Law school seminars dive deep in FOI, free press, film

RJ Peltz-Steele with Google Gemini CC0 1.0

Students in my spring seminars, in Freedom of Information Law and in Free Press and Film, did outstanding work, and I am indebted both to them and to colleagues who joined my classes for teaching me and enriching my intellectual life.

Recently I spoke on the telephone to a long-time friend in academics, a professor at another university, many miles away. We shared strikingly similar stories of well paid administrators, whose numbers on campus seems to grow faster than the wealth gap, even while they lament cuts of not-nearly-as-well-paid staff and faculty positions to keep us within budget.

Well, the similarity would be striking if we were not accustomed to it. Universities in the United States combating financial exigency now seem to me like the nation of Oceania in George Orwell's 1984. They are forever locked in conflict with one or another enemy that is not in fact the greatest existential threat. Rather, the government itself perpetuates a state of emergency so that apparatchiks (administrators) can consume the fruits of labor while the masses (faculty and students) abide oppressive regulation and a diminishing standard of living.

My friend suggested that I propose and apply for a new university office, perhaps a Vice Chancellor of Financial Exigency. That sounds ironically lucrative. As they say, "when in Rome"; if the empire is falling, grab all the grapes you can.

Our conversation devolved, as it invariably does, into why we put up with it all. Coming in a very close second to paying the mortgage is an answer that I fear is both cliché and self-condemnatory: We are gratified when our students learn and excel.

Faculty Seminar Contributors

In the spring, I had the privilege to teach two seminars, one my recurring offering in freedom-of-information (FOI) law, the other a one-off, a course on free press and film. The FOI class coincided with the conclusion of my term on the federal Freedom of Information Act (FOIA) Advisory Committee, which service afforded me an opportunity to expose my students to leading-edge issues in the field.

The free-press-and-film class allowed me and the class to sink our teeth into the captivating book, featured at The Savory Tort in 2024, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025), by my friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech (IFS), and co-authors Professor Emeritus Bruce E. Altschuler, retired from political science at SUNY Oswego, and Professor Brandon T. Metroka, faculty in political science at the University of the Incarnate Word (UIW). (Photos: Knowles-Gardner, from IFS; Altschuler, 2017, by Jim Russel, SUNY Oswego '83, Metroka, from UIW).

My classes were enriched by colleagues who gave generously of their time and energy. Professor Knowles-Gardner joined us in person in Free Press and Film to discuss the book's treatment of the films Denial (2016) and Deliberate Intent (2000) (and to give a campus lecture). Professor Altschuler joined us for three classes, discussing his first three chapters of the book and the films Citizen Kane (1941), RKO 281 (1999), All the President's Men (1976), The Post (2017), Network (1976), and The Social Network (2010). Attorney Dan Greenberg, of the Cato Institute, joined Free Press and Film to discuss his documentary film, American Libel (2025), featured at The Savory Tort last year. (Photo: Dan Greenberg, from Cato.)

My FOI class welcomed attorney and information practice Professor Jason Baron, University of Maryland (U. Md.), and a fellow member of the FOIA Advisory Committee; Arkansas investigative journalist Brandon Howard; independent filmmaker and journalism and mass communication Professor Natalie Pattillo, and a university student leader and student journalist; Professor Robert Steinbuch, featured recently here at The Savory Tort, Bowen Law School, University of Arkansas, Little Rock (UALR); attorney and adjunct professor Gregory V. Sullivan, president of Malloy & Sullivan and president of the New England First Amendment Coalition; and journalism and media studies Professor A.Jay Wagner, Diederich College of Communication, Marquette University, a past member of the FOIA Advisory Committee.

Professor Baron discussed the science of artificial intelligence and how advancements in the era will change the practice of FOI law for both requesters and record officers. Journalist Howard joined the class to talk about his past newspaper reporting and ongoing pro se FOI litigation to access a cold murder investigation case file in northwest Arkansas (see, e.g., The Weekly Vista; see also breaking news). Professor Steinbuch discussed his ongoing transparency advocacy in Arkansas and opinion writing for The Arkansas Democrat-Gazette. Attorney Sullivan discussed his remarkable record of high-profile access litigation and appellate argument on behalf of New England journalists. Professor Wagner discussed his recent work on statutory citizenship requirements to block state access to public records and the ongoing debate over the constitutionality of the laws.

Professor Pattillo and her student, whose identity I am protecting just in case, discussed contemporary challenges facing campus journalists, including recalcitrant administrators. Professor Pattillo's teaching contract at UMass Dartmouth was not renewed this academic year (e.g., LinkedIn, New Bedford Light, Boston Globe (paywall)). 

(Photos: Jason Baron, from U. Md.; Brandon Howard, from LinkedIn; Natalie Pattillo, from the Center for Independent Documentary; Robert Steinbuch, from UALR; Gregory V. Sullivan, from Malloy & Sullivan; A.Jay Wagner, from Marquette University.)

Student Seminar Contributors

Students in both seminars produced a range of thought-provoking papers built upon insightful research and analysis. I am here honored to share selected titles and abstract, with authors' permission. I thank these stars for their work and for their collaborative spirit in learning with and from each other, and I anticipate with great pleasure their shining future contributions to the legal profession.

