Latest Mon, 20 Feb 2023 19:52:01 -0500 en-US hourly 1 © Reason 15 "Strangers on the Internet" Podcast Episode 23: A Rationalist Guide to Dating Tue, 21 Feb 2023 00:41:56 +0000 The twenty-third episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange is a Presidents' Day bonus feature with Volokh Conspiracy's very own Prof. Ilya Somin!

Once upon a time, Ilya decided to put his scholarly chops to use in the romantic arena to increase his odds of success. He turned to both the academic and popular literatures to develop his rationalist approach to dating and shares his wisdom with listeners looking for love. How should one cope with rejection while trying to find a mate? What do many women want when it comes to men planning dates? And what did Ilya say when a woman asked to go on a first date at Arlington National Cemetery?? Come hear about Ilya's journey that ultimately led to finding happiness with his now-wife Alison!

Ilya Somin

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Seattle Considers Banning Caste-based Discrimination Tue, 21 Feb 2023 00:40:27 +0000 AP reports:

[Seattle City Council member Kshama] Sawant has proposed an ordinance to add caste to Seattle's anti-discrimination laws. If her fellow council members approve it Tuesday, Seattle will become the first city in the United States to specifically outlaw caste discrimination….

The national debate in the United States around caste has been centered in the South Asian community, causing deep divisions within the diaspora. Dalit activist-led organizations such as Oakland, California-based Equality Labs, say caste discrimination is prevalent in diaspora communities, surfacing in the form of social alienation and discrimination in housing, education and the tech sector where South Asians hold key roles….

Suhag Shukla, executive director of the Hindu American Foundation, called Seattle's proposed ordinance unconstitutional because "it singles out and targets an ethnic minority and seeks to institutionalize implicit bias toward a community."

"It sends that message that we are an inherently bigoted community that must be monitored," Shukla said.

Caste is already covered under the current set of anti-discrimination laws, which provide protections for race, ethnicity and religion, she said.

Two comments:
(1) It's not at all clear to me that current antisdiscrimination laws cover caste discrimination. And it's almost certainly not unconstitutional for a city to ban discrimination based on caste simply because Indian Americans are disproportionately likely to be both the perpertrators and victims of such discrimination.
(2) This is yet one more example of America's absurd racial classification system. India is an extremely internally diverse of 1.5 billion people, with many different ethnic groups, languages, and religions, and of course a longstanding caste system. Yet when Indians immigrate to the US, they become generic "Asian Americans" by government fiat, and when university consider their "diversity" goals, any Indian American, regardless of appearance, religion, caste, language and so on, is not only considered indistinguishable from any other Indian American, but also from a Chinese, Filipino, or Vietnamese American.

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Private Gun Carriers' Self-Defense Against Public Shooters Mon, 20 Feb 2023 22:47:47 +0000 I had written about this in past years, but I thought I'd update it to reflect the El Paso incident from last week. According to the El Paso Police Department (see also CNN [Andy Rose]), a confrontation between two groups of teenagers at a mall "escalated into a physical fight" and then into a 16-year-old fatally shooting a member of the other group and seriously wounding another member, as well as injuring a member of his own group. Then,

As soon as the shooting ended, the 16-year-old suspect began to run and was pointing the gun towards the direction of bystanders, including 32-year-old Emanuel Duran, a Licensed to Carry Holder. As the suspect ran towards Duran and bystanders, Duran drew his handgun and shot the suspect.

At that time, one off-duty El Paso Police Officer arrived at the area of the shooting and together with Duran rendered aid to the 16-year old suspect and the others that were injured. Investigators found that there were at least two other legally armed citizens in the area of where the shooting took place, but were not involved.

Now in this case, the suspect didn't seem to have planned a mass shooting; he seems to have had a beef with the other teenagers. On the other hand, he appears to have been pointing his gun towards the bystanders, so it's hard to know what would have happened. And something similar could easily have happened with an intended mass shooting as well; for an incident like that from last year, see this WCHS-TV story:

Police said a woman who was lawfully carrying a pistol shot and killed a man who began shooting at a crowd of people Wednesday night in Charleston.

Dennis Butler was killed after allegedly shooting at dozens of people attending a graduation party Wednesday …. No injuries were reported from those at the party.

Investigators said Butler was warned about speeding in the area with children present before he left. He later returned with an AR-15-style firearm and began firing into the crowd before he was shot and killed.

"Instead of running from the threat, she engaged with the threat and saved several lives last night," Charleston Police Department Chief of Detectives Tony Hazelett said.

According to WCHS-TV (Bob Aaron), Butler was a convicted felon, and was thus not legally allowed to own guns. In principle, perhaps he might still have been stopped by (say) a law requiring background checks, which would likely have stopped law-abiding sellers from selling him the gun; but it's not clear whether someone with his criminal record would have much been stymied by that, as opposed to just buying a gun on the black market. Likewise, in El Paso, CNN reports that the gun used by the 16-year-old shooter was reported stolen.

I gathered some more examples from over the years here, and then followed up with data based on FBI reports of mass shootings in 2016 and 2017: legal civilian gun carriers tried to intervene in 6 out of 50 incidents, and apparently succeeded in 3 or 4 of them.

The FBI also has 2021 data (I don't expect the 2022 data until later this year). That reports 61 "active shooter" incidents, of which 12 were treated as "mass killing" incidents, and 4 of those active shooter incidents led to "shooters [being] killed by citizen," all apparently involve gun-wielding citizens (PDF p. 4, 11-12). Two more incidents involved citizens detaining a shooter without using guns themselves. Some of the incidents I discussed in my earlier posts involved gun-wielding citizens stopping a shooter without killing him, but none seem to have occurred that way in 2021.

A few thoughts, which I'd mentioned before, but which I thought I'd repeat:

[1.] Unsurprisingly, sometimes the good guy (or, in the West Virginia incident, gal) with a gun succeeds and sometimes not. Sometimes the success might be a lucky break; sometimes a lucky break for the defender might have ended the incident more quickly. And it's impossible to tell for sure how many lives, if any, were saved in the aggregate, because that's generally a counterfactual. Still, the aggregate pattern seems to be that armed civilian self-defense takes place in a significant fraction of active shooter incidents.

[2.] None of this proves that broad concealed carry rights on balance do more good than harm (or vice versa). But it is a response to claims that I've heard that the good guy with a gun never helps; these incidents further show that there are potential pluses to broad concealed carry rights, and of course there are potential minuses as well.

[3.] Some shootings are in places where concealed carry is not allowed, such as on school premises or in jurisdictions where concealed carry licenses are often hard to get. It's hard to tell for sure how many of the shootings fit into this category, because laws vary from state to state, and rules vary from business to business (plus in some states carrying in a business that prohibits guns is itself a crime). But it's possible that there would have been more defensive uses of guns in some cases if people were legally allowed to have their guns there.

[4.] Finally, always keep in mind that public shooting situations should not be the main focus in the gun debate, whether for gun control or gun decontrol: Active-shooter mass shootings on average account for less than 1% of the U.S. homicide rate and are unusually hard to stop through gun control laws (since the killer is bent on committing a publicly visible murder and is thus unlikely to be much deterred by gun control law, or by the prospect of encountering an armed bystander). Likewise, shootings at malls when they're open, whether they involve an active shooter or a fight that leads to a shooting and then the shooter running with possibly ambiguous intentions, are quite rare. But people talk about such public shootings a lot, so I thought I'd offer a perspective on them for those who are interested.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer to the El Paso story.

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Free Immigration Is a Core American Value Mon, 20 Feb 2023 20:21:00 +0000 Presidents Thomas Jefferson and George Washington pictured in front of an American flag

It's become fashionable among the national conservative right to oppose immigration, both legal and illegal. Various primers and mission statements for the movement call for the United States to "drastically reduce legal immigration from its current levels" via a "temporary full immigration moratorium," citing contemporary immigration as "a source of weakness and instability."

National conservatives invoke heritage and tradition when they speak of what they want to conserve. But what they often fail to mention—or, at the very least, fail to accurately represent—is how intertwined immigration is in American heritage and traditions. For all their invocations of the Founding Fathers, they offer an incomplete view of what the Founders actually said about immigration.

One of the grievances behind the Declaration of Independence itself centered on immigration. King George III, the Declaration charged, had "endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither." Volokh Conspiracy contributor Ilya Somin has noted this complaint "was aimed at a series of royal orders" that, among other things, "forbade the colonies from naturalizing aliens" and passing laws to promote migration. The regulations directly contributed to "the establishment of an absolute Tyranny over these States," the Declaration explained.

No wonder—in the colonial days, immigration was both a boon to the young America and a headache for the distant Britain. In 1700, the British Parliament "limited the colonies' ability to grant naturalization and other group rights because it believed that colonial naturalization policies weakened English citizens' trading positions," according to a 2021 Cato Institute paper. After a period of liberalization, Britain cracked down on certain colonial settlement and naturalization authorities. By the beginning of the Revolutionary War, about 2.2 million people were living in the colonies—"much of that growth fueled by the 346,000 European immigrants and their descendants," the Cato paper noted.

The Founding Fathers turned to questions of citizenship and naturalization soon after the Revolution was won. During the Constitutional Convention of 1787, delegates worried that overly harsh barriers to citizenship could prevent deserving immigrants from coming to the nation. Gouverneur Morris had proposed an amendment that would require someone to have been a citizen for 14 years before being able to serve as a senator.

It sparked a vigorous debate: James Madison said he "could never agree" to the amendment since it would "give a tincture of illiberality to the Constitution" and "discourage the most desirable class of people from emigrating to the U.S." James Wilson, himself a nonnative, lamented that he might be "incapacitated from holding a place under the very Constitution which he had shared in the trust of making." The delegates eventually adopted a nine-year minimum as their standard.

When Congress addressed naturalization in 1790, it established what the Cato Institute's Alex Nowrasteh has called "the most open naturalization law in the world at the time." The Naturalization Act of 1790 was imperfect by today's standards—it did not offer citizenship to Native Americans, indentured servants, or free black people—but it provided a straightforward and relatively open pathway to citizenship to many. Free white people of "good character" could naturalize after living in the country for just two years.

Beyond those political machinations, the Founding Fathers spilled much ink detailing their hope that America would become a safe haven. In correspondence with a Dutch minister and emigrant, George Washington wrote that he'd "always hoped that this land might become a safe & agreeable Asylum to the virtuous & persecuted part of mankind, to whatever nation they might belong." In a 1783 letter concerning Irish arrivals, Washington stressed that America was "open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions." He once again praised America's promise "to afford a capacious asylum for the poor & persecuted" in a 1788 letter to Thomas Jefferson.

Jefferson at times wrote skeptically about immigrants, particularly their ability to assimilate. In 1785, he worried about the "heterogeneous, incoherent, distracted mass" of a population that might result from "as great importations of foreigners as possible." In 1801, in his first State of the Union address as president, Jefferson took on a different tone. Congress had raised the minimum residency requirement for citizenship to 14 years, prompting the president to request that the body revise its naturalization laws.

"Shall oppressed humanity find no asylum on this globe?" Jefferson asked. The Constitution provided that "residence shall be required sufficient to develop character and design," he explained. "But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us?"

Of course, the Founders were no monolith on immigration. Jefferson would continue to have reservations about assimilation. Benjamin Franklin wrote in 1751 that he would prefer immigrants to be "the lovely white" and not "all blacks and tawneys." He worried that Pennsylvania would "become a Colony of Aliens"; if it were to welcome Germans, he reasoned that they could "shortly be so numerous as to Germanize us instead of us Anglifying them." As with issues of slavery and suffrage, prejudices of the time often permeated the Founders' views. They could fail to live up to their promises of equality for all, showing a clear preference for some immigrant groups over others. Black immigrants couldn't receive citizenship until 1870, and other racist restrictions on naturalization would last far longer.

Still, the policies the Founders embraced are telling: They laid the groundwork for a nation that would have essentially open borders for much of its history. Those policies extended America's promise not just to those with the fortune to be born on its soil, but those who sought refuge on its shores.

As Abraham Lincoln put it, immigrants and their descendants are bound to the nation, if not through blood. "When they look through that old Declaration of Independence they find that those old men say that 'We hold these truths to be self-evident, that all men are created equal,' and then they feel that that moral sentiment taught in that day evidences their relation to those men," he said in 1858. "They have a right to claim it as though they were blood of the blood…of the men who wrote that Declaration."

"That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

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Facebook Says Noting the CDC's Scientific Misrepresentations 'Could Mislead People' Mon, 20 Feb 2023 18:50:38 +0000 Facebook says criticizing the CDC for exaggerating the evidence supporting mask mandates "could mislead people."

Facebook says my recent column about face masks is "missing context" and "could mislead people," based on an assessment by "independent fact checkers." That judgment and the analysis underlying it show how reflexive deference to government agencies distorts supposedly "independent" summaries of scientific evidence on controversial issues, especially issues related to COVID-19 control measures. When one of those agencies gets something wrong, criticism of its position is apt to be labeled "misleading" on social media platforms that strive to police COVID-19 "misinformation" at the government's behest, regardless of what the evidence actually shows.

My column summarized the results of January 30 Cochrane Library review that considered 18 randomized controlled trials (RCTs) aimed at measuring the effectiveness of surgical masks or N95 respirators at reducing the spread of respiratory viruses. Judging from those studies, the Cochrane review found, wearing a mask in public places "probably makes little or no difference" in the number of infections. The authors said that conclusion was based on "moderate-certainty evidence."

Does the Cochrane review prove that masks are worthless in protecting people from COVID-19? No. But it does show that the Centers for Disease Control and Prevention (CDC) misled the public about the strength of the evidence supporting mask mandates, which was the point I made in my column.

The authors of the Cochrane review suggest several possible explanations for their results, including "poor study design," weak statistical power "arising from low viral circulation in some studies," "lack of protection from eye exposure," inconsistent or improper mask use, "self-contamination of the mask by hands," "saturation of masks with saliva," and increased risk taking based on "an exaggerated sense of security." It is possible that some subjects in these studies did derive a benefit from wearing masks, but that effect was washed out by the behavior of other subjects who did not follow protocol, especially if those subjects took more risks than they otherwise would have because masks gave them "an exaggerated sense of security."

It is nevertheless fair to say that the Cochrane review is inconsistent with the CDC's statements about masks. After casting doubt on the value of general mask wearing early in the pandemic, the CDC decided the practice was so demonstrably effective that it should be legally mandated even for 2-year-olds. The CDC's mask advice initially did not distinguish between surgical masks or N95s and the commonly used cloth masks it eventually conceded were far less effective. Its message was that wearing a mask—any mask, apparently—"reduc[es] your chance of infection by more than 80 percent," a claim it said was supported by the best available evidence.

CDC Director Robert Redfield averred that masks were more effective than vaccines at protecting people from COVID-19. His successor, Rochelle Walensky, insisted that "the evidence is clear." But the evidence on which the CDC relied came from two sources with widely recognized drawbacks.

Laboratory experiments provide good reason to believe that masks, especially N95s, can reduce the risk that someone will be infected or infect other people. But those experiments are conducted in idealized conditions that may not resemble the real world, where people often choose low-quality cloth masks and do not necessarily wear masks properly or consistently.

Observational studies, which look at infection rates among voluntary mask wearers or people subject to mask mandates, can provide additional evidence that general mask wearing reduces infection. But such studies do not fully account for confounding variables.

If people who voluntarily wear masks or live in jurisdictions that require them to do so differ from the comparison groups in ways that independently affect disease transmission, the estimates derived from observational studies will be misleading. Those studies can also be subject to other pitfalls, such as skewed sampling and recall bias, that make it difficult to reach firm conclusions.

Despite those uncertainties, the CDC touted an observational study that supposedly proved "wearing a mask lowered the odds of testing positive" by as much as 83 percent. It said even cloth masks reduced infection risk by 56 percent, although that result was not statistically significant and the study's basic design, combined with grave methodological weaknesses, made it impossible to draw causal inferences.

