Put That in Your Algorithm

By John R. Byrne

I think social media is doing a lot of harm to our kids (and probably us adults as well). Sure, it may be the quickest way for people to get critically important information, like injury updates for players on the Miami Hurricanes football team. But the algorithms have a way of sucking people into a never-ending doom scroll.

Kids seem particularly vulnerable to the ills of this aspect of modern technology, and there are plenty of studies linking social-media use to problems like shortening attention spans and body-image issues. The state of Florida decided to do something about it. The legislature passed HB3, a law that prohibits children under 14 from creating or maintaining accounts on certain social-media platforms and requires parental consent for 14- and 15-year-olds.

You knew it was only a matter of time before that law was challenged. Enter the Computer & Communications Industry Association and NetChoice. Never heard of either organization before, but, for some reason, I'm imagining a bunch of guys in short-sleeved white button-down shirts and pocket protectors. The organizations challenged HB3 on First Amendment grounds, and a federal district court in Florida concluded that they were likely to succeed and preliminarily enjoined Florida from enforcing the law.

The Eleventh Circuit stayed the injunction pending appeal. And, this past Wednesday, the court reversed the injunction as to the plaintiffs' as-applied challenge and vacated it as to their facial challenge. The panel consisted of Judges Newsom, Luck, and Tjoflat. Newsom wrote the opinion and, in a very Newsom-esque move, also wrote a separate concurrence.

The two big takeaways?

1. The court held that the law was content neutral, which, obviously, is a pretty important factor in First Amendment jurisprudence. Specifically, the law applied to platforms based on their technological features rather than the content of the speech appearing on them. For example, the law targeted platforms that use algorithms to select content for users and employ potentially addictive features, like infinite scrolling, push notifications, and autoplay. The law doesn't prohibit those features outright, but their use helps determine whether a platform is subject to the age restrictions.

2. The court held that the law likely survived the applicable level of scrutiny (here, "intermediate"). That's because Florida has an important interest in protecting children from social-media addiction and the statute is sufficiently tailored to that interest (heartily agree).

Newsom's concurrence raised an interesting question: Could the Eleventh Circuit have (at least partially) cut the Gordian knot by refusing to entertain an as-applied challenge in the first place? Newsom noted that, in West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356 (2026), the Supreme Court stated in a footnote that "[a]s-applied challenges are not entertained when courts apply intermediate scrutiny or rational basis review."

That sounds pretty categorical. But, as Newsom explained, there were reasons to not blindly apply that language to this case. For one thing, B.P.J. was an equal-protection case, not a First Amendment case. For another, courts have long entertained as-applied First Amendment challenges under intermediate scrutiny. And such a ruling would mean that, in a large class of First Amendment cases, challengers would be left with only facial challenges, which are disfavored in constitutional litigation (and usually losing arguments).

As Newsom observed, that combination could result in "a lot less protection for traditionally safeguarded speech." He wasn't prepared to go that far without a clearer signal from the Supreme Court.

Opinion here. 

All in all, I think the Eleventh Circuit nailed this one (and not just because I have 14-year-old twin daughters). 

AFPD Andy Adler is a cert machine

 He got another grant before the High Court, this time in Berry v. United States.  

The issue: Whether a certificate of appealability under 28 U.S.C. § 2253 (opens in new tab) should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.

Here's the 11th Circuit opinion.

11th Circuit opinion makes David Lat's "Ruling of the week."

If you aren't a subscriber to David Lat's newsletter, you should be.  It is excellent.  Here is his ruling of the week: 

Ruling of the Week: Martin v. United States.

Many of you may recall Martin v. United States, a Supreme Court decision from June 2025. The case arose out of egregious facts, as explained by the Institute for Justice (the libertarian-leaning, public-interest law firm that represents the Martin family):

In 2017, masked federal agents broke down the innocent family’s front door, detonated a flashbang grenade in their living room, and held them at gunpoint before realizing they had the wrong house. The agents—who were attempting to execute a search warrant for a different house on a different street—did not even bother to check the family’s address before barging in.

The Eleventh Circuit affirmed the dismissal of the Martin family’s case, which was brought under the Federal Tort Claims Act. But the Supreme Court revived the suit, vacated the Eleventh Circuit’s judgment, and told that court to try again—in light of guidance provided by SCOTUS in a unanimous opinion by Justice Neil Gorsuch.

On remand, the Eleventh Circuit once again ruled in favor of the feds, as reported by ABC News and The Atlanta Journal-Constitution. In a per curiam opinion of 38 pages, the unanimous panel affirmed the dismissal of the Martin family’s claims against the government, based on sovereign immunity (although the panel did reverse the district court’s grant of qualified immunity to the FBI agent responsible for the epic screw-up).