—in Freedom of Information Law

Jeremy Aylward, Retaining Transparency in the Digital Age: Retention of Electronic Records Under Federal and State Freedom of Information Laws. The proliferation of electronic records and digital communications has fundamentally challenged the legal frameworks governing government transparency and public accountability. While the federal Freedom of Information Act (FOIA) and Federal Records Act (FRA) establish baseline obligations for the retention and disclosure of electronic records, the enforceability of those obligations remains structurally compromised. This paper analyzes and synthesizes the legal frameworks governing the retention and disclosure of electronic records and messages under federal law and the open records statutes of California, Colorado, and Virginia, with particular attention to how those frameworks can be meaningfully enforced. Drawing on statutory text, agency guidance, and judicial interpretation, this paper examines how each jurisdiction defines "electronic records," what retention schedules apply, how personal device and third-party platform use by public officials is treated, and critically, what mechanisms exist to compel compliance, sanction violations, and remedy the destruction or concealment of covered records. The paper argues that across all four jurisdictions, electronic records retention law suffers from a common structural deficiency: obligations are broad in theory but weak in enforcement. This leaves agencies largely self-policing in an environment where the incentives to retain records often conflict with the incentives to delete them. While California's content-focused judicial approach offers the most expansive access framework, and Colorado and Virginia provide more structured but still under-enforced retention regimes, none of the examined frameworks provides a reliably enforceable mechanism for preventing loss of electronic records at the point of creation or ensuring accountability after the fact. The paper concludes by identifying the enforcement gaps that most critically undermine the transparency purposes of freedom of information law and by synthesizing lessons across jurisdictions for legislative and judicial reform. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Davis Preston, The Public Records Law Battles with State University Athletic Programs. Universities have taken advantage of state public record exemptions to skirt disclosures of their spending. To combat the skirting of disclosures and to provide more transparency, the NCAA mandates budget disclosures. Public records law exemptions still apply to the schools, but the NCAA mandates force the schools to disclose certain financial information anyway. These mandatory budget disclosures have their own limitations that allow schools to avoid full disclosure. They open the door to what money goes where, but withhold important information, such as who donates, how much they donate, and how the fundraising is organized. There are different structures for how athletic departments operate, but most use private or semi-private entities. Schools use privatization to avoid full disclosure after they meet the NCAA mandate. Different states have different laws that allow universities to avoid full disclosure. The University of Arkansas utilizes a private foundation, multiple universities in Florida utilize direct support organizations, and the University of Georgia utilizes disclosure time extensions. The laws are used to circumvent the public records law, which was enacted to hold public bodies accountable and provide transparency. The universities argue that they should have privacy on financials, as this allows them to keep a competitive advantage over other universities. This argument is met with the public interest in how the government spends money and whether this is done with transparency. There should be statutory change to prevent this circumvention of disclosure. Statutory change would entail eliminating exemption for direct support organizations, standardization of the function equivalent test, and the elimination of time extensions. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Tryon P. Woods, Prison Conditions and Public Access Or 1(st Am.) + 5(th Am.) + 8(th Am.) + 14(th Am.) < 0—Public Access Math. This paper examines the ongoing problem of prison conditions and the public’s access to information about what goes on inside prisons. I approach the topic as a twin problem in which access and conditions are opposite sides of the same coin. The correlation between access restrictions and the unconstitutional treatment of prisoners has a long history and nation-wide scope. Tracking the aftermath of the seminal case of the Attica Prison uprising in 1971 through several lawsuits arising from institutional failures in Arizona, California, Massachusetts, and NYC, this paper argues that in a "total institution" such as a prison or jail, visibility is the leverage on which control hinges. This relationship between the public’s access to information about prison conditions and the constitutional violations suffered by prisoners is refracted in the Court’s First, Fifth, Eighth, and Fourteenth Amendment jurisprudence on prisons since the passage of FOIA in 1966. Despite the Court’s best efforts, together with prison administrators, the relational reality of law remains undeniable: the undoing of legal personhood for people inside serves as the precondition for inventing the human outside. (When not appearing in class as a law student to sate his insatiable appetite for learning, Professor Woods also is a gifted faculty colleague in crime and justice studies at UMass Dartmouth.—RJPS) (Image: Attica Correctional Facility, 2007, by Bronayur via Wikimedia Commons CC BY-SA 3.0.)

—in Free Press and Film

Bryce Mayo, "A Victim of the Modern Age": Soft Law, Private Suppression, and the Gap in First Amendment Theory. Film: A Clockwork Orange (1971). The First Amendment limits government suppression of speech but does not restrict decisions by private actors. Constitutional doctrine therefore provides little guidance when expression is constrained through private pressures, market incentives, or self-censorship. These forms of non-governmental suppression rarely enter the public consciousness until controversy surrounding particular works expose gaps in the protection of free expression. Stanley Kubrick’s decision to withdraw A Clockwork Orange from circulation in the United Kingdom illustrates this limitation. Although the film was not subject to a nationwide legal prohibition, public controversy, media criticism, and local regulatory pressures preceded Kubrick’s nearly three-decade self-removal. The film thus remained legally protected yet practically inaccessible within the United Kingdom. This incident provides an example of how expressive works may be limited without formal government censorship. This paper examines Kubrick’s withdrawal through a United States constitutional framework. It focuses on the distinction between state restriction and private control over distribution and argues that the quasi-ban of A Clockwork Orange reveals a structural gap in First Amendment theory: while speech is protected from government censorship, it may nonetheless be suppressed through "soft law" mechanisms that operate outside formal doctrine. By separating the concept of legal protection from the reality of circulation, the paper clarifies how expression may be constrained outside traditional censorship models. Recognizing this distinction clarifies the practical limits of First Amendment protections and refines how free speech is understood in modern media environments shaped by market forces, rating systems, and distribution controls.

Amanda McKim, Speech is Free, But Lies You (Should) Have to Pay For: Alex Jones as a Case Study for the Inefficacies of Defamation Remedies. Film: The Truth vs. Alex Jones (2024). The First Amendment to the United States Constitution protects against government-imposed limitations on freedom of speech and the press. However, the First Amendment does not protect false, defamatory statements. The intersection of these two areas of law has been analyzed at length, but changes in the way society communicates raises new and more dangerous problems regarding the ways in which courts address the impacts of defamation. With the continually expanding use of smart phones, access to endless perspectives in media, and few ways to definitively “fact-check” sources, misinformation is rampant, and defamation remedies provide increasingly less meaningful relief to victims. Alex Jones, a prominent radio show host, was sued in two states and has three judgments against him for defaming victims’ families in the 2012 Sandy Hook school shooting. The complaints were filed in 2018 and resulted in final judgements in 2022 of $1.5 billion dollars in damages. Jones has since filed for bankruptcy, has yet to pay the victims. He continues to disparage the proceedings to his audience of 30 million daily listeners. The plaintiffs’ inability to recover and Jones’s continuing perpetuation of harmful rhetoric exemplify the ineffectiveness of current remedies to meaningfully address serious speech-based harms. Despite legal scholars’ critiques of equitable remedies in defamation cases, equity might be the best way to address previous harm, prevent future harm, and provide victims with the most appropriate relief. (Image: Instagram post by WBRC-TV 6 News, 2025. With characteristic wisdom and compassion, Ms. McKim suggested that the visual element for this post might honor the victims of Sandy Hook, rather than draw further attention to Alex Jones, who doesn't need help with publicity. I could not agree more.—RJPS)

Sean Pillai, Embedded Reporting and Freedom of the Press in Contemporary U.S. Military Operations. Films: Restrepo (2010) Korengal (2014). Embedding journalists with U.S. military combat operations highlights the ongoing struggle to balance democratic transparency with the practical realities of fighting a war. The system of embed reporting was created to give the public a clearer view of what happens on the front lines, but it also has raised continuing legal and ethical questions about how independent reporters truly can be when the military controls their access and movement. This paper looks at those tensions through the perspectives offered in Restrepo (2010) and Korengal (2014), while examining the most recent policy behind U.S. military media policy. The embed system shows why some limits on access are required in combat zones and that journalists must continue to expose themselves to risk both in the legal realm and physically in combat to protect speech. 