RCTs aim to avoid these problems by comparing disease rates among subjects randomly assigned to wear masks in real-life situations with disease rates in a control group. That design makes the evidence produced by RCTs stronger than the evidence produced by laboratory experiments or observational studies. When they are conducted properly, RCTs support the inference that a difference in outcomes can be attributed to the intervention they test, because the treatment group and the control group are otherwise similar.

If wearing a mask had the dramatic impact that the CDC claimed, you would expect to see some evidence of that in RCTs. Yet the Cochrane review found essentially no relationship between mask wearing and disease rates, whether measured by reported symptoms or by laboratory tests. Nor did it confirm the expectation that N95s would prove superior to surgical masks in the field. The existing RCT evidence, the authors said, "demonstrates no differences in clinical effectiveness."

According to Facebook, making these points "could mislead people." But in fact, it was the CDC that misled people by insisting that the case was closed on masks and mask mandates while citing impressive but empirically shaky estimates of their effectiveness.

The "independent fact checkers" on whom Facebook relies, who work for an organization called Health Feedback, give the game away by contradicting themselves. "Multiple studies show that face masks reduce the spread of COVID-19," their headline claims, echoing the CDC. Health Feedback's "key take away" modifies that claim, saying "evidence suggests that widespread mask usage can reduce community transmission of SARS-CoV-2, especially when combined with other interventions like frequent handwashing and physical distancing" (emphasis added).

Already we have moved from a confident assertion about what "multiple studies show" regarding the effectiveness of masks in particular to a qualified statement about what "evidence suggests" regarding the effectiveness of multiple precautions taken in conjunction with each other. But the whole point of RCTs is to isolate the impact of a specific intervention—in this case, face masks.

According to Health Feedback's conclusion, "a growing body of evidence from RCTs and observational studies suggests that consistent mask-wearing can effectively reduce the spread of respiratory viruses like SARS-CoV-2 in both healthcare and community settings" (emphasis added). Health Feedback's fact checkers concede that "the extent to which community mask-wearing contributes to limiting the spread of different respiratory viruses and in different circumstances is still unclear" (emphasis added). They note potential weaknesses in the RCTs covered by the Cochrane review and say more research is needed to definitively settle the question of how effective masks are.

Contrast that gloss with the position taken by the CDC, which says "the evidence is clear" that wearing a mask "reduc[es] your chance of infection by more than 80 percent." Walensky said that remarkable reduction applies to "the flu," "the coronavirus," and "even just the common cold." The CDC also thinks the evidence is clear that mask mandates work in schools and other settings, despite the methodological problems with the observational studies it cites.

Health Feedback's analysis ostensibly addresses the claim that the Cochrane review "demonstrates" face masks "are ineffective at reducing the spread of COVID-19 and other respiratory diseases." I did not make that claim. But the fact check, which cites two publications of my column (on this website and in the Chicago Sun-Times), also objects to my statement that "the CDC grossly exaggerated the evidence supporting mask mandates." Health Feedback not only fails to show that assessment is wrong; it reinforces the point that the CDC distorted the science to support a predetermined conclusion.

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Do Hospitals That Drop Mask Requirements Risk Liability? Mon, 20 Feb 2023 15:48:18 +0000 Prof. Nina Kohn and I have a new piece up on the Harvard Law Petrie-Flom Bill of Health blog that examines the question of liability in cases in which patients contract COVID-19 in hospitals that no longer require masks. Here is an excerpt:

Hospitals have a common law duty to act reasonably. If they unreasonably expose patients to risk, and the patients are harmed as a result, hospitals may be liable for damages. The result: patients who can show that it is probable that they were infected with COVID-19 in a hospital, and that they would not have been if the hospital had taken reasonable measures to protect them, may be able to successfully sue hospitals for damages.

The big question is what does it mean to act "reasonably" in a world in which COVID-19 abounds and remains a leading cause of death, including for children. Over the past century, courts have developed a variety of approaches to figuring out the bounds of reasonableness. In determining whether a precaution is "reasonable," modern courts commonly consider the relative costs and benefits of taking that precaution. Where an individual causes harm because they fail to take a cost-justified precaution, they may be found negligent and required to pay for the damages they have caused.

Requiring masks in direct patient care settings is a prime example of a cost-justified precaution. Masking is a simple, effective, and low-cost measure that hospitals can take to substantially reduce the spread of COVID-19. And the benefits are significant in hospital settings. Hospitals concentrate people who, as reflected in the conditions that bring them to the hospital, are both more prone to infection and more likely to face serious consequences if infected. Moreover, both healthcare providers and patients are known vectors of transmission in healthcare institutions.

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Fox News 2020 Election Coverage Decisions Demonstrate that Demand for Misinformation is a Bigger Problem than the Supply Mon, 20 Feb 2023 15:15:44 +0000 Fox News

Evidence made public as a result of Dominion Voting Systems slander lawsuit against Fox News reveals that Fox News executives and on-air personalities knew that Donald Trump's claims that the 2020 election was stolen from him were false.  Soon after the election, informed observers at Fox (like those elsewhere) already knew that Trump had lost legitimately. But they chose to conceal this truth on the air, for fear that broadcasting it would anger the channel's audience and lead to lower ratings:

[P]rominent [Fox] anchors like Tucker Carlson, Sean Hannity, Laura Ingraham, and Maria Bartiromo are evidently very aware that the public—or, more precisely, their public—doesn't share their view of claims of massive fraud in the 2020 election made by former President Donald Trump and his allies like lawyers Rudy Giuliani and Sidney Powell….

Documents from a defamation lawsuit brought against Fox by Dominion Voting Systems, a voting machine manufacturer whose product was implicated in the fraud allegations, show the hosts fully understood that the theories pushed by Powell et al. were, in their words, "insane" ideas from an "idiot" and a "lying," "complete nut."

Still, they permitted—even welcomed—advocates of those theories on Fox airwaves because the audience liked it. As Carlson put it, "Our viewers are good people and they believe it," though Carlson himself did not. Or, as Bartiromo agreed, "It's easier to get good ratings when you give your audience something they want to hear," and "a peaceful transition" between the Trump and Biden administrations was not what they wanted to hear. Or Hannity: "You don't piss off the base."

Rupert Murdoch, Executive Chairman of News Corp, which owns Fox, appears to have made a similar calculation. He and others at Fox feared that if the network told viewers the truth about the election, its audience would decamp, perhaps to other right-wing networks, such as Newsmax.

In addition to highlighting the cynical nature of Fox's decision-making, this incident also sheds light on the dynamics of political misinformation. Many assume that purveyors of misinformation deceive an audience that would otherwise naturally gravitate towards the truth. But, in reality, Fox was catering to its viewers' preexisting prejudices. They already believed that the election had been stolen from Trump, or at least had strong predispositions in that direction. The network was not so much forming their beliefs as pandering to them. Had it refused to do so, they might have gone to someone else who would.

This story is a particularly striking example of the ways in which the demand for political misinformation is a bigger problem than the supply. I summarized the dynamic here:

[T]he low odds that any one vote will make a difference to the outcome of an election ensure that many consumers of political information are acting not as truth-seekers, but as "political fans" eager to endorse anything that supports their position or casts the opposing party and its supporters in a bad light. These biases affect not only ordinary voters, but also otherwise highly knowledgeable ones, and even policymakers and politicians.

This demand for misinformation is the real root of the problem. If it were lower, the supply would not be much of a danger, and at the very least would not affect many voters' political decision-making.

I also previously wrote about this issue here, here, and here.

Republicans' reaction to Trump's lies about the 2020 election and to some other recent events highlight the problem of right-wing voters susceptibility to myths and conspiracy theories that reinforce their preexisting views. But left-wingers are also prone to the same dynamic. Social science research finds that bias in evaluation of political information is roughly comparable across the political spectrum. Both right and left are relatively more willing to believe misinformation that confirms their priors. Examples that primarily appeal  to the left include 9/11 "trutherism" (discussed in Chapter 3 of my book Democracy and Public Ignorance), and claims that GMO foods should be banned or because they are supposedly more dangerous than "natural" ones.

Even if driven by viewer demand, Fox's actions were still reprehensible. It is obviously unethical for news network leaders and commentators to become knowing purveyors of falsehood.

The above also should not be taken as proof that Fox's decisions had no effect. Had the network's most prominent commentators and hosts fortrightly told their viewers the truth about the election, it might have changed at least some minds (even as other viewers might have simply switched channels). Partisan Republicans may be more likely to let go of misconceptions when told the truth by opinion leaders on their "side," as opposed to partisan opponents or "mainstream media" sources, which many conservatives view with deep suspicion. "Political fans" of all stripes are likely more willing to accept unpleasant truths from players on their own team.

But the central role of viewer demand in this episode does suggest that Fox and other purveyors of misinformation are less powerful than often thought. Such influence as they have arises primarily because many people have strong preexisting prejudices that lead them to believe certain types of lies. If Fox refuses to tell them what they want to hear, they might turn to someone else who will.

The crucial role of the demand side also has implications for efforts to address the problem of political misinformation. I summarized them in previous pieces on the subject, most recently here. Among other things, it suggests we are unlikely to make much progress by trying to curb specific sources of misinformation, whether it be a social media platform like Twitter, or a network like Fox. Rather, we should seek structural solutions that reduce political polarization and shift decision-making to formats where people have better incentives to curb their prejudices and seek out the truth.





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Presidents' Day Is a Good Reminder To Treat the Presidency With Skepticism Mon, 20 Feb 2023 13:30:10 +0000 The signing of the Declaration of Independence as depicted on the back of the 2-dollar bill

Each February, Americans celebrate Presidents' Day with those two national pastimes: a day off work if they can get it, and sales on consumer goods. Originally established to commemorate George Washington's birthday, in 1971 Congress switched the holiday to the third Monday in February so as to include Abraham Lincoln's birthday as well.

On the federal level, the holiday is still known as Washington's Birthday, but in the popular imagination, it honors not only Washington and Lincoln but the history of the presidency itself, as well as all who have served. But this is exactly the wrong way to think about any government position, much less one imbued with as much power as the presidency.

Washington famously chose to retire after two terms in office rather than risk becoming akin to a king in the new nation. But in the more than two centuries since, the executive branch accrued enormous power in direct contradiction to what the Founders intended. As the Cato Institute's Gene Healy wrote in 2008, "The Founding Fathers designed a presidency of modest authority and limited responsibilities." Today, however, the president enjoys the unilateral ability to set trade policy, start wars, and accomplish legislative tasks through executive orders.

Each of the above powers was constitutionally given to the legislative branch, but over time a pliant Congress increasingly ceded these roles to the executive. And that's to say nothing of the other powers, like invoking the Defense Production Act to force private companies to make certain products, that Congress directly signed over to the president.

And yet the office of the presidency remains broadly popular, and the president's power tends to go unchallenged, what Healy refers to as "the cult of the presidency." An oft-quoted canard says that we should "respect the presidency, if not the president." But it can be hard to separate those two impulses; it's difficult to balance effective criticism of a politician against an inherent deference for his office.

There is some evidence that Americans are tiring of the pomp and frills imbued in the office of the presidency—but unfortunately, that's only when their party is out of power. As Politico's Michael Schaffer wrote, "These days, with significant portions of the country telling pollsters that the identity of the president affects their day-to-day happiness, we have a situation that might confound hero-worshippers and dirt-diggers alike: On any given day, around half the country is liable to find the institution itself a painful subject to think about."

Perhaps the institution should always be a painful subject to think about, or at least an unromanticized one. As Reason's Billy Binion wrote, "Presidents aren't saints. They aren't monarchs. They aren't celebrities. And they aren't your friends! The executive leader is an employee of the country—someone whose job was, and still should be, limited in size and scope."

Indeed, while individual presidents can be criticized or lauded for their individual actions, the office itself should be returned to the functionary role it was historically intended to serve. And Presidents' Day is a perfect time to remember to treat the office not with inherent respect but just as any other taxpayer-funded role.

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Want Less Corruption? Try Having Smaller Government. Mon, 20 Feb 2023 13:00:29 +0000 Corruption waste fraud abuse big government progressives

Whenever some astounding corruption scandal explodes onto the front pages, the public is aghast and policymakers cobble together new reforms that promise to keep such outrages from occurring again. Occasionally, prosecutors (who are sometimes corrupt themselves) file charges. Soon enough, however, we learn about new abuses—or some other scandal grabs the headlines.

Unfortunately, tamping down corruption is like rooting out wasteful spending in the federal budget. There is no line item titled "waste," but instead it's baked into a government that has amassed a $31.5-trillion debt. Likewise, corruption is inherent in a system where officials dole out public money and regulate almost everything we do.

What is corruption? defines it as "the abuse of entrusted power for private gain." As the website's name suggests, transparency is a time-tested antidote. But let's not kid ourselves. Corruption is a fundamental part of humanity. As far back as Genesis, its author discussed it: "And God looked upon the earth, and, behold, it was corrupt; for all flesh had corrupted his way upon the earth."

It's crucial to recognize people can never be made incorruptible. We can, however, design governmental systems filled with checks and balances that limit the temptations. I often roll my eyes at progressives who look at our history and find glaring imperfections, or point to imperfect or corrupt behavior from some historical luminary and use it to undermine the nation's founding.

Good luck finding any human who passes the perfection test. But the central takeaway is that our founding built structures that limit any official's unchecked power through a series of independent and divided bodies. It guaranteed rights that applied—theoretically, but with obvious glaring exceptions—to the least-powerful individuals. We have a president, not a king.

A new public-opinion survey published by Cambridge University Press found that "a wide range of the American people, of all political stripes, seek leaders who are fundamentally anti-democratic." Large percentages said they want leaders who will protect them "by any means necessary." If that's an accurate representation, then we're in for a long period of growing corruption.

The most corrupt nations are, of course, those where dictators, politburos, bureaucrats and security officials can do as they please—and where lowly citizens lack the right to free speech or due process. Our current government may be a far cry from the one the founders designed, but it attempts to limit government power, which is the main source of corruption.

The Declaration of Independence was a jeremiad against corruption: The King "has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance." The king's minions used their power to enrich themselves, just as modern-day police departments use asset forfeiture to seize people's cars and cash without convicting them of any crime.

Recently some conservatives, who traditionally strived to conserve the nation's founding principles, have been tempted by authoritarian promises. Some national conservatives disdain the idea of a "neutral" political system that limits the size of government, but instead seek power to run the table on their opponents. Some have made pilgrimages to authoritarian Hungary.

That's probably a rather small (albeit creepy) contingent. But modern progressives, who loudly decry our nation's past and present injustices, seem intent on shifting even more power from individuals to government agents in an ever-expanding orbit of bureaucracy and regulation (e.g., single-payer healthcare and bans on anything that "threatens" the climate).

Early 20th century progressives such as California Gov. Hiram Johnson, the creator of our system of direct democracy, wanted to create the tools to fight against corrupt railroad robber barons. Despite the good-government rhetoric, progressives built a regulatory state that empowered "experts" to re-order society in the name of the "public good." By giving government so much power, they increased opportunities for the misuse of power. Individuals may be inherently corrupt, but so are the individuals given vast powers over others.

Some corruption is of the illegal variety, such as fraudsters who grabbed billions of dollars in illicit payments from California's Employment Development Department. That was the result of the government having so much taxpayer cash to hand out—and too little competence. Some of it is legal, as the way public-sector unions have exerted control over our government and enriched themselves with six-figure pensions—or how redevelopment agencies abused eminent domain on behalf of politically connected developers.

Everyone is corruptible, so of course private citizens operating in a market economy must be (and are) subject to the rule of law. But corruption fundamentally is a problem of government power, as official actors use immense powers to help themselves and their allies. If we want less corruption, the solution is obvious: We need less government.

This column was first published in The Orange County Register.

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Russia's War in Ukraine Threatens Starvation for the World's Poor Mon, 20 Feb 2023 12:00:43 +0000 A wheat field below a blue sky, framed by the outline of Ukraine.

