A magistrate judge ordered a legal journalist on June 20, 2024, not to publish the name of a plaintiff that had mistakenly appeared on court documents in a revenge porn case. The ruling was overturned a month later.

Eugene Volokh — co-founder of the legal blog The Volokh Conspiracy, a law professor emeritus at the University of California, Los Angeles, and a senior fellow at the Hoover Institution at Stanford University — was singled out in the ruling by Magistrate Judge Elizabeth S. Chestney as the only person who was barred from using the plaintiff’s name.

The case, initially filed in 2019, involves a woman who ended an extramarital affair with a man, who she said then posted revenge porn to several adult websites. The case was sealed to protect her privacy. She and the defendant later settled, but the question of whether the case was improperly sealed remained.

Volokh told the U.S. Press Freedom Tracker that he initially noticed the case in an alert from Westlaw, a database of legal documents, and thought it raised First Amendment questions that he might want to write about, given his expertise as a free speech scholar.

Even though the case was sealed, the names of both the plaintiff and defendant were published in an opinion available on Westlaw, along with other documents that should have been sealed under the judge’s order. It’s not clear exactly why they were published, but Volokh said it appeared to be an error.

“It was just a simple mistake,” he told the Tracker.

Volokh moved to intervene in the case and have it unsealed. Chestney, the magistrate judge, agreed on July 18, 2022, to let him intervene but ruled that Volokh could not write about the case until a decision was made on unsealing the case.

“Professor Volokh may not blog or write about this case until any renewed motion to unseal has been granted,” the ruling ordered.

Volokh appealed the case to District Judge Xavier Rodriguez, who on Aug. 3, 2022, vacated the prior restraint language and said the entire case should be unsealed. Volokh then published the plaintiff’s name in a blog post in August 2022 since, he said, it was also the name of the case.

The plaintiff appealed the unsealing of the case to the 5th U.S. Circuit Court of Appeals, which ruled that it should be partially sealed with certain personal information redacted.

The case then returned to Chestney to determine what exactly should be redacted and whether the plaintiff could retroactively use a pseudonym, Jane Doe.

In her June 20, 2024, ruling, Chestney ruled in favor of the retroactive pseudonym.

“And then to my surprise, she says that even though I don't have to take down past writings that mention the plaintiff’s name, I cannot use her name in future writings,” Volokh told the Tracker.

The ruling stated: “Professor Volokh may not, however, publicly disclose Plaintiff’s name or personal identifying information in any future writings, speeches, or other public discourse.”

Volokh again appealed and on July 16 Rodriguez vacated that prior restraint language.

“The order restricts Volokh from sharing information that is publicly available through his prior writings but allows for any of Volokh’s readers to share that same information,” Rodriguez wrote. “As such, the language at issue here is an unconstitutional prior restraint.”

Volokh detailed the ruling in a post on The Volokh Conspiracy.

The plaintiff could still appeal the ruling to the 5th Circuit.

Volokh said he was deciding whether to go back to his August 2022 article and redact the name.

But whether he uses her name in future articles, he added, should be a matter of editorial discretion, not a judge’s ruling.

“I think it’s important that this be a decision for the individual journalist, the individual speaker, and not something that they’re ordered to do,” Volokh told the Tracker.

Volokh said he sees this case as an example of the system working. But he noted that he was uniquely positioned to fight these instances of prior restraint.

“I should also acknowledge that maybe if I weren’t a law professor, if I weren’t a specialist on the subject, if I had to pay a lawyer to challenge the prior restraints, maybe the situation might not have come out as well,” he told the Tracker.

This content originally appeared on U.S. Press Freedom Tracker: Incident Database and was authored by U.S. Press Freedom Tracker: Incident Database.

The vision

“Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.”

Montana District Court Judge Kathy Seeley

The spotlight

As part of our series on personal climate action earlier this summer, we interviewed Claire Vlases, a young plaintiff in the Held v. Montana climate lawsuit, about her experience taking what some would consider an extreme action for the climate: suing her state government.

