns are unreasonable. This ignores the substance of Jane Doe's complaint. Jane Doe presented probative evidence that her son was excluded from school and that she was targeted for criminal prosecution for her child's truancy. She was explicit that her objection to vaccination was "based upon her deeply held beliefs as a Christian," and that she "view[s] her religious beliefs as essentially a private matter."

And more than just her experience with Defendants, she reasonably pointed to "prevailing attitudes towards anti-vaxxers" and "the potential implications of her case for the California" public in asserting her fear that unwanted media attention and other negative public attention would cause her son social stigma, harassment, and threats. Publicly filing this lawsuit would also expose her son's private medical information to the public, including his vaccination status and, potentially, his other disabilities.

Jane Doe thus credibly presented evidence of real potential harm to her and her child in the form of unwanted attention and stigmatization, which she alleges would exacerbate her son's disability and harm his social development. All this harm to Jane Doe's child—yet Defendants would suffer no prejudice because all but one of them know who she is, and she has offered to disclose her identity to all of them. Nothing is unreasonable about these concerns….

For these reasons, we should have reversed the denial of pseudonymity. We should have given greater consideration to the risk of harm to Doe's minor child and to the public opprobrium against her deeply personal religious beliefs. I respectfully dissent.

The post No Pseudonymity for Parent Suing Over School Vaccination Mandate appeared first on Reason.com.

[P]laintiff alleges the following facts. The plaintiff is an American citizen of African descent, who, during the times alleged in the complaint, was employed as a parking lot attendant for Pro-Park Mobility. The defendant Noble, during the times alleged in the complaint, was the executive director, employee, and agent for service of process of the defendant Buckley Institute. On or about a date prior to July 6, 2023, one or both of the defendants entered into an agreement with the plaintiff's employer to rent parking spaces for one or more of Buckley Institute's employees, including Noble, in the parking lot where the plaintiff works as an attendant (parking lot).

The complaint alleges that on or about July 6, 2023, while the plaintiff was at the parking lot, he informed Noble that the lot was full and he could not provide for her parking needs. The complaint alleges that the plaintiff overheard Noble state, "fucking niggers," and that the plaintiff did not respond to her.

The complaint further alleges that on July 13, 2023, while the plaintiff was on duty within the parking lot, Noble told him she could not find a parking place in the parking lot and the plaintiff said the parking lot was full and could not accommodate her. The complaint alleges that Noble replied: "You's niggers get jobs and don't know how to act!," and that the plaintiff did not respond to her.

The complaint further alleges that on or about July 27, 2023, the plaintiff observed Noble arrive at the parking lot and found that, due to the lot being full, there was no space within the parking lot to park her car. The complaint alleges that at that time, in the presence of, and within the earshot of two individuals and the plaintiff, Noble orally referred to the plaintiff as a "nigger" three times over a parking lot issue.

The complaint states that "[t]he plaintiff, by dint of … Noble's racially odious, racially demeaning, cruel, abhorrent, and racist epithets towards … [the plaintiff] had the capacity to hold him up to public ridicule, public humiliation, and has caused him great annoyance, embarrassment, shame, degradation, and moreover, he has suffered in his reputation and has lost the good will of many persons with which he otherwise would have enjoyed by dint of … Noble's heinous and foul misconduct she directed towards him." …

The court allowed plaintiff's intentional infliction of emotional distress claim to go forward:

 "In order for the plaintiff to prevail in a case for liability under … [IIED], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." "Liability for [IIED] requires conduct that exceeds all bounds usually tolerated by decent society …. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community…. Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon [IIED]."

"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine…. Only where reasonable minds disagree does it become an issue for the jury." "[I]n assessing a claim for [IIED], the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint… set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on [IIED]." …

In general, "courts have been more apt to find sufficient allegations of outrageous conduct when that conduct involves violence, the threat of violence, or racial, ethnic, sexual, or religious slurs…. Lamothe v. Russell (Conn. Super. Ct. 2009) (supervisor constantly belittled, berated, and screamed at the plaintiff, constantly mocked plaintiff by calling her fat, threw objects at or near plaintiff, and, on at least one occasion in front of others, grabbed a cigarette out of plaintiff's mouth and/or hands, while screaming at her); Leone v. New England Communications (Conn. Super. Ct. 2002) (owners subjected plaintiff to constant ethnic slurs, sexually offensive comments, sexually offensive pictures placed on plaintiff's computer, and insulting comments on his sexual preference)." Cortazar v. Staples the Office Superstore (Conn. Super. Ct. 2012)….

