Month: October 2026

October’s Big Legal Issue: The Cornell 7 Case

The Cornell 7 case is a paradigmatic example of why we have trial by jury and not trial by public opinion. 

Public discourse on divisive, politically charged topics often flattens important nuances that are relevant to forming principled conclusions.  This was especially apparent in what has become known as the Cornell 7 rape case.  This case challenges all of us to think about both the moral and legal implications of what happened at the Chi Phi fraternity, issues of due process, issues of anonymity, and issues of victims’ rights.  We as a public are failing to confront these issues reasonably. 

Whether any or all of the seven students sued in a civil lawsuit are liable to Jane Doe for sexual assault or other torts is for a jury to decide after weighing the evidence.  Two of the sued students were expelled from Cornell; expulsion is the most severely a university can punish students in Title IX proceedings. Jane Doe’s lawsuit accused the seven students collectively, but Cornell’s Title IX investigation found that two of the students did not touch Jane Doe, see her naked, or do any drugs – they entered the room for short periods.  Another student’s attorney has asked for him to be removed from the lawsuit because he, at most, engaged in forcible kissing, for which he argues the statute of limitations has expired.  This defendant does not concede that he actually engaged in forcible kissing except for the purposes of a dismissal motion. 

Jane Doe’s civil case will also involve whether any of the Cornell 7 coerced Jane Doe into using drugs and whether they had a legal duty to stop others from any illegal behavior.  Legal duties and moral duties are not coextensive.  Many immoral, despicable acts are still legal, because engaging the state’s machinery to take away someone’s liberty or property carries downsides.  We limit the state’s ability to coerce behavior.  Tort law is especially loathe to establish affirmative duties on us to protect others, so long as we ourselves aren’t actively hurting anyone, but these affirmative duties do exist in some circumstances.  Thus, the question of whether the conversations that happened in the Chi Phi group chat were immoral, horrifying, or degrading is a different question than whether any or all of the defendants violated the law. The group chat could be evidence of criminal acts without consent, but their immorality does not make them illegal.

Jane Doe has also sued Cornell University, for failing to protect her and thus breaching its contract to her, Moonies Bar, for serving her when she was under 21 (Moonies denies this in the press), her sorority, for not exercising its duty of care to prevent her from becoming intoxicated, and the Chi Phi fraternity, for not protecting her from defendants. 

New York Attorney General Letitia James is leading an independent investigation to determine whether to charge any or all of the seven with a crime.  The Cornell 7 were not previously charged in 2024 because New York law is fairly stringent.  Rape through intoxication, meaning the victim does not have the capacity to consent, can occur if either (1) the victim is unconscious or (2) the victim was forcibly drugged against her will or without her awareness.  In this case, Jane Doe had told police that she had taken alcohol and ketamine willingly, which led in part to prosecutors not originally pursuing charges.  There are other avenues that might show a lack of consent, but incapacity seems the most on point in this case. Simple intoxication is not enough, because then both parties to many consensual encounters might be converted into criminals, but other states can have more graduated approaches, requiring defendant to be aware that the victim didn’t have capacity to consent.

There are many complex aspects to this case, with potentially different levels of culpability for different defendants.  Yet, many members of the public have acted like this case is open and shut – either Jane Doe is a liar who regrets her consensual decisions or every member of the Cornell 7 is a monstrous criminal who deserves to never work or experience peace again.  The public’s deficiencies processing information deliberately and rationally have led to harm to both Jane Doe and to the seven named current and former Cornell students she accuses of rape. Jane Doe’s home was swatted – someone falsely called the police to report a crime occurring at her home, and her family was held at gunpoint by the police.  The names of the Cornell 7 have been released, but the judge in the civil suit has required their addresses be removed because they have also been subject to harassment.  No one can make any particular determination at this point – Letitia James is still gathering evidence — so the violence and harassment against anyone associated with this case – Jane Doe or the Cornell 7 — demonstrates a level of certainty driven by not having sufficient intellectual humility and epistemological doubt.  Aspects of these cases have moral and legal complexity, and, even if they do not, we do not have total clarity of information on clear-cut issues. Perhaps the truth (factual, legal, or moral) is not even entirely known to some of those involved in this case.