At the time, she told us: “I think taking a drastic measure of action is the only way that we’re going to get heard. I think young people across the state are interested in knowing what we can actually do, and what lengths people will go to feel heard. And we’re excited to see the result of the trial.”

On Monday, a verdict was handed down in the case. Judge Kathy Seeley sided with Vlases and her 15 compatriots, ruling that the state’s fossil fuel policies violated the youths’ constitutionally protected right in Montana to a clean and healthful environment.

As Grist’s climate solutions fellow Katie Myers wrote earlier this week, the decision could create a precedent for future lawsuits and could also impact current climate lawsuits across the country. This case was the first of its kind to go to trial — but Our Children’s Trust, the nonprofit law firm that represented the youth plaintiffs, has youth-led climate lawsuits pending in four other states, as well as a federal case.

Seeley, the judge, found that “every additional ton of greenhouse gas emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.” Her ruling cited multiple and specific ways climate change has already impacted each of the plaintiffs.

“The legal community has been fearful that judges won’t understand these cases, and she blew that out of the water,” Julia Olson, the founder of Our Children’s Trust, told the New York Times. “It was digestible, she understood it, and the findings were beautiful.”

We caught up briefly with Claire Vlases to hear her thoughts on the results of the lawsuit. Her responses have been lightly edited for clarity.

Q. How are you feeling now that the verdict has arrived?

A. This is a life-changing decision, and not just for me and the other plaintiffs. It will affect all of Montana because now we know that the state must not continue “business as usual.” The decision has validated the challenges in my life that are due to climate change, and for the first time in my life, my government has said: “We hear you, and we will protect your rights.” As a young person, it often feels like what I say or do does not matter when it comes to policymaking or any actual change. Now, I feel hope for the future in a way I never had before. I hope that the decision inspires other young people around the world to stand up for their rights, even in the face of adversity.

Q. What takeaways do you have from being a part of this historic trial?

A. This trial will set a precedent for the future. Young people matter. Environmental protection matters. Our rights matter. It makes me have faith in our democratic system, and that it’s OK to speak up when your government has not been respecting the rights you are guaranteed. We are heard.

Although the ruling will almost certainly be appealed, the timing of this decision is poignant. Many of the young Montana plaintiffs testified to the ways that climate change has impacted their lives, from oppressive summer heat to wildfires that creep ever close to their homes. The summer of 2023 has been a record-setter for those deadly climate impacts.

The Maui wildfires, which have now claimed at least 99 lives, have been declared the worst disaster in Hawaiian state history and the deadliest U.S. fire in over a century.

Hawaiʻi has its own youth-led climate lawsuit, which will see its day in court next summer. Although the cases are different, they have some fundamental things in common. Similar to Montana, Hawai‘i’s state constitution guarantees that “Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.”

The Hawai‘i suit, brought by 14 young plaintiffs who are also represented by Our Children’s Trust, focuses less on energy development and more on projects like highway expansion — the plaintiffs are suing the state’s Department of Transportation for its role in promoting a polluting system that will “lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions.”

— Claire Elise Thompson
Akielly Hu contributed reporting to this newsletter

More exposure

• Read: more about the Montana verdict (The Guardian)
• Read: some takeaways from the proceedings of the trial (Scientific American)
• Read: about the global rise in climate lawsuits and pending cases to keep an eye on (State of the Planet)
• Read: about community-led aid efforts on Maui (Grist)
• Listen: to Grist’s Anita Hofschneider discuss the conditions that led to the Maui wildfire, and the ins and outs of the Hawaiʻi youth climate lawsuit (WBUR)
• Grist will be continuing to cover the Montana case and other climate lawsuits, as well as recovery efforts on Maui, so follow along for our daily news.

See for yourself

Our Children’s Trust has brought legal actions in all 50 states, including lawsuits and petitions — check out this list to learn about the status of their efforts in your home state (if you live in the U.S.).

A parting shot

The youth plaintiffs smiled for a group photo in front of Montana’s First District Judicial Court on June 12, ready to begin the trial. They ranged in age from 6 to 22.