With respect to the specific word at issue in this case, our Supreme Court [in State v. Lienbenguth (2020)] provides an in-depth discussion of the highly offensive and demeaning nature of the use of the word "nigger." The court states:

Not only is the word "nigger" undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon; …; but it is probably the single most offensive word in the English language. See, e.g., Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013) (Kavanaugh, J., concurring) ("[The] epithet ['nigger'] has been labeled, variously, a term that 'sums up … all the bitter years of insult and struggle in America,' [L. Hughes, The Big Sea: An Autobiography], 'pure anathema to African-Americans,' Spriggs v. Diamond Auto Glass (4th Cir. 2001), and 'probably the most offensive word in English.' [Random House Webster's College Dictionary]. See generally [A. Haley, Roots: The Saga of an American Family]; [H. Lee, To Kill a Mockingbird]…. No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans."); R. Kennedy, The David C. Baum Lecture: 'Nigger!' as a Problem in the Law, 2001 U. Ill. L. Rev. 935 (although "[t]he American language is (and has long been) rife with terms of ethnic, racial, and national insult: kike, mick, wop, nip, gook, honkie, wetback, chink, [etc.] … 'nigger is now probably the most offensive word in English'"); Dictionary.com, available at https://www.dictionary.com/browse/nigger?s=t ("The term nigger is now probably the most offensive word in English. Its degree of offensiveness has increased markedly in recent years, although it has been used in a derogatory manner since at least the Revolutionary War.").

In fact, because of the racial prejudice and oppression with which it is forever inextricably linked, the word "nigger," when used by a white person as an assertion of the racial inferiority of an African-American person, "is more than [a] mere offensive utterance …. No word … is as odious or loaded with as terrible a history." … "[T]he term is generally regarded as virtually taboo because of the legacy of racial hatred that underlies the history of its use among whites" …. "[N]o fact is more generally known than that a white man who calls a black man a 'nigger' within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate. The trial court was free to judicially note this fact."). The word being "one of insult, abuse and belittlement harking back to slavery days"; it is uniquely "expressive of racial hatred and bigotry"; and "degrading and humiliating in the extreme …." For all these reasons, the word rightly has been characterized as "the most provocative, emotionally-charged and explosive term in the [English] language."

In the present case, Noble allegedly referred to the plaintiff as a "nigger" multiple times, on three different days. Thus, for purposes of the motion to strike, the plaintiff has sufficiently alleged facts to support the extreme and outrageous element.

The defendants further argue that the plaintiff fails to allege facts that, if proven true, would show that the plaintiff has suffered "severe" mental distress. Here again, the court disagrees. "The distress necessary to sustain a claim of intentional infliction of emotional distress has been defined simply, but clearly, as 'mental distress of a very serious kind.'" Count two alleges "severe" emotional distress. The severity of the distress is to be determined by the evidence of its intensity and duration in future proceedings; thus, the cases relied on by the defendants involving summary judgment do not assist the court in determining the sufficiency of the allegations…. Whether the plaintiff suffered "severe" mental distress is for a finder of fact to determine.

But the court rejected plaintiff's other claims. As to his slander claim, it reasoned that the slur did "not assert objective fact, but only an opinion." As to the negligent infliction of emotional distress claim, it reasoned (among other things) that that tort applied to a narrow set of cases involving risk of illness or bodily harm. It similarly rejected the claims for negligence and for "wanton and reckless conduct," which generally require a risk of bodily harm. And it rejected an unfair competition claim, in part because it is limited to conduct within business relationships:

The supplemental objection argues that Noble's statements occurred during conduct of trade and commerce by way of the defendant's use of the lot while going to and from work. The plaintiff reasons that the claim is satisfied because one of Noble's responsibilities is to show up to work for business and events, and the defendants lease the parking space from the plaintiff's employer; thus, they are engaged in trade or commerce with the parking lot.

However, the plaintiff has failed to provide the court with any binding authority that Noble's act of parking a car in the lot leased by Buckley Institute and/or Noble creates an action in trade or commerce by Noble. "[A]ctivities constitute trade or commerce only if the party is engaged in the business of conducting such activities." The complaint fails to sufficiently allege that Noble was engaged in trade or commerce.

UPDATE 5/21/26, 11:21 am: The Buckley Institute passed along a copy of the transcript in the criminal case against Noble; here's a long excerpt from the prosecutor's explanation of why the charges were dropped:

Today the State is entering a nolle based on the sole reason that the State cannot prove this case beyond a reasonable doubt.

The reasons we cannot prove this case beyond a reasonable doubt are there is insufficient evidence to support—support the complaining witness claim; there are inconsistencies in the complaining witness' statements; there are credibility issues; there are—there exists video evidence clearly contradicting the complaining witness' statements; and there is a possibility that this defendant may not be the correct offender based upon the absence of a positive identification procedure.

