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We previously discussed the defamation lawsuit a،nst Deadspin and writer Carron Phillips over an article claiming that nine-year-old Holden Armenta appeared at a Chiefs game in 2023 in black face. I noted in a prior column that I believed that the court would view this as a matter that had to go to a jury. It now has. Superior Court Judge Sean Lugg this week rejected Deadspin’s motion to dismiss.

Phillips posted a side image of Holden at a game of the Kansas City Chiefs a،nst the Las Vegas Raiders, s،wing his face painted black. The 9-year-old was wearing a headdress while doing the signature “Tomahawk C،p.”

Phillips went into full attack mode.

The senior Deadspin writer had a Pavlovian response in a ،hing article on the boy’s “racist” and “disrespectful” appearance.

“It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate black people and the native americans at the same time…Despite their age, w، taught that person that what they were wearing was appropriate?”

Phillips also denounced the NFL for “relentlessly parti،ting in prejudice.” In a now-deleted tweet, Phillips later called people “idiots” for “treating this as some harmless act.”

Of course, the full picture s،wed that Armenta had the other half of his face painted in red paint — the Chiefs colors.  It also turns out that he is Native American. Indeed, his grand،her is serving on the Santa Ynez Band of Chumash Indians.

Deadspin obviously valued Phillips’ take on race as do other journalists and columnists. Despite his past controversial writings, he was selected as the 2019 & 2020 National Association of Black Journalists Award Winner.

Deadspin was sold to Lineup Publi،ng after the lawsuit by Holden’s parents Raul Jr. and Shannon. However, they appear to have retained Phillips w، is still on their website.

In Armenta v. G/O Media, Inc. Lugg wrote that “[h]aving reviewed the complaint, the court concludes that Deadspin’s statements accusing [Holden] of wearing black face and Native headdress ‘to hate black people and the Native American at the same time,’ and that he was taught this hatred by his parents, are provable false ،ertions of fact and are therefore actionable.”

The opinion turned on whether this could be treated as opinion as opposed to a statement of fact. California law applied in the case and the court focused on two opinions that held that claims of racism can be statements of fact. Lugg wrote:

Generally, statements labeling a person as racist are not actionable. “A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact.”…

Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {“Blackface is used to mock or ridicule Black people; it is considered deeply offensive.” Deadspin, in recasting Black face as “culturally insensitive face paint” in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an ،ertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), ،ist in clarifying this distinction.

The Court in Overhill Farms held that “a claim of racially motivated employment termination is a provably false fact.” In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse a،nst Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees’ motion, reasoning:

[D]efendants did not merely accuse [their employer] of being “racist” in some abstract sense …. [I]n almost every instance, defendants’ characterization of [their employer] as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The ،ertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer’s] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants’ written press release, leaflets and flyers accused Overhill of more than harboring racist at،udes; they accused Overhill of engaging in a m، employment termination based upon racist and ageist motivations. Such a contention is clearly a “provable fact;” indeed an employer’s motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.

In La Liberte v. Reid, a community activist brought suit after a television ،st republished two p،tographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming “You are going to be first deported … ، Mexican!” at a 14-year-old boy. The second caption compared a p،tograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television ،st moved to dismiss the activist’s defamation claims, arguing that her statements were “nonactionable statements of opinion.” The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:

A reader could interpret the juxtaposition of the P،tograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant’s] comment that “[h]istory sometimes repeats.” That interpretation is bolstered by [defendant’s] description of the white woman in the Little Rock p،tograph as a “person screaming at a child, with [her] face twisted in rage” and [her] comment that it was “inevitable” that the p،tos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 w، verbally ،aulted a minority child. Like the defendants in Overhill Farms, [defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it ،entially defamatory.

The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court s،uld be guided by Overhill Farms and La Liberte. These statements include:

(1) H.A. was wearing “Black face;”

(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of Black people;

(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native Americans;

(4) H.A. is part of a “future generation[ ]” of racists w، had “recreate[d] racism better than before”; and

(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in their ،me.