Carson Powell, From Accessible Knowledge to Smoldering Ashes: How a 1953 Novel Reflects a Growing Current Reality. Film: Fahrenheit 451 (2018). A story created in 1953, in which books are outlawed, and "firemen" burn any that are found, illustrates the censorship of knowledge and literature. In Arkansas, on March 30, 2023, the legislature approved Act 372, which included new standards for individuals selling books, whether that be public libraries or small bookstores. Act 372 in theory was approved to protect minors from stumbling onto books and materials of mature topics, but many librarians disagreed with that sentiment. The librarians of Fayetteville Public Library, joined by many other librarians believed that the act forces libraries and bookstores to segregate novels with "mature subjects" into "adult only" areas, with a risk of criminal prosecution for failing to do so. The Fayetteville Public Library, American Civil Liberties Union of Arkansas, and others filed complaints alleging that Act 372, like outright book banning, violates the First Amendment as overbreadth, vague, and content based. The lawsuit further alleged that the Act was intended to limit access of books and media to individuals who have a constitutional right to the books in question. The Arkansas legislature follows a growing trend around the United States of State’s legislators introducing and implementing acts regarding content-based censorship. Increasing enactments of laws aimed at removing “obscene” materials to protect children effectively discriminates against people of color, underrepresented communities, and members of the LGBTQ+ community. The suppression of media, whether by segregating books in the library or bookstore, or by facilitating their removal smaller institutions having to take the books off the shelves at risk of prosecution, reflects the themes of Ray Bradbury’s Fahrenheit 451.

Jakob Resnik, Apocalypse When? Latent Power of 47 U.S.C. § 606. Film: Apocalypse Now (1979). 47 U.S.C. § 606 ("the Act"), "The War Powers of the President," is an unused emergency provision of the Telecommunications Act that threatens freedom of speech. Apocalypse Now contains a scene depicting a Time magazine article reporting inaccurately on the Vietnam War. The movie does not say whether Time published the article of its own volition or at the direction of the Government. In the "real world," the Act enables the President to seize and control certain media outlets during emergencies, possibly controlling public reception of the emergency. The Act lacks clear definitions or statutory guardrails, conferring power so broadly that it is easily abused. Apocalypse Now used a prop magazine article to illustrate dishonesty in the media without showing where the lie really came from. Under the Act, a censored message can easily be spread to deceive the public regardless of free speech objections that outlets may raise. This is a threat to free speech.

Corie Scott, Tried Inside a Story: Pretrial Narrative and the Fragility of the Presumption of Innocence. Film: When They See Us (2019). Ava DuVernay’s When They See Us documents what happens when narrative precedes adjudication. The prosecution of the Central Park Five—who now identify as the Exonerated Five—illustrates how media coverage, official statements, and public discourse can converge to construct a story of guilt before evidence is tested in court. That story proved more durable than the convictions it preceded and more resistant to correction than the exonerations that followed. The case is extraordinary in its consequences. The dynamic it reflects is not. This paper examines the tension between First Amendment press freedom and the Sixth Amendment guarantee of a fair trial through doctrinal analysis and a preliminary comparative study of contemporary criminal reporting. Drawing on a close reading of fifteen articles across local news outlets, national publications, tabloid media, and government press releases, the analysis examines patterns in headline labeling, suspect characterization, moral descriptor language, victim framing, contextual background, and the presence or absence of presumption-of-innocence language. The sample is illustrative rather than representative and is offered to surface patterns consistent with the doctrinal concerns the paper identifies. The findings identify patterns that warrant closer legal and empirical attention. Narrative intensity, humanizing context, and presumption-of-innocence framing vary consistently across source types – and, with regularity that raises due process and equal protection concerns, across defendants. White defendants were disproportionately introduced through professional identity and personal context. Black and Latino defendants were more frequently framed through criminal identity and categorical threat language, with government press releases producing the most authoritative and criminalized framing of any source category examined. These patterns point to a structural gap in existing doctrine. First Amendment protections permit the circulation of narratives that assign meaning to accusation. Sixth Amendment safeguards operate within the courtroom to mitigate identifiable prejudice. Neither framework fully addresses how pretrial narratives shape the ground on which guilt is adjudicated. This paper argues that the law’s current approach is incomplete—not because it fails on its own terms, but because it was not designed for an information environment in which narrative formation is rapid, self-reinforcing, and difficult to unwind. The presumption of innocence survives as a formal rule. Whether it survives as a lived condition of adjudication, for all defendants equally, is the question the paper raises—and the one it calls on doctrine and empirical scholarship to more fully answer.

Alayna Wageman, Accountability Gaps at The International Criminal Court: How States Get Away with Murder. Film: A Private War (2018). Women journalists operating in conflict zones are targeted not only because of their reporting, but because of their gender. Sexual violence, intimidation, and physical assault are deployed as deliberate tools to silence women in the press, yet international law has failed to translate its formal protections into meaningful, enforceable accountability. This paper investigates that failure through the legendary war correspondent Marie Colvin. In Colvin v. Syrian Arab Republic, the United States District Court for the District of Columbia granted a default judgment of $302,511,836.00 against Syria for the deliberate targeting and killing of Marie Colvin during her reporting in Homs in 2012. Syria has never paid. Additionally, the conduct that killed Colvin, a state-directed attack on civilian journalists in armed conflict, falls within the jurisdictional reach of the Rome Statute as a war crime under Article 8, yet no International Criminal Court (ICC) prosecution followed. Syria is not a signatory and the UN Security Council vetoed the referral. Thus, even when liability is established, the absence of enforceable international laws leaves victims without remedies and states without consequences. Colvin's case is not exceptional. It is representative of a systemic pattern in which gender-based violence suppresses journalistic work and states face no meaningful consequences. This paper highlights three structural deficiencies within the International Criminal Court framework revealed by the Colvin case. This paper contends that addressing these gaps necessitates structural reforms beyond the scope of the current system.

