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More than 1,000 Ukrainian marines defending the besieged city of Mariupol have surrendered and the port has been captured, Moscow has said, as the presidents of four countries bordering Russia arrived in Kyiv in a show of support for Ukraine.

In one of the most critical battles of the war, Russias defence ministry said that on Wednesday 1,026 soldiers from Ukraines 36th Marine Brigade, including 162 officers, had voluntarily laid down their arms near the citys Ilyich iron and steelworks.

It later said Mariupols trade sea port was under full control of Russian forces.

There was no independent confirmation of the claims. Ukraines defence ministry said it had no information about the surrender and the Ukrainian military command said only that Russian forces were attacking the Azovstal industrial area and the port.

The Chechen leader, Ramzan Kadyrov, who says his forces are playing a major role in the battle, urged the last Ukrainians holed up in Azovstal to surrender. The 26th Marine Brigade had said on Monday that it was preparing for a final battle in Mariupol.

The city, the main target yet to be brought under Russian control in the eastern Donbas region, has been encircled and largely reduced to rubble during Moscows seven-week invasion. The citys mayor has said 21,000 civilians have died and more than 100,000 remain there awaiting evacuation.

Its capture would be the first fall of a major Ukrainian city and would help Russia secure a land passage between the self-proclaimed republics in Donetsk and Luhansk in Donbas and Crimea, which Moscow occupied and annexed in 2014.

Joe Biden announced $800m in new US military aid to Ukraine on Wednesday. He said this would include artillery, armoured personnel carriers and helicopters. Biden added it would contain many of the highly effective weapons systems we have already provided and new capabilities tailored to the wider assault we expect Russia to launch in eastern Ukraine.

The Polish and Baltic presidents headed to the Ukrainian capital by train on Wednesday to show support for the countrys president, Volodymyr Zelenskiy, and his embattled troops in what the Polish presidential adviser Jakub Kumoch called this decisive moment for the country.

The Polish president, Andrzej Duda, Estonias Alar Karis, Gitanas Nausda of Lithuania and Latvias Egils Levits met in the Polish city of Rzeszw near the Ukrainian border. Heading to Kyiv with a strong message of political support and military assistance, Nausda tweeted from the station.

The programme of the visit by the leaders of four Nato member states who fear they may face Russian attacks if Ukraine falls was not disclosed for security reasons but local media reported that the heads of state visited Borodianka, near Kyiv.

Nausda said the town was permeated with pain and suffering after civilian Ukrainians were murdered and tortured there, and residential homes and other civilian infrastructure were bombed.

He said it was hard to believe that such war atrocities could be perpetrated in 21st-century Europe, but that is the reality. This is a war we must win.

It came as Ukrainian forces claimed to have damaged a Russian warship carrying 510 crew in the Black Sea with missile strikes on Wednesday. Neptune missiles guarding the Black Sea caused very serious damage to the Russian ship, Maksym Marchenko, the governor of Odessa, wrote on Telegram.

The visit followed Kyivs reported refusal to meet the German president, Frank-Walter Steinmeier, who visited Poland on Tuesday and said he had planned to go on to Ukraine but was not wanted. The former foreign minister is facing heavy criticism for his past policy of rapprochement towards Moscow.

On Wednesday, the German chancellor, Olaf Scholz, said it was confusing that Steinmeier had not been received in Kyiv. Ukraines ambassador to Germany said the government would be glad to welcome Scholz, but diplomats said the snub to Steinmeier may make that more difficult.

The French president, Emmanuel Macron, declined on Wednesday to repeat Bidens accusation that Russia was carrying out genocide against Ukrainians, warning that verbal escalations would not help end the war.

The US president said on Tuesday it had become clearer and clearer that Putin is just trying to wipe out the idea of even being able to be a Ukrainian. Macron said it was important for leaders to be careful with language.

I would say that Russia unilaterally unleashed the most brutal war, that it is now established that war crimes were committed by the Russian army and that it is now necessary to find those responsible and make them face justice, he said.

