Eleventh Circuit Strikes Down Protection of Children Act

By John R. Byrne

You may remember a few years back there was some press coverage about kids allegedly attending drag shows in Florida. That led to the Florida legislature passing the Protection of Children Act, which made it a misdemeanor to admit a child into an “adult live performance.” The statute actually defined that term to track the Supreme Court’s three-pronged “Miller Test” (the test uses language that probably sounds vaguely familiar to you—phrases like “appeals to the prurient interest” and “lacks serious literary, artistic, political, or scientific value,” etc.). Still, the court—in a majority opinion by Judge Rosenbaum joined by Judge Abudu—held the statute was unconstitutionally vague, focusing on the statute’s reference to “lewd conduct,” which the court said was an ambiguous phrase that would necessarily sweep in some protected speech.

This might be headed for an en banc hearing.  Judge Tjoflat wrote a lengthy dissent and at least one other court, the Sixth Circuit, ruled differently when examining a similar statute. See Friends of George's, Inc. v. Mulroy, 108 F.4th 431, 439 (6th Cir. 2024). 

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Lawyers Hit with Sanctions when AI Breaks Bad

By John R. Byrne

Magistrate Judge Matthewman just issued a stern warning to lawyers practicing in our district: don't throw your brief drafting car keys to artificial intelligence. A lawyer used AI to do some research and dropped one of the AI-generated citations into his response brief. The problem? The case was fictional. When opposing counsel and the court figured it out, it became a question of sanctions. Because the lawyer came clean relatively quickly, the court didn't go with the nuclear option (no striking of pleadings or the like). Still, the sanctions were meaningful and even extended to the attorney who is serving as local counsel for the out-of-town lawyer who drafted the brief. Opinion is below. 

Another wild "AI-gone-wrong" story involves a "Summer reading list for 2025" article that was published this past Sunday in several prominent newspapers, including the Chicago Sun-Times and The Philadelphia Inquirer. The article recommended several novels, including "The Last Algorithm," by Andy Weir, the author who wrote "The Martian." But Weir didn't write The Last Algorithm. Nor did anyone else, for that matter, because the novel doesn't exist. The author of the article used AI to come up with a list of books and didn't bother checking that list before the article went to print. “I just straight up missed it,” the author told the Chicago Tribune on Tuesday. “I can’t blame anybody else.”

Be careful out there, whether you're reading or writing!

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SDFLA updates

 1.  Jason Reding Quiñones is on his way to becoming the U.S. Attorney for the SDFLA.  Via the Miami Herald:

Miami-Dade County Judge Jason Reding Quiñones took a big step on Thursday toward being confirmed as the top federal prosecutor in South Florida, as the Senate Judiciary Committee voted along party lines in favor of President Donald Trump’s pick for the region’s high-profile law enforcement post. The Republican-led committee vote 12-9 for Reding to head the U.S. Attorney’s Office for the Southern District of Florida, making him the first nominee for such a position in Trump’s second term to be sent to the full Senate for confirmation.

2.  A former intern at the U.S. Attorney's office can sue after the 11th Circuit reverses dismissal in part.  Via law.com:

The U.S. Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part a case regarding a former intern of the U.S. Attorney’s Office for the Southern District of Florida who alleged he was unlawfully terminated and that his superior spread defamatory statements about him to media outlets.

***And the U.S. Eleventh Circuit affirmed the district court’s ruling in full—except for one issue.

“While some of Lehr’s alleged actions fall within the scope of her employment, sending Mullane’s hearing transcript to members of the press does not,” the Court ruled.

“If true, the sending of the hearing transcript and related documents to the media would fall outside the scope of Lehr’s employment," the Court ruled. "Lehr would thus not be entitled to protection under the Westfall Act with respect to that alleged act.”

3.  I missed the event, but a few weeks ago Judge Williams interviewed Judge Abudu at the federal courthouse.  I heard it was an incredible event with a lot of energy and enthusiasm.

What's going on in Broward?

I'm not sure what to make of this, so I'll leave it up to you all.  But a Broward state judge has gone law-viral for campaigning on a fake recording and a self-published book.  From Law.com:

A book about alleged salacious goings-on in the Orange and Osceola circuit courts by a former employee found its way into a Broward judge's 2024 election campaign.

Now the Florida Judicial Qualifications Commission has filed a Notice of Formal Charges against Broward County Judge Lauren Nicole Peffer, accusing her of quoting a book she admitted never having read and not exercising "due diligence to determine the reasonableness of the author's claims."

The book's author is a former Ninth Judicial Circuit employee whose writings she allegedly used to "help her campaign," according to the JQC.

Friday, the judge took responsibility.

"The JQC has found probable cause that during my campaign to seek my current judicial position, my reference to content created by a third party—to whom I have absolutely no ties—was a violation of the Judicial Canons which require a judge to act in a manner that instills public confidence. My sole intent was to provide an example of the scrutiny a judge faces and why the judiciary must hold itself to the highest moral standard. While unintentional, I take responsibility for my actions and apologize for the unfortunate effects the reference may have caused my fellow judiciary members," she wrote in an email. "I am dedicated to serving the people of Broward County, and will continue to uphold the highest level of judicial integrity."

The JQC’s Investigative Panel, following a March 28 meeting, found probable cause for formal proceedings pertaining to Peffer’s use of the self-published e-book, The Ninth Circus Court of Florida, My 30-Year Job from Hell!, by "terminated" technology officer and self-proclaimed whistleblower, Brett Arquette of Orlando.