IMAGE CREDITS

Vision: Grist

Parting Shot: William Campbell / Getty Images

This story was originally published by Grist with the headline Youth plaintiffs in the historic Held v. Montana climate lawsuit have a verdict on Aug 16, 2023.

This content originally appeared on Grist and was authored by Claire Elise Thompson.

The 21 youth plaintiffs, including 11 Black, Brown, and Indigenous youth, have waited almost
eight years after facing incessant and unprecedented efforts by the U.S. Department of Justice
(DOJ) to delay and dismiss their case. The Juliana case was one of the most significant targets
of the Trump administration’s “shadow docket” - a tactic wherein cases are decided without full
briefing or oral argument, and without any written opinion. Now, barring continued attempts by
the DOJ to delay the case, the youth will finally be able to move forward to trial on the question
of whether the federal government’s fossil fuel-based energy system, and resulting climate
destabilization, is unconstitutional.

Members of Congress stand in solidarity with the Juliana youth plaintiffs. Following the
ruling, members of Congress issued public statements of support for the youth plaintiffs and this
week participated in a Tweetstorm to continue to show their commitment to the youth, their
rights to a safe, livable climate, and their right to go to trial. Supporting access to justice for our
children, the members encourage the Biden administration to fulfill his promise to work with our
youth and protect them from the harms of the climate crisis.

Senator Jeff Merkley (D-OR), Chairman of the Senate Interior, Environment, and Related
Agencies Appropriations Subcommittee and Chairman of the Chemical Safety, Waste
Management, Environmental Justice, and Regulatory Oversight Environment and Public Works
Subcommittee, shared, “BIG NEWS: The #YouthVGov case will finally proceed to trial! This
remarkable group of young people who are demanding their right to a healthy planet and future
have my full support.” Read his June 3, 2023, tweet here and June 6, 2023, tweet here.

“Twenty-one youth have waited almost eight years to get a ruling on their lawsuit demanding
their constitutional right to a safe climate be protected. And yesterday, we welcomed news that
they are finally being granted their right to go to trial,” said Congresswoman Jan Schakowsky
(IL-09), a Chief Deputy Whip and Ranking Member on the House Innovation, Data, and
Commerce Energy and Commerce Subcommittee. “These young people have taken on
incredible responsibility to protect our environment. I will continue to work with my colleagues in
Congress to support them as they continue their fight to protect the right of all to a safe and
habitable climate. Our children and grandchildren should not have to fear for the future of their
environment and our world as we know it.” Read her June 2, 2023, press statement here and
tweet here.

Senator Sheldon Whitehouse (D-RI), Chairman of the Budget Committee, Chairman of the
Federal Courts, Oversight, Agency Action, & Federal Rights Judiciary Subcommittee, and
member of the Environment and Public Works Committee, stated, “All of us have a responsibility
to leave the next generation a healthy and hospitable planet. The window of opportunity to
address climate change is still open, but we must follow the lead of our children and
grandchildren to take action today. I’m proud to stand alongside Our Children’s Trust and young
people across this country as we fight for a safer climate future.” He also tweeted his support on
June 6, 2023, here.

“Today, I'm proudly standing with @youthvgov + Juliana plaintiffs as they fight to protect their
constitutional right to a safe climate. Let's get climate justice out of the shadows & off the
shadow docket,” stated Congresswoman Veronica Escobar (TX-16), member of the Judiciary
Committee and Deputy Whip of Congressional Progressive Caucus. Read her June 6, 2023,
tweet here.

For additional statements of support, including from Senator Wyden and Congressmembers
Jayapal and Tlaib, visit the Juliana statements of support page.

“I spent most of my life living on a barrier island impacted by the climate crisis and nearly half of
my life fighting for climate justice as a plaintiff in this lawsuit,” said the youngest plaintiff in the
Juliana case, 15-year-old Floridian Levi Draheim. “I’m only 15 years old and I have lived
through three major hurricanes and have been evacuated from my home multiple times. I’ve
also experienced years of delay, waiting for my right to be heard in court, due to the actions of
our own DOJ. I’m excited that our case is finally moving forward and grateful that members of
Congress continue to support children’s fundamental rights for youth, like me and my little
sister.” Learn more about Levi and the other 20 Juliana plaintiffs here.