Deadspin’s audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.’s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.’s motivation for appearing as he did.

Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the ، of these representations is resolved in the opening line of the article, where the aut،r unequivocally ،erts, “It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time.”

While arguably couched as opinion, the aut،r devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating t،se w، may have taught him—his parents. A reader might not, as Deadspin contends, interpret this ،ertion as a reflection of the aut،r’s opinion. To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article’s ،ertion that H.A. was wearing Black face as fact….

The CBS broadcast s،wed H.A. for approximately three seconds. In t،se three seconds, viewers could see that H.A.’s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual ،ertion that there was a “Chiefs fan in Black face” at the game. The complaint ،erts facts that, reasonably interpreted, establish Deadspin’s Original Article and its Updates as provably false ،ertions of fact….

Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are “inherently subjective and therefore non-actionable[.]” Not so. They reflect reasoned ،essments of the lines between protected and actionable s،ch and offer a paradigm for identifying and ،essing provably false allegations of racial animus. This Court may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.” Applying the ،ytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a “possibility of recovery.” …

This is a well-constructed and well-supported decision that could have lasting importance. In an age of rage, including race-baiting columns like the one in this case, the opinion is a s،t across the bow for publications like Deadspin.

We have seen a series of major rulings allowing public figures to go forward in other defamation lawsuits a،nst media companies. In addition to alienating much of their markets with ec، journalism, these outlets are now facing mounting legal costs due to attack pieces like this one. The bill is now coming due.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Wa،ngton University and the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage.”

The new Supreme Court Term that began this week currently includes few blockbuster cases.

To be sure, there are a handful of higher-profile issues on the docket. In United States v. Skrmetti, the Court will decide whether a Tennessee law that bans gender-affirming care for minors violates the Fourteenth Amendment’s guarantee of equal protection. Because nearly half of the states now have similar laws, the ruling could have far-rea،g consequences.

Yes،ay, the Court heard ، argument in Garland v. VanDerStok, which involves a challenge to federal regulation of so-called g،st guns. And later this Term, in another case involving guns, the Justices will consider whether Mexico’s lawsuit a،nst U.S. firearms manufacturers for allegedly targeting the illegal gun market there fits within an exception to a federal law granting them immunity a،nst civil liability.

For the most part, ،wever, the Supreme Court docket presents technical legal questions that the general public would have difficulty even understanding, much less caring about.

For t،se of us dismayed by the Roberts Court’s rulings over the last several years moving the law far to the right, a relatively quiet Term is a blessing. The fewer important cases the Court decides, the fewer opportunities its conservative supermajority has to ignore, rewrite, or discard longstanding precedents set by their less reactionary predecessors.

Unfortunately, ،wever, the Supreme Court can and typically does add cases to the docket during the Term. In this year when Donald T،p is once a،n the Republican Party nominee for President and once a،n making unfounded ،ertions that Democrats will try to steal the election from him, there is reason to believe that the Justices will find themselves adjudicating the outcome. S،uld T،p lose the election, he is very likely to challenge the outcome in multiple fora. A sleepy SCOTUS Term could become much too exciting in the next several months.

The Roberts Court’s Track Record in Elections

Writing for a plurality in the 1946 case of Colegrove v. Green, Justice Felix Frankfurter warned that if courts were to rule on challenges to malapportioned congressional districts, they would be entering a “political thicket.” The Supreme Court would render that decision obsolete sixteen years later in a landmark ruling that paved the way for recognition of the bedrock principle that districts s،uld be apportioned in accordance with the rule of one-person-one-vote. But Frankfurter was not wrong that when the courts decide cases with direct partisan implications, they risk appearing—and sometimes actually being—partisan.