"War is the health of the State," Randolph Bourne wrote at the time of the First World War during which governments assumed bloated power, though sometimes at the expense of their own existence. But if war gives the state a boost, it's usually civilians who suffer the most as their prosperity and lives wither away. We're reminded of that awful dynamic right now as Russia's invasion of Ukraine exacerbates hunger in a world in which supply chains had already been disrupted by pandemic policies. It's a shock coming as it does just a few years after people celebrated the global growth of plenty.

"Information from the latest month between October 2022 and January 2023 for which food price inflation data are available shows high inflation in almost all low- and middle-income countries, with inflation levels above 5% in 83.3% of low-income countries, 90.2% of lower-middle-income countries, and 91% of upper-middle-income countries and many experiencing double-digit inflation," the World Bank warned February 13. "The countries affected most are in Africa, North America, Latin America, South Asia, Europe, and Central Asia."

At fault are multiple factors, including weather and "global economic slowdowns" and commodity costs that can largely be attributed to pandemic policies that reduced people's buying power across the board. But the World Bank emphasized "the impact of the war in Ukraine on spring planting" as well as trade restrictions by governments panicked about the war's disruption of food supply. "As of December 2022, 19 countries have implemented 23 food export bans, and eight have implemented 12 export-limiting measures."

Almost simultaneous with the World Bank announcement, Ukraine's government cautioned that limited access to fertilizers threatened a sharply reduced grain harvest for the coming year. That's concerning given that officials had already revealed that grain production "dropped to 65 million tonnes in the latest crop season from 108 million tonnes a year earlier." Less grain grown meant less grain and wheat exported—28 percent less last year, after Russia's invasion, from the previous year, reports the country's Agriculture Ministry. Given that Ukraine was responsible for 9 percent of all wheat exports in 2020 and 13 percent of all exported corn as per MIT's Observatory of Economic Complexity (Russia, the aggressor in the war and subject to sanctions, is responsible for 20 percent of wheat exports as well as a major portion of the supply of fertilizer inputs) that has severe consequences.

"A record 349 million people across 79 countries are facing acute food insecurity – up from 287 million in 2021," according to the UN-affiliated World Food Programme. "This constitutes a staggering rise of 200 million people compared to pre-COVID-19 pandemic levels. More than 900,000 people worldwide are fighting to survive in famine-like conditions."

"Events in Ukraine are further proof of how conflict feeds hunger – forcing people out of their homes, wiping out their sources of income and wrecking countries' economies," the organization added.

Again, not all of this catastrophe is the result of Russia's invasion of Ukraine. Lockdowns, production disruptions, money-supply inflation, border controls and other government interventions related to COVID-19 responses played an enormously damaging role in setting the world back. But the war, and its specific participants, have made things much worse.

"An enduring global food crisis has become one of the farthest-reaching consequences of Russia's war, contributing to widespread starvation, poverty and premature deaths," Edward Wong and Ana Swanson noted at The New York Times in January.

It's not as if the destructive impact of war on the availability of food is a recent revelation. Historically, drafting farmers away from their work resulted in neglected herds and fields. Families left behind then fled from marauding armies. And stealing what you can carry and burning the rest has always been a fairly effective means of feeding troops while hurting the enemy.

"Unanimously adopting resolution 2417 (2018), the Council drew attention to the link between armed conflict and conflict‑induced food insecurity and the threat of famine," the UN Security Council acknowledged six years ago. "It called on all parties to armed conflict to comply with their obligations under international humanitarian law regarding the protection of civilians and on taking care to spare civilian objects, stressing that armed conflicts, violations of international law and related food insecurity could be drivers of forced displacement." It was a nice thought, with roughly the same mix of good intentions and impotence as so many such resolutions.

No matter how you consider it, this is grim news. It's worse, though, when you remember that hunger was declining just a few years ago. There was even talk about ending it as a concern and leaving inadequate access to food as a rare calamity.

"The number of hungry people in the world has dropped to 795 million – 216 million fewer than in 1990-92," the UN's Food and Agricultural Organization announced in 2015. "In the developing regions, the prevalence of undernourishment – which measures the proportion of people who are unable to consume enough food for an active and healthy life – has declined to 12.9 percent of the population, down from 23.3 percent a quarter of a century ago."

But that progress has been halted and reversed by interference in the international trade networks that brought prosperity and reliable nutrition to much of the world and by the ravages of war. The result has been increases in food prices for pretty much everybody. "Food-at-home prices increased by 11.4 percent in 2022," reports the U.S. Department of Agriculture, with even higher hikes for Europe. That's alarming for prosperous countries, but it's utterly disastrous for people elsewhere who often live hand-to-mouth.

The last week has seen protests over food prices in places including Bermuda, Morocco, and Suriname.

"The world is rich and will become still richer," the economist Deirdre McCloskey wrote in 2016 before governments screwed things up. She gave the credit to "liberalism, in the free-market European sense. Give masses of ordinary people equality before the law and equality of social dignity, and leave them alone, and it turns out that they become extraordinarily creative and energetic."

That was true right up until politicians, once again, stopped leaving people alone. And there is no more dramatic or destructive means of not leaving people alone than by waging war on a neighboring country, thereby disrupting its people's ability to make a living and sell the results of their labors.

Maybe, in the future, we'll get back to peace, free markets, and free trade. Then we'll again enjoy the prosperity and full bellies they bring us.

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Today in Supreme Court History: February 20, 1933 Mon, 20 Feb 2023 12:00:31 +0000 2/20/1933: The 21st Amendment is submitted to the states.

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Google Supreme Court Case Tests Whether Tech Firms Are Liable for User Content Mon, 20 Feb 2023 11:00:23 +0000 topicslaw

Section 230 of the 1996 Communications Decency Act says "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Often called the law that made the internet as we know it possible, Section 230 generally shields online platforms, such as social media sites, from civil liability for content posted by users.

The U.S. Supreme Court directly addressed that provision's scope for the first time in February, when it heard oral arguments in Gonzalez v. Google. The case asks whether Section 230 immunizes Google, the owner of YouTube, from lawsuits alleging that the video platform's algorithms aided terrorists by recommending Islamic State videos to users. The justices are reviewing a 2021 ruling in Google's favor by the U.S. Court of Appeals for the 9th Circuit.

Both Republicans and Democrats have taken aim at Section 230 in recent years, claiming the provision unfairly advantages Big Tech. Those politicians see the legal dispute as a vehicle for achieving their policy objectives.

"Far from making the internet safer for children," declared a friend-of-the-court brief filed by Sen. Josh Hawley (R–Mo.), "Section 230 now allows platforms to escape any real accountability for their decision-making." Hawley is just one of many conservatives urging the Court to strip Google of its Section 230 protections in this case.

The trouble for Hawley and like-minded critics is that Google has solid legal arguments on its side. "Recommending content to users is classic publisher behavior," Corbin Barthold, internet policy counsel for TechFreedom, noted in an essay last fall for Reason's website. "It's what a newspaper does when it puts a story on page A1 instead of page D6. To hold a platform liable for how it presents user-generated content is to treat it as a publisher—exactly what Section 230 forbids."

Barthold added: "If ISIS had not uploaded videos to YouTube, YouTube would have had no terrorist content to serve up. This is a tell that the plaintiffs' suit is really about the user-generated content and is a loser under Section 230."

The law seems to be on Google's side. We'll find out later this term if a majority of the Supreme Court is on the law's side.

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Brickbats: March 2023 Mon, 20 Feb 2023 10:00:16 +0000 bb1

Juniors at New York City's Edward R. Murrow High School told the New York Post they were told to read "Goldilocks and the Three Bears" and "The Tortoise and the Hare" for their American literature course. They were asked to answer basic questions and write a one-sentence summary of each work. A Department of Education spokesman declined to answer questions about it, but he tweeted that the assignment was preparing students for tougher work, to read Nathaniel Hawthorne's The Scarlet Letter and answer similar questions. Students in the class told the newspaper they didn't actually read The Scarlet Letter but a seven-page summary of the novel.

While attorney Matt Tucker was in a hospital bed recovering from a stroke, Clayton County, Georgia, Judge Shana Rooks Malone was attacking him on national TV on the Law & Crime network, saying she was going to hold him in contempt for missing court. Tucker was representing a woman in a murder case. He had a stroke two days before jury selection was supposed to begin. Tucker claims his office emailed the judge to let her know. His client told the judge in court about Tucker's medical emergency, and Tucker said he doesn't understand why Malone didn't believe the client.

San Francisco Mayor London Breed and other elected officials have criticized the city Elections Commission's decision not to renew the contract of Elections Director John Arntz. By their account, he took over a troubled department 20 years ago and turned it around, running smooth and fair elections. "Our decision wasn't about your performance, but after twenty years we wanted to take action on the City's racial equity plan and give people an opportunity to compete for a leadership position," said commission President Chris Jerdonek in an email to Arntz, who is white. The commission eventually changed course and is set to vote in January on a five-year renewal for Arntz.

A court in Fiji has found attorney Richard Naidu guilty of contempt of court for a Facebook post in which he pointed out a misspelling in a court decision. Naidu had been tapped by the National Federation Party, an opposition party, as a candidate for the December 14 election for the legislature. But the conviction barred him from running.

City officials in Des Moines, Iowa, have agreed to pay $125,000 to settle a lawsuit brought by Daniel Robbins, who was detained for filming police officers who were illegally parked. They did not arrest him, but they did seize his phone and camera and only returned them two weeks later after his lawyer demanded it.

A Nigerian court has sentenced Mubarak Isa Muhammed and Muhammed Bula to 20 lashes each, fined them $25 each, and ordered them to clean the court building for 30 days after they pleaded guilty to mocking a government official. The duo made a TikTok video making fun of Abdullahi Umar Ganduje, governor of Kano State, for alleged corruption and sleeping on the job.

Christine Gauthier, a paraplegic former member of the Canadian Army, told members of the House of Commons in December that she contacted Veterans Affairs Canada trying to find out why it was taking so long to get a wheelchair ramp in her home. She said she got a letter back offering her assisted suicide instead. "I have a letter saying that if you're so desperate, madam, we can offer you MAID, medical assistance in dying," said Gauthier. Gauthier said she has been trying to get the ramp for five years.

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Brickbat: Masks Off Mon, 20 Feb 2023 09:00:56 +0000 Schoolchildren in masks.

The Simpson County, Mississippi, school district has agreed to settle a federal lawsuit brought by the family of a then-third-grader barred from wearing a face mask with the phrase "Jesus Loves Me" on it. There was actually no policy against wearing such a mask when her principal told Lydia Booth to take it off in 2020. But two days later, the school system adopted a policy banning messages on masks that were "political, religious, sexual or inappropriate symbols, gestures or statements that may be offensive, disruptive or deemed distractive to the school environment." Under the settlement, the school system agreed to remove that policy and no longer require students to wear masks.

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WaPo Columnist Says The Quiet Part Out Loud About Attacks On The Judiciary Mon, 20 Feb 2023 05:23:07 +0000 For generations, the Supreme Court mostly hewed a progressive jurisprudence.  Even if there were conservative blips here and there, appointees of Democratic and Republic presidents alike ruled in ways that were conducive to the political left. Litigants routinely judge-shopped cases (Amarillo has nothing on Montgomery), certain that the Supreme Court had their backs. During those golden times, judicial supremacy was considered a necessary condition of our polity.

But those times are gone. Prominent scholars openly speak out against judicial supremacy. And that academic theme carries over to the political realm. Indeed, Senator Wyden called on President Biden to "ignore" a district court's ruling. Not even Orval Faubus was so audacious. (My article on Cooper v. Aaron is more timely than ever.)

At least with the current administration, there is no realistic chance the President will "ignore" a ruling of a federal court. Indeed, Biden couldn't even stick to the script, and criticize the Supreme Court justices at the State of the Union. But sooner or later, the academic and political stars will align, and a President will openly flout a federal court judgment. Who will send in the 101st Airborne?

Until that time, there is a sustained attempt to undermine conservative judges. Superficially at least, these barbs are designed to criticize the legal justifications of their rulings. But there is a deeper purpose at play here. Perry Bacon Jr. said the quiet part out loud in his Washington Post column, titled There is only one way to rein in Republican judges: Shaming them.

So at least in the short term, there is only one real option to rein in America's overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn't going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

Bacon names and shames federal judges who halted the student loan cancellation policy (Erickson, Grasz, Pittman, and Shepherd), judges in the CFPB funding case (Engelhardt, Willett, and Wilson), and judges in a recent Second Amendment case involving domestic violence restraining orders (Wilson, Ho, and Jones). We should thank Bacon for helping to assemble the next Supreme Court shortlist.

Of course, the locus of the shaming is the Supreme Court's "swing" vote, Justice Kavanaugh.

This kind of shaming has already been shown to work. . .  Many of the opinions of Kavanaugh, who is now the court's swing justice, seem almost intentionally written to minimize public blowback.

I think Justice Kavanaugh is a different type of swing vote than were Justices Kennedy, O'Connor, and Powell. These jurists were truly moderate. They had liberal and conservative tendencies that often tugged them in different directions. By contrast, I think Kavanaugh is a profoundly conservative jurist, but he is often pulled to the left by public perception. His concurrences illustrate this internal struggle. Bacon agrees:

[Kavanaugh] seems to want to be respected by people across the political spectrum as a fair-minded judge. People on the left need to make clear he won't get that respect if all he does is issue opinions that align with what the Republican Party wants.

Newsflash: Kavanaugh will never gain respect from the left. Never, no matter how many concurrences he writes. The second sentence in Justice Kavanaugh's obituary will reference Dobbs and the third sentence will reference Christine Blasey Ford. His verdict is already written. It is impossible to appease these critics. Remember, virtually every piece written about Justice Thomas's 30th anniversary featured a discussion about Anita Hill.

Still, Bacon should be commended for his candor about Kavanaugh. Bacon also has the candor to admit he agrees with Trump!

In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn't like by casting the judge who wrote it as an "Obama judge." Roberts then issued a sanctimonious statement, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges."

But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.

Even if Biden won't act, Bacon urges other prominent Democrats to carry the mantle:

While the president should highlight the worst rulings, he doesn't have time to attack them all. So there should be a high-profile Democratic politician in a safe seat (perhaps House Minority Leader Rep. Hakeem Jeffries of New York) who each week holds a news conference to slam the most extreme rulings by GOP judges.

And what if these attacks lead to threats and violence? So be it, Bacon writes:

There will be arguments that such high-profile criticism would put judges in physical danger. I obviously oppose violence. But judges are powerful figures setting policy — they should get as much scrutiny as elected officials. No one argues that Biden is imperiling the life of Florida Republican Rick Scott, even though the president has repeatedly named Scott while criticizing the senator's Social Security proposals.

The switchboard in Amarillo federal courthouse should record how many calls were received in the past few days from Oregon.

I'm still waiting for the Chief Justice to release a statement about Senator Wyden. These attacks will become more and more common.

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Thoughts on Dubin v. United States and the Aggravated Identity Theft Statute Sun, 19 Feb 2023 21:18:56 +0000 On February 27, the Supreme Court will hear argument in Dubin v. United States, a case on the Aggravated Identity Theft Statute, 18 U.S.C. § 1028A. This statute comes up often in the context of computer crimes, and its interpretation raises some interesting and important questions. So I thought I would blog about the case and offer some impressions.

I'll start with the statutory problem that prompts the Dubin case; then turn to the case itself; and conclude with my own views.

A. The Mess of Statutory Drafting That is 18 U.S.C. § 1028A.

First, some context. Section 1028A was enacted in 2004 at a time when there was a lot of concern about computer crimes and credit card fraud.  Aided by "cyberspace," criminals were using the identity information of innocent consumers to get new credit cards in their names that were then used by the criminals fraudulently in ways that caused endless headaches for consumers who were then stuck with the fraudulent purchases on their credit record.  This using of an innocent person's identifying information to get a bogus line of credit, sticking them with the consequences, was being known as "identity theft." And it was a big concern.