This dogmatic certainty is also demonstrated on other complex issues, when students shout down speakers instead of engaging in dialog, or shut down events instead of allowing listeners an opportunity to receive information.  Our current approach to education and social media are to blame for the black and white thinking that accompanies controversial issues.  Colleges, as has been demonstrated for at least a decade, do not expose students to sufficient diversity of opinions in their professors and their programs.  This affects society’s ability to properly engage intellectually, instead of emotionally, reflexively, or ideologically, with difficult topics.  This problem is getting worse.

Cornell is in a difficult position.  Cornell cannot both protect the federally required privacy of the suspended students who have returned to campus (and whose dorm addresses were released by Cornell students) and protect the students who feel uncomfortable with these students having returned to campus (even though they have admitted no wrongdoing and were deemed by Cornell not to have committed sexual assault).  It is unfortunate that so many people have decided that swatting, doxing, and harassing are superior to discussing, learning, and rule of law, but I do hope we educators train our students better than this.

Nathan Fielder Believes in Truth, Despite the Manipulation Tactics of His Elizabeth Holmes Documentary (Spoilers)

Leaving the theater after seeing Nathan Fielder’s brilliant Elizabeth Holmes documentary, I didn’t know what to make of it. I think that is what you are supposed to make of it.

I couldn’t tell if Holmes was for real, if her husband was for real, or even if Nathan Fielder was for real or playing a caricature of himself. Liz, a person distinct from the “character I created” (a somewhat damning New York Times quote that she disputes) says she doesn’t want to relitigate her conspiracy and wire fraud convictions for lying to Theranos investors. Of course, the documentary is clearly intended to relitigate them. Indeed, I walked out of the film believing that there was some chance Elizabeth Holmes just miscommunicated to investors when she claimed her technology “can” perform hundreds of diagnostic tests. Maybe she did just mean theoretically, in the future, her invention could perform those tests. Maybe we have misunderstood Liz.

I also walked out wondering if maybe Liz’s love with hopitality-business heir Billy Evans, who creepily makes all sorts of decisions about her life without her knowledge or consent, was real and romantic in a way we cannot understand, in the same way she couldn’t understand Abbott and Costello’s famous “Who’s on First?” (The Theranos CEO looked genuinely baffled when she didn’t know that Who was the name of the baseball player at first base.) And maybe Nathan Fielder was genuinely dropping his guard, swimming in cold water with her despite his fears. Maybe he actually did want to kiss her, right before she left for prison, and wasn’t just manufacturing a cinematically awkward scene.

The film appears to explore a theme of questioning whether we can know anything, even when we can see everything. Perhaps it is impossible to tell the manipulator from the manipulated. And yet.

There are moments when the film lets you in on the fact that Nathan Fielder is not just some postmodern commentator demonstrating that there is no truth, or that truth is just perception. For example, when Holmes’ husband Billy Evans takes the eggs Liz is stirring away from her, he says ‘I just want her to be able to concentrate on talking to you.’ Elizabeth then states the real truth — ‘he doesn’t think I mix the eggs quickly enough and doesn’t like how it tastes.’ Truth exists; some people just do not care to tell it.

Indeed, reading reviews of this incredible documentary (I didn’t even want to get up to use the bathroom during this three-hour movie, because I didn’t want to miss a single second) has been illuminating. Elizabeth Holmes didn’t just misuse the word can; she made very specific, false statements that the military was using her technology, among other lies. Billions were invested in a product that didn’t work. Patients were harmed. Holmes and her husband do not want to relitigate her crimes because they will lose that battle. Instead, they want to show you her being a mother, walking on the beach; it’s almost too cliche to bear, and yet that is the genius of the movie.