Since the case was filed in 2015, more than 85 lawmakers have rallied behind the Juliana youth
and their right to a safe climate. They joined U.S. Senate and House letters in November 2021
to President Biden expressing support for the fundamental rights of children to a safe climate.
Members stood with the Juliana plaintiffs by cosponsoring the Children’s Fundamental Rights
and Climate Recovery Resolution introduced during the 116th and 117th Congress
(S.Con.Res.8 & H.Con.Res.31) expressing that the current climate crisis disproportionately
affects the health, economic opportunity, and fundamental rights of children, and demands that
the United States develop a national, comprehensive, science-based, and just climate recovery
plan to meet necessary emissions reduction targets. They also signed on to two 2019 and 2020
amicus briefs filed in the Ninth Circuit.

“These young people have a right to access their courts and, after several long years, finally
have their evidence of climate harm caused by their own government–and how to stop it–heard
in open court,” said Julia Olson, lead counsel for the youth plaintiffs. “Attorney General Garland
should treat this like the urgent constitutional case that it is by litigating the case on its merits
and presenting their arguments in the light of day at trial, rather than once again seeking to push
this case into the dark corners of the shadow docket. Members of Congress who continue to
stand in solidarity with these 21 young Americans are sending a clear and urgent message to all
of our nation’s leaders to protect our children’s fundamental rights to a safe climate.”

Plaintiffs intend to seek a prompt trial date so that they and their experts can finally present their
evidence of their government’s active infringement of their constitutional rights.

This content originally appeared on Common Dreams and was authored by Newswire Editor.

With the U.S. Supreme Court hearing oral arguments Tuesday in Merrill v. Milligan, a pivotal case about map-rigging in Alabama, plaintiffs and other advocates are warning that the court's far-right justices are poised to effectively legalize racial gerrymandering and dismantle what remains of the 1965 Voting Rights Act.

"Without protections from Section 2 of the Voting Rights Act, redistricting will be weaponized to strip Black communities of fair representation."

"If the court's right-wing supermajority has its way, Merrill v. Milligan will open the floodgates for racial gerrymandering across the country and diminish the political power of voters of color," Stand Up America deputy political director Reggie Thedford said Monday in a statement.

Although Black voters comprise nearly one-third of Alabama's population, the congressional map approved last November by the state's GOP-controlled Legislature contains just one majority-Black district out of seven total districts—the illegal result, civil rights advocates argued successfully in a lawsuit filed in federal district court, of "packing" most Black voters into a single district and "cracking" others across multiple districts. To date, no Black candidate in Alabama has ever won in a majority-white congressional district.

A trio of federal judges—including two appointed by former President Donald Trump—unanimously sided with the plaintiffs, ruling that Alabama's recently adopted congressional map unconstitutionally denies equal representation and likely violates Section 2 of the Voting Rights Act (VRA) by diminishing Black voters' ability to elect candidates of their choice.

As two of the plaintiffs—Evan Milligan and Khadidah Stone—wrote Monday in Slate:

After reviewing our arguments, the three judges agreed that Alabama's map discriminates by giving white voters—who are 63% of the population—total control over 86% of Alabama's congressional seats. The judges ordered Alabama to adopt a new map that respects the state's redistricting goals and contains two "opportunity districts" where Black voters' preferred candidates have a fair chance to compete for votes.

Many potential maps were shown to state officials to address this. But Alabama simply ignored them, instead appealing our win to the Supreme Court of the United States. SCOTUS then stayed the lower court's decision without full briefing or argument, and without addressing the district court's powerful finding of discrimination. This decision—which underscores the problematic nature of making such momentous decisions on the court's "shadow docket"—means that these midterm elections will continue to be tainted by a discriminatory map that dilutes Black voting power.

As the deeply unpopular high court takes up Merrill v. Milligan, the plaintiffs outlined "how Alabama plans to pursue victory in a case it could not win at home."

"First, Alabama claims that the VRA is unconstitutional as applied to congressional districts," wrote Milligan and Stone. "Second, Alabama is arguing that any use of race in redistricting is per se unconstitutional."