Factually, the State cannot meet its burden, and as prosecutors we have an ethical obligation not to pursue charges that cannot be proven beyond a reasonable doubt, an obligation that the State takes very seriously.

The allegations here involve the complaining witness who was working as a parking attendant at Propark Parking at the Wall Street lot. And he alleged that this defendant made racist comments to him on three separate occasions. Those dates were July 6th, 2023, July 13th, 2023, and July 27th, 2023.

In regards to the July 6th date, the complaining witness said in a written statement that he was working as a pro—for Propark as a parking attendant when the defendant was attempting to park in the lot; that the complaining witness told her that the parking lot was full. The complaining witness said he heard the defendant say a racist slur towards him once he informed her that there was no parking available at this time.

Later he gave a statement that was captured on body-worn camera. And at that time the complaining witness said that the defendant pulled up to the lot and noticed the lot was full and then uttered a racial slur before flying out of the parking lot.

There are several inconsistencies with the complainant's allegations in regards to the July 6 statement. The State obtained video evidence of the parking lot on July 6th, 2023 which clearly shows two blue SUVs pull into the parking lot at similar times. One is the defendant's SUV and the other individual is driving a blue SUV is also a white woman, like the defendant. The parking lot is clearly not full as the complaining witness alleged in his statements. The defendant parks her vehicle, exits the parking lot walking with absolutely no interaction with the complaining—complaining witness. The defendant does not drive out of the parking lot as the complaining witness alleges, but clearly parks in a lot that is not full, gets out of her car, and walks out of the parking lot.

On this date, the complaining witness has an interaction with another woman who was also a white woman, like the defendant and drives a blue SUV. When the State interviewed the complaining witness, he had first said maybe he got the date wrong, and then he said, no, I'm sure it was July 6th because my sister's birthday is July 7th.

Complaining witness never said he may be unsure about the date or did—he did not give a range of dates. He always said it was July 6th, July 13th, and July 27th. Complaining witness also is inconsistent as to what happened in his written statement and his recorded statement on body-worn camera. It seems he flipped what is said on July 6th and on July 13th.

During complaining witness's interview with the State, he also said he had just started working a few days prior to the July 6th date and didn't know who all the people were who were parking their cars in the lot. He also stated, so around this time I was just starting and I don't know who was who.

The complaining witness also said the defendant's car pulled in the lot around 10:30, 11 on July 6th and clearly on video, the car pulls into the lot at 9:13 a.m.

In regards to the July 13th allegations, that's July 13th, 2023. Again, the complaining witness gave a written statement and stated that defendant's vehicle was blocked in by another vehicle the previous day on July 12th. And there was no verbal argument on that day.

He then stated on July 13th, 2023 defendant's vehicle was again blocked in and they had a verbal argument. Complainant blamed the defendant for her vehicle being blocked in and again uttered a racial slur towards the complaining witness.

In a later statement captioned on body-worn camera, the complainant says defendant approached his booth to complain about being blocked in the day before by another car and then uttered a racial slur.

Again, the State was able to obtain video of the July 13th, 2023 date. The video clearly shows defendant's car pull into the lot at 9:06 a.m. and her windows are up and she parks her vehicle. The complaining witness is seen walking away from the area of the defendant's vehicle and there's absolutely no interaction between the two parties. Defendant parks her vehicle, the lot is not full as the complaining witness alleges, and exits—she exits the church parking lot. Defendant never, on the video, approaches the booth where the complaining witness is located.

The third date in question is July 27th, 2023. On this date, the complaining witness' supervisor, Misty Doss was assisting with the parking lot because there was an event that was being held that day. The complaining witness said he saw defendant coming and told Misty of his previous problems with the defendant. The complainant said he was nearby when Misty approached the defendant to tell her that her vehicle may be blocked in to an event—due to an event today.

The complaining witness said he heard defendant say to Misty, referring to him by a racial slur and that Misty said, it's the rules of the lot, and then the defendant then again uttered a racial slur toward the complaining witness.

Misty Doss gave a statement captured on body-worn cam about the July 27th, 2023 interaction. She said she approached the defendant and asked her for—for her car keys and that the defendant was furious and started insulting her. She stated that they had a heated argument and defendant stomped her foot. Misty said that the defendant then referred to the complaining witness by a racial slur and said that he better not touch her car while the complaining witness was a car-and-a-half length away talking to another customer.

Again, the State obtained video evidence of the July 27th, 2023 allegation. The interaction between the defendant and Misty is captured on video but defendant does not stomp her foot or point in any direction. In fact, you cannot even see the complaining witness on the video when the defendant and Misty interact.

