7 years since shocking hate crime, civil rights suit over Nantucket public meeting surfaces racial tension

Nantucket African Meeting House, 1880
Nantucket Historical Association

A shocking hate crime of vandalism on storied Nantucket Island in 2018 has resulted in sour police-community relations, a free-speech civil-rights claim remanded to trial court just this August, and retention in September of a private firm for an independent review.

In March 2018, the historic 1827 African Meeting House on Nantucket Island was vandalized with hate speech in black spray paint, including the "n-word," as shown in the image below, at bottom, from the appendix to the August appellate court decision. (Sensitive readers be warned.)

To date, no one has been convicted of the graffiti. A civil rights lawsuit by Nantucket residents Jim Barros and Rose Marie Samuels, the Superior Court in 2022 blamed a suspect, Dylan Ponce, who asserted his Fifth Amendment right against self-incrimination in that lawsuit, and whom a grand jury refused to indict.

Ponce's employer, Jeffrey Sayle, pleaded guilty to false statement to police and testified that Ponce confessed (The Inquirer and Mirror). The civil case against Ponce was Barros v. Ponce, Civil Action No. 2175CV00004 (Mass. Super. Ct. June 6, 2022) (paywalled at Mass. Lawyers Weekly).

Town Manager Elizabeth Gibson
Town & County of Nantucket

Sayle was the brother-in-law of Nantucket town manager Elizabeth Gibson, who herself is married to the deputy police chief of Nantucket. Given the close relationships of officials and the slow and ultimately unsuccessful police investigation, rumors picked up steam in the years after the 2018 crime that family members of Gibson and police were being protected.

In 2020, Barros and Samuels appeared at a meeting of the town board, as they had before, to demand accountability in the still ongoing investigation. Their remarks fueled continuing suspicion of a cover-up, which prompted the ire of Gibson and police chief William Pittman. 

Chief William Pittman
(captured from public meeting video)

Samuels's exchange with Gibson was especially heated. Angrily denying untruthfulness, Gibson interrupted Samuels and demanded that the chair stop her from speaking further. Samuels, who also accused police of failure to investigate a hit-and-run crash that injured her son in 2018 (more at Change.org), was cowed back to hear seat. She returned to the microphone after Gibson stormed out of the meeting.

Barros accused police of lying because. He he had been told by a detective that a perpetrator was identified, but no charges resulted. Pittman, who carried a sidearm, spoke in defense of the police and accused Barros of fueling rumors of a cover-up while claiming to know the identity of perpetrators and refusing to tell police. Pittman retired in 2023.

The salient part of the public meeting is on YouTube, cued here at 27 minutes, and running for 13 minutes:

Barros and Samuels brought a civil rights action against the board, Gibson, and Pittman for violating their free speech rights under the federal and state constitutions, and for intimidation under state civil rights law. The Superior Court granted defendants summary judgment on both counts. In August, the Appeals Court voted 2-1 to to remand Samuels's statutory civil rights claim only to proceed.

The facts matter, in more detail than I've stated them here, because the pretrial disposition turns on whether the evidence is sufficient to submit the claims to a jury. Interested readers can find more detailed articulations of the facts in the judges' opinions.

In short, the court rejected the constitutional claims because neither Barros nor Samuels was actually stopped from speaking. Samuels was allowed to return to the microphone and continue after Gibson stormed out. Barros was allowed to say his piece despite the objections interjected by Pittman.

The civil rights claims were closer calls, though, because intimidation, threat, or coercion is actionable even if the plaintiffs were permitted to speak. The test is one of interference or attempted interference of a protected right, here to speak at the public meeting. 

For pretrial resolution on defense motion, the court views the facts most favorably for the plaintiffs, the non-moving parties. Yet even accepting as true that Barros "was impugned by Pittman, suffered embarrassment, and felt intimidated by Pittman's being armed," the court decided, the sum of Pittman's alleged interference was only impassioned disagreement or disapproval, not intimidation.

Rose Marie Samuels, 2020
(captured from public meeting video)

However, in the case of Samuels, Gibson expressly demanded that she be silenced, and Samuels evidenced intimidation in once returning to her seat. The court concluded, "Gibson's response to Samuels's comments, including Gibson's physically threatening departure from the meeting and hostile, intimate back-and-forth with Samuels, could be sufficient to establish a violation of the [state civil rights act] at trial."

The court's analysis of Samuels's civil rights claim raised an interesting point of "constitutional tort" law. Under state civil rights law, the court explained, "[i]n determining whether conduct constitutes threats, intimidation, or coercion, we apply an objective or 'reasonable person' standard."

Yet like in tort law, the "reasonable person" standard is not wholly objective, but is a test of the reasonable person under the same circumstances as the person being tested, or standing in the shoes of the person being tested. As the court put it, "'objectivity' does not foreclose consideration of the plaintiff's situation"; "we need not ignore who the plaintiff is."

That subjectivity made a big difference in light of Samuels's personal history with police. Considering the facts favorably to her, "she had experienced, and continued to experience, racism from the Nantucket police," the court reasoned. "She mistrusted Gibson, the town manager, who was married to the deputy police chief."

In that emotional context, the court recalled, "Samuels maintains that Gibson 'stormed' past her when leaving the meeting, 'in a physically threatening manner,' 'glar[ed] down' at Samuels from 'within a few feet,' and stopped to ask, twice, whether Samuels was calling her a liar. Samuels characterized Gibson's voice as 'loud and threatening,' and Samuels was frightened by this encounter."

Samuels therefore made a sufficient case to present her claim of intimidation for a jury to decide.

Justice Smyth

Justice Paul Hart Smyth wrote a spirited dissent favoring the plaintiffs on all three counts on which the court affirmed judgment for the defense. He would have sent all four claims, for both plaintiffs, to the jury. Be forewarned, I'm going to quote Justice Smyth at some length, because what he adds to the analysis on Nantucket social conditions I find eye opening.

Speaking to those very circumstances that made a difference in Samuels's statutory claim, Justice Smyth painted a different and bleaker picture of police-community relations on Nantucket.

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. First, he described Gibson's social and economic power.

Gibson first began working for the town of Nantucket in 1988, when she was twenty-two years old. She has held the position of town manager since 1995. As town manager, Gibson is a remarkably powerful and influential individual. She exercises direct supervision over almost every town department, including the police, fire, building, finance, health, marine and coastal resources, public works, board of appeals, conservation commission, planning board, council on aging, counsel for human services, historic district commission, parks and recreation, and the shellfish and harbor advisory board. As town manager, Gibson maintains appointment and disciplinary (including discharge) powers over the department chiefs and their employees.... Gibson is not subject to general election, but ... had been reappointed for consecutive terms since 1995.

.... As an acknowledgment of Gibson's influence, multiple town residents warned Barros that he might face adverse consequences to challenging Gibson by implicating her relatives as being involved in the African Meeting House crime. These individuals cautioned Barros, "You know, it's [Gibson's] son and nephew; so, be careful. Watch your back."

He then described the plaintiffs in contrast:

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. Samuels, of Jamaican descent, became a full-time resident of Nantucket in 1999; she resides on Nantucket with her son. Samuels has worked in the home healthcare field when her health permits.

James Barros, seventy-six years old [in 2020], worked as a part-time drywaller and plasterer. He has lived intermittently on Nantucket since he was eight years old. Barros, skeptical that the Nantucket police were committed to solving the African Meeting House crime, sought assurance that the police were dutifully investigating the matter .... As Barros stated: "That building is part of me. I'm an African. I have a right to ask who is doing damage to my house."

James Barros
(captured from public meeting video)

Justice Smyth also put additional facts on the table to suggest that the court majority gave Barros's claim short shrift.

The record supports a rational jury concluding that Pittman's words and conduct threatened Barros to the extent that Barros was terrified when he stood at the town meeting to respond. Barros's fear was based in part on his experience as a Black man who was distrustful and a vocal critic of the Nantucket police. As a consequence of Barros's continued pressure on the police to meaningfully pursue the hate crime investigation, the lead town investigator, Detective Klinger, responded with hostility toward Barros. In addition, numerous people advised Barros "to watch [his] back," and warned him that the Nantucket police were going to "set him up." .... 

The record demonstrates that Barros's fear of the Nantucket police was well grounded. Barros, while driving, was pulled over by the police on two separate occasions following the March 11 board meeting. One Sunday morning, a Nantucket officer pulled Barros over as Barros was headed home from Mass celebrated at St. Mary's Church. The officer approached Barros's truck with his hand on his gun. Although the officer stated that he stopped Barros due to a brake light malfunction, the record indicates Barros's lights were functioning properly and allows the inference of a retaliatory stop. 

In sum, Justice Smyth found sufficient evidence to show interference with civil rights of both plaintiffs, as a matter of fact, and of persons of "reasonable fortitude" in their circumstances, applying the objective test.

Frederick Douglass, center left, at abolitionist meeting, N.Y., 1850.
He first visited Nantucket for an anti-slavery conference in 1841.
Smithsonian Institute/Mr. & Mrs. Set Charles Momjian, via National Park Service

Justice Smyth offered a spirited conclusion that invoked Nantucket's abolitionist history and rallied the judiciary to the defend speech critical of public officials:

Nearly one hundred and eighty years after Frederick Douglass sought refuge in Massachusetts and traveled to Nantucket to make his first public speech condemning slavery, a person desecrated a site sacred to the island's Black community with the words "Nigger leave." The act was more than an act of property vandalism, as it communicated a direct threat to the plaintiffs' safety and well-being as Black residents of Nantucket. While the United States Constitution, Massachusetts Declaration of Rights, and our laws will never eradicate the hatred and racism in the hearts of individuals who commit such acts, our legal framework guarantees people the right to speak out against such offenses, to petition local officials for answers, and to criticize local government and police officials for failing in their oaths to support our laws and Constitution and to seek justice for all.

Of course, it would be folly to take the force and endurance of these constitutional rights for granted, perhaps lulled by the longstanding welfare and security of our nation and by our courts' historical commitment to safeguarding free speech rights as fundamental to our representative democracy. We do not have that luxury because, even considering the relative strength of our democracy, these rights are subject to the whim of unchecked power that allows for tyrannical tendencies to suppress contrary viewpoints. Thus, the judiciary's vigilance to protect from government interference our people's right to speak to public issues is as critical today as it was when the First Amendment was ratified in 1791.

(Paragraph break added; citations omitted.)

Nantucket Harbor, 2021
RJ Peltz-Steele CC BY-NC-SA 4.0

I get Pittman's frustration at having failed to secure a prosecution for the vandalism, and, presumably with laudable motivations to avoid conflict of interest, in having ceded the investigation to the district attorney and state police. Nevertheless, he and Gibson, as public officials, have to have thicker skin, especially for justifiable outrage at a public meeting.

I share public outrage that such a hateful act defaced a historic place of contemporary cultural importance, and that no prosecution followed, upon whatever tragicomedy of errors. (I include the image below, from the court's appendix, despite the offensive epithet, to demonstrate the severity and offensiveness of the crime.) To be fair to Nantucketers, after the overnight vandalism in 2018, more than a dozen distraught local residents turned out to scrub the African Meeting House clean by 10 a.m. the next morning (Cape Cod Times). But bad eggs are still at large.

Estimates vary, but cost of living on Nantucket usually is said to exceed the national average by more than 100%, and housing costs run more than 300% over. You can bet that upper-crust property owners aren't doing much of the manual labor on the island to keeps that economic engine running. Nantucket depends on a significant Jamaican population to work in the tourism industry. Yet the government on the island is worrisomely non-representative of the population by racial demographics.

Once addressing a crowd in Cork, Ireland, Frederick Douglass was shouted down with cries of, "That's a lie," "He shan’t speak," and "Down with the n—" (Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition). Justice Smyth must have been conscious of the eerie parallel to the meeting dispute and vandalism here. I do not mean to accuse Gibson and Pittman of the same culpability as slave-owners, nor of racism. Rather, I mean to suggest that Nantucket officials ought be cognizant that those sentiments surfacing today to be leveled against black residents is not a good look.

At some point, the difference between official incompetence and insensitivity, on the one hand, and willful cover-up, on the other hand, becomes immaterial.

In September, a working group of the town board retained a Texas forensics firm, LCG Discovery Experts, to review the investigation into the African Meeting House vandalism—though not to re-investigate the crime. According to Nantucket Current News, the independent review was spurred by a citizen petition.

The case is Barros v. Select Board, No. 23-P-1058 (Mass. App. Ct. Aug. 19, 2025), available at the Social Law Library. Justice Rachel E. Hershfang wrote the court opinion for herself and Justice Vickie L. Henry, contra the dissent of Justice Smyth.

Court Appendix in Barros v. Select Board

Small-town Star Trek museum teaches American cultural history, limits of fan fair use in copyright law

I have the con at the Star Trek Original Series Set Tour, Ticonderoga, N.Y., Oct. 2025
(all photos RJ Peltz-Steele CC BY-NC-SA 4.0)

The sleepy town of Ticonderoga, nestled between Lake Champlain and Lake George in upstate New York just south of the Adirondacks, is the unexpected home of a treasure of American history. 

I don't mean the historic Fort Ticonderoga of the American revolutionary era. 

The Star Trek Original Series Set Tour offers visitors an incomparable experience in television history and a lesson in intellectual property law along the way.

Though the transporter was conceived to save money on
prop shots of shuttle landings, it still cost (1966) $600
per effect per person. That's one reason why red shirts
didn't beam down unless they had, let's say, business on
the planet. Regular-cast shots could be recycled. The
platform circles were made with glass from old spotlights.
It's wild to see close up how clever prop crew were with
what they had on hand.

Star Trek in a Small Town 

I've written many times about the relevance of Star Trek to American law and public policy from the civil rights era to today. The Set Tour is the passion project of Star Trek superfan and Ticonderoga native James Cawley, an Elvis impersonator by trade. Cawley is someone who deeply appreciates Trek's cultural importance and has played a role in ensuring that the franchise survives and lives up to its legacy.

Inside the inconspicuous shell of a former Family Dollar in downtown Ticonderoga, Cawley has recreated the Desilu Studios set of the original Star Trek series of the 1960s in astonishing detail, down to the illuminated, colorful "gumdrop" buttons of starship Enterprise control panels.

Little survived from the original 1960s set. At that time, creators still thought about television productions as one-off broadcasts. Syndication was known, but shows were not yet designed for it. Moreover, few critics would have picked Star Trek, a curious experiment in sending Wagon Train to space, as a show that would stand the test of time. 

In fact, Star Trek's perceived ephemerality became a challenge in reconstructing the set, a Set Tour guide explained. The original series had no script supervisor in charge of continuity, mostly because no one expected viewers would see a Star Trek episode for a second time to notice details. A prop that was a scary alien computer in one episode was gently repurposed to be an Enterprise control system in another. Budgets were thin, too, so prop supervisors were ingenious recyclers.

Cawley long collected the few artifacts and set fragments that remained. In the early 1990s, he worked his way into an assistantship with legendary costume designer William Ware Theiss, then working on Star Trek's reincarnation in The Next Generation. Theiss had, and gave to Cawley, discarded blueprints of the 1960s set, as well as original series uniform patterns. Cawley found his calling and embarked on recreation of the set with excruciating attention to detail.

Sickbay: My guide was terrific, knowledgeable and full of lore.
Here the medical scanner is CGI, but in the 1960s, a grip was
needed just to move the little white indicators up and down
from behind the wall.

A Golden Age of Fan Fiction 

Homage to the past, though, was not Cawley's sole design. In the early 20-aughts, he became the founding producer and "Captain Kirk" star of a Star Trek fan production, New Voyages, later known as Star Trek: Phase II. The highly regarded fan franchise published online 10 episodes from 2004 to 2016, and many original series talents contributed to the show, such as writer David Gerrold and actors George Takei (Hikaru Sulu), Walter Koenig (Pavel Chekov), and Grace Lee Whitney (Janice Rand).

That's where things get interesting from the intellectual property perspective.

Star Trek brand owners Paramount, CBS, and Viacom—their corporate relationships shifted over the years—had mixed feelings about Star Trek fan productions. There were many, though none besides New Voyages had fixed sets.

When Star Trek's popularity waned, fan fiction kept the franchise alive in public imagination. As long as fan projects were not for profit, the corporations were content to look the other way, even striking an agreement at one time with New Voyages. But when Paramount, et al., were on the verge of a new Star Trek TV or film project, they tightened the reins.

The corporate equivocation, in tandem with a committed and creative fan base, allowed Star Trek fan fiction to thrive in a way that is uncommon in the American entertainment space. Nevertheless, corporate indulgence started to wane after J.J. Abrams took the helm of the 2009 film Star Trek and revitalized the franchise. 

 The recreation of Engineering is two stories high, as was the
original after it was augmented for Original Series season 2.
The warp core is about 12 feet deep but looks deeper
because of a forced-perspective design to fool the camera.

Copyright Showdown

Things came to a head in 2015. Alec Peters, an actor in Phase II, raised money and excitement around a new fan-film project, Star Trek: Axanar, teased by a compelling 2014 short, Prelude to Axanar (IMDb). With advances in technology, the production quality of fan films was by then quite good. Paramount meanwhile was closing in on 2016 release of a new feature film in the reboot universe, Star Trek Beyond, and a new TV series, Star Trek: Discovery, was slated for launch in 2017. In the last days of 2015, Paramount sued Peters and the Axanar project for copyright infringement.

The copyright case, and to a lesser extent the trademark case, on fan fiction is really open and shut. Profitable or not, the take-offs are not permissible without license by the rights-holder. There is a fuzzy line at the outer boundary of copyright, where protection of creative product gives way to "the scènes à faire doctrine." But it's not that fuzzy.

Law school learning on copyright impresses on students that eligible works must be "fixed in a tangible medium of expression." That does not mean, however, that only that which is committed to print or film is what is copyrighted.

Fictional facts and storylines also may come within copyright protection. Thus, the estate of Anne Rice can claim copyright over the story of a young vampire who shacks up with the master who turned him, adopts a vampire child, and later gives a tell-all interview. But the scènes à faire doctrine ensures that copyright does not remove mere tropes from the public domain. The Rice estate cannot claim copyright infringement in all stories about blood-sucking, undead creatures who cannot tolerate sunlight.

To put that in Star Trek terms, anyone is free to write a story about a human-led inter-species alliance of space-faring civilizations that explores the galaxy and maintains uneasy relations with warlike enemies. But the closer the author gets to a San Francisco-headquartered federation of planets with warp-drive starships, transporters, phasers, and emotion-averse characters with pointy ears, the more the risk of copyright infringement. The line is fuzzy, but it's not wide.

The problem for fan fiction always is that the stories fans want to tell are the stories that explore the boundaries of the established narrative, the existing fictional universe, and ideally, of the recognizable characters in it. That's exactly what copyright does not allow. 

Many scholars have argued for more expansive interpretation of fair use to allow for fan creativity in the presence of clear disclaimer. There's a whole book about the problem of fan fiction in historical and multi-national perspective by California Western Law Professor Aaron Schwabach. The last chapter of Schwabach's book is titled tellingly, "Fanfic: The New Voyages."

Archivist and professor emeritus in cinema studies at NYU, formerly at UCLA, Howard Besser made the case as to Star Trek in particular, besides other popular properties, such as Harry Potter, that the public commons should be larger. He called out corporate owners such as Viacom and Paramount for overreach with unjustifiably aggressive cease-and-desist letters.

But the fact and law remain, protection of fan work that plainly takes place in the same universe as copyrighted works, even when disclaiming ownership and avoiding recognizable names of fictional places and characters, and omitting trademarked titles, still is a non-starter. The analysis is of the totality. Nena may invoke Captain Kirk passingly in "99 Luftballons," but a fan film in the Star Trek universe treads too far.

The Treaty of Axanar 

It was no surprise, then, that the federal court in Paramount Pictures Corp. and CBS Studios, Inc. v. Axanar Productions, Inc. and Alec Peters refused the defendants' motion to dismiss in May 2016. The case over Axanar was careening toward a jury trial, the parties arguing heatedly over evidence and jury instructions, when suddenly, in the third week of January 2017, Paramount and Peters settled.

Out of the Axanar settlement came a remarkable new document, which articulated and still states the boundaries around what Paramount and CBS will tolerate in Star Trek fan fiction. The guidelines stated severe new limits, including:

• The duration of a fan production is limited to 15 minutes, or one story in two parts for 30 minutes, "with no additional seasons, episodes, parts, sequels or remakes."
• The work may not have "Star Trek" in the main title and must be subtitled, "A STAR TREK FAN PRODUCTION."
• No Star Trek content content may be used, and Star Trek-recognizable costumes and props must be official Star Trek merchandise.
• No creator or actor ever employed in a licensed Star Trek production may work on the project, and no one working on the project may be paid.
• A production must be non-commercial with a budget from fundraising limited to $50,000.

Described by fan fiction enthusiasts as "draconian," the new guidelines made impossible the production of projects fans had come to love. It seemed that no film such as Axanar could proceed. Serial projects such as Phase II had to call it quits. The golden age of streaming Star Trek fan fiction was over.

Prelude to Axanar
movie poster
(presumed ©; illustrative use)

Axanar Fal-Tor-Pan?

Yet, for better or worse, the Paramount-CBS guidelines were far from the last word on Axanar. Secret arbitration over money raised for Axanar followed the 2017 settlement. In 2023, Paramount sued Peters in California Superior Court in Los Angeles, alleging that he never stopped raising money for an Axanar film, and asking the court to affirm the outcome of the arbitration. 

Peters did not appear, and the court entered Paramount's desired order in February 2024. Rights-holder copyright consultant Jonathan Bailey, founder of CopyByte, wrote about the case for his Plagiarism Today. Fans follow developments around Peters and Axanar in the public Facebook group page, AxaMonitor.

Meanwhile, production on Axanar most definitely continued. Six days after Paramount had its way in court in Los Angeles, Axanar wrapped filming on its set, Jonathan Lane reported on his Fan Film Factor. Peters himself gives monthly updates on Axanar on YouTube. 

In the October 2025 Axanar update, posted on October 17, Peters reported on post-production progress on the latest installment of Axanar, to follow Prelude. He referenced the lawsuit, thereby suggesting that subsequent "episodes" (not "films") might comply with the Paramount-CBS guidelines. If that's what he meant, then a single episode Axanar cannot exceed 15 minutes, shorter than Prelude's 21 minutes, and there can be only two. Yet Peters described Prelude as mere "proof of concept." Confirming Paramount's 2015 fears, Peters said that Prelude was designed to demonstrate that a fan work could be of such high quality as to be technically indistinguishable from an official studio product.

The ultimate extent of Peters's fealty to the guidelines is unclear. I wonder whether he regards them indeed as mere "guidelines"—like the 1976 copyright fair use guidelines that, in my opinion, courts have too often misapplied as hard lines. In the October update, Peters talked about beta testing a new fundraising website. I wonder further whether he's exceeded the cap of the guidelines. He encouraged fan financial support at the Axanar website.

There was really only one corridor for every corridor shot.
Signs and wall fixtures could be changed, and it curved
(behind camera here) for an illusion of more space.

A New New Voyage

The Axanar debacle in 2016 left Cawley in an awkward spot. His one-of-a-kind set reconstruction had little remaining practical use for filming after Phase II folded. Yet adoring fans would bask in the extravagance of the work. He conceived of the Set Tour. Still, without official imprimatur, he would risk legal jeopardy by opening to the public. 

Cawley invited Paramount execs to Ticonderoga to have a look. No doubt, they were skeptical going in. But, at least as a Set Tour guide told the story, the execs were so impressed with Cawley's loving attention to detail that they agreed to license the Star Trek name. Thus, the Star Trek Original Series Set Tour is not, as I had first suspected, a trademark infringement flying under the radar in tiny Ticonderoga. Set Tour tour guides will not volunteer information about Phase II or other fan productions. Whether they're just playing it safe, or that was an agreement with Paramount, I do not know. But guides will answer questions about Phase II if asked.

The Star Trek Set Tour has a deceptively modest exterior.

To Cawley's credit, he always played ball with Star Trek owners. Remember, it was New Voyages that reached an express understanding with Paramount, before Axanar came along. Cawley came by the 1960s set plans honestly, by all accounts, while working for Theiss on the official franchise. And the Captain Kirk of eight New Voyages episodes even scored a cameo as a bridge officer in J.J. Abrams's Star Trek. The Set Tour has hosted original series cast members as guest tour guides. The original Captain Kirk, ninety-four-year-old William Shatner, is expected back in November 2025.

There is, by the way, a USS Ticonderoga in Star Trek, though accounts differ over whether the name is a nod to Cawley, American history, a real-life Ticonderoga, or all of the above. Five U.S. Navy ships have borne the name Ticonderoga, including an aircraft carrier that distinguished itself in World War II and the Vietnam War. In the 1970 epic war film Tora! Tora! Tora!, the Essex-class Ticonderoga served as a set for the slightly smaller Yorktown-class aircraft carrier Enterprise (CV-6, not the later, nuclear-powered Enterprise carrier built in 1961). A great many other Navy carriers lent their names to Star Trek starships, including the Lexington, Saratoga, and Yorktown in The Original Series.

I had a (phaser) blast of a good time at the Star Trek Original Set Tour earlier this month. On my way home from the American Society of Comparative Law annual conference in Montreal, walking through a wonderland of Gene Roddenberry optimism about humanity's future was a welcome antidote to Professor James Q. Whitman's gloomy prognosis for rule of law in the United States.

Set Tour visitors get a turn in the captain's chair amid Cawley's breathtaking recreation of the classic bridge of the starship Enterprise. Ironically in revolutionary-historical Ticonderoga, amid relics from an imaginary future, I've never felt more a part of American history.

(All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

The Set Tour has tons of artifacts, including ship models, props, and uniforms. Some of the props are recreations, but made so well that they were used in throwback, time-travel episodes, such as Deep Space Nine's 30th anniversary "Trials and Tribble-ations"—besides fan shows such as Phase II.

Make space for public lands, right to recreate

Beaver Dam State Park

Different people feel differently the pinch of the federal government shutdown in the United States. 

(All photos from Nevada in August 2025, except T.R. Birthplace; all photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.) 

I'm fortunate not to depend on the federal government for my paycheck. I'm saddened for the steadfast government clerk trying to make ends meet, and nothing I write here means to diminish that anxiety. Professionally, I've been disappointed to see the work of the federal Freedom of Information Act Advisory Committee paralyzed. The committee comprises some heroic public servants in federal agencies.

Theodore Roosevelt Birthplace
National Historic Site,
N.Y., June 2025

On the purely personal front, what hits me hardest is to see the closure of public lands, such as parks and museums. I treasure these places where the public can find education, recreation, and respite. Maybe because I'm an academic, I don't much distinguish among the three. So much of our public dialog in America is preoccupied with how we work. But it's on public lands that Americans live.

As a libertarian, I'm wary of public lands. But I'm not a great, or "pure" libertarian. I have always been what I call a "moderate" libertarian—I've been called a "bad" libertarian—because I do not believe that the private sector is the answer to all problems. I rather believe that being a libertarian is about being thoughtful: making an informed decision at the threshold of any given problem as to whether the problem is better addressed by society as a composition of independent private actors—the presumption—or by society as a collective.

A vexing problem for libertarians is the tragedy of the commons, which arises when competing private individuals, acting in their own interests, will intolerably deplete a resource that the society as a collective requires. The environment is often raised as paradigmatic example. Any one private actor is incentivized only to cut down the trees, or use fresh water. But society needs there to be trees and fresh water, saved from depletion.

Selected public lands in Nevada, besides state parks

American society is heavy on libertarianism—the "Wild West" ethos has long outlived western settlement—but maintains its own delicate balance of liberty and collectivism. The duplexity was embodied by President Theodore Roosevelt, whose reconstructed childhood home I visited in New York in the summer. Roosevelt, a nature enthusiast, was a rugged individualist, and also is credited with founding the very notion of U.S. national parks, which today are widely regarded as a crown jewel of federal government purpose.

All 27 Nevada state parks

Pure libertarians respond to the tragedy of the commons by insisting that the private sector can handle it. The tree cutters ultimately will stop cutting trees, or farm more trees, because they want to keep cutting trees. Water consumers will not use all of the water, because eventually, they will suffer thirst. A slightly watered down take on pure libertarianism makes room for non-governmental public interest organizations to manage collective resources. But there's no place for government.

My Nevada drive
(excluding two national parks
I visited previously)

I find these responses strained and unconvincing. If we destroy the glaciers of Glacier National Park because corporations want to commodify the pure waters, or because wealthy people want to land helicopters on them and take home souvenirs, there's no restoring a natural glory that took 170 million years to form.

If the planet bakes while we wait for the trees to regrow, then the private-sector experiment has failed in a profound and irreversible way. If we run out of fresh water while we wait for innovation to perfect desalinization, then millions might die, and only a few persons with inherited wealth might survive. I wouldn't call that a socially optimal outcome. 

The problem with the purely individualist approach is that it assumes infinite time, perpetual capacity for resource renewal, and indifference to human suffering in the meantime. That sounds to me like a recipe for humanity's self-extinction.

"Citizen Science Station,"
Tule Springs Fossil Beds National Monument

Public lands are an easy call for me, even as a libertarian. I would like to live in a world in which everyone has access to recreational opportunities, and everyone has a chance to see the inexplicable glory of the creation that fills the earth.

Writing about nuclear weapons in September, I mentioned the time I spent in the summer exploring public lands in Nevada. I visited all 27 Nevada state parks, and a great many other public lands as well: local, state, and federal. Local and state parks fortunately carry on while the federal government is shut down.

I am grateful for all these places, local, state, and federal, and the people who steward them.

One fun thing I happened upon in Nevada was a "Citizen Science Station" at the Tule Springs Fossil Beds National Monument. There, a bracket is mounted on a pole, prepared to receive a smartphone, so that passersby can take a photograph of the terrain. Images can then be uploaded to Chronolog.io, which partners with the National Park Service. The collected images are then compiled into a time lapse series (below, at end), which users can enjoy and study. I contributed an image (Aug. 7, 2025).

Notwithstanding so much natural beauty and the participatory excitement of the Citizen Science Station, I found memorable something else I saw at Tule Springs, a different kind of socially minded contribution from the private sector:

Go see the natural wonders of Nevada, including fossils and fossil beds. See them before the pure libertarians cart them off to private museums, where no doubt they'll be best cared for.

Durango Loop Temporary Trail at Chronolog

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Overheard recently in a Vermont diner ...

A patron told his dining companion that he was happy that his work gives him a way to help people truly in need. Then, 

Background: Autumn, Oct. 2025, in Saint-Alexandre, Quebec, Canada, by RJ Peltz-Steele CC BY-NC-SA 4.0 

Law students test-screen 'actual malice' documentary

Yesterday, my students in Comparative Law and in Torts got to be test-screen audiences for American Libel, a new documentary written and produced by my friend and colleague Dan Greenberg (TST), a senior research fellow at the Cato Institute.

American Libel challenges the policy wisdom of the "actual malice" rule in U.S. First Amendment law. The rule requires, in key part, that public-figure and public-official defamation plaintiffs prove by clear and convincing evidence that the defendant wrote with actual knowledge of falsity or in reckless disregard of the truth. The rule originated in the landmark case New York Times Co. v. Sullivan (U.S. 1964), and subsequently was rejected by other liberal-democratic jurisdictions, such as Canada and the United Kingdom, as insufficiently protective of personal reputation. The film assigns blame in part to Sullivan for our present misinformation epidemic and the collapse of public confidence in journalism.

Greenberg garnered student feedback and led fruitful discussions with students after two showings, morning and night. I am grateful to Greenberg for taking the time to visit us in Dartmouth, Mass., and share his work. And I am grateful for my students who devoted three hours to screening and discussion, asked informed questions, and offered full-hearted and thoughtful critique.

The screenings were a tremendous learning experience for all of us. It's fair to say that everyone looks forward to American Libel reaching general audiences.

You can read more about American Libel at the film's website. My students prepared by reading my "Reconsidering Sullivan" in 2 Tortz (2025 ed.) (free download at SSRN), pp. 516-535. Comparative Law students also read excerpts on Australian and Canadian law from Marie-France Major, Comparative Analogies: Sullivan Visits the Commonwealth, 10 Ind. Int'l & Comp. L. 17 (1999), and Jessica Lovell for INFORRM (2019) on the UK "public interest" defense.

Whitman: Failing rule of law in America means, if not civil war, ever more dismal standards of living, dying

Whitman speaks in Montreal.
RJ Peltz-Steele CC BY-NC-SA 4.0

Professor James Q. Whitman, Yale Law, just concluded an extraordinary lecture on the failure of the rule of law in America.

Whitman gave the plenary keynote at the annual meeting of the American Society of Comparative Law, meeting at the Faculty of Law of McGill University, in Montreal, Canada.

Whitman organized his talk in two principal points. First, he explained that the Trump administration's overrunning of the rule of law is not wholly new, but a result of "longstanding" dysfunction.

Namely, the American "variety" of rule of law never embodied the notion familiar in Europe, that law is to be followed rather than circumvented; rather, the American conception of "freedom" fostered law only as a framework to be gamed. The phenomenon can be seen, for example, in the way bankruptcy is tolerated legally and even regarded as social and economic achievement; the way transaction costs are weaponized to convert civil dispute resolution into settlement calculation rather than contest of merit; and the way criminal charges are reduced to plea bargaining irrespective of guilt or innocence.

For Whitman's second point, he referenced his 2017 book, Hitler's American Model: The United States and the Making of Nazi Race Law. Whitman concluded in that book that Nazi Germany took from American law not racism per se, but the dangerous notion of a legal framework that formally recognizes equality while legislating based on race, thus, e.g., "separate but equal." This point further demonstrates that American law provides a framework to be gamed. Despite the brief respite of the civil rights era, Whitman said, the United States remains plagued by the "curse" of inequality and might always be.

America's rule-of-law problem is made worse by the failure of common law to evolve, and a small, selective, general-jurisdiction Supreme Court woefully outdated and outmatched by the challenges facing a modern economy, as demonstrated in comparison with the constitutional courts known elsewhere in the world. The U.S. Supreme Court is simply too slow to respond to crisis, Whitman said, and when it does, it responds with weak rules that simply invite next-level gaming.

If Trump acts so boldly as to nullify the results of the next presidential election, Whitman posited, then civil war will break out. But the more likely alternative might be no better: America continues to hobble along with dysfunctional rule of law, growing inequality, and an ever worsening length and quality of life for ordinary people, who are constantly on the brink of financial ruin and of death and suffering by curable disease.

Whitman is the author of an article on my shortlist of favorite law review articles ever, The Two Western Cultures of Privacy: Dignity Versus Liberty (2003). The article exemplifies comparative legal research and writing and was essential to shape my understanding of personal privacy in the digital age.

Belgian scholar finds fault on both sides of Atlantic, charts midway course for U.S.-EU data privacy

KU Leuven Profs. Jan Wouters, Evelyne Terryn, and Peggy Valcke; Sylvia Lissens; me; KU Leuven Prof. Marieke Wyckaert, dissertation committee chair; and via Zoom, Prof. Przemysław Pałka, Jagiellonian University, Poland (photo presumed © and used with permission) 

Congratulations to newly minted-Doctor Sylvia Lissens, who defended her dissertation in the Leuven Centre for Global Governance Studies at Katholieke Universiteit (KU) Leuven in Belgium on October 1.

Dr. Lissens's dissertation is The U.S. and EU Approach Towards Personal Data Protection: "A Collision of Tides or a Convergence of Waves?": A Legal Exploration of the Differences and Convergences Between the United States and the European Union. The first paragraph of the dissertation gives a sense of its ambitious scope:

This research addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are and if there are signs of convergences. The question is approached through functional comparative law research conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society, and the public sector, consisting of government intelligence and law enforcement agencies. The United States and the European Union seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. Consequently, it was possible to develop a roadmap for how the U.S. and EU approaches can co-exist, based on the convergences between the U.S. and EU approaches towards data privacy on all three levels.

I have learned and benefited immensely from serving on Lissens's dissertation committee for about the last five years. I myself posited a convergence in the data privacy expectations of American and European people many years ago, before the EU General Data Protection Regulation (GDPR) superseded its predecesor EU Data Protection Directive. I dared not then conceive a practical framework for a U.S. "adequacy" determination under what became the GDPR, which is the aim of Dr. Lissens's work. 

Faculty of Law at KU Leuven, Belgium
RJ Peltz-Steele CC BY-NC-SA 4.0

The dissertation is especially bold by European standards for suggesting that the EU might have to trim the sails of the GDPR to meet the United States partway. Most works in this vein take the GDPR at face value as a favorable norm. Lissens rather criticizes the GDPR for exporting worldwide norms with almost imperial ferocity, thus failing to give legal regimes and cultural communities around the world an opportunity to develop data privacy standards that might be qualitatively different or appropriately more or less protective of personal liberty. This critique resonates with contemporary critical perspectives in comparative law, which might note that the individualist model of privacy right that the GDPR promotes discounts the prominence of collectivist values in non-European legal systems.

On October 1, Lissens defended her theses ably against healthy skepticism both from European interrogators and from me. I asked whether the hodgepodge of U.S. state data protection systems, as long as Congress remains paralyzed, can possibly be GDPR "adequate" when the state systems reach only consumer transactions. 

Consumer privacy is mostly what the GDPR is worried about, Lissens reasoned, and the EU might have to settle for the states' laboratory approach. Contrary to what I have witnessed as the prevailing ethos among young people in Europe, Lissens argued that European people might have to become comfortable with the notion known to U.S. law that being photographed in a public place is not a privacy violation.

On the national security front, Lissens, like EU courts and human rights advocates, finds plenty cause for concern in dragnet U.S. security surveillance. But she also calls out EU member states for national security practices that are not so different from American methods.

I asked Lissens whether the U.S.-EU Data Privacy Framework can hold up when it does not require the United States to divulge to European complainants how their privacy was compromised or what was done about it. She fairly answered that European citizens usually can expect nothing more from their own governments. 

Moreover, Lissens questions the competence of European courts in the EU treaty system to apply data protection law at all to the national security apparatuses of EU member states, much less to challenge U.S. policy. While she has admiration for the work of European privacy advocates such as Max Schrems, she challenges the very premise of the Schrems decisions in the EU Court of Justice insofar as they assumed jurisdiction over national security policy by way of data protection enforcement.

Among Lissens's distinguished credentials is a 2020-21 stint at Duke University, my alma mater in law, where she held a scholarship to study as a master's student and started adding expertise in U.S. law to her multi-jurisdictional expertise. Lissens, who herself has taught comparative law and graciously visited my class in the past via Zoom, is on the academic job market. She is a gifted scholar and teacher, so schools, place your bids.