Rebecca Wood, A Relic of the Past: It’s Time To Deal With The Equal Time Rule. Film: Man of the Year (2006). This paper utilizes the 2006 film Man Of The Year to introduce and illustrate systemic inconsistencies in the Federal Communication Commission’s (FCC) enforcement of the equal time rule. The rule, Section 315(a) of the Communications Act of 1934, requires broadcast licensees providing airtime to a legally qualified candidate must also provide equal air time all opposing candidates. The rule is introduced by examining the absence of discussion and enforcement of it and its requirements throughout the film despite a talk-show host’s presidential campaign. This paper suggests that the omission is illustrative of the inconsistent and arbitrary application of the rule in the real world. Next, the history and origins of the rule are explored beginning with the rule’s origin in the Radio Act of 1927 through present day talk show challenges. Subsequently, the rule’s inconsistent implementation and the question of censorship are investigated with examples in media, case law, and FCC proceedings and notices from the rule’s beginning through present day. Finally, possible remedies such as further defining the rule, post-Chevron challenges, or repealing the rule are considered.

9/11 widow calling out U.S.-Saudi coziness highlights failure of liability regime to deliver justice

Flag from Ground Zero appears in September 11 commemoration
last week at American History Museum in Washington, D.C.
G. Edward Johnson via Wikimedia Commons CC BY 4.0

"Tell the Saudis to stop lying," a September 11 widow told the 25th annual memorial gathering in New York City on Friday.

Terry Strada is the widow of Thomas S. Strada, a father of three and Cantor Fitzgerald bond broker killed in the terrorist attack on September 11, 2001. She broke the tradition of exclusively apolitical statements at the annual memorial. But she drew applause from the crowd and shamed the assembly of every living former President and the current Vice President, who were there.

Here's more of what Strada had to say, from The Hill:

"For 25 years, administration after administration, including leaders in front of us here today, chose to protect the Saudis instead of standing with the 9/11 families," she said. 

"They withheld evidence," Strada continued. "They vetoed JASTA [Justice Against Sponsors of Terrorism Act]. They broke promises, both public and private. It has been one betrayal after another."

"Tell them that if they want to be friends with the USA, they cannot continue to deny all of this, all of the pain, all of the destruction that we have all been suffering through," Strada said.

The Guardian has further coverage. 

There's no disputing Strada's facts. Twenty-eight pages of the 2002 congressional report on 9/11 were redacted for 14 years and did show possible ties, though nothing definitive, between Saudi officials and 9/11 hijackers. Many 9/11 records, including parts of the 2002 report, remain classified and have dribbled out over the years, including daily presidential briefings released just last week. Tim Burke at the Freedom of the Press Foundation has more on the latest. The City of New York also dumped a document trove into sunlight last week, including revelations of especial interest to first responders showing what officials knew about dangerous air quality.

Both Bush and Obama administrations tried to protect the Kingdom of Saudi Arabia (KSA) from accusations of 9/11 responsibility. The United States is not dependent on Saudi oil. But the White House saw, and still sees, KSA as an essential diplomatic and military partner in Middle East security.

In 2016, President Obama did veto JASTA. Congress overrode the veto five days later. The law waives foreign sovereign immunity in civil claims against foreign governments that aid and abet terrorism, whether with action or with money. 

Legislators were not so noble as it might seem. They knew well that JASTA claims would be next to impossible to prove against KSA, especially while 9/11 intelligence remained classified. So JASTA was really symbolic, something to boast about back home in the district. September 11 families would be pacified for a time while preoccupied with the bureaucracy of civil litigation.

Even if JASTA plaintiffs could obtain evidence, they would have a hard time ever proving a causal chain from the Saudi state to the 9/11 attacks. KSA might have ignored warning signs—so did the United States—but was hardly looking to destabilize geopolitics and send energy demand into free fall.

Indeed, since 2016, no JASTA suit has gained serious traction. A much touted suit against Israel in 2017 has gone nowhere and certainly has not been a deterrent to Israeli warfare. Iran has not even defended against JASTA suits and has suffered default judgments. That just moves plaintiffs into enforcement actions in the United States, in which they've been profoundly unsuccessful. Administrations of both parties have intervened against the plaintiffs, preferring that the government control Iranian assets to use them for diplomatic leverage.

The determination of Strada and other JASTA plaintiffs despite long odds, dim enforcement prospects, and opposition of their own government is a stirring reminder of the manifold purposes of tort law, or civil dispute resolution more generally. The U.S. tort system tends to emphasize, usually to a fault, the aim of compensation. But most 9/11 plaintiffs have received some compensation already from the federal victim compensation find.

Rather, plaintiffs in many types of cases, and especially in wrongful death, are usually after something else entirely. No amount of money can bring back a loved one. But justice is a relentless motivator.

Nevertheless, the law never has favored compensation for plaintiffs in U.S. courts for matters implicating foreign affairs. The preference is partly structural. The Constitution provides roles for both the executive and legislature in foreign policy. Congress often has abdicated, justifiably and not. But foreign policy in any event was always to be policy, by design, a matter of distributive justice for the political branches, not a problem in corrective justice for the courts. 

The preference also is political and is less defensible in that vein. As money became the lingua franca of Washington especially in the post-World War 20th century, policymakers became reluctant to trust courts, much less civil complainants, with regulatory influence over powerful and wealthy actors. In other words, the grubby hands of the unwashed masses must not be allowed to derail the gravy trains of the elite. The distaste for civil complainants against states supporting terrorism is a cousin, and not even a distant one, of the reluctance to create private causes of action in civil rights and consumer protection. 

In an outcome under-reported by mass media amid the usual flurry of Supreme Court opinions late in the last term, in Cisco Systems, Inc. v. Doe, in June, the Court disallowed a lawsuit accusing a U.S. corporation of knowingly developing technology for the Chinese government to facilitate the identification, arrest, and torture of members of the Falun Gong spiritual movement. The Court ruled out both corporate liability under the 1789 Alien Tort Statute (ATS) and aiding-and-abetting liability under the Torture Victim Protection Act (TVPA), appended to the ATS in 1991.