In the end, you are given enough clues to know that Holmes and Evans are far too evasive to be telling the complete truth, and that truth does exist. Holmes is asked a direct question about whether she knew Amanda Seyfried, who played her in Hulu’s The Dropout, would be visiting her home. “I don’t know,” she said to Seyfriend. How does one not know the answer to that question? Coincidentally, it’s also what Holmes says when asked what she thinks went wrong, if she is innocent. (Side question: Is Amanda Seyfried for real, or is she also playing a character of herself even as she plays a character of Elizabeth Holmes.)

Of course, maybe the story is more complex, and maybe the narrative has been simplified. I think on many levels we have all misunderstood Liz. Maybe the New York Times got her quote wrong. Maybe others created this false character, not that she created a false character herself. Certainly, I have lost faith in journalists for outfits including the New York Times, whose raison d’etre is to put truth above agenda and have often forgotten that charge. (Although Liz and Billy claim they have the entire NY Times interview recorded, when Nathan asks to hear it, Billy then says he hasn’t listened to the entire thing.) Nathan Fielder shines a light on how documentaries, like newspapers, can also skew the truth. That is why Amanda Seyfried asks his Nathan Fielder “character” if perhaps he has left damning footage out of the movie to protect Liz. When we care too much about the outcome of things, we can manipulate the truth.

I am a professor who studies the First Amendment. I believe profoundly in the idea that the marketplace of ideas gets us closest to the truth. This documentary questions and searches and exposes so many different perspectives on the life of Elizabeth Holmes, not because it wants you to conclude that the truth is unknowable, but because we cannot give up the fight to keep searching. I am still left with so many questions (for example, did the studio really allow Billy Evans to sign a contract about the movie without Elizabeth Holmes participating or even knowing?). Do not forget that just because some things are unknown, that does not mean everything is unclear or equally true.

James Comey, Ilhan Omar, and the Potential Targeting of Political Enemies

In light of the search warrant executed at Democratic Congresswoman Ilhan Omar’s residence — 22 days before the midterm elections — I wanted to provide some points of law surrounding the potential targeting of President Trump’s political enemies.   

Congresswoman Omar claims she is being targeted for her views.  If true, this would raise serious First Amendment and democratic legitimacy concerns. President Trump claims that he has nothing to do with the Department of Justice’s seeking and executing a judicially granted search warrant on Ilhan Omar’s home as part of a criminal investigation. Anonymous sources have noted that the investigation is related to immigration fraud (others have speculated there may be other potential crimes involved).  

This is just a quick, rough primer because it is midterm season (not the midterm elections – my grading of my students’ Criminal Procedure and Torts midterms — good luck law students!):