So what did Congress do?  A natural thing would have been to enact a law adding a sentencing enhancement for fraud that caused those personal harms to innocent victims.  That is, treat the harm—bad credit scores, the incurring of debts to others, etc.—as a result element that, if caused, triggers greater criminal liability.

But that is not what Congress did.  Instead, Congress wrote this statute, titled "Aggravated Identity Theft":

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Here's the key: Instead of focusing on the causing of the harm, Congress tried to describe the extra-bad act that was generally associated with the extra-bad harm.  And what was that extra-bad act?  Congress figured, well, someone who was already committing some kind of fraud-based predicate felony (bad) was using identity information without the person's permission (extra-bad).   So in addition to the liability they had for the already-existing fraud-based felony, a criminal who uses the identifying information as part of that felony gets an extra two years in jail for using the identifying information.

At this point, you can probably see some problems with how the statute is drafted.  There are two big problems, I think, and they are related.  First, Congress did a lousy job describing the fraud-based felonies that can act as a predicate offense.  Instead of saying the predicate offense had to be a fraud crime, Congress looked to various parts of Title 18 and included large swaths of the code that seemed to have some kind of connection to fraud.  When you look at the predicate felonies in subsection (c), there are 11 different areas of Title 18 that are included as predicates.  Some of those sections are about fraud.  But some aren't.  Some were just codified near sections about fraud.

The second problem, and the one more directly relevant to the Dubin case, is that Congress did a terrible job describing the extra-bad act.  The extra-bad thing the drafters were thinking about was using identity information in a way that caused the person to whom the information related to suffer harms such as bad credit scores or being stuck with the bill.  But Congress instead wrote the extra-bad act in a very abstract way.  In the statute, the extra-bad act is described as "knowingly transfer[ing], possess[ing], or us[ing], without lawful authority, a means of identification of another person" . . . "during and in relation to" one of the predicate offenses.

Yikes.  So during and in relation to one of these possibly-but-not-necessarily fraud-related predicate offenses, a person has to do something about a "means of identification of another person" without that person's permission?  I mean, that could mean almost anything.

And the stakes are high.  A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence.  So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.

All of this prompts a natural question about how to construe the statute.  Do you construe § 1028A broadly, to mean as far as the statutory language might in theory go, even if it ends up causing odd results?  Or do you construe the statute narrowly in light of the problem Congress was trying to solve?  That is the problem at the heart of the Dubin case.

B. The Dubin Case

The case before the Court, Dubin v. United States, is pretty simple.  David Dubin helped submit a false bill to Medicaid concerning a psychological exam for a particular patient.  The exam was given, but the bill gave a false date for it in a way that qualified it for payment. That false bill included the patient's name and Medicaid ID number on it.  The government charged Dubin with fraud for the improper bill, a charge no one disputes here.  The disputed part is that the government added an additional count of aggravated identity theft because the bill included the patient's name and Medicaid ID number, which are "means of identification" of the patient.

From the discussion above, you can pretty much predict what the briefs argue.

Wait, Dubin says, how can I get another two years in jail just because the bill included the patient's name and Medicaid ID number?  This has nothing to do with identity theft, which after all is the title of the crime. The patient isn't a victim here.  The fact that the patient's name and ID number was used is incidental to the fraud scheme.  You have to construe the statute more narrowly to focus on actual acts of identity theft.

But no you don't, says the government. Just look at the text of the statute. Dubin "used" a means of identification of the patient "in relation to" committing health care fraud, a predicate felony.  The text governs, and the text is satisfied. So Dubin is guilty.

There's also a narrower debate in the briefs about how the "without lawful authority" element applies to the facts.  Dubin says that wasn't satisfied because the patient authorized using his identifying information to submit bills to Medicaid. So use of the identifying information was authorized. The government replies that the notion of authority has to be interpreted more narrowly. The patient authorized submitting bills to Medicaid, but that was exceeded by submitting a fraudulent bill.

Amicus briefs in support of Dubin were filed by NACDL, the National Association of Federal Defenders, and Professor Joel Johnson.

C. My Thoughts on the Case

I think Dubin has the better argument on the whole, whether the Court wants to rule more narrowly or more broadly.

On the broad issue, I'm a fan of construing vague criminal statutes narrowly, so it's easy for me to be on Dubin's side there.  But I think Dubin also has a good textual argument, under the interpretive principle that "Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

Under the government's reading, § 1028A is an elephant. It essentially overrides Congress's carefully considered judgments about punishment for dozens of statutes.  Congress has written out detailed provisions for the statutory punishments and enhancements of offenses in Title 18.  Given the large number of crimes that are predicate offenses for § 1028A, and that the extra two years of punishment for violating 1028A is such a heavy hammer, the government's interpretation would mean that the careful judgments throughout Title 18 would be subsumed by § 1028A.  I think the Court should be cautious about construing the statute to have that kind of massive multi-section effect, especially given the weird results it would cause.

Dubin's reply brief addresses this argument, but let me give an example that shows how broadly the government's 1028A elephant steps.   The federal computer hacking statute, known as the Computer Fraud and Abuse Act (CFAA), is found at 18 U.S.C. § 1030.  Although most CFAA crimes have nothing to do with fraud, any felony violation of § 1030 is a predicate offense for § 1028A. This is because one of the eleven categories includes "any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7)." 18 U.S.C. § 1028A(c)(4).  That chapter refers to Title 18's Chapter 47, spanning § 1001 to § 1040.  That's a lot of crimes!  And it means that any felony violation of the CFAA is a felony predicate for aggravated identity theft, whether it has to do with fraud or not, just because the CFAA was placed within Chapter 47.

The government's interpretation of § 1028A would lead to bizarre results for CFAA sentencing. Congress has been really specific in drafting the punishments for CFAA violations.  It has carefully described what is a felony and a misdemeanor, and what the statutory maximum punishment should be for various felonies, see 18 U.S.C. § 1030(c).  It has thought carefully about whether there should be mandatory minimums for CFAA violations; it added 6-month mandatories for some CFAAA in the 90s, and then removed them in 2001 after the minimums proved a failure.  And it has tasked the Sentencing Commission with rethinking Guidelines offenses for Section 1030 offenses. See Homeland Security Act of 2002, Pub. L. 107-296 § 225(b), (c).

If the government's interpretation of § 1028A is correct, however, what really matters for CFAA punishment is whether the hacking involved someone else's password.  If you hack into someone's account by exploiting a security flaw, that's just a standard CFAA offense and you'll probably get probation unless a lot of dollar loss occurred.  But if you hacked into someone's account by using their password without permission, now you're in deep trouble: That password is a "means of identification" under § 1028A, so now your hacking is Aggravated Identity Theft and you'll go to prison for two years because a password was used.  (This isn't a hypothetical; see United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011), in which this reasoning was used, and at least on plain error review, upheld.)

Under the government's view, all the careful statutory work Congress has put into CFAA sentences would be largely beside the point.  And it would lead to a bizarre result, in which using a person's password would become the most important question in determining punishments for hacking.  It's all very odd, and very far removed from anything resembling identity theft.  Replicate that process for all the other predicate felony offenses covered under § 1028A(c), and it seems unlikely that the vague language of § 1028A should  effectively supplant all those other statutory punishment sections.

It's possible that the Court would instead resolve Dubin on narrower grounds, such as the "without lawful authority" element. I think Dubin has the better argument there, too. As I see it, this is similar to the issue the Court grappled with recently in Van Buren v. United States, 593 U.S. ___ (2021), on what "exceeds authorized access" and "without authorization" mean under the federal computer hacking statute. Like Van Buren, Dubin had authorization to use the relevant information, but then used it to do something he wasn't supposed to do. The parties (represented by the same lawyers as in Van Buren, as it turns out) are arguing over similar ground as in Van Buren, it seems to me. The question: Does authorization include having information you're allowed to use but then putting it to other uses? I think the answer following Van Buren should be "yes," which, as I have detailed here (see pages 181-84), matches the traditional treatment of lack of authorization elements in other criminal statutes.

As always, stay tuned.

[UPDATE: I have fiddled a bit with this after posting to correct typos, etc.]

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"Fox News: They Report, and a Jury Decides" Sun, 19 Feb 2023 19:42:21 +0000 A sharp line from David Lat (Original Jurisdiction), whether or not you agree with the libel lawsuits against Fox News. (A Google search suggests Lat indeed coined this.)

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Today in Supreme Court History: February 19, 1942 Sun, 19 Feb 2023 12:00:21 +0000 2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).


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How a Public Housing Project Became an Unplanned Neighborhood Sun, 19 Feb 2023 11:00:29 +0000 favela in southern Brazil shows the upside of an "invasive" urban form—and offers lessons for U.S. housing policy.]]> favela1

Florianópolis, Santa Catarina—In some ways, this large island on the Atlantic coast is the opposite of what people imagine when they think of Brazil. Sure, it has white sand beaches and clear waters, but it is largely free of the crime and chaos found in big Brazilian cities—a low-key vacation respite for the nation's elite. But having been invited here to speak at a conference and assigned a driver for the week, I ask him if there's another side of Florianópolis that doesn't show up on brochures.

"Oh, do I have a neighborhood for you," says Alan Esteves, a rare English-speaking Brazilian cabbie.

Crossing the bridge from Florianópolis' charming historic centro, Esteves drives down the highway ramp and into a barrio on the city's western edge. This, he tells me, is Monte Cristo.

It began, according to a local realty firm, as a collection of shacks, but in 2007 the authorities completed some government housing here. The program replicated the modern U.S. approach—rather than building high-rise public housing, it offered low-rise detached suburban-style units. The homes featured German roofs, aping a common vernacular in this Eurocentric part of Brazil. Locals would be allowed to buy the housing at subsidized rates, encouraging homeownership.

Then something unplanned happened.

In the urban planning lexicon, there's an acronym called ADUs, or "accessory dwelling units." This describes any units that owner-occupants add to their main ones, like a garage or a backyard granny flat. As unauthorized additions mushroomed, the housing in Monte Cristo quickly became the ADU concept on steroids, with so many new additions as to make the area unrecognizable.

Favela is a Portuguese word that translates to "shantytown," but that's a location-specific way to describe an urban form that exists worldwide. The United Nations defines "slum" housing as that which is unstable, overcrowded, and lacking in basic sanitation. Brazilian favelas are thought of as slums, although the definition can be more tenuous.

"Specifically in the Brazilian context," says urban planning journalist Gregory Scruggs, favelas are "a human settlement where there is not proper title to the housing stock."

Beyond that, favelas have a certain aesthetic, giving them a know-it-when-you-see-it quality. Their construction is usually a mix of cinder blocks, a soil and clay composite called daub, and "hollow bricks" that might better be called structural clay tiles.

When I visit a construction goods store, a staffer explains that hollow bricks are three times cheaper than the more standard brick, but provide similar stability.

Another feature of favelas is that they evolve incrementally. They begin as small structures—sometimes literal huts—but owners build ADU-style additions as their family grows or they see financial opportunity in renting extra space or adding informal ground-level retail. Brazilian hillsides are especially conducive to this, with units literally stacked atop each other up the hill.

That incrementalism is also at work in relatively flat Monte Cristo. As Esteves drives, I see ADUs that have been added above, around, and in front of the initial structures. The builders used the typical favela materials, blending in no way architecturally with the pastel-colored homes built by the government.

According to Scruggs, who has both lived in and written about Rio de Janeiro's favelas, Monte Cristo's incrementalism is now getting formal traction. He cites the "half a good house" concept of the Chilean architect Alejandro Aravena, who won the Pritzker Architecture Prize for his work.

When building modern units for slum dwellers, the idea goes, nonprofits should erect small homes with basic modern standards such as plumbing. But they should surround those homes with empty frames that let owner-occupants "expand," favela-style, if they wish. Aravena helped design one such community in Chile at $7,500 per unit. Monte Cristo is another version of this idea, albeit an informal one.

That gets to the final way Monte Cristo, despite being a government complex, resembles a favela: Favelas are extralegal and are known throughout Latin America as "invasions." Usually they occur on public land that is sitting unused. Sometimes they occur on private land, as part of populist revolts against large landowners, some of whom themselves amassed their holdings extralegally.

Once slum dwellers settle and start building, they are unlikely to be removed, since government institutions are weak and the political blowback is immense. So the favelas remain and evolve organically. The lack of titling can be a problem—because the land was seized illegally, no titles were issued, and it thus remains undervalued as a real estate asset, an issue documented by the Peruvian economist Hernando de Soto.

Though Monte Cristo is a formal community, it has this "invasion" vibe. Tenants have added onto their units ad infinitum, with no regard to the setbacks, architectural standards, or maximum occupancy laws common in the United States.

Despite the problems associated with nebulous property rights, favelas represent a spontaneous, flexible form of housing that needn't be confined to slum dwellers. I see in Monte Cristo a model for affordable housing programs in the U.S.—be they public, private, or nonprofit—where residents can add space gradually and rent it out to create income. Florianópolis, Scruggs argues, "is the ideal": a model "where the public sector can provision land and some basic building standards but allow residents to build from there."

Alain Bertaud, a planning professor at New York University, once noted that a form of this happens in U.S. housing projects already, as tenants continuously subdivide and sublet units. Monte Cristo shows how this can flower into something more open and affordable: by avoiding excessive rules in the first place.

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Crowd-Checking Forthcoming Amicus Brief on the Solicitation Exception in U.S. v. Hansen Sat, 18 Feb 2023 17:45:13 +0000 The U.S. Supreme Court has agreed to hear U.S. v. Hansen, a case having to do with when speech encouraging civilly prohibited but not criminal conduct (there, remaining in the U.S. without proper immigration authorization) can be criminally punished. I think the answer should be that the solicitation exception to the First Amendment allows (1) the criminal punishment of solicitation of criminal conduct, but (2) only civil liability for solicitation of merely civilly actionable conduct. I had filed a brief on this and other matters in U.S. v. Sineneng-Smith, and this particular question was discussed during oral argument; so I thought I'd file such a brief here in Hansen, focusing on this question. (I plan on sending it to the printer Tuesday morning.)

Because the brief is on my own behalf, my only interest is in getting things right, not in serving a particular client. I therefore thought I'd post it here, and ask for any suggestions for how it can be improved or corrected; please post them in the comments, or e-mail me at volokh at Thanks!

[* * *]

Summary of Argument

The "speech integral to criminal conduct" exception is a tremendously important feature of First Amendment law. It is the basis for criminalizing solicitation of crime. Volokh, 101 Cornell L. Rev., supra, at 991-93. It has also historically influenced the incitement exception, id. at 993-97, the fighting words exception, id. at 997, the child pornography exception, id. at 999, and the true threats exception, id. at 1003.

It is therefore important that the boundaries of the doctrine be defined precisely, and not unduly broadly. In particular, because the premise of the doctrine is that speech should be legally tantamount to the crime to which it is integral, only solicitation of criminal con­duct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct—such as solicitation of remaining in the country unlawfully, U.S. Br. at 38—cannot be made criminal, though this Court's recent cases suggest that it can be punished civilly.


I. Solicitation may be criminally punished as "integral to criminal conduct" only if it consists of solicitation of crime

Who cut Samson's hair? Many would quickly answer, "Delilah." But the Bible actually says (Judges 16:19 (King James)),

And she [Delilah] made him sleep upon her knees; and she called for a man, and she caused him to shave off the seven locks of his head . . . .

The hair was not cut by Delilah herself, but we not only treat Delilah as culpable for the conduct she ordered—many of us actually remember the story as involving Delilah's actions. This reflects the deeply held moral intuition that ordering a thing done is tantamount to doing it oneself.