But this time, there was a twist. I’ll again cite IJ’s statement (which provides an excellent, plain-English explanation of the complex doctrines at issue in this case):

In today’s decision, a three-judge panel of 11th Circuit judges reluctantly concludes that the circuit precedent required them to dismiss the Martins’ FTCA claims. However, in a concurring decision, the same three judges describe that precedent as a “mess,” lay out a new legal path that could allow suits over wrong-house raids to proceed to trial, and urge the full 11th Circuit court to revisit its flawed precedent immunizing the government through the FTCA’s “discretionary function exception.” IJ will file a motion to ask the full court to do so.

Would such a motion by IJ carry the day? Judge Adalberto Jordan’s 12-page concurrence was joined by Judges Jill Pryor and Embry Kidd. Although all three are Democratic appointees, and Republican appointees hold a 7–5 majority among active judges on the Eleventh Circuit, the libertarian flavor of the case—brought by IJ and previously addressed by Justice Gorsuch, widely regarded as one of the most libertarian justices—could be sufficient to garner a majority for rehearing en banc. So this long-running litigation might still have a happy ending for the Martins. (Given the bad facts and negative publicity, I wonder why the government hasn’t settled.)

 

Lots of tea being spilled on the SDFLA "Grand Conspiracy" case(s)

The NY Times has the latest here:

Still, the pressure has not relented. The dozen prosecutors still pursuing the inquiry are fast-tracking narrower cases against some chief targets that could be brought quickly, according to people briefed on their work. Leadership of the effort has defaulted back to Washington, and is now being directly overseen by one of Mr. Blanche’s top deputies, Aakash Singh, those people said.

A Justice Department official said leaders in Washington had “full confidence” in the prosecutors now working on the case and would act to uphold the law should “evidence of misconduct present itself.”

Even if charges are never filed, Mr. Trump has already instilled fear in — and imposed steep financial costs on — potential targets, in his view giving them a taste of what he experienced when he was under investigation.

Two targets have borne a particular brunt: James B. Comey, the former F.B.I. director fired by Mr. Trump in the early stages of the Russia inquiry, and John O. Brennan, the former C.I.A. director who played a role in instigating that investigation.

nside the Justice Department, another price is being paid.

The investigation has upended the U.S. attorney’s office for the Southern District of Florida, one of the most important in the country, which has been plagued by staff departures and low morale under its Trump-appointed leader, Jason A. Reding Quiñones, according to current and former prosecutors. The problems with the grand conspiracy case have exacerbated what officials in Washington have described as a growing lack of confidence in Mr. Reding Quiñones by his superiors.

The office once had more than 200 lawyers. It is now slightly more than half that size, after a spate of firings and resignations.

Prosecutors have watched the case play out with embarrassment and horror. Many have been so unwilling to join the investigation that Mr. Reding Quiñones, an Army reservist, was forced to bring in military lawyers to backfill the ranks.

The chief of the office’s criminal division has been sidelined. The office’s health care fraud unit has been decimated. Many prosecutors say the office feels leaderless, and are worried that a place once known for big drug and white-collar cases has pivoted to politics.

Even furniture has been repurposed to equip the inquiry’s two work spaces, one on the fifth floor of the main Miami office and the other up the coast in Fort Pierce.

***

But the move to Florida did not translate into immediate success.

One big problem, in the view of Mr. Blanche’s aides, was Mr. Reding Quiñones, whom they viewed as a feckless and inexperienced manager not capable of running the day-to-day operations of his office, let alone the grand conspiracy case.

Moreover, they felt that Mr. Reding Quiñones spent too much time in Washington and too little in Florida. To address that concern, Mr. Singh recently removed him from the attorney general’s advisory committee, which meets at department headquarters, to refocus his energies on Miami, according to two people with knowledge of the move.

But he was hardly the only problem.

BREAKING -- Your new magistrate judge is Aaron Weiss

 Congrats to Aaron S. Weiss of Carlton Fields, who is your new Magistrate Judge.

 

Legal Titan Joe Klock Passed Away

By Jordi C. Martínez-Cid

Joseph P. “Joe” Klock, Jr., one of the best-known Miami trial lawyers of his generation, died on October 4, 2026, surrounded by his children.