State court has all the fun... 

Cool Q-A Coming Up

By John R. Byrne

This should be fun. A conversation on May 22 between Judge Ruiz and attorney Roman Martinez, a partner at Latham & Watkins who has argued 15 cases in the Supreme Court (Martinez is also the nephew of former US Attorney, Bob Martinez). Martinez was in the news recently when, during a SCOTUS oral argument, Lisa Blatt accused him and the Solicitor General of lying (Blatt eventually withdrew the accusation).

Register here. Only 29 spots left!

Diddy openings

 Lots of news coverage of the opening statements in Diddy's case. I love this stuff.

The prosecution was as expected -- very straightforward (via Vulture):

“To the public, he was Puff Daddy or Diddy — a cultural icon, a businessman, larger than life — but there was another side to him, a side that ran a criminal enterprise,” [Emily] Johnson said, adding that over the course of two decades, Diddy engaged in offenses such as sex crimes and kidnapping. For years, Diddy “forced” Cassie to have sex with male escorts while he watched and recorded the encounters. “The defendant told Cassie that if she defied him again, he’d publicly release the videos of her having sex with male escorts, which he kept as blackmail,” Johnson said.

“This case is not about a celebrity’s private sexual preferences,” she said. “The defendant made women have sex when they did not want to.” She said Diddy threatened them, drugged them, and beat them into compliance. Once, Diddy became so mad at Cassie that he “stomped repeatedly on her face” in an SUV. Another time, Cassie felt like she was choking when Diddy “made an escort urinate in her mouth.” Johnson also said that another accuser, referred to as “Jane” in court, fell into Diddy’s dark web in 2020. After a few months together, Diddy introduced her to freak-offs. Jane participated because she cared about Diddy and thought it would lead to more time together, not because she liked them. Jane wanted the escorts to wear condoms but “many times, the defendant didn’t let them,” Johnson said. Another accuser, “Mia,” worked for Diddy. Johnson said that Diddy forced himself on Mia multiple times.

The defense opening was by Mark Geragos' daughter, Teny Geragos. And from the transcripts, it looks like she did a really nice job:

Yes, Teny Geragos tried to portray Diddy as a guy who was, indeed, a bad boy — but not one who committed sex trafficking: “Sean Combs is a complicated man, but this is not a complicated case — this case is about love, jealousy, infidelity, and money.” People were fascinated by Diddy, Geragos told jurors. “People really loved him,” she said. Geragos gestured at Diddy and he stood, facing the jury, hands in pockets. “His name is Sean Combs.” Geragos said that Diddy admits to committing domestic violence but that this was not the same as sex trafficking. “When he drank or did the wrong drugs, he would get violent,” Geragos said. “He is not proud of that, and that’s something we’re going to own.” While there are things about Diddy’s sex life “that may make you uncomfortable and may not be what you like to do in your bedroom,” she said, these were private consensual acts in keeping with the “swinger’s lifestyle.”

The WaPo has a blow by blow of the trial here.

RIP David Souter

We need more of him.

From his former law clerk, Noah Feldman:

David Souter, the former US Supreme Court justice who died at 85 on Thursday, was sometimes mistakenly thought to have turned into a liberal after being nominated by President George H.W. Bush on the expectation that he would be an ideological conservative.

History will show the opposite: Souter was among the most consistent, principled justices ever to have sat on the Supreme Court in its 235-year history. His jurisprudence was steeped in the value of precedent and the gradual, cautious evolution of the law in the direction of liberty and equality. A New Englander to the core, he said what he meant and meant what he said. At a moment of unprecedented threat to the rule of law, Souter’s career stands as a model of judicial strength and resilience tempered by modesty and restraint. If the court follows his example, the Republic will survive even the serious dangers it is facing now.

At his confirmation hearings, relics of another time, Souter spoke openly of his admiration for Justice John Marshall Harlan II, known for his explanation that constitutional liberty is derived from a “tradition” that “is a living thing” and cannot be “limited by the specific guarantees” of the text. The key to Souter’s judicial philosophy was the idea, derived from the common law method of precedent and also linked with the conservatism of Edmund Burke, that the rule of law works best to protect us when it proceeds by slow steps attuned to social change, not by leaps forward or backward that produce backlash and end up rejected.

The most famous expression of Souter’s precedent-based view came, with characteristic modesty, in a joint opinion that he cowrote with Justices Sandra Day O’Connor and Anthony Kennedy in the 1992 case of Planned Parenthood v. Casey. The Casey decision upheld the abortion right laid down in Roe v. Wade on grounds of stare decisis, respect for precedent, even as it distanced itself from Roe’s logic.

The justices explained that overturning Roe “would seriously weaken the court’s capacity … to function as the Supreme Court of a Nation dedicated to the rule of law.” In a sentence that exemplifies Souter’s complex-yet-subtle style, the justices wrote that the court’s power lies “in its legitimacy, a product of substance and perception that shows itself in the People’s acceptance of the judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

Jewish American History Month at the court

It was a packed house yesterday at the Federal Courthouse as Beth Bloom led the way for a wonderful event -- it started with a video put together by Bobby Gilbert (featuring Judges Stanley Marcus and Joan Lenard) and then moved into an interesting discussing between Judge Roy Altman and Dan Senor. Good stuff.