Both conclusions are debatable on the merits; the Court ruled 6-3. But more significant is the problem that remains: whether, or when and how, transnational actors can be held accountable in the United States for their complicity in human rights violations abroad.

As the United States has sought to eschew judicial involvement in foreign matters, other nations and the international legal system have been trying to step up. There is needed and dawning recognition around the world that transnational actors, public and private, have for too long been permitted to operate above the law. From Big Oil in South America, to Big Ag in Africa, to Russia in the former SSRs, the supposed rule of law has failed to stop bad actors from literally getting away with murder.

Which brings us back to KSA. To be fair to the past presidents, the United States always has been in a tough spot with the Saudis.

KSA seems to enjoy impunity in the murder of Jamal Khashoggi, oppression of dissidents at home and abroad, dubious policies on gender and sexual orientation equality, religious freedom, and immigrant labor, and financing war in Syria and Yemen. I'm not saying all such Saudi policies are indefensible, and I'm not letting the United States off the hook for its own issues. I mean only that there seems to be no official inquiry at all; other nations fairly accuse the United States of a double standard. 

The pandering of Bush, Obama, Biden, and Trump to Saudi royals is perennially stomach-churning. Western politicians will smile and abide when KSA hosts the 2034 FIFA World Cup, just as they abided Saudi acquisition of LIV Golf (until this year), Newcastle United, and Electronic Arts. And the United States is moving forward (probably) on an agreement to share nuclear technology with KSA for, one hopes, only civilian applications. 

And no wonder. The United States and KSA continue to rely mutually on strategic alliance for security interests in the Middle East. Meanwhile, Trump and allies, including son-in-law Jared Kushner, are profiting handsomely from Saudi investments.

One might wonder whether a time will come to pay the piper. Late last week, KSA grew frustrated as Iran-backed Houthi rebels seized from Saudi-financed government forces the entire Red Sea coast of Yemen. The Houthis thus gained control—this might sound familiar—of a vital strait and key islands in the transit of oil.

About the same time, KSA suffered a drone attack on its East-West oil pipeline. The massive conduit, stretching 1,200 km (746 miles), vital in the best of times, is a critical overland bypass to the Strait of Hormuz. The attack came from Iraqi territory, but almost certainly was the work of Iran-backed forces, and the timing dovetailed with the Houthi advance. The pipeline is shut down now for damage and risk assessment. I hope you filled your gas tank over the weekend.

In the wake of this one-two punch, reports say that Crown Prince Mohammed bin Salman (MBS) himself—whom you might remember from such hits as the Khashoggi dismemberment and Biden fist bump—asked the White House to intervene militarily against the Houthis. Middle East commentator Professor James M. Dorsey observed analogously seven years ago: "The Saudis do not want an open conflict with Iran. The Saudis would like others to fight that war, and the others are reluctant."

Whether or not Trump personally felt inclined to oblige in Yemen, U.S. military resources happen to be running thin. And Republicans campaigning for midterm election would go into full meltdown if the country were to go to war on a second front.

So the President had to let down his Riyadh chum, but did pledge to send 200 military advisers to beef up intelligence sharing. Why does that also sound familiar (inflation since 128 in 1950)? Well, don't worry, the President said. He had a call with MBS, and "everything's going to work out fine and dandy. It's going to be very good."

A deepening Saudi alliance, a merely symbolic JASTA, and a neutered ATS: Seems to me that the United States is succumbing to sycophancy as its place in the new world oligarchy.

Rhode Island primaries open to independent voters, but parties still exert outsized influence over elections

Governor McKee presses the flesh at a Ghana-unity World Cup event

in Providence in June.

RJ Peltz-Steele CC BY-NC-SA 4.0

Yesterday I voted in a Rhode Island primary election for the first time in my 15 years here, because a new state law allows voting without party affiliation.

The Governor's Race and the Problem with Not-So-Open Primaries 

I wanted to signal my displeasure with Governor Dan McKee. I did not think McKee a worthy successor to Gina Raimondo in 2021, when she joined the Biden cabinet, and I did not support him when he won election in 2022. I thought him a political insider more interested in party politics than bettering life for Rhode Islanders, and I regard my view as exonerated. 

But before this election, my vote was near meaningless. Rhode Island is a solidly blue state. The Republican party does not even put up candidates for most state legislative offices and often puts up non-serious placeholders for executive offices. So many voters simply "pull the lever" for Democrats automatically that most elections are decided in the primaries. Though Rhode Island has had Republican and independent governors in the past, such an upset is highly unlikely when the Democrat candidate is a party insider with easy name recognition, such as McKee.

Heck, yeah, I want my sticker.

RJ Peltz-Steele CC BY-NC-SA 4.0

I'm an "independent," or what Rhode Island calls "unaffiliated" voter. I always have been. I believe that America's two major parties have locked up the political system by making it almost impossible for a third party to get traction as other than a spoiler. Parties can no longer shift as they once did at pivotal moments in American history. And as they are locked in, both major parties have become unresponsive to American voters, who by and large are moderate. The parties are advantaged instead by playing to extremes. The two-party lock thus exacerbates our political and social polarization. Power in Washington shifts left or right, but congressional paralysis and executive unaccountability remain constant. I won't sign on to that. (There is a longer and more complicated explanation of why I have not affiliated with a third party, for another day. It is a proposition I have considered carefully.)

Refusal to join a major party meant that my vote in each general election was usually "thrown away" on state and federal races, because those matters were already decided. Rhode Island had more-or-less closed primaries when I moved here in 2011; unaffiliated voters were not allowed to vote in party primaries. Technically, Rhode Island had, since 1978, "semi-open" primaries, because unaffiliated voters who turned up at the primary could choose either ballot and go ahead and vote. However, the voter would then be registered as a party member for the ballot the voter chose. The voter could then file paperwork to disaffiliate from the party, but the onus was on the voter to do so. I don't consider that "open," no matter how consistently the prefix "semi" is interjected.