  • The search of a home, a main locus of our Fourth Amendment privacy, requires a judicially granted warrant.  This warrant will likely remain sealed until charges are filed and thus cannot be analyzed currently. 
    • A judge (likely a federal magistrate) had to decide that there was probable cause that there would be evidence of a crime in Representative Omar’s home.  Probable cause, as a standard of suspicion, is a “fair probability.” This standard has not been assigned a numerical percentage, but probable cause is considered lower than more likely than not (the preponderance of the evidence standard for a civil trial) and much lower than beyond a reasonable doubt (the standard for a criminal conviction). The warrant application was likely filed with an affidavit establishing the reliability of any informants (especially if they are confidential) and the corroborating evidence found by the Department of Justice.  
    • Just because a magistrate has signed off on a warrant does not mean there was probable cause, although limited studies have shown that a high percentage of searches pursuant to warrants turn up evidence.  If charges are filed and the search warrant is challenged at trial, a trial court and all subsequent appellate courts would give some deference to the magistrate judge, and would have to determine if “substantial evidence” supports the magistrate’s finding of probable cause. If the magistrate erred and the warrant is plainly not supported by probable cause, Representative Omar could get the evidence found in her home suppressed, even with the good faith exception to the exclusionary rule for reliance on a facially valid warrant. Of course, a grand jury would have to indict Representative Omar for a federal crime before any of this would be material, and the search may have turned up no evidence of a crime.
    • If the search is plainly unreasonable, Representative Omar could initiate a civil lawsuit based on a violation of her Fourth Amendment rights, but because of qualified immunity, it would have to be an unreasonable search based on clearly established law.
  • Former FBI Director James Comey, like Representative Omar, claimed that the Trump administration targeted him for malicious prosecution due to Comey’s criticism of President Trump.  Mr. Comey had been charged with lying to Congress.  Those charges were dropped for unrelated reasons; the appointment of the prosecutor who brought the charges violated the Appointments Clause of the Constitution. Mr. Comey has also been indicted by a grand jury for threatening the President, a federal crime, for an Instagram post where he spelled out in seashells on the beach “86 47,” which has been interpreted to mean kill (86 skidoo) President Trump (the 47th President).
    • Although threats against the President need to be taken seriously, this seashell display is likely protected political hyperbole, and 86 can mean to get rid of, not just kill.  This prosecution likely violates the First Amendment, but federal prosecutors are bringing in other evidence for context. 
  • Representative Jamie Raskin, ranking member of the House Judiciary Committee, issued a statement citing other prominent figures, besides Ilhan Omar and James Comey, whom Representative Raskin believes have been targeted for their political views by the Trump administration.
  • Defenses of malicious and selective prosecutions are very difficult to successfully advance.  Based on the Due Process and Equal Protection Clauses, they protect those against criminal prosecution if a primary motive for prosecuting someone is vindictiveness, or if similarly situated individuals have not been prosecuted for the same crime.  The reason judges do not often permit these defenses to dismiss a criminal charge is because prosecutors have a great deal of discretion to pursue charges.  Due to separation of powers issues, the executive branch is generally entrusted to decide how to enforce the laws.
    • If charges are filed and Representative Omar can show a discriminatory- or animus-related motive, the burden switches to the Department of Justice to demonstrate its permissible reasons for prosecuting Representative Omar.
  • The Department of Justice is said to have a policy (though not formalized in its policy manual) of not taking prosecutorial steps that could influence an upcoming election, but Departments of Justice associated with both Democratic and Republican administrations does not always adhere to this policy.  The investigation into Representative Omar has been recognized since mid-December 2025, and Representative Omar says it is baseless.
  • If you have further questions, let me know.  I can blog again if the search warrant is unsealed.

Legal and Moral Arguments Surrounding the Broadcast Execution of Former US Army Major/Psychiatrist

[Edit: the government has reported that this execution will not be livestreamed.}

This blog will analyze, from a variety of perspectives, the Department of Defense’s plan to broadcast the firing squad execution of Nidal Hasan.  The former United States Army Major and psychiatrist was convicted of killing 13 unarmed U.S. soldiers and wounding 32 others at a Fort Hood army base in 2009.  According to some reports, President Trump has not yet decided whether the execution will be livestreamed, and several prominent Republicans have voiced disapproval and concern for a public execution, which hasn’t happened in the United States in almost a century. 

 I will present arguments for and against the death penalty in general, and for and against broadcasting the execution, that let readers decide for themselves. At the outset, I want to acknowledge that I personally hope this execution is not broadcast publicly.

Legally, because the death penalty is mentioned in the Constitution, the Supreme Court has held that states and the federal government are entitled to implement the death penalty.  The Court has also held that the death penalty does not violate the Equal Protection Clause of the Fourteenth Amendment, although at least one study indicates that the race of the perpetrator and the victim may play a role in whether a jury favors the death penalty over a prison sentence.  The decision on whether to permit the death penalty as a sentence for murder is therefore not foreclosed by the Constitution and rests in the hands of the states.  The death penalty is outlawed in about 23 states plus the District of Columbia as a matter of policy.

There are moral arguments against the state’s ability to take the lives of those convicted of homicide crimes, including concerns about executing the innocent, the cruel nature of the punishment, and the fact that the state should not have the power to extinguish a life.  The arguments in favor of the death penalty involve a sense of closure for the families of victims and studies indicating that the death penalty serves as a deterrent to murder and thus saves lives (studies are mixed on this front).