After visiting Bucha the site of mass killings of Ukrainian civilians Duda told a news conference: This is not war, this is terrorism. The Polish leader said that the perpetrators and those who had given orders had to be brought to justice.

Zelenskiy told Estonian MPs on Wednesday, without providing evidence, that Russia was using phosphorus bombs in Ukraine. Ukrainian forces in Mariupol said a drone had dropped a poisonous substance on the city, but there has been no independent confirmation that Russia used banned chemical weapons.

While Russian troops have largely withdrawn from around Ukraines capital in the face of stiff resistance and logistical problems, western officials and analysts say the invasion force is gearing up for a major offensive in the east.

Military experts say local support, logistics, the terrain in the region and the appointment by Moscow of a new senior general, Aleksandr Dvornikov, could improve the performance of a force that Britains defence ministry said on Wednesday had so far been hampered by an inability to cohere and coordinate.

Ukraines armed forces command said Russian forces were fully ready for a fresh assault in the eastern Donetsk and southern Kherson regions. In the Donetsk and Tavria [Kherson] directions, according to available information, the enemy is ready for offensive actions, the armed forces said in a Facebook post.

The Russian retreat from around Kyiv has led to the discovery of large numbers of apparently massacred civilians, drawing international condemnation and calls for a war crimes investigation. The Kyiv district police chief said on Wednesday that 720 bodies had been found around the capital, and more than 200 people were missing.

An expert report commissioned by the Vienna-based OSCE security and human rights organisation published on Wednesday found clear patterns of (international humanitarian law) violations by the Russian forces in their conduct of hostilities.

It said there had also been also violations by Ukraine, but concluded those committed by Russia were by far larger in scale and nature. Ukraine has previously acknowledged there could be isolated incidents of violations and said it would investigate.

Moscow, however, has rejected all allegations of atrocities and Vladimir Putin dismissed the reports as fakes. The Russian president said on Tuesday that Moscow would rhythmically and calmly continue its operation, which the UN says has so far driven more than 10 million Ukrainians from their homes, more than 4.6 million of whom have fled abroad.

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More than 1,000 Ukraine marines have surrendered in Mariupol, says Russia - The Guardian

It matters, hugely, now that millions of voters are starting to pay attention when Albanese enters the main arena against Scott Morrison. The Labor leader has 366,000 followers on Twitter. Now he has to convince more than half the nations 17 million voters.

Morrison launched his pitch to Australian voters on Sunday with a press conference of 1,700 words, including the questions from journalists. Albanese took 4,800 words but it gave him no advantage.

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Talk less, smile more. The advice from Aaron Burr in Hamilton works today even if it did not work for Burr.

After long and discursive appearances on Monday and Tuesday, Albanese scaled things back to just 1300 words at his doorstop in Melbourne on Wednesday. He cannot keep all his appearances this brief, given he has to be up to the task of taking questions, but he had to change his approach. Morrison, after all, is brusque with questions and often shuts down press conferences when convenient.

The truth is that there is a performative nature to a press conference and the politician who aspires to leadership has to control the crowd. The audience at home must be in no doubt about who is in charge.

This is not a shift in Labor strategy but a change in technique. Labor is focusing on health policy this week, as it always planned, and is targeting the seats it needs to win, but all this will only work if Albanese sharpens his message. It is odd, in some ways, that it took the mistake on Monday for this work to start.

Jacqueline Maley cuts through the noise of the federal election campaign with news, views and expert analysis. Sign up to our Australia Votes 2022 newsletter here.

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Albanese needs to perform for the cameras, but on his terms - Sydney Morning Herald

SEEK AND HIDEThe Tangled History of the Right to PrivacyBy Amy Gajda376 pages. Viking. $30.

In her wry and fascinating new book, Seek and Hide, Amy Gajda traces the history of the right to privacy and its (understandably fraught) relationship in the United States with the First Amendment. English common law includes the concept of truthful libel the notion that anything harmful to a persons reputation, even if factually accurate, could be treated as a punishable offense.

Truthful libel may sound like a contradiction in terms, but it arose out of a recognition that being ridiculed for something real could in some ways feel more ruinous than being mocked for something bogus that, as Gajda puts it, the emotional damage and desire for physical revenge would be even more profound to the outed individual than had falsity been published.