I'm not a political scientist, though I play one in the classroom. I have many political science friends who explain things to me. One reminded me last week that one problem with the closed primary is a counter-majoritarian effect. Suppose that, in Rhode Island, a moderate Democrat—who might incidentally, be something else that resonates with voters, such as libertarian, but would be effectively excluded from politics if so identifying—would command the majority support of the people when all voters participate. Yet that candidate never reaches all voters. Rather, the Democrat party first prefers candidates for the primary ballot who articulate more extreme differentiation from Republicans. Then party loyalists, the most fervent primary voters, prefer the more extreme of the balloted extreme. Our moderate Democrat stands no chance in this process, and the candidate who would have commanded majority support in the state never reaches the general election: yet another, and more subtle, way that our party-driven political system exacerbates polarization.

Half of R.I. registered voters are not party members.

R.I. SoS public domain

Here's a remarkable fact: Despite decades of compulsory party registration if one dared vote in a dispositive primary, roughly half of Rhode Island voters are, still are, unaffiliated. Present state data peg the count at 52%. It's 50% in Barrington, R.I., where I live. Turnout for primaries, never great, was disincentivized by the threat of compulsory party registration. And data show vigorous trading in party membership, disaffiliation and affiliation, for a few thousand who still wanted to participate.

Whether or not there is any merit to the mythology, I cannot say, but Rhode Islanders are said to be famously independently minded owing to the founding of the state by Roger Williams as a haven for church-state separationist, religious dissidents.

In 2024, the Rhode Island legislature at last passed, and Governor McKee signed into law, a bill allowing unaffiliated voters to choose and cast a party ballot in the primary without joining the party. Or otherwise stated, disaffiliation is instant and automatic. As an election supervisor put it to me, if you go in an unaffiliated voter, you come out an unaffiliated voter.

McKee loses, about 1.7:1.
R.I. SoS public domain

It is somewhat ironic that McKee signed the 2024 bill. He lost in yesterday's primary, remarkably for an incumbent and insider in Rhode Island. Voters, including me, favored his opponent, more moderate on many issues and with a corporate-boardroom origin story, by about 1.7 to 1. In advance of the election, the conservative Rhode Island Current suggested that Rhode Island Republicans ought disaffiliate to take advantage of the new primary law to vote against the lefty McKee without, now, having to become Democrats.

While strategic voting is an arguably adverse result of opening primaries to the unaffiliated, the threat is minimal relative to the widely disenfranchising alternative of alienating the unaffiliated. Anyway, in truth, McKee's record was so poor, and voters are so angry, that polls disfavored him yesterday regardless of the 2024 change.

A sign at my polling place notifies independent voters
of the 2024 law allowing voting without affiliation.

RJ Peltz-Steele CC0 1.0

The Rhode Island voting system is improved by widening the "semi-open" primary with "automatic disaffiliation." For the first time since I moved here in 2011, I feel like I got my small say in the Governor's race. But the problem of locked-party choice still overshadows the system, just as it perpetuates dysfunction in American government writ large.

The Lieutenant Governor's Race and the Problem with Plurality Rule

What should Rhode Island's next innovation be? Another ill of party politics can be seen in the lieutenant governor's race and could be cured by rank-choice voting (RCV).

An advantage of the two-party lock is that general elections usually reduce the field to two choices. Majority rule works well when there are only two choices, because one of the candidates invariably wins more than 50% of the votes. But when there are more than two choices, "majority rule," in the United States at least, usually devolves into plurality rule. The election is "one and done," and the candidate with the most votes wins—even with less than 50% of votes.

Further complicating matters, because the party is the gatekeeper to the ballot, the outcome can be manipulated by allowing fewer or more candidates to be listed. For example, if the party favors an ideological position that the party fears a majority of voters, say 60%, will not support, the party can allow, say, three candidates with an opposing ideological position to reach the ballot. Opposition voters then split over those three candidates, 20% each, and the party favorite prevails, not with a majority of votes, but with a plurality of 40%.

Run-off elections avert this problem. But a conventional run-off requires voters to trudge back to the polls, so even poorer than poor turnout severely distorts representation. RCV effects a virtual run-off, using voters' second or third choices to calculate run-off results with one-time voter preference data and generating a candidate who enjoys majority support, at least in some sense. There are many, contested variations of RCV in the operational details, but overall, political scientists, they tell me, prefer it to plurality-rules for its obviously superior democratic methodology. Further explanation may be found at Ballotpedia, along with data from Alaska and Maine, which use RCV.

In the Rhode Island lieutenant governor's race, it's safe to presume that the party favored candidate Sabina Matos. She was the incumbent and another political insider, nominated initially for the job by Governor McKee. Naturally, her voter approval has faltered, same as McKee's. 

Matos wins by plurality.

R.I. SoS public domain

But unlike McKee, Matos was in a crowded field with four other candidates. I voted for the runner-up challenger, Xaykham Khamsyvoravong, who at the time of this writing won 26.4% of votes. The three other candidates collectively won 36.1% of votes. Matos is projected to win with only 37.4% of votes.

My wife aptly observed that Matos's share of the votes, 37.4%, is strikingly close to Governor McKee's losing share of 37.6% of votes. Given the political context, one might suppose that close to a two-thirds majority of voters in the Democrat primary wished, like me, to toss out the incumbency, both governor and lieutenant governor. But because messaging among the lieutenant-governor challengers was similar, and interest in the race is low anyway, no consensus emerged among a majority of voters on which challenger should unseat Matos. Anyone else, a majority of voters said. Yet Matos overwhelmingly likely will be reelected as lieutenant governor.

Again, the need for RCV is amplified by undemocratic party influence over the ballot to begin with. RCV will help, but will not solve the problem of democratically unaccountable party machinery making choices for us, much less the political polarization that results, amplified by the technologies of the information age. 

It is clear, though, that we should and can do better.

UEFA-FIFA football war spills into U.S. courts as European lawyers wield discovery 'superpower'

A powerful American legal tool is a weapon of choice in a brewing legal battle between two of the world's most powerful transnational sporting organizations.

Soccer might not be on the minds of Americans on a daily basis, but that won't stop the global corporate landscape from shifting under our feet as two behemoths of football governance wage world war on one another. Battles in that war erupted in three U.S. federal courts at the end of August.

RJ Peltz-Steele with Google Gemini CC0 1.0

UEFA, the governing body of football in Europe, filed ex parte applications in U.S. courts on August 27 with expansive discovery demands in anticipated litigation against world-governing FIFA. FIFA fought back last week with counter-filings as a would-be intervenor. Dirty laundry is close to spilling out, and the mechanism making it possible is a section of the U.S. code that bestows on foreign lawyers a "little-known superpower."