The criminal law likewise often treats ordering an act done, or soliciting its doing, or aiding and abetting its doing, as simply other ways of committing the act. The Model Penal Code, for instance, states that "A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable," including through purposefully "solicit[ing]" or "aid[ing]" the commission of the crime. Model Penal Code §§ 2.06(1), (3). (The Code also includes a separate offense of solicitation, id. § 5.02(1), for situations where the solicited crime is not committed; but it provides that solicitation is generally a "crime[] of the same grade and degree as the most serious offense that is . . . solicited," id. § 5.05(1).) And this reflects longstanding American criminal law principles: "every man whose intent contributes to the act, in any degree which the law can notice, is in law a partaker of the crime." Joel Prentiss Bishop, Commentaries on the Criminal Law § 264, at 233 (1856).

This Court's decision in United States v. Williams, 553 U.S. 285 (2008), builds on this principle: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," id. at 297 (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949))—as is solicitation of illegal transactions, id. at 298. And Giboney did indeed punish speech that in effect solicited the crime of restraint of trade, because the First Amendment does not protect "speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498; see Volokh, supra, 101 Cornell L. Rev. at 989-97. When a statute validly criminalizes conduct—whether murder, distribution of child pornography (such as in Williams), restraint of trade (such as in Giboney), or criminal immigration violations—then soliciting violations of such a statute can generally be criminalized, too.

But while this longstanding traditional approach can justify criminally punishing speech that is integral to the commission of a crime, that is so precisely because the speech is related to a crime. Giboney, which is often cited as authority for this exception, expressly stated, "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." 336 U.S. at 498. Other cases have done the same. See, e.g., New York v. Ferber, 458 U.S. 747, 761-62 (1982) (likewise); Osborne v. Ohio, 495 U.S. 103, 110 (1990) (likewise); United States v. Stevens, 559 U.S. 460, 468 (2010) (citing Giboney but using "speech integral to criminal conduct" as a generic name for the exception); United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opin.) (likewise). Indeed, this Court's earliest endorsement of criminal punishment of encouragement of crime, in Fox v. Washington, stressed that "encouragements . . . directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged." 236 U.S. 273, 277 (1915) (emphasis added).

To be sure, in Rumsfeld v. FAIR, this Court extended this principle to civil regulation of speech that is an integral part of civilly regulated conduct:

The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949).

547 U.S. 47, 62 (2006). And the opinion likewise noted that, under the same logic,

Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct").

Id. See also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 398 (1973) (Douglas, J., dissenting) ("There comes a time, of course, when speech and action are so closely brigaded that they are really one.") (citing Giboney as an example); IBEW v. NLRB, 341 U.S. 694, 705 (1951) (upholding, with little discussion, civil prohibition on inducement of civilly actionable secondary pressure); Int'l Bhd. of Teamsters v. Vogt, Inc., 354 U.S. 284, 293 (1957) (likewise approving of courts civilly "enjoin[ing]" picketing that was connected to violation of "civil law").

But this reasoning focuses on equating conduct and speech that is integral to the conduct. The regulation of speech is seen as incidental to the conduct. Posting a sign threatening discrimination is viewed as itself a form of discrimination. The reasoning does not suggest that the speech can be punished more severely than the conduct.

The First Amendment often justifies protecting speech more than related action, as when abstract ad­vo­cacy of crime is protected. It may sometimes tolerate treating speech as equally punishable with action. But it cannot allow treating speech as more punishable than the action that it encourages.

Thus, for instance, the government cannot "afford[] a greater degree of protection to commercial than to noncommercial speech," Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality op.), because that would "invert[ the] judgment" that "noncommercial speech [is accorded] a greater degree of protection than commercial speech," id. Likewise, the government cannot afford a greater degree of protection to conduct than to noncommercial speech that is supposedly "integral" to that conduct: that would invert the constitutional judgment that speech is accorded a greater degree of protection than other conduct.

More broadly, when the government "attempts the extraordinary measure" of punishing speech, "it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly." Florida Star v. B.J.F., 491 U.S. 524, 540 (1989). This Court held so with regard to a ban on publishing the names of rape victims, which covered only the media and not "the smalltime disseminator." Id.; see also id. at 541-42 (Scalia, J., concurring in the judgment). But the same logic applies here: When the government attempts the extraordinary measure of punishing speech urging certain action, it must demonstrate its commitment to advancing its interests by generally applying its prohibition evenhandedly to the action and not just to the speech.

To be sure, the solicited actors may in some situations escape criminal liability based on the specific facts of the case. The solicitor, for instance, may know of the circumstances that make an act criminal, but the direct actor might not know and thus lack the required mens rea—e.g., if Susan solicits Agnes to transport something, and only Susan (not Agnes) knows that it is contraband. Cf. Model Penal Code § 2.06(2)(a) (holding people accountable as accomplices when they cause "an innocent or irresponsible person to engage in [prohibited] conduct"). Or the direct actor may be insane or underage, while the solicitor is fully competent. Id.

But that does not change the broader principle: Solicitation of conduct can be treated as criminal, on the theory that it is integral to the underlying conduct, only when the underlying conduct is itself criminal—whether or not the particular solicited person is, under the peculiar circumstances of the case, legally culpable for the crime.

II. Solicitation of suicide, if it can be punished, can only be punished under strict scrutiny

In the Sineneng-Smith oral argument, a question from the bench asked whether speech soliciting suicide fits within the "speech integral to criminal conduct" exception. Oral Arg. Tr. at 34-35, United States v. Sineneng-Smith, No. 19-67 (2020). The answer is no; any restriction on such speech must be judged under strict scrutiny, though it is possible that it might pass muster under that test.

The Minnesota Supreme Court dealt with this very question in State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014). It reasoned,

[T]he major challenge with applying the "speech integral to criminal conduct" exception is that suicide is not illegal in any of the jurisdictions at issue. The holding in Giboney specifically stated that the exception was for speech integral to conduct "in violation of a valid criminal statute," and there is no valid statute criminalizing suicide here. It is true, as the court of appeals noted, that "suicide, despite no longer being illegal in Minnesota, remains harmful conduct that the state opposes as a matter of public policy." But the Supreme Court has never recognized an exception to the First Amendment for speech that is integral to merely harmful conduct, as opposed to illegal conduct.

Applying the "speech integral to criminal conduct" exception to harmful conduct would be an expansion of the exception, and following the guidance of the Supreme Court, we are wary of declaring any new categories of speech that fall outside of the First Amendment's umbrella protections.

Id. at 19-20 (citations omitted). And this analysis is correct. Broadening the integral-to-criminal-conduct exception to cover solicitation of merely harmful conduct would unmoor the exception from its rationale—speech would be criminalized not just as part of the criminalization of the conduct, but even when the conduct is noncriminal. And such broadening would yield an exception with no discernable boundaries: The government would have a free hand to bar a wide range of speech so long as it counsels behavior that the government views as "harmful."

After all, the speech-integral-to-criminal-conduct exception is not limited to speech integral to deadly criminal conduct. It is not limited to speech integral to violent conduct—consider Williams itself, which involved solicitation of a nonviolent crime. It is not even limited to speech integral to extremely serious criminal conduct. Solicitation of restraint of trade, for instance, is punishable, as Giboney illustrates. Solicitation of criminal public nudity was given, in Fox v. Washington, as an early example of criminally punishable solicitation. Solicitation of vandalism would likely be criminally punishable, too.

If solicitation of merely harmful but legal conduct were treated as punishable, then that would likewise extend far beyond solicitation of suicide, and cover solicitation of far lesser conduct that the government declared to be harmful. This Court has rightly rejected such uncabined extensions of historically recognized exceptions. See, e.g., Stevens, 559 U.S. at 468-70 (declining to extend the integral-to-criminal-conduct exception to distribution of visual images depicting harm to animals, when that harm was not criminal).

Instead, if this Court concludes that certain kinds of speech soliciting or aiding suicide should be criminalizable, it should do so by recognizing that the speech does not fall within an exception, and that restrictions on the speech must be judged under strict scrutiny. The Minnesota Supreme Court in Melchert-Dinkel did precisely that in upholding a ban on speech that assists suicide, 844 N.W.2d at 22-23, after concluding that "the State has a compelling interest in preserving human life," id. at 22. And the court likewise applied strict scrutiny in evaluating a ban on speech that advises or encourages suicide, but held that the particular Minnesota statute in that case was overinclusive with regard to the government's interest. Id. at 23-24.

III. Speech seeking to engage in a criminal transaction can be criminalized even when the transaction is criminal only for one side

In the Sineneng-Smith oral argument, counsel for the United States suggested that the government "could decide to make prostitution a civil offense and still criminally punish recruiting prostitutes." Oral Arg. Tr. at 29, United States v. Sineneng-Smith, No. 19-67 (2020). This responded to a question from the bench noting that sometimes a person's participation in an offense "is not made criminal because of the vulnerable position of the person who is engaging in that act." Id. at 29. See also U.S. Br. at 44 (arguing that "A legislature's choice to, say, make prostitution a civil rather than criminal offense should not come at the price of constitutionally invalidating criminal sanctions against facilitating or soliciting prostitution.").

Indeed, acting as a pimp or as a brothel owner can be criminalized as profiting from another's prostitution, even if the prostitution is merely a civil offense—such moneymaking behavior is not itself speech. "[R]ecruiting prostitutes" into participating in this behavior could also be criminalized, as integral to the crime of profiting from another's prostitution.

Likewise, say the law makes it merely a civil offense—or no offense to all—to sell sex (in order to diminish the "vulnerable position" of prostitutes), but a crime to buy sex. Whether or not such an approach is sound, it would not violate the First Amendment. And criminalizing speech that seeks to buy sex would thus be constitutional, because it would simply be an attempt to commit a crime (buying sex).

But the government could not make prostitution a civil offense and still criminally punish merely urging someone to become a prostitute. Once the government concludes that prostitution should not be a crime, speech related to such noncriminal conduct must be noncriminal as well.

IV. The "speech integral to criminal conduct" exception needs to be properly cabined

More generally, the "speech integral to criminal conduct" needs to be defined clearly and not unduly broadly. It potentially covers a wide range of activity, far beyond just solicitation, and thus potentially opens the door to the government punishing any behavior that seems in some way connected to some behavior that is criminal, or civilly actionable, or just dangerous.

Indeed, lower courts have already overread the exception. To give just one example, the Ninth Circuit upheld a ban on sexual orientation conversion therapy of minors on the theory that:

"Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional's speech is incidental to the conduct of the profession." . . . . [A]n application of the First Amend­ment [to restrictions on medical and mental health treatments that involve speech] would restrict unduly the states' power to regulate licensed professions and would be inconsistent with the principle that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney, 336 U.S. at 502.

Pickup v. Brown, 740 F.3d 1208, 1229 (9th Cir. 2013) (citation omitted).

But that cannot be the right analysis. When a psychotherapist counsels a patient about how the patient might try to suppress his same‑sex sexual attraction, the psychotherapist is not promoting or threatening any separate crime or tort. He is just conveying advice, or teaching a patient how to avoid some legal behavior and to engage in other legal behavior instead.

He may be doing this over an extended set of interactions (a "course of conduct" in that sense of the phrase), but that does not make the speech regulable. A constitutionally protected lecture does not become unprotected when it becomes a lecture series. Advocacy of a political boycott does not become unprotected just because it consists of a "course of conduct" that includes speaking, gathering names of people who aren't complying with the boycott, and publicizing those names. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-10 (1982).

In all these cases, including in the professional‑client speech case, there is no "course of conduct" to which the speech is "integral" or "incidental" apart from a course of speech. We can call the speech "professional consultation" or "psychotherapy," but speech is all that it is. Just as the proposed offering of advice to terrorist groups about their international legal options was treated as speech in Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28 (2010), so the proposed offering of advice to a patient should be treated as speech as well. Perhaps, as in Holder, the speech could still be regulated, whether because the restriction passes strict scrutiny or because there is some special rule for professional-client speech (or such speech to minors). But the "speech integral to criminal conduct" exception sheds no light on the situation, precisely because there is no criminal conduct to which the speech is integral.

As the Third Circuit pointed out in dealing with such a ban in King v. Governor,

Given that the Supreme Court had no difficulty characterizing legal counseling as "speech," we see no reason here to reach the counter‑intuitive conclusion that the verbal communications that occur during SOCE counseling are "conduct." Defendants' citation to Giboney v. Empire Storage & Ice Co. does not alter our conclusion.

767 F.3d 216, 225 (3d Cir. 2014); see Volokh, supra, 101 Cornell L. Rev. at 1043-49 (discussing the misapplication of the "speech integral to criminal conduct" exception in Pickup, and the criticism of that misapplication in King). See also Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020) (likewise rejecting the argument that regulations of sexual orientation change efforts were merely "incidental [regulations of speech] swept up in the regulation of professional conduct"; "the ordinances are direct, not incidental, regulations of speech" and "are not connected to any regulation of separately identifiable conduct").

Other courts have misapplied the speech integral to criminal conduct exception to "criminal harassment" cases, on the theory that even pure speech can be punishable as criminal harassment because it is integral to the crime of harassment itself. See Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases, 45 Harv. J. L. & Pub. Pol. 147, 184-89 (2022) (noting such cases, and other cases that have criticized such misapplications). Yet "[t]here is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.). And the combination of a criminal harassment statute and the "speech integral to criminal conduct" exception cannot create such an exception: Such a justification for the criminal harassment statute "is circular—the speech covered by the statute is integral to criminal conduct because the statute itself makes the conduct illegal. That is not the test for speech integral to criminal conduct." Matter of Welfare of A.J.B., 929 N.W.2d 840, 859 (Minn. 2019).

To be sure, lower courts sometimes do err in applying even settled First Amendment law. But the speech integral to criminal conduct exception is in particular need of careful and suitably narrow definition. This Court should reaffirm that speech can be criminalized as integral to criminal conduct only if it is closely linked to other conduct (besides the assertedly criminal speech itself), and to other criminal conduct (and not just civilly actionable conduct).


Speech integral to criminal conduct, such as solicitation of crime, can be criminalized, because the speech is closely linked to the conduct itself and can thus be treated similarly. But the speech-integral-to-criminal-conduct exception cannot justify punish speech more than the conduct to which it is integral.

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L.A. Plans To Scrap Its Genuinely Good Outdoor Dining Program and Replace It With Rules, Fees, and Paperwork Sat, 18 Feb 2023 13:15:34 +0000 Diners eating outside in Los Angeles separated by plastic walls

Los Angeles is ending the city's successful Covid-era outdoor dining program. City officials have proposed to replace it with a new ordinance that's being called costlyonerous, and potentially disastrous for restaurants.

"The city of Los Angeles' pandemic-inspired al fresco dining program—which saved many restaurants from closing—is going away," Los Angeles CBS affiliate KCAL reported last week. "Councilmembers hope that a proposed city ordinance will take its place. However, some restaurants are concerned about the costly new regulations."

Indeed, that proposed ordinance would create new costs and add "additional red tape" for restaurants still struggling (at best) in the face of several factors, including food inflation, worker shortages, high rents and minimum wages, and shrinking consumer budgets.

After indoor dining was banned or limited in many places during the early days of the Covid pandemic, many cities helped to keep restaurants afloat by allowing them to create covered outdoor dining structures. The benefits of L.A.'s program (and others), ABC7 explained in a recent report, is that it came "without the usual paperwork, bureaucracy, fees and months of applying." Thousands of restaurants and bars in Los Angeles took advantage of the program.

While L.A. city planners say the program "inject[ed] a new vibrancy and energy into our commercial corridors," it also—very unfortunately—"resulted in a desire and direction from the City Council to establish an Al Fresco program beyond the temporary emergency program which will reimagine outdoor dining regulations."

That proposed reimagining includes, among other new requirements, "differences in the minimum distance between outdoor dining and a residential zone, the maximum number of parking spaces that may be displaced by outdoor dining, hours of operation, and allowed location of outdoor dining." One can almost feel the "new vibrancy and energy" evaporating.

The new regulations are also expected to include requirements that restaurants that created outdoor spaces on their property "to reapply and go through the right channels to keep these patios open," KCAL reports. All told, it means even small restaurants will likely be forced to pay tens of thousands of dollars to keep their outdoor spaces open.