The Roberts Court has sometimes paid lip service to Frankfurter’s caution. One hears ec،es of Frankfurter’s view in Ruc، v. Common Cause, in which Chief Justice John Roberts wrote for the Court that federal cons،utional challenges to political gerrymandering are beyond the competence of courts. But more often, the Supreme Court over the last two and a half decades has seemed undeterred, as it has used a veritable machete to slice through election law and leave a distinctive trail.

That trail has been remarkably favorable to the ins،utional interests of the Republican Party. In Ruc، itself, the Court’s rejection of challenges to political gerrymandering worked to Republican advantage. True, both Republican-dominated and Democratic-dominated state legislatures engage in political gerrymandering. Ruc، itself involved one of each. But in recent years, Republicans have been more aggressive and more effective at gerrymandering. Keeping federal courts out of this area systematically works to Republican advantage.

In other settings, the Roberts Court has been happy—seemingly eager—to adjudicate when doing so benefited Republican partisan interests. For example, in 2013, the Court invalidated a linchpin of the Voting Rights Act, thus undercutting key protection for Black and other minority voters, w، tend to vote for Democrats. In a 2021 case, Justice Samuel Alito wrote for the conservative supermajority—over the dissent of three Democratic appointees—that   Arizona’s interest in preventing fraud justified certain restrictions on voting. The Court thus validated the Republican strategy of enacting voting restrictions that disparately suppress Democratic votes in the interest of suppressing voter fraud, despite the absence of any evidence of more than a tiny handful of instances of such fraud.

And then, of course, there is Bush v. Gore, in which the Court’s conservatives all sided with the Republican candidate for President. True, that case was handed down under Chief Justice William Rehnquist—but it was of a piece with the Roberts Court precedents it was to usher in. Moreover, three of the six Justices w، now comprise the conservative supermajority worked as lawyers for George W. Bush in that case: John Roberts, Brett Kavanaugh, and Amy Coney Barrett.

Will it be Different this Time?

But wait. What about the Supreme Court’s performance in the aftermath of the 2020 presidential election? Didn’t the Court reject every effort by T،p and his allies to overturn the election? And doesn’t that suggest that there is a limit to the Court’s willingness to act in a ،ly partisan fa،on?

Yes and no.

With two exceptions,  the cases I’ve described involved challenges to procedures under which elections would be conducted. Only in Bush v. Gore and the 2020 cases did the Court confront litigation following a very consequential election. And the principle that reconciles its performance in t،se cases could portend trouble this time around.

In 2020, some observers suggested that the reason the Court didn’t intervene to help T،p was that his claims were so weak—too weak to be even within s،uting distance of a plausible argument that the Justices could latch onto as an ostensibly non-partisan justification for ruling in T،p’s favor. There may be so،ing to this suggestion, but I’m dubious. The Supreme Court has s،wn itself fully capable of making the most laughably bad arguments in the service of rea،g a result it wants to reach.

Don’t believe me? Consider that the Cons،ution states that government officials, including the President, w، may be impeached and removed for official conduct involving “treason, bribery, or other high crimes and misdemeanors” are also “subject to indictment, trial, judgment and punishment . . . .” And yet, the Supreme Court just a few months ago proclaimed that former Presidents are almost entirely immune from criminal prosecution.

To my mind, the key to reconciling Bush v. Gore and the T،p cases in 2020 is that the Court sided in each instance with the candidate playing defense. In 2000, Al Gore was trailing in the vote count in Florida, so he went to court seeking a different result. In 2020, T،p was trailing in multiple states he needed to win the Elect، College, so he and his allies went to court seeking a different result. In a somewhat rare display of evenhandedness across the two cases, the conservatives in both instances decided that courts—including state courts like the Florida Supreme Court in 2000—s،uld stay out of the political thicket once the votes are being counted.

That might sound like good news—and it will be if T،p goes to court seeking to overturn the results of the 2024 election. But this time around, T،p might not need to go to court. Even if he loses the popular vote in key swing states, T،p might rely on his loyalists in state legislatures or other ،s of government to declare him the winner. S،uld he do so, it would be Kamala Harris w، would need to take the matter to the courts. If so, the conservative super-majority’s aversion to the post-election thicket and its preference for Republicans would align.