First, some context. Americans might remember from the waning days of the World Cup news cycle—and thus the waning days of Americans caring about soccer, despite the summer hype, and owing significantly to the self-inflicted wound of allowing profit-thirsty NBC to fragment Premier League matches across disparate network bundles, but that's another story—that FIFA chief Gianni Infantino, apparently intoxicated by the refined air inside his mega-millionaire bubble, proposed selling shares in the people's game to private investors. 

The proposal was akin to a company going public, except not at all public and, being above the laws of nations, hardly regulated. After schmoozing States-style, Infantino wanted to do his part to firm up the global wealth gap and to locate himself at its rich-ward extreme. No joke: Infantino's vision looks like it was modeled on President Trump's Board of Peace, with which Infantino's FIFA in fact formally partnered. Infantino would have set himself up as the head of a World Cup company, sidestepping the inconveniently quasi-democratic and term-limiting features of the FIFA presidency, and shaken down private investors and member associations for minority stakes.

There apparently is some limit to what even the supra-national, mega-rich can do, as Infantino's plan drew worldwide rebuke. Of course there was objection from watchdogs, such as Reboot FIFA, a campaign I signed on to that holds out hope for socially responsible sporting governance and issued a July statement condemning the Infantino plan. But tellingly, FIFA's member associations led the chorus of boos; UEFA pledged a boycott of FIFA. The limit might be when rich people step on the toes of other rich people, because UEFA is no stranger to the profit-engine-masquerading-as-for-the-commoner MO of professional football governance.

Longer memories will recall when Swiss police raided FIFA headquarters in 2015 at the behest of U.S. investigators, and the U.S. Department of Justice filed a 47-count federal indictment in Brooklyn targeting top FIFA brass. Mighty FIFA President Sepp Blatter fell from grace, and it looked for a moment like democracy might be bigger than corporatocracy.

Infantino shows Trump the World Cup trophy in the Oval Office, 2025.
U.S. Government (public domain) photo from the White House

The moment didn't last. It only proved the old adage, cut the head off the hydra, and two more take its place. Infantino inaugurated a new era of next-level corruption. Of course, the U.S. prosecution had been motivated in part by the FIFA hijinks that saw the U.S. bid for the '22 World Cup founder in the face of Qatar's, let's say, "procurement." The '26 World Cup was our payoff. Washington meanwhile changed lanes to go all in on pay-to-play, and FIFA awarded President Trump his personally tailored Peace Prize. Plutocratic order was restored.

Infantino backed off of the private-investment plan. Yet hell hath no fury like a sporting cartel scorned. UEFA persists, demanding that FIFA oust Infantino and threatening legal action. 

Meanwhile, because there's a grain of truth to the offensive assumption that all rich people know each other, there's a U.S. connection to the FIFA scandal that runs even deeper than Trump and Infantino's mutual social grooming. New York-based Thrive Capital, a venture capital firm, was set to pour $4.2 billion into Infantino, Inc. And the co-founder and soul of Thrive Capital is Joshua Kushner.

You think I mistyped Jared Kushner, the President's son-in-law who solved the Middle East. No. Josh is the other Bennet sister, an entirely different offspring of tax fraud, etc., convict Charles Kushner. Not that I'm judging a book by its author; a billionaire deserves a chance to write his own story.

Since the Infantino deal went up in glorious flames, Josh Kushner has tried to distance Thrive and himself from it. He says he never would have gotten involved had he known, and that he thought the deal would funnel more capital to promote socioeconomic development. Shoulda coulda woulda.

Well, UEFA wants to know more about that. Which is why its breathtaking range of documents filed in the U.S. District Court for the Southern District of New York includes, very much inter alia, a proposed subpoena for the deposition of one Joshua Kushner.

RJ Peltz-Steele with Google Gemini CC0 1.0

The legal tool at the heart of the UEFA filings is 28 U.S.C. § 1782. The law opens up the discovery process of U.S. civil procedure for litigants in other countries to access records and to depose persons in the United States. Though section 1782 is implicated here, as it usually is, in connection with business disputes, it can be used just as well in ordinary tort litigation, from fraud to personal injury. 

This is important, because U.S. discovery is famously more expansive than production in other legal systems. Fittingly, U.S. civil procedure takes a sort of free-market approach to discovery, upon a truth-will-out philosophy. The system, articulated in the relevance-and-proportionality standard of Rule 26(b) of the Federal Rules of Civil Procedure, does not grant carte blanche for fishing expeditions, especially since 2015 amendment tried to rein it in a bit. But it goes a lot farther than the they-didn't-ask-so-don't-tell approach that is the norm in Europe.

Section 1782 on its face requires that (1) the domestic respondent can be found in the U.S. district in which discovery is sought, (2) the discovery is for use in a foreign or international tribunal, and (3) the section 1782 requester has an interest in the foreign proceeding. The statute won some notoriety in 2022 when the U.S. Supreme Court resolved a circuit split by deciding that arbitral panels are not eligible tribunals under the second element.

Section 1782 compliance by U.S. district courts is discretionary, not required, by the statute. So the U.S. Supreme Court in 2004 set out factors to guide court discretion: (1) whether the domestic respondent is subject to the foreign proceeding, so discovery might rather be sought against the respondent there; (2) whether the foreign tribunal is receptive to U.S. court assistance; (3) whether the requester is trying to circumvent an intended limitation on discovery in the foreign system; and (4) whether the request is especially intrusive or burdensome. The third factor especially tends to be a contested point, and it is sometimes difficult for U.S. courts to find the line between a foreign limitation on discovery by design and the mere happenstance that the foreign discovery system is more conservative than the U.S. system.

In a 2020 empirical study, Penn Carey Law Professor Yanbai Andrea Wang concluded that section 1782 is an "increasingly pervasive practice that is transforming civil litigation worldwide." With 90% of ex parte 1782 requests granted, Wang found that the law raises due process concerns. Potential adversaries in the home litigation are not always given proper notice of their right to intervene in the United States and object to the discovery. In the instant matter at least, the 1782 petition is part of UEFA's public relations strategy. And FIFA had no trouble intervening in New York and mounting a public relations offensive of its own, accusing UEFA of a "smear campaign." 