Restaurateurs, diners, and editorial boards alike are speaking out against the proposal.

Tyler Wells, a chef and restaurateur in Los Feliz, told the L.A. Times last week that if he won't or can't afford to comply with the new regulations, he'll lose 30 seats and have to fire staff. 

Christy Vega, who owns Casa Vega, where I dined last year—opting, despite the pleasant weather, to sit indoors at the Cliff Booth booth—told KCAL she already spent hundreds of thousands of dollars to improve her outdoor dining space, and that she feared the new regulations would cost her six figures more.

"Right now, L.A. City is proposing an ordinance that would kill outdoor dining," says Vega, a leading voice among restaurateurs in California.

Los Angeles isn't alone in turning against outdoor dining. Covid-era rules that facilitated outdoor dining have come under attack in other cities—including New York and Boston. As I've explained, many of the complaints critics in those cities (and others) have lodged against expanding outdoor dining—that it fosters noise, litter, and vermin—don't withstand scrutiny. 

Other cities have recognized that fact. Seattle, where I live, opted to make the city's highly successful outdoor dining plan permanent. Stroll along Ballard Avenue on any given evening or weekend, for example, and you're sure to see happy customers dining al fresco in wooden structures placed streetside in front of at least a dozen or so restaurants.

For restauranteurs in Los Angeles who spent already scarce money during the pandemic to build expensive outdoor structures and take advantage of the outdoor-dining lifeline during Covid's darkest days, L.A.'s stance now seems needlessly cruel. It also appears likely to strangle many of the same businesses the dining program was intended to and did help save—particularly small, independent restaurants.

"The program that essentially helped to save many restaurants during the pandemic would become something of a financial and operational burden," Eater L.A. reports.

That would be both pointless and a shame. Outdoor dining programs have been a resounding success. During Covid, Los Angeles, like other cities, showed "the usual paperwork, bureaucracy, fees and months of applying" for permission to host diners in outdoor spaces are unnecessary. Instead of going backward, Los Angeles should make that change permanent.

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On Elections and Gender, Fox Hosts and New York Times Critics Gave Up on Persuasion Sat, 18 Feb 2023 13:00:57 +0000 jk rowling dominion voting machines

Libertarianism is almost never having a moment, which is unfortunate for the law and politics of the United States but very handy for reminding libertarians that ours is not a normal political perspective in this country. Yes, there are some deep libertarian impulses in the American id, and yes, polling sometimes shows a remarkable cross-partisan convergence on one libertarian position or another. But generally, any self-aware libertarian must know that most of our compatriots don't think like we do, nor will they absent the persuasion of good arguments and bad governance.

But for those comfortably located within the modern American left or right, who enjoy the major partisan alignment that usually entails, this self-awareness and the reliance on persuasion it encourages might be more difficult to maintain. It certainly seems to be lacking in two buzzy media stories of the past week: the open letter by New York Times contributors complaining about the paper's coverage of trans topics and the revelations about Fox News hosts found in court documents from a defamation suit. These are cases of opposite but mutually deleterious ways of abandoning persuasion in dealing with ideologically uncooperative swathes of the American public.

The Times letter takes issue with the newspaper's handling, in its reporting and opinion sections alike, of stories about "transgender, non⁠-⁠binary, and gender nonconforming people." Its arguments rest heavily on the assumption that what to think about trans identity and how to address its presentation in medical settings are purely matters of settled science that should, by now, be wholly excluded from public debate. The signatories assert that their position is "unremarkable, even common, and certainly not deserving of the Times' intense scrutiny." 

What deserves the Times' intense scrutiny is debatable, I suppose, but so too are the positions in this letter. That's not a moral judgment but merely a statement of fact: These views are debatable in America in 2023 in that they are literally under active debate right now. They are "common," perhaps, but not "unremarkable" and definitely not held by a supermajority of Americans.

This is all very well-documented in extensive polling on the subject over recent years. Americans' positions on LGBT topics are evolving rapidly, but we are nowhere near done with this debate. In fact, by one measure, average opinion has reversed course and is now trending more conservative.

That's disappointing to some, I realize, but many disappointing things are also true. And maybe disagreeing with the signatories of the letter makes most Americans ignorant or hateful or both, but that doesn't change the fact that there's disagreement. Public opinion isn't always what we want it to be. Declaring one view to be the norm does not make it so.

Meanwhile, over at Fox, prominent anchors like Tucker Carlson, Sean Hannity, Laura Ingraham, and Maria Bartiromo are evidently very aware that the public—or, more precisely, their public—doesn't share their view of claims of massive fraud in the 2020 election made by former President Donald Trump and his allies like lawyers Rudy Giuliani and Sidney Powell.

Documents from a defamation lawsuit brought against Fox by Dominion Voting Systems, a voting machine manufacturer whose product was implicated in the fraud allegations, show the hosts fully understood that the theories pushed by Powell et al. were, in their words, "insane" ideas from an "idiot" and a "lying," "complete nut."

 Still, they permitted—even welcomed—advocates of those theories on Fox airwaves because the audience liked it. As Carlson put it, "Our viewers are good people and they believe it," though Carlson himself did not. Or, as Bartiromo agreed, "It's easier to get good ratings when you give your audience something they want to hear," and "a peaceful transition" between the Trump and Biden administrations was not what they wanted to hear. Or Hannity: "You don't piss off the base." Why try to persuade when you can take the lazy, greedy route of surrendering to nonsense and lies?

The answer, as simultaneously quixotic and anodyne as it may sound, is that it is good, actually, to take seriously ideas held by tens of millions of people in this country. It is good, if we think those ideas are wrong, to subject them to rigorous scrutiny while giving a generous hearing to the rationales of their proponents. It is good to admit differences instead of pretending away the other side's perspective or our own. It is good to debate. And it is good to try to persuade people who disagree with us to share our thinking instead.

Good is not always the same as easy, practical, politic, or profitable, of course. Persuasion attempts might make you less popular. Being willing to debate or simply document someone else's debate might bring backlash. These aren't always attractive options, nor is debate appropriate for every setting. We can always come up with situational and relational exceptions to the rule.

Yet the alternatives—operating in denial about the state of public conversation or abandoning our best understanding of the truth for the sake of convenience—are so much worse. They're worse for our own strength of intellect and character, and they're worse for public opinion itself. If ours is not the majority view, neither preemptively claiming victory nor cravenly accepting defeat will accomplish the change we want. Persuasion might not accomplish it either, but it's at least worth a try.

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Today in Supreme Court History: February 18, 1988 Sat, 18 Feb 2023 12:00:09 +0000 2/18/1988: Justice Anthony Kennedy takes judicial oath.

Justice Anthony Kennedy

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The Militant Pacifists of World War II Sat, 18 Feb 2023 11:00:54 +0000 War by Other Means tells the story of those conscientious objectors who did not cooperate with the government's alternative-service schemes.]]> book1

War by Other Means: The Pacifists of the Greatest Generation Who Revolutionized Resistance, by Daniel Akst, Melville House, 368 pages, $23.19

In 1940, during the twilight between peace and war, a divided Congress passed a law to conscript young men into the Army—the first federal "peacetime" draft, which lasted throughout American participation in World War II. Congress accommodated young pacifist men whose consciences wouldn't let them take part in the fighting: If they could convince the government that their pacifism was sincere, conscientious objectors would be assigned to either noncombatant military service or noncombatant civilian service.

Noncombatant military service generally meant being a medic, getting shot at without doing any shooting oneself. If a young man thought wearing a military uniform was too much of a concession to the war machine, he would be assigned to civilian service on the home front—usually working in rural work camps, doing difficult forestry work, or fighting fires. Other civilian service options included working in mental asylums or serving as human guinea pigs for dangerous scientific and medical experiments. Those in military service were paid; those in civilian service received no pay. Refusing to cooperate with this system meant a prison sentence.

In War by Other Means, journalist Daniel Akst does discuss young pacifists who cooperated with the government. But Akst is more interested in militant draft resistance—in those conscientious objectors who did not cooperate (or did not fully cooperate) with the government's alternative-service schemes. Some refused any kind of alternative service, which led to prison, where they staged protests when they saw injustice. Some initially accepted civilian work assignments but walked off the job—and into prison—when they were convinced they were collaborating too closely with an unjust system. Others stayed in the work camps while engaging in strikes and protests.

All these groups, which often kept in touch with and supported each other, used nonviolent protest techniques such as work strikes, hunger strikes, and sit-ins at segregated businesses and prison cafeterias. Akst argues that the nonviolent tactics and principles learned in these protests informed the civil rights, anti-war, feminist, gay liberation, and other movements of the 1960s and later. He describes David Dellinger and others who defied the draft at the Union Theological Seminary as "exemplars of the type [of draft resisters] who mattered most to history: the radical pacifists who would go on to play important roles in political and social change in the decades to come."

While sympathetic to the World War II resisters, Akst disagrees with them on a fairly important point. The resisters, as complete pacifists, opposed the war against Adolf Hitler's Germany, which Akst considers just and necessary. Akst rebukes pacifists who thought it feasible for the Allies to stop fighting Germany in exchange for Hitler's agreement to let the Jews escape his clutches. (More pragmatically, some pacifists suggested that America loosen its immigration restrictions to save some Jews from Hitler's slaughter.) Many resisters also posited a moral equivalence between America's flawed republic and Hitler's terror state.

During American participation in the war, pacifists were cut off from the social mainstream. For the figures Akst covers, their beleaguered minority status inspired them to new militance. They protested against intellectually unchallenging labor assignments in the work camps, against prison mail censorship, and against racial segregation in the prisons and in society as a whole.

The establishment did not always capitulate; prison authorities sometimes force-fed hunger strikers. Yet liberal prison administrators could sometimes be induced to meet protesters' demands. In the work camps, run by the pacifist Quakers, Mennonites, and Brethren under government supervision, labor could be arduous. But during their respites from work, residents could socialize and organize. Such comparative lenience is more than one might have expected of a country at war and was probably a reaction against the repressive treatment of war opponents the last time around, in 1917–18.

Akst's chief characters are Dellinger, Bayard Rustin, Dorothy Day, and Dwight Macdonald. These four pacifists provided organizational and intellectual leadership to the small but vocal group of draft resisters.

Dellinger refused to register for the draft even though, if he had, he could have claimed exemption as a religious seminarian. He went in and out of jail for this and other draft-law violations, agitating both on the inside and on the outside. During the intervals out of prison, Dellinger traded his seminarian berth for residence at Christian ashrams. The inspiration for Dellinger and many other resisters was Mohandas Gandhi, the Indian independence leader and champion of nonviolent resistance, who was himself imprisoned for opposing the war.

Rustin was an important link between the pacifist militants and the anti-segregation campaigns. He was a disciple of A.J. Muste, a minister turned full-time pacifist, whose group Fellowship of Reconciliation promoted nonviolent activism against war. Many of its members, inspired in part by Rustin, branched out and formed a racial justice organization called the Congress of Racial Equality, focusing on Gandhian/Mustian tactics against segregation.

Rustin himself was an expert organizer who rallied the troops (as it were) both within and outside of prison. Like Dellinger, he alternated between prison and freedom, gaining a relatively high profile as a speaker when on the outside and as a striker when behind bars. Although he supposedly had a steady boyfriend, Rustin indulged in promiscuous sexual behavior both in and out of prison, a habit that damaged his position in the anti-war and anti-segregation movements. His colleagues nonetheless continued to rely on his behind-the-scenes organizing after the war.

Day was a Catholic laywoman who, with the approval or at least the acquiescence of American bishops, formed a network of settlement houses for the poor. Her Catholic Worker movement attacked the injustices of the day, which as Day conceived them included all war. Her uncompromising wartime pacifism split Day's movement, as she refused to countenance war supporters under the Catholic Worker tent. Day made a gesture toward reconciling her pacifism with the church's "just war" teachings: While Christianity does not categorically reject all war, she argued, it does reject war under modern conditions of deadlier weapons and killing techniques. She also was an anarchist and was opposed to abortion, having repented of her own terminated pregnancy.

Macdonald was a New York intellectual who, as New York intellectuals tend to do, ran a journal or two during the war. He evolved over time from a Trotskyist to an anarchist. During the war he was going through a pacifist phase, and he promoted pacifist ideas in the Partisan Review and in Politics, a new magazine he founded in 1944.

Dellinger, Rustin, Day, and Macdonald were all familiar figures on the 1960s left, speaking out against segregation and then against the Vietnam War. Their anti-segregation protests partook of the Gandhian spirit that the resisters had tried to apply during World War II. But in the postwar years, their paths forked: Macdonald declared a few years into the Cold War that he supported (albeit with some caveats and exceptions) "the political, economic, and military struggle of the West against the East," while Dellinger showed a distinctly nonpacifist sympathy for Third World communist movements, often contorting himself to reconcile their violent statism with his anarcho-pacifist ideals. At some point that old 1940s emphasis on peace and nonviolence had gone astray.

By constantly highlighting the connections between the revolts of World War II and the revolts of the Vietnam era, Akst at times veers close to writing boomer history, a variation of Whig history in which everything is part of a pattern of progress that culminates in the 1960s. But at its best, War by Other Means paints a compelling portrait of World War II–era pacifist militance.

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Supreme Court Cancels Oral Argument in Title 42 "Public Health" Expulsion Case Sat, 18 Feb 2023 02:34:29 +0000 Title 42

Yesterday, the Supreme Court canceled previously scheduled oral arguments in Arizona v. Mayorkas, a case involving Title 42 "public health" expulsions of migrants at the southern border. The Court didn't give a reason for the cancellation, nor did it indicate whether the arguments are going to be rescheduled. But most likely, the justices called off the oral argument because they think the case will soon become moot, thanks to the Biden Administration's plan to terminate the Covid-19 national emergency by May 11.  If so, the Court's termination of the argument might pave the way for Title 42 expulsions to end in the near future.

Title 42 expulsions were instituted by Donal Trump in March 2020, for the ostensible purpose of preventing the spread of Covid to the United States, and later continued by Biden. The current version of the Centers for Disease Control order authorizing expulsions says they are scheduled to end whenever the Covid state of emergency is lifted.

The issue before the Court only involves a motion for intervention in the case filed by a group of red states who claim the Biden Administration wasn't defending Title 42 aggressively enough. The justices were not planning to consider the underlying issue of whether Title 42 expulsions are legal. But if the intervention issue is moot, it is because the same thing is true of the case as a whole.

If that really is the view of the Court, then I would expect them to soon lift their stay of the district court injunction mandating an end to Title 42 expulsions. That would require the Biden Administration to terminate the policy even before May 11.

Even if the stay isn't lifted before May, the conclusion that the Arizona v. Mayorkas is moot also implies that the same thing is true of a separate case in which a district court in Texas ruled that it was illegal for the administration to terminate the policy without going through the notice and comment process required by the Administrative Procedure Act.

I discussed the status of the two Title 42 cases and interaction between them in greater detail here and here. As explained in those previous posts, if the Supreme Court lifts the stay of the injunction against Title 42 expulsions, that one will likely take precedence over the one blocking the Administration's attempt to end the policy.

It's theoretically possible that Supreme Court just plans to reschedule the oral argument for a later date. It's also possible that the two Title 42 cases will not become moot for reasons I summarized in my last post on this topic:

The cases won't become moot until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is handling the ruling against the effort to end expulsions) to complete all their deliberations so quickly. But they could potentially do so. The courts might also find technical reasons to conclude that one or both of these cases remain live controversies….

In addition, the Administration could potentially decide to extend the Covid emergency again…. For a long time, Biden has been playing a kind of double game with Title 42 expulsions, simultaneously claiming to want to end them, yet also continuing to defend them in court and even expand their use. As with Trump before him, Biden's use of Title 42 expulsions has been guided far more by political considerations than scientific ones. It's possible that the Administration will reverse course again, if it sees some advantage in doing so.