However, many believe the purpose of a live broadcast, as opposed to administration of the death penalty, fosters an environment of blood lust and revenge, not properly considered justice in a civil society. 

One major reason for the opposition to broadcasting the fulfillment of Mr. Hasan’s sentence is that public executions of this nature are generally associated with oppressive regimes instilling fear in the public and suppressing dissidents. Iran and North Korea use public executions as a fear tactic to ensure that people cannot exercise freedom of speech (for example watching South Korean media).  Terrorist entities like the Islamic State broadcast beheadings as a tool of psychological torture and recruitment. Hamas has been torturing and executing in the streets Palestinians accused of spying for enemies, generally without real trials, and filmed its behavior on October 7, sometimes streaming it on Facebook for relatives to see their loved ones tortured and murdered.  American Wall Street Journal reporter Daniel Pearl was beheaded by jihadists in Pakistan, and the video spread across the Internet about a month later.  

Of course, these types of regimes and terrorist groups often broadcast executions of people in response to activities that could not be considered crimes in this country, like Iran’s continual execution of protesters who speak out against the regime, or terrorist groups executing innocents.  Mr. Hasan was convicted of 13 homicides, and free countries like the United States, Japan, Taiwan, and India retain the death penalty for violent crimes. 

However, the last time the United States publicly executed someone was Rainey Bethea, in 1936, for a crime – rape – that would not qualify for the death penalty today.  The Supreme Court has held that the Eighth Amendment’s prohibition on cruel and usual punishment limits the death penalty to murder cases.  Around 20,000 people gathered to watch Mr. Bethea’s execution, and the public backlash was so stark that eventually all states and the federal government outlawed public executions. There was also a civil rights element to this public execution, as Mr, Bethea, a Black man, was convicted of raping a white woman in Kentucky.

In the United States, victims and other invited guests are often permitted into a private gallery when the death penalty is administered.  The federal courts of appeals have split on whether the media or the public have a First Amendment right to view executions.  Many opposed to the death penalty believe that death sentences should be publicly broadcast so the public can see the full horrors of this legal form of punishment. The public has a right to see the treatment of Mr. Hasan, they argue, in order to decide how they feel about the death penalty.

Federal law outlaws broadcast executions of federal prisoners, but the military has not applied those restrictions to military prisoners.  Firing squad is an approved method of carrying out a death sentence (and indeed, many believe it is faster and less cruel than methods like lethal injection).  Mr. Hasan may still appeal his military conviction to the federal courts, which could stall the December 3 date of his planned execution.

Because we live in a free society, we have the privilege of discussing these issues publicly. I hope we continue to do so.  Nidal Hasan’s murders have been classified as an act of terrorism, and he is described as self-radicalized.  I fear for what it says about us if we use the tactics of those he admired to carry out his legal death sentence.  I think often of Nietzsche’s quote that if someone gazes into the abyss long enough, the abyss gazes back at them.  There is no reason to broadcast an execution (the broadcasting is an act associated with barbarism) to the world to punish a barbarous act, especially when some people believe that simply imposing the death penalty is barbarous enough. 

Artificial Intelligence as Speech (forthcoming in the First Amendment Law Review)

Download:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7584799

Abstract:

Artificial intelligence (AI) often looks like speech, functions like speech, and causes the same types of harms as speech. Many aspects of the output of AI should therefore be considered protected speech under the First Amendment. Failure to protect this output will give the government alarming power over our ability to inform, express, and communicate. Without free speech protections, the government could prohibit AI from discussing certain topics or espousing certain viewpoints. 

This Article aims to demonstrate how our current First Amendment doctrine already provides the framework to regulate AI while preserving the free speech rights of creators and users. There is no requirement that expression be “certain” to qualify as speech, and our free speech jurisprudence will be upended if AI is not deemed speech. Even if the outputs of AI are considered speech, the government can address some of the harms caused by AI through longstanding free speech doctrine. In addition, because of the differences between AI and traditional speech, the government may have some enhanced power to compel AI creators to disclose when content is AI, or to compel disclosure of the sources of the AI output.