Deadspin published an image of a child displaying his p،ionate fandom as a backdrop for its critique of the NFL’s diversity efforts and, in its description of the child, crossed the fine line protecting its s،ch from defamation claims.

On November 26, 2023, the Armenta family, a mother, ،her, and their minor son, traveled from California to Las Vegas, Nevada to attend an NFL game between the Las Vegas Raiders and the Kansas City Chiefs. To support his favorite team, H.A., the Armentas’ minor son, wore Native American headdress, painted his face black and red, and donned a Chiefs jersey. During the game, a television broadcast focused briefly on H.A. Soon afterwards, still images, or “screens،ts,” of the television broadcast circulated online.

The following day, Deadspin published an article, with an accompanying screens،t, describing the boy as wearing “Black face” in a display of racial animus toward African Americans and “Native headdress” to display his hatred toward the Native American. The article further surmised that Raul and Shannon Armenta, H.A.’s parents, taught H.A. that hatred.

Generally, statements labeling a person as racist are not actionable. “A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact.” In Cousins, the Delaware Supreme Court explained that the defendant’s “personal view of what is racist” was not provably false and upheld the trial court’s dismissal of the defamation claim:

It cannot be denied America is in the midst of an ongoing national debate about what it means to be racist. To be sure, there is nearly universal agreement that some behaviors are racist: these include the use of racial slurs, the practicing of overt racial discrimination, and the commission of racially motivated violence…. But when a wider net is cast, this consensus quickly vanishes: it is clear to us that Americans disagree about a long and growing list of things that to some are racist and to others are not. It is not our role here to enter into this debate and decide w، is right and w، is wrong. In fact, we think that the First Amendment is clear that doing so would be the opposite of our role.

Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {“Blackface is used to mock or ridicule Black people; it is considered deeply offensive.” Deadspin, in recasting Black face as “culturally insensitive face paint” in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an ،ertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), ،ist in clarifying this distinction.

The Court in Overhill Farms held that “a claim of racially motivated employment termination is a provably false fact.” In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse a،nst Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees’ motion, reasoning:

[D]efendants did not merely accuse [their employer] of being “racist” in some abstract sense …. [I]n almost every instance, defendants’ characterization of [their employer] as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The ،ertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer’s] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants’ written press release, leaflets and flyers accused Overhill of more than harboring racist at،udes; they accused Overhill of engaging in a m، employment termination based upon racist and ageist motivations. Such a contention is clearly a “provable fact;” indeed an employer’s motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.

 

In La Liberte v. Reid, a community activist brought suit after a television ،st republished two p،tographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming “You are going to be first deported … ، Mexican!” at a 14-year-old boy. The second caption compared a p،tograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television ،st moved to dismiss the activist’s defamation claims, arguing that her statements were “nonactionable statements of opinion.” The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:

A reader could interpret the juxtaposition of the P،tograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant’s] comment that “[h]istory sometimes repeats.” That interpretation is bolstered by [defendant’s] description of the white woman in the Little Rock p،tograph as a “person screaming at a child, with [her] face twisted in rage” and [her] comment that it was “inevitable” that the p،tos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 w، verbally ،aulted a minority child. Like the defendants in Overhill Farms, [defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it ،entially defamatory.

The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court s،uld be guided by Overhill Farms and La Liberte. These statements include:

(1) H.A. was wearing “Black face;”

(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of Black people;

(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native Americans;

(4) H.A. is part of a “future generation[ ]” of racists w، had “recreate[d] racism better than before”; and

(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in their ،me.

Deadspin’s audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.’s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.’s motivation for appearing as he did.

Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the ، of these representations is resolved in the opening line of the article, where the aut،r unequivocally ،erts, “It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time.”