Despite these caveats, I think the most likely scenario is that the cases will indeed become moot, and Title 42 expulsions will likely end by May 11, or perhaps even before that time. Yesterday's announcement makes that even more probable than before. Amng other things, the cancellation of the Arizona v. Mayorkas oral argument makes it even less likely that the Supreme Court will decide that case before May 11.

In my view, Title 42 expulsions were illegal from early on, once it became clear that Covid-19 was established in the United States. Trump and Biden deserve severe censure for continuing this illegal and extraordinarily harmful policy long past the point where it was clear it has no real public health benefits.

I would have preferred for the courts to simply rule the policy is illegal. But mooting out the cases involving the policy may be preferable to continuing the litigation for many more months, during which time expulsions might have continued.

We will likely soon have a more definitive resolution of the mootness question. But the cancellation of the oral argument is a strong indication that the Supreme Court is moving in the direction of embracing the Biden Administration's position that these cases are going to become moot by May 11.

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Right of Access to Court Records Applies Even Absent Any Current "Substantial Public Interest in This Case" Fri, 17 Feb 2023 22:49:16 +0000 From Judge Irene Berger's decision yesterday in Lomangino v. Polaris Industries Inc. (S.D. W. Va.), which strikes me as quite correct:

Documents attached to a motion for summary judgment are subject to the First Amendment [right of access to court records] standard, even if the documents were "the subject of a pretrial discovery protective order." … [D]iscovery is "ordinarily conducted in private," while dispositive motions can "serve[ ] as a substitute for trial["] ….. Thus, … access can be restricted only if there is a compelling countervailing interest. Any such restriction must be narrowly tailored….

The bulk of the material that the Defendants seek to seal consists of expert reports and discovery documents that were subject to a protective order based on asserted proprietary business interests. Protection of trade secrets may, in some circumstances, be sufficient to justify sealing documents. However, the party seeking to restrict access bears the burden of demonstrating specific reasons sufficient to overcome the public right of access.

The Defendants offer only a bare assertion that these documents contain confidential and proprietary information, including trade secrets. They do not identify specific information that constitutes trade secrets or proprietary business information, and they do not detail the harm that would result from public access to that information.

The documents the Defendants seek to seal are central to this litigation and the dispositive motions at issue. Sealing the expert reports and other material in their entirety would leave anyone reviewing the motions, and any opinion resolving the motions, without the ability to discern core information and evidence.

Although the Court is currently unaware of any substantial public interest in this case, public access is designed not only to allow the press and the public to follow high-profile cases, but also to permit ongoing and future access. Law students or legal scholars review case files for law review articles, attorneys review past cases when similar litigation arises, and litigation may be a source of information for policy-makers considering, for example, safety regulations or for journalists reporting more broadly on either the courts or the subject matter of particular litigation.

Thus, even absent a third party intervening to oppose the motion to seal or to request access, the Court cannot seal material protected by the First Amendment right of access without making the finding, with specific support, that some compelling countervailing interest warrants protecting the information at issue and that a less drastic alternative, such as redaction, is unworkable. Upon review of the materials, the Court does not find that they are so saturated with obviously confidential information that sealing is appropriate.

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Public University Committee Members' Names Aren't Protected by the Right of Expressive Association Fri, 17 Feb 2023 22:16:16 +0000 From Sullivan v. Univ. of Washington, decided today by the Ninth Circuit (Judge Sandra Ikuta, joined by Judge Daniel Collins and District Judge Sidney Fitzwater [N.D. Tex.]):

Appointees to a university committee created to satisfy federal legal requirements [related to animal welfare in research] sought to enjoin the university from releasing the letters appointing them to the official committee. {People for the Ethical Treatment of Animals (PETA), an organization opposed to the use of animals in research, [had] filed a public records request with the University pursuant to Washington's Public Records Act (PRA).} The appointees claimed that the disclosure of such letters, which contain their personal identifying information {such as names, email addresses, office addresses, and work affiliations}, would violate their First Amendment right of expressive association.

The district court held that there was a serious question on the merits of that argument and preliminarily enjoined the disclosure. We disagree. The committee members' performance of their official duties is not protected by the First Amendment right of expressive association, and so the disclosure of public records that relate to performance of such duties does not impinge on that right….

The [Supreme] Court has recognized that "[a]n individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." … This constitutional right of expressive association may be infringed by compelled "disclosure of the fact of membership in a group seeking anonymity," because the "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

Not all groups, however, are entitled to this First Amendment protection; it can be invoked only by those groups actually engaged in expressive association. Individuals engage in expressive association when they join with others to pursue "a wide variety of political, religious, cultural, or social purposes," including the advocacy of both public and private points of view, the advancement of beliefs and ideas, and the transmission of "a system of values." Members involved in such endeavors are generally protected in expressing the "views that brought them together." …

The facts of this case preclude the Committee members' argument that disclosure of their letters of appointment pursuant to the PRA impermissibly impinges on the sort of expressive association that the First Amendment protects. The letters of appointment exist (and are part of the University's public records) only because the Committee members were appointed by the University according to statutory and regulatory criteria to ensure diverse representation. Their "group association" as Committee members is not intended to enhance effective advocacy of their views or "to pursue their lawful private interests," but rather to fulfill federal requirements. The Committee is not akin to a private association where members choose their own purposes and decide how to advance them; here, federal law prescribes both the Committee's purpose and its functions. Because, in performing their work on the Committee, the members are not engaged in an association deemed to be "expressive" under Supreme Court or our precedent, the First Amendment right of expressive association does not protect them from the University's disclosure of personal identifying information contained in their letters of appointment.

Our conclusion that a committee formed by the government to discharge an official purpose is not engaged in expressive association is consistent with cases holding that the First Amendment does not protect the speech of public employees speaking "pursuant to their official duties." Garcetti v. Ceballos (2006). Under Garcetti, only "when an employee speaks as a citizen addressing a matter of public concern" do the Supreme Court's "cases indicate that the First Amendment may be implicated." The rationale behind this approach is that the government "may impose certain restraints on the speech of its employees" that would be "unconstitutional if applied to the general public," because "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." … [T]he rules governing public employee speech also apply to government volunteers, as well as independent government contractors and business vendors.

Here, the Supreme Court's jurisprudence governing public employee speech points to the same conclusion as its jurisprudence governing expressive association. The right of expressive association protects the sort of collective efforts that would be protected by the First Amendment if pursued on an individual basis. But here the Committee members are analogous to government volunteers or contractors because they were appointed by the University to serve its public function. And because an individual member's committee work (such as the preparation and issuance of inspection certification reports) falls within the scope of the member's official duties, that work is unprotected public employee speech. Therefore, because the Committee members' work is unprotected by the First Amendment on an individual basis, their collective work on the Committee is likewise unprotected.

Accordingly, because the Committee members' association is pursuant to their official duties and not any private expressive activities, it is not protected by the First Amendment right of expressive association. The Committee members may be engaged as individuals in other activities that are expressive in nature. But the letters of appointment relate to the Committee members' service on an official committee, and such an activity is not protected by the right of expressive association. Therefore, the University's disclosure of the Committee members' letters of appointment pursuant to the PRA would not impermissibly burden any First Amendment right of expressive association. Because the district court made a legal error in concluding that, by serving on the Committee, the members were thereby engaged in that First Amendment protected activity, it abused its discretion.

{The Committee members argue that the First Amendment doctrines governing public employee speech do not apply "to teaching and academic writing that are performed pursuant to the official duties of a teacher and professor," Demers v. Austin (9th Cir. 2014), and therefore their work for a university is entitled to First Amendment protection. We reject this argument. Demers is inapplicable here because, in performing the official work of the Committee, the members are not thereby engaged in "teaching and academic writing."}

{Because we conclude that the members' association is not protected by the First Amendment right to expressive association, we do not address PETA's arguments as to whether there is a reasonable probability that the Committee members will be subject to constitutionally significant threats or harassment if their identities become known.}

Judge Fitzwater concurred:

The panel opinion does not address PETA's arguments about whether there is a reasonable probability that Committee members will be subject to constitutionally significant threats or harassment if their identities become known, because the opinion correctly concludes that the members' association is not protected by the First Amendment right to expressive association. But as the panel opinion also recognizes, except for the Committee chair and the lead veterinarian, who have made their identities known, all other Committee members "prefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names are released."

When it comes to organizations like PETA, these concerns may be well-founded. See, e.g., Richard L. Cupp, Jr., Considering the Private Animal and Damages, 98 Wash. U. L. Rev. 1313, 1340 (2021) (PETA "is open about using 'controversial tactics' to gain media attention"). Nothing in the panel opinion, however, holds that the State of Washington is obligated through its Public Records Act to require disclosures of personal information that may subject Committee members and their families and pets to threats to their personal safety. As the panel opinion notes, the Act's disclosure requirements are already subject to a wide range of statutory exemptions. The State of Washington retains the authority to adopt other exemptions aimed at curbing required disclosures of personal information that could place at risk members of committees such as this one, or their families or property. Nothing in the panel opinion holds to the contrary.

Congratulations to Peter D. Hawkes (Angeli Law Group LLC), who represented PETA.

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Rupert Murdoch Called Trump's Stolen-Election Fantasy 'Really Crazy Stuff.' Fox News Promoted It Anyway. Fri, 17 Feb 2023 22:15:27 +0000 Did Fox News recklessly promote Sidney Powell's stolen-election fantasy?

After the 2020 elections, the president of the United States refused to concede his opponent's victory, which he attributed to systematic fraud on a scale that beggared belief. He presented no evidence to support his outlandish claims, which were rejected by election officials of both parties, judges he had appointed, and his own attorney general.

This was a big story, and Fox News covered it along with many other news outlets. But did Fox merely report what Donald Trump and his representatives were saying, or did it endorse their wild allegations? That is the question posed by the defamation lawsuit that Dominion Voting Systems, which figured prominently in Trump's conspiracy theory, filed against Fox News in March 2021.

Dominion has to meet the "actual malice" test that the Supreme Court has said the First Amendment requires for defamation claims by public figures. That means it has to prove that Fox executives, producers, and hosts either recklessly disregarded questions about the truth of Trump's stolen-election fantasy or promoted it even though they knew it was false. Dominion's latest brief, which it filed today, presents evidence to support both of those inferences.

The brief, which includes redactions that Fox requested, argues that the company's executives were nervous about alienating Trump and losing his supporters to right-wing competitors such as Newsmax and One America News Network. To support that argument, Dominion cites an email that News Corporation Executive Chairman Rupert Murdoch sent to Fox News CEO Suzanne Scott two weeks after the election.

Murdoch noted a Wall Street Journal story about Newsmax and added: "These people should be watched, if skeptically. Trump will concede eventually [something that still has not happened] and we should concentrate on Georgia, helping any way we can. We don't want to antagonize Trump further, but [Trump lawyer Rudy] Giuliani [should be] taken with a large grain of salt. Everything at stake here."

Three days later, Giuliani, joined by Trump campaign lawyers Sidney Powell and Jenna Ellis, held a bizarre press conference that laid bare the lunacy of the president's election claims. Giuliani and Powell averred that Joe Biden had stolen the election through a "massive fraud" that involved Dominion, tricky voting software, phony ballots, election officials across the country, George Soros, the Clinton Foundation, and "communist money through Venezuela, Cuba, and likely China." In a text message that day, Murdoch described that baroque tale as "really crazy stuff."

Other people at Fox took the same view. Internal fact checks conducted in November 2020 deemed the allegations against Dominion "incorrect" and "not evidence of widespread fraud." On December 1, Fox News reporter Lucas Tomlinson told Bret Baier, Fox's chief political correspondent, that "these conspiracy theories" were "dangerously insane." In a deposition, Fox News host Sean Hannity recalled his reaction to the "whole narrative that Sidney was pushing": "I did not believe it for one second." Tucker Carlson was similarly dismissive. "Sidney Powell is lying," he told his producer on November 16.

Carlson reiterated that conclusion two days later in a private text exchange with fellow Fox News host Laura Ingraham. "Sidney Powell is lying by the way," he wrote. "I caught her. It's insane." Ingraham concurred: "Sidney is a complete nut. No one will work with her. Ditto with Rudy." Carlson added: "It's unbelievably offensive to me. Our viewers are good people and they believe it."

The next day, Carlson made his doubts public, albeit in less categorical terms. If what Powell said were true, he said on his show, it would be "the single greatest crime in American history." But he noted that Powell, despite repeated requests from his staff, had declined to back up her claims with evidence.

Other Fox hosts were more credulous, at least in public. During a November 12 interview with Giuliani, Fox Business host Lou Dobbs lent credence to what Murdoch would call "really crazy stuff" a week later. "It's stunning," Dobbs said. "They have no ability to audit meaningfully the votes that are cast because the servers are somewhere else. [It] looks to me like it is…the endgame to a four-and-a-half-year-long effort to overthrow the president of the United States." Dominion's brief says Dobbs "continued to broadcast these false charges throughout the week and for nearly a month—until December 10."

During a Lou Dobbs Tonight interview on November 16, Powell falsely asserted that Smartmatic, another voting technology company she blamed for Biden's victory, "owns Dominion." Dobbs replied, "Yes."

Prior to that interview, Jeff Field and Alex Cooper, senior producers of Lou Dobbs Tonight, had received an email in which a Fox colleague noted that the Associated Press had debunked the claim that Smartmatic owned Dominion. John Fawcett, an associate producer, also had cast doubt on Powell's credibility, texting colleagues that she seemed to be "doing lsd and cocaine and heroin and shrooms." But as Dominion's brief notes, "none of Dobbs' producers prevented Powell from spouting the lies on air that evening, or corrected her claims in the rebroadcast."

The Lou Dobbs Tonight team also knew that Carlson had questioned Powell's account and that Fox contributor Victor Davis Hanson had similar doubts, saying he was "waiting to see some real evidence." When the Trump campaign disassociated itself from Powell on November 22 (even as Giuliani and Trump continued to press essentially the same claims), Fawcett texted Dobbs, noting that the campaign seemed to be "calling bullshit" on her. Dobbs told Fawcett he did not understand what Powell was "thinking or doing" or "why." Fawcett suggested that Powell "could be losing her mind," noting that her story "doesn't make sense" and adding, "I just don't think she is verifying anything she is saying."

Despite "the Dobbs team's clear awareness that Powell was an unreliable
source making baseless claims," Dominion says, "Dobbs had Powell on his show yet again on November 24, and Fox chose to broadcast (and rebroadcast ) both the fraud and algorithm lies about Dominion." Far from challenging Powell's claims, Dobbs lamented that Americans were not aware of the "electoral fraud that would be perpetrated through electronic voting." He said he was referring to "these electronic voting companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans."

Dobbs interviewed Powell again on November 27. Two days before, Fawcett had texted Dobbs, asking if he had read Powell's election lawsuits, which Fawcett called "complete bs." Dobbs confirmed that he had read the lawsuits. On December 4, Dominion's brief says, "Dobbs returned to the subject of Dominion, stating that it is at the center of the stolen election, rhetorically asking his guest Phil Waldron if it is 'the principal culprit' and repeating the claim that Dominion used algorithms designed to be inaccurate rather than to be a secure system."

Five days later, Dobbs and his producers learned that all of Powell's election lawsuits had been dismissed. That development, Dobbs conceded in a deposition, "affect[ed] her credibility or reliability," causing him to have "doubts" about her claims. But that did not stop him from interviewing her yet again the next day. "We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor," he said, adding that "we have tremendous evidence already."

Fox News host Maria Bartiromo interviewed Powell on November 8. Powell asserted that a vote-switching "algorithm" developed by Dominion enabled a "massive and coordinated effort to steal this election." Bartiromo seemed to accept that claim. "We talked about the Dominion software," she said. "I know that there were voting irregularities. Tell me about that."

The day before, Powell had shared with Bartiromo an email titled "Election Fraud Info" from an unnamed "source" who summarized the claims about Dominion's alleged role in stealing the election. The email itself, which Dobbs also received, described those claims as "pretty wackadoodle." In a deposition, Bartiromo agreed that the "Election Fraud Info" email was "kooky" and "nonsense."

