Author: Ronald K.L. Collins


FAN 129 (First Amendment News) A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York TimesThe Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

* * * *

In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.


Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits Read More


FAN 128.1 (First Amendment News) Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits

It is about time that the use of lawsuit threats by a bully, like Trump, should be met, and met strongly. — Laurence Tribe 

Theodore Boutrous, Jr.

Theodore Boutrous, Jr.

It all began with Theodore Boutrous, Jr. According to Law Newz, “on October 13, Boutrous sent out a tweet promising to a pro bono defense to the Palm Beach Post newspaper after it published a story from one of Trump’s alleged accusers.” And then on October 22, he tweeted: “I repeat: I will represent pro bono anyone  sues for exercising their free speech rights. Many other lawyers have offered to join me.”

Shortly afterwards one of those who offered to form pro bono phalanx to defend against Trump’s threatened defamation lawsuits was  Harvard Professor Laurence Tribe.

Professor Laurence Tribe

Professor Laurence Tribe

Last evening Professor Tribe appeared on The Last Word with Lawrence O’Donnell (MSNBC). Tribe was on the program to talk about recent threats by Donald Trump to sue his sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

Here are some transcribed excerpts from Professor Tribe’s comments in response to that threat:

Offer of pro bono assistance

“Ted Boutrous and Ben Wittes, and many other leading lawyers, have [offered to represent pro bono those alleging sexual misconduct against Donald Trump]. And I did it because it is about time that the use of lawsuit threats by a bully, like Trump, should be met – and met strongly – because a lot of people, a lot of women, might be deterred by his threats even though he often doesn’t carry them out. They might be afraid to come forward; it’s not only them, it’s all kinds of groups. A group that I am also ready to defend pro bono, although it may sound a little bit strange, is the American Bar Association, which was frightened into suppressing its own report by a free-speech watchdog group, which concluded that Trump used the threats of libel suits to bully people into submission. And they ended up censoring themselves because they were afraid of being sued.” [See Adam Liptak, Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’, New York Times, Oct. 24, 2016; see also Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center, Oct. 21, 2016]

“It’s really about time that people who know what they are talking about in the law tell this guy what an idiot he is and how unfair it is for him to use his power. . . . He says that he can just sue the hell out of anybody. [But] he’s gonna learn better than that when he tries. . . . “

“[T]he women who are afraid to come forward should know that lawyers like me are going to be willing to defend them and the journalists who reported their stories without charge. . . .”

Possible defamation suits against Trump

“All of the people [Trump] threatens to sue, without any real ground and in the face of the First Amendment, have strong grounds to sue him for deliberately and falsely labeling them as liars and as people who simply want – I think he called it — their ten minutes of fame . . . .”

Course of action if Trump wins

“Justice Brennan in a case called Garrison, pointed out that the way the Nazis, early in their rise to power, silenced their enemies and their opposition was to threating to use defamation lawsuits against them. But I do want to want to add, quite apart from these lawsuits, if Trump loses (as I hope he will) we won’t have to take the next step. But if he should happen to win (heaven forbid!) . . . then lawyers around the country, who are joining me in this effort, are going to do all we can, pro bono, to prevent him from abusing executive power by violating the First Amendment and much else in the Constitution. Because if he wins, he’s likely to take a Congress with him; he’s not likely to have the usual checks-and-balances. So, the legal profession has a challenge that I hope it can meet. I think that people who are lawyers . . . , in the best sense of the word, need to step up and call this tyrant for what he is.”

Coming: Tomorrow’s FAN post is titled: “A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press”


FAN 128 (First Amendment News) Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –Catherine J. RossLessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.


Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

  1. North Dakota (public colleges & high schools)
  2. Colorado 
  3. Pennsylvania 
  4. Iowa
  5. Kansas
  6. Arkansas 
  7. California
  8. Oregon
  9. Maryland (public colleges & high schools)
  10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte


  • Oregon (protection for public college students)
  • California (protection private college students)
  • New Jersey (pending legislation: public colleges & high schools)

 Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime? Read More


More Speech — A First Amendment Salon Occasional Paper: Bruce Johnson on Volokh & the “Speech Integral to Criminal Conduct” Exception

This is the first in the “More Speech” series of Occasional Papers to be circulated by the First Amendment Salon and the Floyd Abrams Institute for Freedom of Expression. The purpose of these More Speech papers is to introduce the practicing First Amendment bar to some new and important scholarly work that might be useful in litigation. Thus, we will invite a noted First Amendment lawyer to write a foreword to a particular scholarly article. By the same token, from time to time we will invite a noted First Amendment scholar to write a foreword to some important appellate brief, which we think might be of interest to the academic community. In this way, among others, we hope to enhance the communication between the practicing bar and the legal academy (and among journalists and activists, too).     

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The Giboney Resurrection: A Civil Practitioner Considers the “Speech Integral to Criminal Conduct” Exception

By Bruce E. H. Johnson

Where does free speech end, and crime begin? This is an old legal question in American law; it stretches back to the beginnings of the Republic, and even earlier.[1]

Bruce Johnson

Bruce Johnson

Early on, the federal prosecutions under the Sedition Act and similar state libel prosecutions – such as People v. Croswell[2] defended by Alexander Hamilton – cited to Lord Coke and spoke “of a libel, as having a tendency to break the peace.” In such cases the courts confronted cause and possible effect (‘tendency”) to evaluate what defenses would be allowed to avoid criminal liability for allegedly libelous speech.

In recent years, however, at least since New York Times Co. v. Sullivan[3] and Garrison v. Louisiana,[4] defamation lawyers have generally focused on First Amendment protections from civil liability. During more than five decades, First Amendment litigation has mostly moved on, freed from its criminal law origins. In the process, civil liability for free speech activities has become detached from the historic criminal law principles that were the subject of debate and litigation in the 1790s and thereafter. This is because, recognizing that the “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive,’”[5] Sullivan and its progeny developed constitutional rules applying free speech protections.

In his new article[6] UCLA Law Professor Eugene Volokh reminds us that, excluding modern defamation law, this “tendency” analysis remains key in evaluating unusual governmental limitations on free speech protections. Indeed, under the Roberts Court, a new category of unprotected speech has quietly been added to the historic list of First Amendment “exceptions” recognized in Chaplinsky v. New Hampshire.[7]

As Professor Volokh notes, this is a recent development, and potentially very troubling. When the Supreme Court decided United States v. Stevens[8] and United States v. Alvarez,[9] First Amendment advocates were generally pleased. In both cases, citing the First Amendment, the Court struck down the application of a federal criminal law to activities that were plainly speech or speech-related.

Professor Eugene Volokh

Professor Eugene Volokh

Neither case presented great facts.[10] Stevens involved so-called “crush videos,” while Alvarez construed the constitutionality of the Stolen Valor Act, a federal law that criminalized false statements about having a military medal, with the Justices voting 6-3 to hold the law unconstitutional as applied. In his plurality opinion, Justice Anthony Kennedy ruled that “[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech.”

But, in both cases, the Court, when listing the usual collection of well-recognized Chaplinsky “categories,” added “a long-dormant and little defined First Amendment exception: the exception for ‘speech integral to criminal [or tortious] conduct,’” and included a citation to Giboney v. Empire Storage & Ice Co.[11] as the leading case supporting that exception. In another decision, Sorrell v. IMS Health Inc.[12] – a “commercial speech” case holding unconstitutional a Vermont law that “restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors” – the Court also cited Giboney in listing the categories of speech that were excluded from the First Amendment.[13]

According to Professor Volokh, Giboney “hadn’t been cited by the Court at all from 1991 to 2005,” but since 2006, “the Court has cited Giboney six times” and its exception for speech integral to criminal conduct “is now a standard item on lists of First Amendment exceptions.” In his view, the reliance on Giboney is a product of the Roberts Court. That is, both Chief Justice Roberts and Justice Scalia sought to avoid “categorical balancing” tests and instead embraced a constitutional doctrine supposedly rooted “in history and tradition.” With apologies to Van Wyck Brooks,[14] it is clear that Giboney was attractive because it offered a usable past to several Justices with originalist tendencies. Read More


FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

* *  * * 

Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

* * * * 

According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More


FAN 127 (First Amendment News) Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

The case is Bennie v. MunnA cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsels for Petitioner

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

 In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

 Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Prof. Eugene Volokh

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

largerlogopictures_0“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book ShopOctavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”


“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online.Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

Read More


FAN 126.1 (First Amendment News) Court denies cert in “public official” defamation case

The question presented in Armstrong v. Thompson was “whether all (or nearly all) law enforcement offic- ers are “public officials” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” Today the Court denied cert. in that case.

In his petition to the Court, Roy T. Englert, Jr. argued:

This case presents a recurring First Amendment question: whether a garden-variety law enforcement officer, with little or no role in setting public policy, must establish “actual malice” to recover for harm caused by tortious statements. A number of Circuits and state courts of last resort—where many issues relating to the First Amendment and defamation are decided—have held that every law enforcement officer is a “public official” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Accordingly, those courts, including the court below, require each and every law enforcement officer to show “actual malice” before recovering for any tort carried out through speech. In this case, despite an otherwise-error-free trial resulting in a jury verdict establishing that re-spondent had committed an established common-law tort, the court of appeals joined those courts and reversed on federal constitutional grounds after determining that Armstrong was a public official and that he had failed to prove “actual malice.” App. 14a-21a.

This Court should grant review. The rule applied below conflicts with decisions in other lower courts; “distort[s] the plain meaning of the ‘public official’ category beyond all recognition,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); and deprives hundreds of thousands of individuals of the ability to obtain redress for needless, vendetta-driven attacks on their reputations and interference with their livelihoods.


Symposium: “The Future of Legal Scholarship” — West, Wu, Weisberg, Tuerkheimer, Strauss, Dorf, Posner & Others

The dialogue over the value of legal scholarship continues. Following On Legal Scholarship: Questions for Judge Harry T. Edwards (2015) comes yet more on the topic, again from the Journal of Legal Education.

The current issue the Journal (on whose Board I serve) contains the following Symposium titled “TheFuture of Legal Scholarship.” Here is a hyperlinked Table of Contents:


Book Review



*  * *

See also David Ziff, Judge Posner vs. Professor Dorf on Legal Writing (from Ziff Blog)


FAN 126 (First Amendment News) Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

This issue of First Amendment News reproduces the text of a speech (The Aims of Education Address) Professor Geoffrey Stone delivered at the University of Chicago on September 22nd. The Aims Address is given each year by a member of the University of Chicago faculty to welcome the entering college class. It is delivered in the University’s Rockefeller Chapel. (A video of Professor Stone’s address can be found here.

Given the controversy over campus speech codes and the University of Chicago’s open letter to its students, I thought the following remarks would help inform reasoned discussion of the issue of free speech on college campuses. I have added subheadings, hyperlinks, bullets, and photographs to Professor Stone’s text.     

Professor Stone is is the Edward H. Levi Distinguished Service Professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) and Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, W.W. Norton, Mar 21, 2017). 


Welcome to what you will come to know as The University and to the beginning of what I hope and trust will be one of the great adventures of your life. Whenever I think of students arriving here for the first time, I can’t help but recall an incident involving Justice Oliver Wendell Holmes.

Professor Stone delivering the Aims Address

Professor Stone delivering the Aims Address

At the time of this incident, Holmes was a very old man, nearing 90 years of age, in the autumn of his very long and very distinguished career as a Justice on the Suprme Court of the United States. On this particular occasion, Holmes was on a train headed north from Washington. He was deeply engrossed in reading a legal brief when the conductor knocked on the door to his compartment. Recognizing Holmes, the conductor respectfully asked for his ticket. Holmes looked in his coat pocket — no ticket. He looked in his vest pocket — no ticket. He reached into his trouser pocket — no ticket. Growing ever more frantic, Holmes began rummaging desperately through his briefcase — still no ticket.