For most of the country, Joe Klock will always be the lawyer for Florida Secretary of State Katherine Harris in the 2000 presidential election litigation. He argued for the Secretary of State twice before the Supreme Court in eleven days, first on December 1, 2000, in Bush v. Palm Beach County Canvassing Board, and again on December 11 in Bush v. Gore, sharing the lectern with Ted Olson, Paul Hancock, Laurence Tribe, and David Boies. He was, for a moment, late-night TV comedy fodder because he called two Supreme Court Justices the wrong names. Afterwards, he told reporters, “I was so tired that I was happy I didn’t call one of them Justice Gore.” Joe took it all in stride and kept his sense of humor. Few lawyers anywhere have argued two Supreme Court cases in less than two weeks, let alone two that decided a presidency.

The national headlines were a sliver of the career. Joe was a Miami lawyer through and through. Born and raised in Philadelphia, his entire family (including seven younger sisters) re-located to Miami when he enrolled in law school at the University of Miami in 1970. He then spent more than three decades at Steel Hector & Davis, one of the city’s institutional firms, where he rose to managing partner and chairman. After Steel Hector merged with Squire Sanders & Dempsey in 2005, he moved to Epstein Becker & Green and, in 2009, joined Rasco Klock in Coral Gables, where he practiced until his passing. He had many clients, among them the Fanjuls, the sugar magnates. He inspired fierce loyalty and, as a result, the acronym FOJ came to be understood as Friend of Joe’s.

Joe also leaves a long legacy of work in and for the community. Putting aside his many paid cases, Joe was known for his prolific pro bono work, and he served on both the boards for Carrollton School of the Sacred Heart and Belen Jesuit Preparatory School. I know one person who, in an emergency, introduced himself to Joe and said some version of “Joe, I went to Belen and need your help.” Without more, Joe helped, and when pressed to accept compensation, merely said “pay it forward.” He is a man that did a lot of good, oftentimes without thought of lucre.

Ironically, he once had a sign that—in twisted imitation of the sign that hangs in 73 West Flagler—said “We Who Labor Here Seek Only Fees.” It was crass on the surface, but surprisingly deep. He explained that the sign was to remind his clients that the legal process was painful and should not be engaged lightly. If they asked him to, he would march to the courthouse because he was “seeking fees” but they should really reflect on what they were seeking and if it would be worth it.

He is, as far as I know, the only man my father ever envied. After a particularly long dinner sharing stories and laughs, the waiter approached Joe Klock (and not my father) to say, “Mr. Klock, is it alright with you if we close the buffet?” My father claims he was only envious for a moment, but I am not sure he ever got over it.

He leaves behind four children, Susan E. Klock, Robert C. Klock, Peter J. Klock, II, and Kathleen Mendez, with Kathleen being the only one that is not a lawyer in the community. Our condolences to his family, to his colleagues at Rasco Klock and his previous firms, and to the many lawyers who learned from him. The family has kindly allowed me to share information regarding the memorial services, and I will update this post once I have that information. Rest in Peace, Joe.

UPDATE (PLANS CHANGED): Funeral mass will be held at Church of the Epiphany, 8080 SW 54th Court, Miami, at 11:30 a.m. on October 16, 2026.

FBA Gala Honoring David Markus and Judge Gayles

By Jordi C. Martínez-Cid

The South Florida Chapter of the Federal Bar Association had its annual Awards and Installation Gala at the Frost Museum of Science this Saturday, ushering in the reign of president Erica S. Zaron, who heads the Federal Litigation, Appeals and Professional Development section of the Miami-Dade County Attorney’s Office. The chapter dressed the evening in all white, in the style of the Dîner en Blanc parties, which is both very chic and very dangerous for a slob like me, particularly since I sponsored dark brown espresso martinis.

Outgoing president John R. Byrne, in a final moment of inspired leadership, told all in attendance that he was against the dress code and blamed everything on Erica Zaron, before leading attendees in the pledge of allegiance.

The chapter honored two people this blog’s readers know well: Judge Darrin P. Gayles received the Edward B. Davis Award for Service to the Federal Bench and Bar, affectionately known as "the Ned," and fearless leader David Oscar Markus, blog founder, received the Distinguished Member Service Award, which the chapter now calls "the Bob,” for the late Bob Josefsberg.

The Ned

The award is named for Judge Edward B. “Ned” Davis, a West Palm Beach native and Army veteran who practiced in Miami for nearly two decades before President Carter appointed him to this court in 1979. He served as Chief Judge from 1997 to 2000, retired in June 2000, and passed away in 2010. By the Federal Judicial Center’s count, his commission issued on October 5, 1979, exactly 47 years ago. The list of past Ned recipients reads like a short history of the district: Judge Federico A. Moreno, Clerk of Court Steven M. Larimore, Magistrate Judge Robert L. Dube, Judge Donald L. Graham, Circuit Court Judge Stanley Marcus, Judge Alan S. Gold, Judge Patricia A. Seitz, Judge Marcia G. Cooke (posthumously), Cathy Wade Babyak, Judge William M. Hoeveler, Magistrate Judge Peter R. Palermo and, last year, Judge Beth Bloom.