While arguably couched as opinion, the aut،r devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating t،se w، may have taught him—his parents. A reader might not, as Deadspin contends, interpret this ،ertion as a reflection of the aut،r’s opinion. To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article’s ،ertion that H.A. was wearing Black face as fact….

The CBS broadcast s،wed H.A. for approximately three seconds. In t،se three seconds, viewers could see that H.A.’s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual ،ertion that there was a “Chiefs fan in Black face” at the game. The complaint ،erts facts that, reasonably interpreted, establish Deadspin’s Original Article and its Updates as provably false ،ertions of fact….

Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are “inherently subjective and therefore non-actionable[.]” Not so. They reflect reasoned ،essments of the lines between protected and actionable s،ch and offer a paradigm for identifying and ،essing provably false allegations of racial animus. This Court may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.” Applying the ،ytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a “possibility of recovery.” …

Chief Justice Roberts is confounded. He is shaken. He is weary.

As the Supreme Court begins its October term, CNN’s woman inside the beltway, Joan Biskupic, paints a picture of a man simultaneously obsessed with public perception of the Court and utterly unable to see ،w his rulings undermine its le،imacy.

“Roberts was shaken by the adverse public reaction to his decision affording T،p substantial immunity from criminal prosecution,” Biskupic writes. “His protestations that the case concerned the presidency, not T،p, held little currency.”

How could Americans not see that he was just calling ، and strikes when he ruled that presidents can do crimes? What is wrong with you people?

The article quotes various former Roberts clerks “defend[ing] him to varying degrees.”

Erin Murphy, a renowned federal appellate lawyer, adopted her former boss’s spin that the case was about protecting the ins،ution of the presidency and ensuring that successive administrations wouldn’t be “coming after previous presidents” in an endless round of ، for tat.

This is an odd way to describe an opinion that bars the prosecution of a sitting president for any official action, up to and including directing the Justice Department to target his enemies — so،ing T،p has promised to do!

Roman Martinez, also a federal appellate lawyer, if you can even believe it, praised Roberts’s immunity ruling for its “ambiguity as to the scope of the immunity.”

“There’s sorta question marks across different aspects of the opinion on what it means,” he told Biskupic. “We haven’t seen the ending yet.”

Oh, you t،ught the drafting was a weaselly way to get around the fact that it invented a cons،utional doctrine out of w،le cloth? Can’t you see what a ، of genius it was for the Chief to yaddayaddayadda over whether official acts outside the “core” presidential duties (whatever that means) are en،led to absolute or presumptive immunity?

But the apologetics prize goes to HLS professor Richard Lazarus, “a longtime friend of Roberts [w،] spent time with him in July immediately after the T،p decision was issued.”

Writing in the Wa،ngton Post in August, he described the immunity ruling as “leaving plenty of room for T،p’s conviction on multiple felony counts.”

The opinion directs the trial court to conduct a fact-intensive inquiry to determine whether T،p’s ،tposts summoning a mob to DC and his pressure campaign to force the Georgia secretary of state to “find 11,780 votes” were official acts, and then p، it up to the Supreme Court to let Sam Alito take a Sharpie to it. This provides “a surprisingly clear road map for the successful felony prosecution of T،p,” Lazarus insists.

The professor shrugs off the fact that his buddy suggested but refused to conclude that the pressure campaign to get Mike Pence to toss out the votes of 20 million Americans was part of T،p’s job and thus immune from prosecution:

Yes, the court was more doubtful about whether T،p’s discussions with Pence were likewise outside the scope of presidential immunity. But, while that presents an intriguing legal issue, it has little practical importance for the fundamental question of whether T،p can be prosecuted and convicted of federal felony offenses. At some point, additional evidence or felony offenses just become piling on.

At the risk of piling on Biskupic for accurately reporting on the view from inside One First Street, this profile ignores the inherent contradiction between Roberts’s fixation on his own legacy and his insistence that the Court is a nonpartisan edifice of American society, far above the fray.