At this point, the conductor, trying to calm Holmes, said “Never mind, Mr. Justice. It’s really not a problem. When you find the ticket, just mail it in to the company.” To which Holmes exploded: “You dolt! I don’t give a damn about your ticket, I just want to know where the hell I’m supposed to be going!”

In your first days on this campus, you will likely feel a bit like Justice Holmes — you will want to know where the hell you’re supposed to be going. My task this evening is to offer at least some sense of direction.

[A True Story about Rebels, circa 1918]

I should like to begin by telling you a bit about my world. It is the world of the law. More specifically, it is the world of constitutional law. Law is about stories. It is about real people involved in real disputes with real consequences. So, I shall tell you a story.

This story begins during World War I. As you may or may not know, World War I was not a particularly popular war with the American people, whose sympathies were divided. Many Americans vigorously opposed the Wilson administration’s decision to intervene in the conflict that was then raging in Europe, arguing that our intervention was both unwise and immoral.

Not surprisingly, such opposition did not sit well with the government. In 1917 Attorney General Thomas Gregory, attacking the loyalty of war opponents, declared: “May God have mercy on them, for they can expect none from . . . an avenging government.”

Gregory wasn’t kidding about the “avenging” government. In 1918, Congress enacted the Sedition Act, which made it a crime for any person to utter “any disloyal, . . . scurrilous, or abusive language intended to cause contempt . . . for the . . . government of the United States, the Constitution, or the flag.” True to the Attorney General’s threat, federal authorities launched more than 2,000 prosecutions against individuals who wrote or spoke against the war or the draft.

The defendants in Abrams v. US

The defendants in Abrams v. United States

One such prosecution involved five young, Russian-Jewish emigrants who were roughly your age at the time. In the summer of 1918, the United States sent a contingent of marines to Vladivostok in Russia. Concerned that this was the first step of an American effort to crush the Russian Revolution, these five self-proclaimed socialists threw several thousand copies of each of two leaflets — one in English, the other in Yiddish — from several rooftops on the lower east side of New York City.

The leaflets, which were boldly signed “The Rebels,” were addressed to other Russian emigrants. After stating that the Rebels hated “German militarism,” they warned those who worked in ammunition factories that they were “producing bullets, bayonets and cannon to murder not only the Germans, but also your dearest, your best, who are in Russia and are fighting for their freedom.”

The “Rebels” were immediately arrested by the military police. After a controversial trial, they were convicted of violating the Sedition Act of 1918. The trial judge, disgusted by their behavior and their beliefs, sentenced the Rebels to terms ranging up to twenty years in prison.

The Rebels appealed their convictions to the Supreme Court of the United States, claiming that their convictions violated the First Amendment, which guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In Abrams v. United States, the Supreme Court, in a seven-to-two decision, rejected this claim and upheld the convictions. For the majority of the Court, this was an easy case. Because the natural tendency of the defendants’ speech was to generate opposition to the war, it was not within “the freedom of speech” protected by the Constitution.

Justice Holmes

Justice Holmes

Justice Oliver Wendell Holmes, the same Justice Holmes who some years later was to lose his railway ticket, dissented. Holmes’s dissenting opinion in Abrams is worth reading, for it remains one of the most eloquent statements ever written by a Justice of the Supreme Court about the freedom of expression.

Holmes wrote: “Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises . . . and want a certain result with all your heart you naturally [want to] sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes therefore concluded that “we should be eternally vigilant against attempts to check the expression” even of “opinions that we loathe and believe to be fraught with death, unless they so imminently threaten” compelling government interests that an immediate check is necessary to save the nation.

Professor Harry Kalven (1914-1974)

Professor Harry Kalven (1914-1974)

I first read this passage, written almost a century ago, when I was a law student at this University, almost half-a-century ago. It has engaged my energy and curiosity ever since. Indeed, I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my law school professor Harry Kalven that, for better or worse, put me on the path to my career and, indeed, to where I stand before you this evening.