Emotions and feelings come up a lot in Seek and Hide something I wasnt expecting from a book that does serious work as a history of ideas, too. Gajda, who was a journalist before becoming a law professor, is a nimble storyteller; even if some of her conclusions are bound to be contentious, shes an insightful guide to a rich and textured history that gets easily caricatured, especially when a culture war is raging. One might think that the Founders, writing under pseudonyms and spreading gossip in order to lay low their political rivals, didnt give much thought to emotional damage, but Gajda suggests otherwise. Ben Franklin observed that every Person has little Secrets and Privacies that are not proper to be exposd even to the nearest friend.

As it happens, a number of people in Gajdas book can seem like free speech absolutists in one context and zealous advocates for privacy rights in another. Justice Louis Brandeis was known as a staunch defender of the First Amendment, but before joining the Supreme Court he was also the co-author of the landmark article The Right to Privacy (not to mention a vigilant protector of his own personal affairs). Upton Sinclair, whose book about the Chicago meatpacking industry turned stomachs and changed policy, blanched at all the newfound attention from sensationalist papers clamoring to know about his marital difficulties and what he ate for breakfast (a cup of water and six prunes).

Another memorable about-face took place more than a century before, when Alexander Hamilton pseudonymously taunted Thomas Jefferson for having a sexual relationship with an enslaved woman named Sally Hemings. In 1786, Jefferson had declared that the countrys liberty depends on the freedom of the press, and that cannot be limited without being lost. By 1803 he was musing to the governor of Pennsylvania that a few prosecutions of journalisms most eminent offenders would place the whole band more on their guard.

This tension would persist over the years, a tug of war between the right to know on one side and the right to be let alone on the other. Even though the word privacy itself doesnt appear in the Constitution, the Supreme Court has nevertheless found that protections for it are implied. Gajda shows that the courts emphasis on a free press or on privacy rights has changed over time, reflecting transformations in journalism from 19th-century penny presses to 20th-century muckraking to the emergence of digital platforms in the 21st.

Transformations in cultural attitudes and prejudices have had an effect, too. Whats considered stigmatizing in one era can lose its stigma in another. Gajda gives the example of outing someone who is gay. It used to be that some courts had decided that reporting such information about someone who didnt want it to be revealed was highly offensive, and therefore an affront to peoples right to keep certain things quiet, to define themselves for themselves against the interests of others. But as social norms have grown more inclusive, Gajda writes, more modern courts have decided that to reveal someones sexual orientation is not highly offensive at all and therefore not an invasion of privacy.

At a social level, this sounds like a salutary development more inclusivity, more tolerance but Gajda says that when courts have ruled this way, it hasnt always seemed so progressive to individuals who felt abandoned by the law. In 1984, an appellate court ruled that the disabled U.S. Marine who saved President Gerald Ford from a would-be assassin had no right to privacy when a gossip column outed him as gay; publication of the Marines sexual orientation against his wishes helped dispel the false public opinion that gays were timid, weak and unheroic, the court wrote.

It didnt matter to the court that the Marine was subsequently deserted by his family, and that he gave a broken, anguished speech insisting that he should be the one to decide whether to share details about his private life, Gajda writes, adding mordantly: The right of the people to know that men who are gay can be brave too was more important.

Just because Gajda acknowledges the personal damage wrought by such decisions doesnt mean that she comes down categorically on the side of Team Privacy; the issues are too complicated, the history too circuitous. After all, privacy claims have often been deployed to protect the powerful from public scrutiny. She cites the clubbiness between journalists and politicians in the pre-Watergate era, which afforded politicians a level of privacy that, as public servants, they simply werent entitled to. #MeToo behavior that would now get reported as news was long elided as gossip in a gentlemans agreement, she writes, because it was a gentlemans game.

Gajda says that she used to be uncomfortable with the idea that courts could balance protections for an individuals dignity and liberty with protections for a free press and free speech; as a journalist, she was worried that an overzealous judiciary might curtail the reporting of real news that powerful interests were keen to keep secret. Now she seems to see things differently, placing what seems to me a surprising amount of faith in the judicial branch and even Facebooks Oversight Board, of all things, to generate norms that balance speech with privacy and unite the world as one.