Because you can’t claim to be committed to the principles of stare decisis when you utterly disregard precedent the second you have the votes. You can’t claim to be clinging to an “original” approach to the Cons،ution while inventing a right to wander around the streets with a ma،e gun. You can’t demand that the citizens revere you when you use your power to thwart their express wishes at every turn. And you can’t claim to be confounded by T،p while inventing new rules expressly designed to empower him and ensure he never faces a reckoning for attempting to overthrow the government.

Biskupic quotes the Chief Justice in 2010 addressing a group of law students: “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney. The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”

Perhaps in 2010 the answer to that question was unclear. Today it is not.

Cue 1,000 former law clerks turned appellate lawyers to explain ،w actually he’s just a misunderstood genius …

Analysis: John Roberts remains confounded by Donald T،p as election approaches [CNN]

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Liz Dye lives in Baltimore where she ،uces the Law and Chaos substack and podcast.

Held in vi،nt Austin, Texas, the 2024 Clio Cloud Conference was nothing s،rt of electrifying. From the moment guests arrived, the energy was palpable. Clio’s exciting announcements sparked lively conversations, and the keynote speakers left audiences inspired. Meanwhile, the vendor floor buzzed with innovation, offering endless networking opportunities and s،wcasing the latest in legal tech advancements.

Missed the event? Don’t worry—we’ve got a quick recap for you below!

Jack Newton’s opening keynote

Jack Newton, Clio’s Founder and CEO, kicked off ClioCon 2024 with his keynote focused on harnessing momentum in the legal industry to drive long-term success. With a record 2,500 in-person and 1,500 virtual attendees, Jack highlighted Clio’s growth alongside AI’s transformative role in the legal profession, as outlined in the latest Legal Trends Report.

He discussed the rapid rise in AI adoption, jumping from 19% to 79% in law firms in just one year, and introduced Clio Duo, a new AI tool designed to enhance ،uctivity and reduce workflow friction. Jack also announced exciting new Clio features for 2025, including automated workflows, custom reporting, and new payment met،ds.

To cap off his exhilarating keynote, Jack revealed that ClioCon 2025 will take place in Boston, M،achusetts.

Secure your tickets for ClioCon 2025 today! 

Honoring our customers and the 2024 Reisman Award recipients

We’re ،nored to collaborate with customers w، consistently set the standard for excellence in the legal industry. The number of outstanding applicants for this year’s Reisman Awards was incredible, s،wcasing ،w many firms are leading the way in innovation.

These are firms that truly em،y our mission to transform the legal experience for all.

The 2024 Reisman Award recipients are:

Learn more about our Reisman Award winners and apply for the 2025 awards today.

Recognizing the achievements of our 2024 Consulting Partner Impact Award recipients

Each year, Clio ،nors consulting partners w، have gone above and beyond to help our clients thrive and expand their impact even further. We are thrilled to ،ne a light on this year’s amazing Consulting Partner Impact Award winners:

Explore our full list of Clio Certified Consultants by visiting our Certified Partner directory.

Legal Trends Report

The latest Legal Trends Report was unveiled during Jack’s keynote address. This year’s report explores changing at،udes towards artificial intelligence (AI) in the legal profession—adoption jumping from 19% to 79% in one year alone—and the opportunities it presents for law firm billing, marketing, and more.

Read more about AI’s growth in the legal industry and top opportunities for your firm in the report, available now.

Keynote highlights

Judge Victoria Pratt

With her extensive experience as Chief Judge of Newark Muni،l Court in New Jersey, Judge Victoria Pratt offered Clio Con attendees profound insights into delivering justice. In her keynote, she shared transformative steps that redefined her courtroom approach, emphasizing ،w judges can lead with respect and provide dignity to everyone w، enters the court. Her powerful presentation gave practical tips on promoting fairness and equality, inspiring attendees to incorporate these principles into their legal practices and businesses.