Properly employed, section 1782 does open the door for a foreign actor to poke around in the business of an adversary or potential adversary, to bolster a legal theory back home, in a way that it could not without the U.S. hook. Sometimes what the requester can discover with the aid of U.S. law is valuable enough to shift public opinion or a case on its merits so significantly as to obviate or dispose of the matter back home. It's not a stretch to figure that UEFA hopes to find Infantino-Kushner correspondence so damning or embarrassing as to compel Infantino's ouster.

Watching the battles unfold in UEFA vs. FIFA, and In Re Union Des Associations Europeennes de Football (S.D.N.Y. filed Aug. 27, 2026) in particular, is a bit like being on a rowboat between battleships. But the stab at arrogant corporate impunity, even if thrust by a fellow titan, is nonetheless prone to induce a satisfying schadenfreude, especially if UEFA can bring Infantino down.

RIP, football transparencist Andrew Jennings. Your mouth would be watering.

Law prof makes salad, sandwich

I have been fortunate to know many multi-talented persons in my line of work. I'm not sure any, though, can hold a candle to the breadth of expertise of my friend and colleague Professor Rob Steinbuch. There needs to be a way to list this on SSRN; from KATV Little Rock:

 

Byzantine, needless procedures make it too hard for David to sue Goliath in R.I. small-claims court

RJ Peltz-Steele with Google Gemini CC0 1.0

A Savory Tort Investigation (Continued) 

Following up my eye-opening journey through the byzantine processes of small-claims filing, I wrote this week to my Rhode Island state legislators and to the state attorney general recommending some reforms.

To the legislators, I urged the following reforms to the small-claims court process.

1. Filing should not cost a complainant the inconvenience and expense of notary service.
2. Filing should not preclude a complainant from providing a valid service-of-process address for a respondent’s registered agent.
3. Filing should not charge a complainant with the responsibility of generating for the respondent hardcopies of an answer form, instructions, and interpreter instructions in four languages, requiring a filing portfolio of 19 pages, plus a second copy, for a complaint of only one or two lines.
4. Service of process to in-state defendants should not require of a complainant the inconvenience and expense of enlisting, in person, the services, personally executed, of a sheriff or constable.

"Most importantly," I wrote, "especially for individual non-lawyers who would sue well represented corporations, these conditions represent utterly unnecessary barriers to access to justice."

To the attorney general, I suggested that the office should not shirk its responsibility to exercise concurrent enforcement authority with federal agencies, especially to stop plain violations of state consumer protection law, such as deceptive sales practices. 

The full letter appears below.

---

September 4, 2026

Rep. Jennifer Smith Boylan & Sen. Pamela J. Lauria, 82 Smith St., Providence, RI

Hon. Peter F. Neronha, 150 S. Main St., Providence, R.I.

Dear Representative, Senator, and Attorney General:

I enclose for your information a blog article about a small claims lawsuit I am prosecuting in Rhode Island Small Claims Court. The article suggests some needed reforms to strengthen consumer protection, including issues I wish to highlight for your consideration.

There is much not to like about the experience that led me to file a small claim. And the law being what it is, at both state and federal levels, my prospects to prevail are slim, for myriad reasons hardly related to the merits of the case. I am content to prosecute this matter anyway in the hope of pressuring the defendant and its industry to reform practices that are abusive of consumers. If at any time you would like to have a longer conversation about what state government can do to better protect Rhode Island consumers, count me in.

Meanwhile, the merits of this action really are tangential to my purpose in writing to you; rather, especially for you, Representative, and for you, Senator, I wish to highlight self-evident defects in the pleading process in small-claims court that should not be difficult to correct through legislation or simple administrative reform:

1. Filing should not cost a complainant the inconvenience and expense of notary service.
2. Filing should not preclude a complainant from providing a valid service-of-process address for a respondent’s registered agent.
3. Filing should not charge a complainant with the responsibility of generating for the respondent hardcopies of an answer form, instructions, and interpreter instructions in four languages, requiring a filing portfolio of 19 pages, plus a second copy, for a complaint of only one or two lines.
4. Service of process to in-state defendants should not require of a complainant the inconvenience and expense of enlisting, in person, the services, personally executed, of a sheriff or constable.

All of these conditions waste the time, energy, and money of complainants. Conditions (1), (3), and (4) do not pertain in small-claims court in neighboring Massachusetts; moreover, a complainant in Massachusetts can complete the whole process from home through an e-filing system, and for less money (about $62) than in Rhode Island (more than $150).

Most importantly, especially for individual non-lawyers who would sue well represented corporations, these conditions represent utterly unnecessary barriers to access to justice.

Especially for you, Attorney General, I wish to highlight an issue with the consumer protection services of your office. While I am grateful, truly, for the responsiveness of your office in general, and the capable people who work there, the office succumbs to a common malady in state consumer protection in the states, which is its blanket deference to federal authorities when a respondent is in a regulated industry, or sometimes just out of state.

As an attorney, you know as well as I do that neither jurisdiction nor venue depends on the defendant’s place of business; and that federal law in regulated industries does not wholly preempt state law.

Quite to the contrary, state AGs are vital players to hold industry to account while agencies such as FTC and DOJ only count letters. I daresay, moreover, because you do not live on a desert island, that you recognize the need for state consumer protection to step up in an era in which the federal government is pulling back from, un-staffing, and de-funding, justifiably or not, consumer support, and instead cozying up to big business.

Thus for salient example, when a Rhode Islander at home contracts with one of the few service providers in the oligopolistic airline industry, thus establishing both venue and internet jurisdiction, that contract should be regarded as worthy of the same enforcement of state consumer protection law as any in-person sales transaction on any Rhode Island main street. Such a respondent, even in a regulated industry, has no safe harbor in federal regulatory compliance from charges of deception. I understand that some preemption analyses are more complicated, such as for pharma. But concurrent authority does not excuse the AG from enforcement of state law.

Also as you well know, individuals, whether or not lawyers, usually are unable to enforce their own consumer rights, whether because of boilerplate waivers and alternative-dispute-resolution clauses, statutory rights that fail to authorize private enforcement, or simply transaction costs, including know-how. If the regulatory authorities fail to fill the gap, then industry quickly apprehends and exercises its autonomy to abuse consumers with impunity.

I thank you for your attention and welcome your further interest in these or related matters of consumer protection in Rhode Island.

Sincerely,
/s/
Rick Peltz-Steele