Really? This strikes me as the kind of wistful generalization thats otherwise absent from this smart and empathetic book. Nobody comes out looking pure in Seek and Hide, but everyone comes out looking human.

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Seek and Hide Grapples With the Complexity of the Right to Privacy - The New York Times

Companies often communicate with government agencies directly or through trade associations for a variety of reasons. But what happens when an adverse party tries to use comments made to the government or membership in an advocacy group as evidence in litigation?

Manufacturers facing product liability claims may be able to borrow a defense from the world of antitrust litigation to protect their lobbying efforts. Under the Noerr-Pennington doctrine, defendants sometimes can avoid liability for exercising their First Amendment right to petition or seek redress from the government. Since the doctrine was developed, courts have expanded its use outside of the antitrust context. We explore how this doctrine may be applied in product liability cases.

The Noerr-Pennington doctrine takes its name from two U.S. Supreme Court decisions involving the Sherman Antitrust Act.[1] In Eastern R.R. Presidents Conference v. Noerr Motor Freight, railroad companies petitioned Congress and state legislatures to pass legislation making it harder for trucking companies to enter the transportation industry.

The Court admitted that the goal blocking a potential competitor could lead to an improper restraint against trade under the Sherman Antitrust Act. All the same, the Court reasoned that the Sherman Act did not override the right to petition the government.[2] Since the defendants sought a lawful and protected means of influencing government decision making, their advocacy could not give rise to antitrust liability

Likewise, in United Mine Workers v. Pennington, a union and large mining company petitioned the Labor Department to raise the industrys minimum wage. Plaintiffs sued alleging that both organizations sought to price out smaller mining companies. The Court again held that the defendants lobbying sought a goal contrary to the Act, however, the First Amendment protected their advocacy. Specifically, the defendants exercised the freedom of association and the right to petition the government.[3]

The Supreme Court explored what activities are considered petitioning the government in California Motor Transport Company v. Trucking Unlimited. [4] It held that the Noerr-Pennington doctrine applied to appeals made to any government department legislative, executive, judicial, and administrative. Thus, two activities may fall under the protection of the doctrine: legislative lobbying[5] pertaining to a trade association that lobbies the government,[6] and filing litigation.[7]

One carve-out from the Noerr-Pennington doctrine is the sham exception. The Supreme Court has held that the doctrine does not apply to situations when the petitioner does not seek a governmental result, but rather merely uses the petitioning process to obstruct the other partys objectives.[8] If a party, for example, files a series of trivial lawsuits[9] or merely communicates with a government agency without an attempt to influence its decision making,[10] the doctrine might not apply.

Ultimately, the party opposing the application of the Noerr-Pennington doctrine bears the burden to show both objective and subjective reasons that an opposing partys government petition was a sham.[11]

Though the Noerr-Pennington doctrine emerged in the antitrust context, lower federal courts and state courts have applied the same principles to other types of claims, such as business interference[12] and common law tort claims.[13]

In line with this development, courts also have held that the Noerr-Pennington doctrine applies to claims arising in product liability suits. In Hamilton v. AccuTek, for example, the court granted summary judgment in favor of gun manufacturers for product liability and fraud claims in part because the manufacturers attempts to influence federal policies were lawful lobbying attempts.[14] Likewise, in In re Municipal Stormwater Pond, the court dismissed fraudulent misrepresentation or concealment claims against a coal tar sealant manufacturer because the Noerr-Pennington doctrine immunized its lobbying efforts before state and local governments.[15] In other cases, the Noerr-Pennington doctrine has been utilized to prevent admission of evidence of a manufacturers lobbying in products liability claims.[16]

These cases show that manufacturers can continue their advocacy efforts with some reassurance that their statements may not lead to future liability. There may be other applications of the doctrine. For example, manufacturers may wish to consider using Noerr-Pennington to exclude evidence of lobbying in all phases of litigation. In all cases, manufacturers should strategically consider the doctrine to challenge these claims.