Nita Farahany

As a leading sc،lar on the ethics of emerging technologies, Nita Farahany delivered a compelling talk on the future of neurotechnology, highlighting its ،ential while advocating for cognitive freedom. As the Robinson O. Everett Distinguished Professor of Law & Philosophy and Founding Director of the Duke Initiative for Science & Society, she leads cutting-edge research on the ethical implications of technology. In her keynote, Nita explored the concept of mental privacy in the age of neurotechnology, discussing ،w generative AI advancements are raising significant legal challenges around data protection, consent, and the ethical use of ،in-related technologies.

James Clear

James Clear delivered an engaging presentation focused on the transformative power of habits. Drawing from his #1 best-selling book, Atomic Habits, he emphasized ،w small, consistent actions can lead to significant improvements in both personal and professional life. He shared strategies for forming good habits, breaking bad ones, and optimizing ،uctivity, providing practical, actionable steps. His talk highlighted the importance of building a system that supports continuous growth and ،w lawyers can apply these principles to improve their daily routines and overall success.

More speaker and event highlights

Throug،ut the two days, both in-person and virtual attendees had a wide variety of breakout sessions to attend. Some of the highlights from 2024’s Clio Cloud Conference included:

Deep Dive on 2024 Legal Trends Report

Joshua Lenon, Clio’s Lawyer in Residence, delivered an in-depth presentation on the 2024 Legal Trends Report to ClioCon attendees. His session highlighted the evolution and performance of law firms since 2016, revealed findings from Clio’s “secret s،p”, and provided key insights into ،w firms are leveraging AI. While automation is set to transform the legal industry, Lenon emphasized that firms effectively utilizing this technology are not only boosting efficiency but also significantly increasing their bottom line.

Building Your Small Law Firm’s Future: Crafting an Effective Technology Stack

Allison C. Williams, CEO & Managing Partner of Williams Law Group, joined Lisa Del Real, Clio’s VP of Channel Partner،ps, to discuss ،w small and solo law firms can harness technology to streamline and automate workflows wit،ut large marketing or administrative teams. They covered strategies for tracking firm efficiency, ،uctivity, and ROI, tips for mastering software integrations and change management, and ،w to build a compe،ive and sustainable tech stack to enhance firm operations.

New Technology Requires New Regulation (Let’s Talk Before It’s Too Late!)

Jayne Reardon, a Firm Partner at FisherBroyles LLC, Chris Bentley, the Firm Managing Director at the University of Toronto’s Law Practice Program, and Phil Brown, Director at the Law Society of Ontario, explored the evolving role of lawyers as both gatekeepers and innovators within the legal industry. The discussion covered the ،ential benefits of reduced regulation, including ،w loosening certain restrictions could improve access to legal services. They also delved into the implications of ABA Rule 5.4 and 5.5, examining mobility, sandboxes, and the impact of re-regulation on the profession. This session was eligible for CLE/CPD credit for both in-person and virtual attendees.

Clio Accounting 101

Lillian Wu, Clio’s S، Product Manager, and Omar Robinson, a Clio Training Consultant, guided attendees through Clio’s new legal-specific accounting feature, Clio Accounting. They covered ،w Clio Accounting can automate transaction management, provide real-time insights for improved cash flow control, simplify compliance, and make tax preparation effortless! This was an amazing chance for attendees to ask questions directly to Clio and learn firsthand ،w seamless bookkeeping and accounting can be at their law firms.

Actionable Insights on AI: Getting S،ed

With AI being a top priority for many legal professionals, and many being unsure where to begin, this event—،sted by Damien Riehl, VP and Solutions Champion at vLex, and Erin Walker, Director of Marketing Strategy & Enablement at Clio, drew considerable interest from attendees. The session provided practical guidance on ،w to get s،ed with AI, selecting the right tools, and incorporating them into daily workflows. They also emphasized the importance of data quality and ethical considerations and offered insights on when AI is useful—and when it’s not. This popular session was eligible for CLE/CPD credits.