[The Aims of Education]

But now I must change direction, for this is not to be a discourse on the First Amendment. It is, rather, to be a talk about the aims of education. Happily, these are not unrelated subjects. To the contrary, the longer I have puzzled over the meaning of free expression, and the longer I have thought about education, the more the two seem to me to converge. Indeed, neither really is worth all that much without the other. And, with that in mind, I would like to turn to what I see as the intersection of free expression and education, and to the subject of academic freedom, for it is at this intersection that we will find the most fundamental values of the world you are about to enter.

I hope to accomplish three things in this part of my talk:

  • First, I will trace briefly for you the history of academic freedom, for it is only by understanding where we have been that we can appreciate — in both senses of the word — where we are today.
  • Second, I will talk a bit about this University and about the special role it has played in the struggle to establish and to preserve academic freedom.
  • And third, I will offer some thoughts about what all this means for you and about the responsibilities that we today bear in common.

It is important to understand that, like the freedom of speech, academic freedom is not a law of nature. It does not exist of its own force. It is always vulnerable, and should never be taken for granted. Indeed, until well into the 19th century, real freedom of thought was neither practiced nor professed in American universities.

To the contrary, any real freedom of inquiry or expression in American colleges in this era was smothered by the dominance of religion and by the prevailing theory of “doctrinal moralism,” which assumed that the worth of an idea must be judged by what the institution’s leaders declared its moral value to be. Thus, through the first half of the nineteenth century American colleges squelched any notion of free and open discussion or intellectual curiosity. Any student or faculty member who dared argue, for example, that women were equal to men, that blacks were equal to whites, or that homosexuality was not immoral would surely be expelled or fired without hesitation.

Similarly, through the first half of the nineteenth century, as the nation moved towards Civil War, any professor or student in the North who openly defended slavery, or any professor or student in the South who openly challenged slavery, could readily be dismissed, disciplined, or expelled. When a professor at the University of North Carolina expressed sympathy for the 1856 Republican presidential candidate, the students burned him in effigy and he was dismissed by the trustees. When a professor at Franklin College in Pennsylvania admitted he was not an abolitionist, he was promptly fired.

Several decades later, a furious battle arose over Charles Darwin’s theory of evolution, with traditionalists charging not only that Darwin was wrong, but also that his beliefs were dangerous, immoral, and ungodly. As a consequence of the furious battle in the academy over evolution, new academic goals came to be embraced.

Dean William Rainey Harper (1856 – 1906)

President William Rainey Harper (1856 – 1906)

For the first time, to criticize, as well as to preserve, traditional moral values and understandings became an accepted function of higher education, and by 1892 William Rainey Harper, the first president of the University of Chicago, could boldly assert: “When for any reason the administration of a university attempts to dislodge a professor or punish a student because of his political or religious sentiments “at that moment the institution has ceased to be a university.”

But despite such noble sentiments, the battle for academic freedom has been a continuing and fiercely contentious one. In the closing years of the 19th century, for example, businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. But that support was not without strings, and during this era professors who offended wealthy donors by criticizing their business practices were dismissed from such leading universities as Cornell and Stanford.

Then, during the World War I, patriotic zealots persecuted and, as we have seen, even prosecuted those who questioned the wisdom or morality of the war. In the face of such outrage, universities collapsed almost completely in their defense of academic freedom. Students and professors were systematically expelled and fired at colleges and universities across the nation merely for encouraging a spirit of indifference toward the war.

Similar issues arose again, with a vengeance, during the Cold War in the age of Joseph McCarthy. In the late 1940s and 1950s, most universities excluded those even suspected of Communist sympathies from university life. Yale President Charles Seymour, for example, went so far as to boast that “there will be no witch hunts at Yale, because there will be no witches. We will neither admit nor hire anyone with Communist sympathies.”

As this history demonstrates, the freedom to question, the freedom to challenge, the freedom to inquire is not to be taken for granted. Academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, student and faculty alike, to seek wisdom, knowledge, and truth, free of the censor’s sword.

[The Univ. of Chicago & Academic Freedom] Read More


FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

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The authors of the New York Times story were: