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.)

Natalie Whitt, Civil Enforcement, Criminal Secrecy: Exemption 7 and the Expansion of FOIA Withholding in Immigration. The Freedom of Information Act (FOIA) was enacted to promote accountability and transparency by providing public access to government records, which can be essential where state authority is most coercive. Public oversight of law enforcement depends heavily on access to government records, yet requests for information concerning police misconduct and officer discipline frequently encounter resistance under FOIA Exemption 7. This provision permits agencies to withhold records compiled for law enforcement purposes when disclosure could cause specified harms, including unwarranted invasions of personal privacy, interference with investigations, and safety risks. Although these protections serve legitimate interests, their application in the policing context often limits public access to information necessary to evaluate how coercive state authority is exercised. Courts typically afford a high level of deference to agencies in determining whether records qualify as law enforcement materials and in assessing claimed harms, while disclosure obligations such as segregability receive comparatively limited enforcement. The result can be a practical barrier to transparency in cases involving alleged misconduct, systemic failures, or patterns of negative behavior from law enforcement. This Article argues that the way courts apply Exemption 7 in the context of policing creates barriers to public oversight that are difficult to reconcile with FOIA’s central purpose of promoting accountability for government power. Law enforcement agencies have a unique authority to detain, search, and use force, while transparency regarding the exercise of that authority serves both individual and systemic public interests. However, courts do not consistently distinguish between personal privacy concerns and information reflecting official conduct, and agencies’ assertions of harm are often accepted without requiring narrowly tailored justifications. (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.

Law students ponder litigant Trump

(Cross-posted at Trump Litigation Seminar and The Savory Tort.) In the fall semester, I had the privilege of exploring Trump litigation in depth with a team of law students in my Trump Litigation Seminar.  These students are to be commended for plowing through more than 27,000 pages of court records, which are compiled and publicly available at our course blogsite, a project of The Savory Tort.  In addition to our case reviews and discussions, students completed skills exercises in discovery, pleading, public relations, negotiation, and statutory interpretation, and rounded out the semester with research and writing.  From the final papers, with author permission, here are selected abstracts.

Screenshot of PAC ad, via WNYC

Jessi Dusenberry, Anti-SLAPP Law and Donald J. Trump for President, Inc. v. Northland Television, LLC.  President Donald Trump filed a lawsuit against a small news organization in Wisconsin for defamation.  The news organization, WJFW-TV, ran an advertisement that showed President Trump calling COVID-19 a “hoax,” as a graph tracking the rate of infections showed an upward track on the screen.  Many news stations ran the same ad, but the Trump campaign chose to sue only WJFW-TV, which is owned by a small company that has only two other local TV stations.  The political organization that produced the ad later joined the case as a defendant.  The lawsuit was initially filed in Circuit Court, but later was removed to federal court.  The lawsuit against WJFW-TV follows President Trump’s legal strategy of filing frivolous lawsuits to force the defendant to spend money in legal fees to get the case dismissed.

Unlike many other states, Wisconsin doesn’t have an anti-SLAPP law to prevent the use of the courts to intimidate people who are exercising their First Amendment rights.  This paper provides general background on strategic lawsuits against public participation (SLAPPs) and the need for anti-SLAPP legislation, as well as the jurisdictional differences in drafting anti-SLAPP legislation.  The paper goes into further detail on California’s anti-SLAPP legislation, beginning with the types of speech covered by the statute.  The paper also analyzes significant judicial interpretations of the anti-SLAPP legislation in California.  Finally, the paper explores the applicability of California’s anti-SLAPP protections to media defendants.

From Pixabay by Gerd Altmann

Richard Grace, The Truth, the Whole Truth, and Everything but the Truth: Tort Reform and Social Media.  The tort of defamation has been changed irreconcilably by the advent of social media, which have provided famous or notorious plaintiffs additional means to combat and remedy alleged damage to their reputations, regardless of the merits, leaving plaintiffs of more ordinary means no alternative but to rely on a system that is heavily defendant-favored and cost-prohibitive.  In the “Twitter Age,” a period of revolutionary growth in connectivity and ability to spread information globally via social media, the ultimate affirmative defense to defamation, truth, seems almost to have become subjective, with division and polarization increasing at an alarming rate.  Reasoned conclusions have been replaced by echo chambers.  Whether it is “alternative facts,” or the notion that being “morally right” is more important than being “precisely, factually, and semantically correct,” the rapid growth in ability to editorialize and disseminate "truth" has wider implications for the “search for the truth” of modern litigation.

This paper first aims to discuss several theories of reform to the tort of defamation.  The paper explores the actions of a serial defamation litigant, Donald Trump, specifically in the matters of Trump v. O’Brien and Miss Universe L.P. v. Monnin, the latter involving an entity owned by Trump, which were selected to demonstrate the ability of a defamation plaintiff to leverage the public sphere as an extra-judicial remedy.  These cases were chosen to represent pre- and post-Twitter outcomes.  O’Brien was decided prior to Twitter becoming a social media mainstay, whereas Miss Universe was more recent.  Finally, the paper considers the external issues this gap in tort remedy for reputational damage has caused, particularly with regard to § 230 of the Communications Decency Act, which has provided social media companies, service providers for purposes of the act, with statutory immunity from tort actions for defamation.  Ultimately, the jurisprudence of defamation law has enabled a two-tiered system of remedies: for those who must bear the cost and burden of litigation, and for those who can litigate the matter outside of the courtroom, in the court of public opinion.

Pa. electoral map from 2012 (CC BY-SA 3.0)

Alyssa McCartney, The President Who Cries Voter Fraud: A Recurring Theme of Baseless Allegations.  In 2019, Pennsylvania enacted its first update to the Election Code in nearly eighty years. On a bipartisan vote, the General Assembly passed a measure to allow “no reason” mail-in ballots. Act 77 allows any registered voter to request a ballot by mail, fill it out in the time framed outlined, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update would cause quite the controversy in months to come. Explaining a new process comes with challenges, but tack on a President purposely fanning the flames of doubt, mail-in ballots have been tough to sell. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures enacted seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that’s already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.”

This article aims to address Trump’s relentless allegations of voter fraud—something that is not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results are fair, free, and not riddled with fraud. Although President Trump refuses to concede in hopes of the United States Supreme Court intervening, he lacks any standing and cannot offer substantial evidence to support his claims. In short, these frivolous lawsuits are an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs.

From Flickr by Gage Skidmore (CC BY-SA 2.0)

Natalie Newsom, Make America Great Again.  In 2015, Donald Trump announced that he was running for President of the United States in a controversial statement outside his towering building in New York City. What ensued in the months following was a campaign that shattered presidential norms with Trump having a scattered history of sexual misconduct allegations, zero experience in elected office, and a tendency to make offensive and derogatory comments. These comments caused Rafael Oliveras López de Victoria to file a lawsuit on September 24, 2015, to ban Donald Trump from becoming President. Oliveras López argued, albeit unsuccessfully, that there is a particular caliber of moral solvency expected of U.S. Presidents, and that the court should intervene in situations in which a presidential candidate fails to meet that criterion.

The most interest facet of the Oliveras López lawsuit is what it reveals about American politics and morality. As it stands now, making offensive comments aimed at protected classes in the United States will not stop you from becoming President, the most highly regarded public-servant position in our nation. That fact seems to run afoul of another phenomenon that exists in the United States today, in which people may be fired from their government jobs for social media posts featuring alcohol or expletives. This leaves the question of why a double-standard exists. This paper aims to address the problem of that gap between the law and morality and discusses what the case filed by Mr. Oliveras López teaches us about restoring faith in American decency.

E. Jean Carroll in 2006 by Julieannesmo (CC BY-SA 3.0)

Pedro Raposo, Trump, Sexual Assault, and Defamation.  Defamation has proven a useful tool to survivors who have been keeping their accusations to themselves for fear of coming forward, and have since managed the strength to come forward against their abusers. Notably, many individuals who have been abused in the past may have concealed their stories for too long, and the statute of limitations for sexual assault have run. With a defamation suit, survivors are able to reopen the issue of their sexual assaults by addressing the accused's statements.  President Donald Trump has not been able to escape this recent wave of sexual misconduct allegations ushered in by the #metoo movement. To date, there have been nineteen women who have accused Trump of sexual misconduct. The three cases focused on here were brought by former “Apprentice” contestant Summer Zervos, adult film star Stephanie Clifford, and author E. Jean Carroll.  Two of these cases have reached variable results, with the court ruling the allegation in the Zervos case to be actionable against Trump, while the defamation claim in Clifford’s case was defeated by Trump’s legal team. 

Snapshot of Trump deposition in CZ-National

Spencer K. Schneider, Paying for Privacy.  As public opinion of the courts diminishes, it is important to consider the role that public access to the courts, or lack thereof, plays in this public opinion. In the United States, courts have a long history of public access to both proceedings and documents, much of which is grounded in the First Amendment. However, this access is not absolute, and the wealthy and powerful often seek to keep court documents under seal and out of the public’s view. One of these wealthy and power individuals is Donald Trump, a frequent litigator to say the least. This paper analyzes court decisions in Trump Old Post Office LLC v. CZ-National and Low v. Trump University, respectively, to make public and seal the video depositions of Donald Trump taken during each case’s discovery, and the effect that allowing wealthy parties to seal court documents can have on the public perception of the courts.

José Andrés on Flickr by Adam Fagen (CC BY-NC-SA 2.0)

Ricardo J. Serrano Rodriguez, Trump Old Post Office LLC v. Topo Atrio LLC and the Court of Public Opinion.  This paper attempts an exploratory study of the plausibility of public opinion influence in the case of Topo Atrio through media outlets such as newspapers, television, radio, and social media platforms. The ways that public opinion is formed have changed throughout our history. Since the times of the public square, public opinion influences the way that individuals conduct themselves in society. This influence changes the dynamics of social interaction in a deep manner and polarizes the judgment of the public. The internet and social media have expanded the reach of the public sphere to a point of near immediate dissemination of information. Now, newspapers are not only physical, as the name suggest, but digital also, which multiplies the publisher’s reach. Donald Trump is a public figure who also has made a brand out of his name and relied on this brand in his quest for political approval. In the case of Topo Atrio, ... José Andrés and Donald Trump, through their corporations, entered into an agreement in which Andrés would run a restaurant in Trump’s Old Post Office Hotel. The controversial comments about immigration made by Donald Trump when he announced his candidacy created a bustle of publicity that followed him to the end of his presidential term. But could it really influence the court of law?

Pixabay by Christian Dorn

Matthew R. Stevens, The Art of the SLAPP.  This paper dives into two cases, Makaeff v. Trump University and Clifford v. Trump, and dissects the anti-SLAPP issues and motions made in the cases. More specifically, the paper views the anti-SLAPP issues in these cases through the broader scope of anti-SLAPP legislation’s underlying policy goals. While extremely important and inextricably connected to the legal results of each case, the application of substantive law is not the primary focus of this paper. There is a plethora of variables that distinguish the two cases, but the key point of divergence on which this paper focuses is Trump being a defamation plaintiff in one case, and a defamation defendant in the other. It is also important to narrow the scope of SLAPP suits themselves. SLAPP suits can apply to far more than just free speech, but this paper focuses the scope of SLAPP suits through the lens of defamation claims. The paper’s ultimate goal is to use these two cases as examples to see whether anti-SLAPP legislation is operating as intended within the context of the greater policy goals of the legislation.

O'Brien's book (Amazon)

Judson Watt, Press Protections in Civil Discovery: Trump v. O'Brien.  Donald Trump is a well-known public figure who is famous for his litigious nature. In 2006, he filed a defamation lawsuit against a well-known reporter and author in the New Jersey courts. This lawsuit survived a motion to dismiss and was allowed to move into the pre-trial discovery phase. Donald Trump was allowed to pepper the defendant with requests for document production and interrogatories concerning his confidential sources. This paper addresses the decision of the trial court to allow pretrial discovery to proceed even though Trump failed to meet his burden to establish actual malice by the defendant, as required by the Supreme Court since New York Times v. Sullivan. This paper shows that the trial court disregarded statutes and case law by allowing the case to continue into the discovery phase.

This paper gives a basic overview of the hurdles faced by public figures in filing a defamation case. It examines and explains journalistic privileges in reporting on public figures and how these privileges were applied by the trial court. It examines various statutes and case law binding in New Jersey and New York at the time of the suit. This paper shows that this case was wrongly decided from the beginning and that it never should have moved into pretrial discovery. The trial court failed properly to apply the precedents of New Jersey or New York, and, as a result of this failing, a reporter was subjected to an endless stream of interrogatories, discovery, and legal harassment by a wealthy public figure. Indeed, this story is the embodiment of the motivations for press shield laws, and the importance of these laws in a democratic society.