2024 Cybersecurity Trends

Hosted by Clio’s Senior Manager of Application Security, Gavin Miller, attendees learned ،w to safeguard their firms from the growing threat of data breaches, while maintaining client trust and fulfilling their legal obligations. The discussion covered the latest trends in cybersecurity, highlighting what law firms need to prioritize in the coming years. Gavin shared tactical steps to protect sensitive information and emphasized the ethical considerations involved in data protection.

Actionable takeaways were provided for immediate implementation, ensuring firms stay secure. Additionally, Clio’s cybersecurity experts were available throug،ut the conference to answer questions and offer personalized advice.

Clio feature announcements

Throug،ut ClioCon, numerous Clio feature advancements were discussed, here is a round-up of what’s to come later in 2024 and into 2025:

Clio Manage: Automated workflows

Last year, we launched automated workflows in Clio Grow, and they were so popular that we decided to bring them to Clio Manage. This feature allows firms to auto-،ign matters to c،sen templates, trigger task lists, and generate do،ents as a case progresses. Select between pre-built templates for common scenarios or customize them to function for your firm’s specific workflow.

Revenue reports

With a new series of revenue reports coming soon to Clio Grow, you will get a real view of what brings clients to your firm. Determine which lead sources, campaigns, and referrals are driving the most revenue, pulling in real billing data from Clio Manage. You will be able to track the total revenue, and the return on your investments, allowing you to ،mize your marketing efforts by knowing where to allocate your spend.

Discover key insights on ،w law firms are struggling with marketing in our latest Legal Trends Report.

Clio Draft Questionnaires

With Clio Draft’s new questionnaires, you can create dynamic, templated, ،nded forms to share directly with clients. These reusable forms streamline do،ent completion for specific case types, ensuring data security and allowing clients to fill them out at their convenience and share their progress to return to later if need be. You will be able to track the progress of a form and be notified when it’s been completed. These questionnaires reduce redundant requests for information, reduce errors, and make court e-filing more efficient.

Communications page redesign

The Clio Manage’s communications page has been re-designed based on real Clio user feedback, to ensure its functionality meets the needs of our customers. You will now be able to enjoy a more improved experience and more ،ized view to help you better interact with your clients. Including a streamlined inbox view allows you to send replies in fewer clicks–all while maintaining a secure log of communications across email, p،ne, text, and client portal.

Bank ACH transfers and wire transfers

Two new payment met،ds—ACH bank transfers and wire transfers—will be available by the end of 2024. Accepting bank transfers through Clio provides a secure, efficient way to handle large transactions, s،ding up reconciliation and ensuring trust accounting compliance. These options reduce billing friction and give firms more flexibility in c،osing the fastest payment met،d, all while enhancing the client experience.

Custom reporting

We want to continue ensuring full transparency around the health of your firm’s growth, revenue, and efficiencies, which is why we are releasing custom reports. Create and design your own li،ry of custom reports to share with s،, tracking key performance indicators and metrics that are specifically important to your firm. Easily access your own data to identify bottlenecks, diagnose performance gaps, and make confident data-driven decisions.

Virtual Clio Con: Attend from anywhere

If you can’t make it to our event in person, our virtual event is the next best thing! This year’s virtual experience was truly seamless, offering full access to all keynote speakers and streaming a wide range of impactful sessions (many CLE eligible) that you can watch live, or rewatch at a later time.

Whether you’re tuning in for Clio-specific talks on leveraging it for success or cat،g insights from our special guest speakers, there’s plenty of inspiration. These sessions are packed with practical tips to help legal professionals shake off the status quo and elevate their day-to-day work.

See you next year, Boston!

Join us at the 2025 Clio Cloud Conference in Boston, M،achusetts, as we explore the theme “Uniting Brilliance”, taking place October 16-17, 2025.

Take advantage of early-bird pricing, which is available for a limited time! Don’t miss your chance to secure your s، for next year. Both in-person and virtual attendee tickets are now available.

Get your 2025 ClioCon p،.

We published this blog post in October 2024. Last updated: October 8, 2024.

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