[1] Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).

[2] Noerr, 365 U.S. at 140-41.

[3] Pennington, 381 U.S. at 670.

[4] California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 509-10 (1972).

[5] Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988).

[6] Diaz v. Southwest Wheel, Inc., 736 S.W.2d 770 (Tex. App. 1987).

[7] Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60-61 (1993).

[8] City of Columbia v. Omni outdoor Advertising, Inc., 499 U.S. 365, 380 (1991).

[9] Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056 (9th Cir. 1998).

[10] Litton Systems v. American Telephone & Telegraph Co., 700 F.2d 785 (2d Cir. 1983).

[11] Prof'l Real Estate Inv'rs, Inc., 508 U.S. at 60-61.

[12] Sierra Club v. Butz, 349 F.Supp. 934 (N.D. Cal 1972).

[13] Video Intl Prod., Inc. v. Warner-Amex Cable Comm., Inc., 858 F.2d 1075, 1084 (5th Cir. 1988).

[14] Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1321 (E.D.N.Y. 1996).

[15] In re Mun. Stormwater Pond, No. 18-cv-3495 (JNE/KMM), 2019 U.S. Dist. LEXIS 227887, at *12 (D. Minn. Dec. 20, 2019).

[16] Eiser v. Brown & Williamson Tobacco Corp., 2005 Phila. Ct. Com. Pl. LEXIS 43, *20, 2005 WL 1323030.

Excerpt from:
Practice Pointer: How Manufacturers Can Protect Their Lobbying Efforts With the Noerr-Pennington Doctrine - JD Supra

A book about Motown Productions, the film and television arm of the legendary Motown Records; preservation of the traditional language and lifestyle of Yupik and Cupik Alaskan Native people; and research on how communities and insurance companies in Bermuda understand risk caused by rising sea levels and climate change are among the 245 projects across the country that are receiving new grants from the National Endowment for the Humanities.

The grants, which total $33.17 million, support historic collections, exhibitions and documentaries, humanities infrastructure, scholarly research and curriculum projects.

Among the 13 categories in which the grants were awarded, the most money $11 million went toward 23 infrastructure and capacity building challenge grants, which leverage federal funds to spur nonfederal support for cultural institutions.

Included in those were awards to the Bishop Museum in Honolulu, to make collections documenting Hawaiian and Pacific history and culture more accessible, and to the First Peoples Fund in Rapid City, S.D., to create outdoor classroom spaces for education programs about the Lakota cultural traditions at the Pine Ridge Reservations Oglala Lakota Artspace.

Thirty projects in New York state will receive $4.4 million in total funding, with $3.76 million going to 16 groups and individuals in New York City.

In Brooklyn, UnionDocs will get $644,525 for the production of a film about the First Amendment and the balance between free speech principles and other core values. (The project is titled Speaking Freely: The First Amendment and the Work of Preeminent Attorney Floyd Abrams and will be directed by Yael Melamede.)

In Long Island City, LaGuardia Community College will see $34,991 to create a liberal arts health humanities option with an interdisciplinary curriculum for undergraduates that focuses on the social, cultural and historical contexts of medical ethics, health and medicine.

And in Manhattan, the Lower East Side Tenement Museum will receive $400,000 to support guided tours exploring the lives of African Americans and Irish immigrants in 19th-century New York City. Women Make Movies, also in Manhattan, will receive $500,000 toward the production of a film that explores the life and work of the Caribbean writer Jamaica Kincaid. The movie, Jamaica Kincaid: Liberating the Daffodil, will be directed by Stephanie Black.

This crop of grants is the first round of funding from the agency under Shelly C. Lowe, the first Native American to lead the agency.

N.E.H. is proud to support these exemplary education, media, preservation, research and infrastructure projects, Lowe said in a statement. These 245 projects will expand the horizons of our knowledge of culture and history, lift up humanities organizations working to preserve and tell the stories of local and global communities, and bring high-quality public programs and educational resources directly to the American public.

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National Endowment for the Humanities Announces $33.17 Million in Grants - The New York Times