"Alabama is calling our plans discriminatory merely because our experts set out to show it is possible to draw two majority-Black districts," the pair continued. "The problem is that the Constitution does allow, and sometimes requires, legislatures to intentionally draw districts that recognize or protect communities of color."

"States would be free to ignore and divide communities of color... so long as a state could conjure up a purportedly nonracial excuse for its actions."

Milligan and Stone warned that "a ruling that forces state and local governments to disregard race in map-drawing would have devastating effects on electoral representation."

In 2017, the Supreme Court ruled 5-3 that maps drawn by North Carolina Republicans in 2011 misused racial data and amounted to unconstitutional racial gerrymanders in two congressional districts. Just two years later, however, right-wing justices condoned partisan gerrymandering, contending that the practice is beyond the high court's purview.

Given that Black voters overwhelmingly support Democratic candidates, it can be difficult to disentangle racial gerrymandering from partisan gerrymandering, which is why progressives have long argued that the Supreme Court's refusal to outlaw the latter could effectively legalize the former.

That long-standing fear is relevant to the case now before the Supreme Court.

"If the court sides with Alabama," warned Milligan and Stone, "states would be free to ignore and divide communities of color and could even eliminate many existing minority opportunity districts so long as a state could conjure up a purportedly nonracial excuse for its actions."

"If this happens," they added, "political opportunities for people of color will disappear."

While the VRA has facilitated the participation of voters and elected officials of color nationwide, Chief Justice John Roberts' court has spent the past decade gutting the landmark civil rights law, beginning with anti-discrimination protections in 2013.

During Monday's hearing, liberal Justice Elena Kagan summarized the high court's recent assaults on the VRA. If the court's right-wing majority uses the Alabama case as an occasion to dismantle Section 2 provisions against the dilution of minority voters' electoral power, she asked, "what's left" of the law?

"We need representatives who are sensitive to the needs of Black communities, who can have a positive material impact by gaining equal investment, equal funding, and equal resources for Black communities in Alabama and those most adjacent to them," Milligan said last week in a statement.

"We're concerned that without protections from Section 2 of the Voting Rights Act," he added, "redistricting will be weaponized to strip Black communities of fair representation, and thus deny them equal access to resources and an equal voice in government."

"Will we continue to slide toward autocracy or forge a truly multiracial democracy?"

Since Trump's loss in the 2020 presidential contest, GOP-controlled states have intensified their efforts to enact voter suppression laws and redraw congressional and state legislative maps in ways that disenfranchise Democratic-leaning communities of color and give Republicans outsized representation, which could help them cement minority rule for at least a decade.

Lindsay Langholz, director of policy and program at the American Constitution Society, said last week that "due in part to this court's open hostility to voting rights, we find ourselves in the midst of democracy's moment of truth."

"Will we continue to slide toward autocracy or forge a truly multiracial democracy?" she asked. "The decision in Merrill v. Milligan will help determine that future, with the potential to either foster or frustrate meaningful political representation for communities of color in this country."

Merrill v. Milligan is not the only case concerning the future of U.S. democracy that the high court has agreed to hear this term.

Also on the docket is Moore v. Harper, which threatens to give state legislatures—many of them highly unrepresentative due to rampant gerrymandering—virtually unchecked power to oversee and potentially skew federal elections.

"If both these cases go badly, it's not that America will stop having elections," Vox legal reporter Ian Millhiser wrote last week. "But the power to decide how elections are conducted—which ballots are counted, where district lines are drawn, and potentially even who is certified as the winner of an election—could rest with increasingly partisan officials, including the justices themselves."

That the nation's chief judicial body has agreed to hear such appeals at all, said Thedford, "is further proof that it has been hijacked by out-of-control political appointees with an undemocratic agenda."

"If Congress fails to stop them," he added, "they will continue to erode our democracy and our fundamental freedoms until we no longer recognize the country we live in."

This content originally appeared on Common Dreams - Breaking News & Views for the Progressive Community and was authored by Kenny Stancil.