Judge Gayles fits that company, and in one respect he fits it literally: when President Obama nominated him in 2014, it was to fill the seat Judge Seitz vacated. The Senate confirmed him unanimously that June, making him the first openly gay Black man to serve as a federal district judge. His path to that seat ran through nearly every courthouse in town — assistant state attorney in Miami-Dade, assistant district counsel with the Immigration and Naturalization Service, Assistant United States Attorney in this district, and then a decade on the state bench as a Miami-Dade County Court judge and an Eleventh Judicial Circuit judge. Few judges on our court have seen the Miami justice system from as many angles.

He was introduced by Judge Jacqueline Becerra who emphasized his dedication to both public service and to the people he cares about. Judge Gayles has Judge Becerra's back, quite literally, acting as an auxiliary U.S. Marshal to her at court functions.

The Bob

The chapter created the Distinguished Member Service Award in 2024 to recognize members who have given exemplary service to the chapter or to the bench. Stephanie Turk received the first one, and Oliver Ruiz received it last year. It now carries the name of Bob Josefsberg, who died in July 2025 at 86.

Bob needs little introduction. A Brooklyn native, Dartmouth and Yale Law graduate, and member of The Florida Bar since 1962, he served as an Assistant United States Attorney in this district, general counsel to Governor Bob Graham, and he spent more than four decades at Podhurst Orseck. He collected nearly every professionalism and pro bono award the Florida bar has to give, including the Dade County Bar’s David Dyer Professionalism Award, The Florida Bar’s Tobias Simon Pro Bono Service Award, and the Florida Bar Foundation’s Medal of Honor. When he died, David wrote here that Bob “was a gentle giant.” As David noted on Friday, in flagging a Daily Business Review piece by Meaghan Goldstein and Katie Mitchell titled “What Would Bob J. Do?: Re-Examining Civility Today.” That question, "What would Bob J. do?", is about as good a standard for the award as the chapter could have written. He was a mentor to many.

After Harvard Law School, David clerked for then-Chief Judge Ned Davis. He went on to Williams and Connolly and the Federal Public Defender’s Office before founding what is now Markus/Moss, and he served as president of this FBA chapter in 2007–08. So on Saturday night, a former Davis clerk accepted the Bob in the same ceremony at which the Ned went to Judge Gayles.

And then there is this blog. David started it in the summer of 2005. He explained the idea to Florida Trend early on with characteristic modesty: “Lawyers are the biggest gossips in town. This is just a forum for the lawyers to talk about all the great stuff going on in the busiest district in the United States.” Twenty-one years later, it remains the first place (I hope) many of us check to learn what is happening on North Miami Avenue and beyond. David has kept it candid without letting it become cruel. That is its own form of service to the bench and bar, and it is fitting that the chapter recognized it.

He was introduced by Judge Kathleen Williams (Ned recipient for 2012) who was adamant that she is not the source of information for this blog. She said many kind and aggrandizing things about David which was appropriate given that David did not talk about himself during his speech at all.

The End

Congratulations to Judge Gayles, to David, to President Zaron and the new board, and to the chapter for an evening that honored both the people and the traditions that make this district what it is.

"What Would Bob J. Do?: Re-Examining Civility Today"

That's the title of this very nice piece in the DBR by Meaghan Goldstein and Katie Mitchell.

It starts this way:

Civility is a popular buzzword in legal circles, but perhaps not as popular in practice. The test comes in the ordinary moments and small decisions in litigation, which ultimately shape our daily lives: the email you’re about to send, the argument you’re about to make, the extension you’re asked to agree to. During the past year, when faced with uncertainty, we’ve found ourselves returning to one question in these moments: What would Bob J. do?

One year ago, the world lost Bob Josefsberg. We lost a mentor and a role model, and a true gentleman in the courtroom and out. We lost the first lawyer we worked under, who contributed so much to the formation of our own careers, but also the man who was mentor and teacher to so many people at KTT, including our founders. We lost the grandfather in our mentorship family tree, so to speak. But we have not lost the legacy.

As the calendar marks what would have been his 88th birthday, we find ourselves reflecting on the lessons Bob taught us, which, at their core, were quite simple: being a good person is part of being a good lawyer. 

Great timing for this piece as the FBA will be honoring Bob tomorrow night at its gala.