Police reports state that Misty told the police, quote, Noble, referring to the defendant did not point or direct at any—any of the berating towards Allen at any time; Allen is the complaining witness. This is inconsistent with the complaining witness' statement.

Again, there was no interaction on this date between this defendant and the complaining witness. The complaining witness also alleged that another witness by the name of William Henton was a witness to the July 27th interaction. He was in the parking lot that day, according to the complaining witness, fixing his vehicle and overheard the interaction.

Again, the State reviewed body-worn camera—I'm sorry.—video footage, not body-worn camera footage from this date and this individual is not on video fixing his car at the time that the defendant and Misty had their interaction.

In addition to these factual inconsistencies, there is an issue regarding the identification of the defendant as the individual who allegedly uttered these racial slurs. The complaining witness has said on multiple occasions that he started working a few days prior to the July 26th, 2023 date and he was unsure of who was who.

Complainant does have what appears to be an altercation with a white woman who drives a dark SUV similar to defendants on the first date, but this is not the defendant. Additionally, there was never an identification procedure where the complaining witness was asked to identify the alleged individual who uttered—uttered these racial slurs.

There also exists potential Brady and Giglio material on complaining witness's telephone which the complainant has said repeatedly doesn't exist, although the State has reason to believe it does exist based on the complaining witness statements captured on police officer body-worn camera.

The State also takes its Brady and Giglio obligations seriously and this is just one of the many reasons why the State cannot proceed with this prosecution….

So in conclusion, I'd just like to state that the allegations made by the complainant are serious and the State has taken these allegations quite seriously. We did a thorough investigation into this—these allegations. And after that thorough investigation, the State has concluded that these allegations cannot be proven beyond a reasonable doubt. And therefore, today we are entering a nolle on all charges….

And here's an excerpt from Mr. Allen's statement at the hearing:

So I know the prosecutor, excuse me.—mentioned that on the 27th I had an altercation with another young lady. It wasn't an altercation; it was discussing about where she could park and where she couldn't park. I don't know if she's seen the video. I have the video. Yes. I've been—had the video with my attorney.

Same video, another video that I have with Miss Nolles (as said) and my supervisor getting into it, I have that video as well. So when she said I got into it with someone it was—I didn't know who I was talking to or who I was arguing with, 'cause clearly I—I can tell. The young lady I was talking to was shorter, didn't have glasses. Miss Nolles was taller with glasses.

I mean, everyday people have a bad day, wonderful days, great days, some people, but when you have a bad day you shouldn't take it out on someone else based on whatever situation is going on that day.

Just like what I told my attorney, and I told the—and the prosecutor, I didn't know Miss Nolles. I didn't know a lot of people at the parking lot, I was still feeling people out. But at the end of the day, it was a little issue on I had this day right, this day wrong, whatever the case is, just like when we watched the video, if you watched the video, once it starts playing, it starts jumping. Some things you see, some things you don't see. Just like was mentioned at her car, Miss Nolles—excuse me.—Miss Nolles' car was already in the parking lot on a particular day. But it was—oh, Nobles. I apologize. Miss Nobles, on a particular day.

Clearly the video that I have doesn't show that her car was even in the parking lot; it was a whole entire different SUV. She has a blue Mercedes, this was a blue Audi. Two different cars.

But again, like I said, you know, you got to make a decision based on how you feel or your burden of proof or not proof but, you know racism is born every day….

And an excerpt from the statement by Mr. Allen's lawyer:

With respect to the last date in question, that'll be July 27th. In addition to one independent witness, Misty Doss, there was also a Mr. William Henton who is the head sexton at United Church of Christ on the Green here in New Haven that owns the parking lot. He was there that day. That information was made available to the police as well as to the prosecutor.

So, I think that if a jury has problems with two of the dates that are in question where there is no independent witness, perhaps they wouldn't with the third….

Of course, the dropping of the criminal charges doesn't legally preclude the civil case from going forward: That a prosecutor thought the case can't be proved beyond a reasonable doubt (the criminal standard) doesn't prevent a jury concluding that the case can be proved by a preponderance of the evidence (the civil standard). But presumably the same video evidence will be introduced at the civil trial as well, and the jury can draw their conclusions from it (as well as the other evidence).

Note, by the way, that I spoke at a Buckley Institute event last Fall, and was paid a modest honorarium. The event had nothing to do with this case, and nothing to do with this post. (Naturally, I'm generally happy to add updates with further information, such as court transcripts, relevant to my posts, regardless of whether I had dealt with the organization before or not.)

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