Dominion notes that other Fox shows, including HannityJustice With Judge Jeanine, and Fox & Friends, also gave Powell a platform. Given what the producers and hosts knew or should have known at the time, the company argues, their uncritical treatment of her claims was at least reckless.

Fox, which also faces a defamation lawsuit that Smartmatic filed in February 2021, maintains that it was merely reporting the news. But Dobbs clearly did more than that, and Bartiromo arguably did too.

In contrast with the softball interviews that Dobbs and other hosts conducted, Fox's news reporters were appropriately skeptical of Trump's claims early on. After Giuliani et al.'s November 19 press conference, for instance, Fox News White House correspondent Kristin Fisher called it "colorful" but noted it was "light on facts," adding that "much of what [Giuliani] said was simply not true or has already been thrown out in court."

In a November 12 tweet, Dominion's brief notes, Fox reporter Jacqui Heinrich corrected a tweet in which Trump had cited Hannity and Lou Dobbs Tonight to support his claim that Dominion was implicated in election fraud. Quoting "top election infrastructure officials," Heinrich noted that "there is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised."

Carlson, who a week later would privately declare that "Sidney Powell is lying," nevertheless took exception to Heinrich's tweet. "Please get her fired," he said in a text to Hannity. "It needs to stop immediately, like tonight. It's measurably hurting the company. The stock price is down. Not a joke."

Hannity, who would later say he "did not believe" Powell's claims "for a second," told Carlson he had already complained about Heinrich's tweet to Scott. The Fox News CEO agreed that Heinrich was out of line. Heinrich "has serious nerve doing this," Scott said in a text to other Fox executives. "If this gets picked up, viewers are going to be further disgusted." By the next morning, Dominion notes, "Heinrich had deleted her fact-checking tweet."

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Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk? Fri, 17 Feb 2023 21:52:08 +0000 In March 2020, Senator Charles Schumer stood outside the Supreme Court and assailed the two newest members:

"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won't know what hit you if you go forward with these awful decisions."

That same day, Chief Justice Roberts released a forceful response to Schumer's remarks:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

And in 2018, after President Trump tweeted about "Obama judges," Chief Justice Roberts released another statement:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,"

Yesterday, Senator Ron Wyden unleashed a vituperative attack on Judge Kacsmaryk of the Northern District of Texas. Wyden echoed many of the barbs that have been repeated, over and over again, on Slate, Vox, and elsewhere.  Here are some of his remarks:

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won't let pesky obstacles like standing or precedent get in the way of the agenda they share.

That's because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I'll call "courtwashing."

In the courtwashing scheme, it's his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they're getting as soon as their cases show up on his docket.

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It's tough to earn that kind of infamy in such a short time, but his rulings have justified it. . . .

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it's been a rigged game all along. It's illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America.

So here's what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone.

President Biden and the FDA must ignore it.

Wyden's remarks make Schumer's seem tame. When will Chief Justice Roberts release a statement? Certainly Chief Justice Marshall can be cited here.

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New York Floats a Crackdown on Independent Workers Fri, 17 Feb 2023 21:50:56 +0000 Hands holding a phone

A bill before the New York state Senate seeks to reclassify many independent contractors as employees, advancing a standard similar to that of California's ruinous Assembly Bill 5, or A.B. 5. The proposed S2052 would implement the "ABC Test," which classifies workers as employees unless the (a) worker is free from the control of the hiring entity, (b) the work performed is outside the hiring entity's bailiwick, and (c) the worker is "customarily engaged" in the type of work he is hired to do. 

S2052's sponsor memo extols that the bill gives "the most basic human rights of American workers to a voice on their jobs and a role in shaping their futures." However, individual agency in "shaping their futures" is precisely what the bill would quash. 

The government can't turn every contractor into an employee, so making it impossible for employers to hire many independent contractors will simply make many independent contractors unemployed in their chosen careers. Anti-freelance politicians, backed by unions, tout the benefits of "employee" status, but such benefits accrue to a few at the expense of many others. Following the passage of A.B. 5 in California, for instance, sports network SB Nation opted to terminate roughly 200 freelancers, reportedly to be replaced by just 20 full- and part-time staffers. Those 20 people may have received more in pay and benefits, but 180 other people lost income. 

"New York presumes—like every other government entity and Democrats in general presume—that independent contractors are inherently, unavoidably exploited and that they all yearn to be bona-fide employees when that's not the case at all," Ike Brannon, a senior fellow at the Jack Kemp Foundation, tells Reason. "Our survey in 2019 of 1,000 or so independent contractors in the midwest found that few desired to be actually employed." Indeed, in 2021, Pew Research Center found that nearly 80 percent of gig workers "rate their experiences in these jobs positively." 

Gig work is popular throughout the economy. In 2022, an estimated 60 million individuals—roughly 39 percent of the American work force—engaged in freelancing. Supermajorities cited benefits like financial gain (83 percent) and schedule flexibility (73 percent), according to freelancing platform Upwork. Consequently, crackdowns on independent work endanger the livelihoods of a diverse cohort of workers. "While media coverage of the issue tends to focus on platform-based gig-​workers," Walter Olson, a senior fellow at the Cato Institute, wrote, "workers hurt by AB 5 included many tutors, performers in music and theater, plumbers, nurse practitioners, writers, photographers, contract software developers, and many others, notably owner-operators and other independent truckers." 

A statutory exemption in New York's worker-classification regime could enable a court challenge to S2052, says Jim Manley, an attorney at the Pacific Legal Foundation. "Newspaper carriers are not employees under current New York law—explicitly," Manley tells Reason. "And so what that means is if you're delivering a newspaper to someone's house, you can be an independent contractor, but if you're delivering a political pamphlet, if you're delivering commercial materials, you can't be an independent contractor under the ABC Test," he explains, adding that differently regulating various forms of speech creates "a content-based distinction."

Too many legislators in New York, California, and Washington, D.C., wish to deploy state power to mold the work force to fit their personal preferences. Such attempts are entirely unmoored from economics and individuals' own desires, however, and they rob citizens of the right to freely pursue happiness and success.

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'Patient Zero' Is Not Hate Speech Fri, 17 Feb 2023 21:29:29 +0000 Reason talks with the transgender historian who used the term to describe a revolutionary gender-affirming treatment for teens.]]> patient-0

The term "patient zero" has been a fraught one over the last several years.

Most recently, it received renewed scrutiny after 980 contributors and staffers at The New York Times sent a letter to management, characterizing the paper's coverage of transgender people as hostile. Chief among their complaints was Staff Writer Emily Bazelon's use of the term in her piece about the debates taking place in the gender therapy field among doctors who are trying to figure out the best course of medical treatment for trans-identifying patients, particularly those who are minors. "Emily Bazelon's article…uncritically used the term 'patient zero' to refer to a trans child seeking gender⁠-⁠affirming care, a phrase that vilifies transness as a disease to be feared," the contributors wrote. That complaint misses the mark and illuminates the perils of policing language.

"Patient zero" may denote the first person to be diagnosed with a virus within a certain population, the first person in a medical study, or the first person to receive a certain kind of treatment. It is sometimes used to refer to inanimate objects, like computers, or people at the center of a new trend.

In her New York Times story, Bazelon used the term to refer to a teenager who was the first person to receive a revolutionary new medical treatment in the 1980s at a gender clinic in Amsterdam. "Patient Zero, known as F.G., was referred around 1987 to Henriette A. Delemarre-van de Waal, a pediatric," wrote Bazelon. "At 13, F.G. was in despair about going through female puberty, and Delemarre-van de Waal put him on puberty suppressants."

In objecting to the term, the Times contributors cite a story about its genesis. The label was first attached to Gaëtan Dugas, an AIDS patient who was erroneously thought to have been the match that set the HIV/AIDS epidemic ablaze in the United States. On documentation for the Centers for Disease Control and Prevention (CDC), Dugas was named "Patient O" for "Out-of-California." It was later mistakenly read as "Patient 0," or "patient zero." That misreading, when paired with Dugas' promiscuous behavior—he told a CDC investigator he'd slept with hundreds of men each year—left some with the incorrect impression that he was to blame for the start of the crisis, a claim popularized by Randy Shilts' 1987 book And the Band Played On.

In other words, the term "patient zero" did come from a dark place. But it has since grown into something much more complex and developed additional, nuanced meanings, as language tends to do. Bazelon used the term to refer to the first person to receive a treatment—not to spread a disease. Particularly important is that the patient is described as being happy with the treatment and the outcome.

What's more, it appears Bazelon likely got the term from the Dutch historian, Alex Bakker, a transgender man who has written about the subject over many years.

Bakker is cited in Bazelon's article. In his book, The Dutch Approach, he speaks with F.G. In the book, he refers to F.G. with a familiar term. "Therefore 'patient zero' was carefully examined for his functioning ten years later," Bakker writes.

As a transgender man who has also written about his own experiences, Bakker is a sympathetic historian. Reached by email shortly after the publication of the New York Times letter, he tells Reason: "Framing the term 'patient zero' as 'a phrase that vilifies transness as a disease to be feared' seems to me to be a rhetorical choice, not an established fact."

"I guess it's all in the eye of the beholder but I don't agree with it at all," he continues. "To me it's a neutral term that you can use to describe this particular part of medical history. It's not meant to describe F.G. as a person, it refers to the development of the treatment of puberty blockers."

There's no reason to think the Times letter writers were aware of this backstory, but as journalists (and as Bazelon's colleagues) they could have inquired. Regardless, wordsmiths should know that words are complex. Twisting words is a popular method of attack in the culture war, but it's a lose-lose game.

"This does not in the least conflict with the use of the term patient zero, not with me, not with my audiences…not with F.G. himself," says Bakker. "My response to the critics of the term 'patient zero' would be: don't read into it, don't take this out of context, and focus on the real issues here, the very real threat of transphobia and trans human rights being undermined."

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Short Circuit: A Roundup of Recent Federal Court Decisions Fri, 17 Feb 2023 20:30:39 +0000 Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Cleveland-area friends, won't you join us tomorrow night—Sat. Feb. 18—at the Grog Shop for a night of comedy and fulminating against qualified immunity? Click here to RSVP.

  • UMass Dartmouth law professor brings a First Amendment suit challenging the designation of UMass Faculty Federation, Local 1895 as the exclusive collective bargaining representative for his designated bargaining unit. He doesn't want them speaking on his behalf. First Circuit: Well, you're not required to pay union dues and nobody is prohibiting you from speaking, so we're going to join the eight circuits—including our own—that have already rejected this argument.
  • Allegation: U.S. Secret Service agent swears out criminal complaint accusing protestor at 2016 Democratic National Convention in Philadelphia of breaching a restricted area. Yikes! The agent wasn't there and didn't review any video, which shows that police pulled the protestor into the restricted area. Agent: You can't sue a federal officer for violating the Constitution. Third Circuit: That may be, but (over a dissent) it's too soon to say. Interlocutory review is a qualified immunity thing not a Bivens thing.
  • Circuit Split Alert! The Fourth Circuit joins with the First and Eleventh Circuits, holding that Americans with Disabilities Act "testers"—who search for ADA violations and file cases about them—have standing to sue hotels that fail to provide adequate information about accessibility features through booking websites like Expedia or Orbitz. The Second, Fifth, and Tenth Circuits have rejected this argument, finding no standing where plaintiffs—including this same plaintiff—did not allege or prove an intention to actually book rooms at the defendants' hotels.
  • Allegation: Louisiana officials kept inmate in prison for over two years after he should have been released. Fifth Circuit: It's clearly established and "should go without saying" that holding people past their release date violates the Constitution. But this plaintiff did not show that it was "objectively unreasonable" for officials to violate clearly established law. Qualified immunity.
  • Louisiana man spends 30 years in prison for a murder he did not commit. After being freed in 2014, he—and, following his death, his estate—sues for malicious prosecution. The district court dismisses because there is no such thing as a malicious prosecution claim in the Fifth Circuit. But wait! SCOTUS has since ruled there is indeed such a thing. Fifth Circuit: Nevertheless, there's no need to remand for another look. And maybe don't lose too much sleep over this one, the court suggests: Though wrongly convicted as the triggerman, he arguably could have been convicted of second degree felony murder based on his extensive involvement in the robbery that led to the murder, in which case, he'd never have been freed.
  • Driver near Youngstown, Ohio, is stopped, and the $774k in his trunk is seized. Forfeiture case ensues. Man: The money's mine. Gov't: Would you kindly answer some discovery requests? Man: I would not. District court: The man hasn't sufficiently established the money's his, so he lacks Article III standing to contest the forfeiture. Sixth Circuit (unpublished): Well, he did swear under oath that he was the money's owner, which seems like it should be enough for standing. Dissent: The guy violated pretty much every discovery rule under the sun.
  • This Lexington, Ky. comedy of errors involves a garden shed aflame; a fire investigator's request to access a neighbor's surveillance footage; the neighbor's refusal; a sketchy warrant affidavit for the footage; issuance of the warrant; police executing the warrant on the neighbor's house; the neighbor's mom burrowing through a ceiling to (the gov't claims) extract 5 kilos of cocaine; a toilet clogged with a mysterious white substance; and two-thirds of a Sixth Circuit panel holding that all of it violated the Fourth Amendment because there had been no probable cause to suspect arson in the first place. (NB to snoots: Forgive the rampant fused participles above. Some of your correspondents just love to watch the world burn.)
  • There is no Snapchat exception to the warrant requirement, says the Seventh Circuit, in holding that Springfield, Ill. police violated the Fourth Amendment when they spotted a Snapchat video of a local felon in possession of a gun, rolled over to his house, walked onto his porch, found the firearm, and arrested him. Snapchattery may be a modern innovation, but respect for the sanctity of the curtilage is embedded in our nation's history.
  • In 2018, Milwaukee-area officials removed a dam from the Milwaukee River, causing the water level upstream to subside and leaving a homeowner there with a swampy patch of land where the river used to run. An unconstitutional uncompensated taking of his property? The Seventh Circuit says no.
  • Allegation: Stockton, Calif. police take man at Cinco de Mayo festival to ground without warning. With his arms pinned under his body, he's unable to put his hands behind his back. An officer repeatedly strikes his leg with a baton, breaking it. He's charged with resisting arrest, but the case is dropped after he pleads no contest and stays out of trouble. District court: Which is the functional equivalent of a conviction, so he's barred from suing for false arrest and excessive force. Ninth Circuit: Reversed. Pre-trial diversion agreements are not convictions. Heck does not bar. [IJ filed an amicus brief urging this course of action.]
  • Allegation: Unruly inmate at Oklahoma County, Okla. jail is escorted to a cell, where a 320 lb. officer kneels on his back to uncuff him. Afterwards, he lies unmoving for nearly six hours before a nurse finds him unresponsive. Jesus wept! He's dead of a severed spinal cord. Officers: Okay, but what if that's not what happened? Tenth Circuit (unpublished): Then we can't hear your appeal. Fact disputes belong in front of a jury. No qualified immunity.
  • And in en banc news, the Second Circuit will reconsider its decision that former high school athletes do not have standing to challenge the Connecticut Interscholastic Athletic Conference's policy of allowing transgender students to compete in women's track and field.
  • And in more en banc news, the Second Circuit will not reconsider its decision that the Federal Arbitration Act covers a class of commercial drivers despite a recent Supreme Court decision seemingly to the contrary.

State constitutions are beautiful and special, and it's a darn shame when courts don't realize that. So it's with a heavy heart that we tell you this week the Minnesota Supreme Court scorned the provisions of the state constitution that guarantee equality of treatment. Instead, the court continued to apply wholesale the language (and lax standards) of the federal equal protection clause—words that do not appear in the Minnesota Constitution. Click here to read IJ's brief (in support of neither party) urging the court to attend to the history of the actual language in the constitution, how it was interpreted in the early years, and how things went off track. Or click here to see the ruling, which rejects an ACLU challenge to state voting laws involving felons who are out of prison but haven't served their full sentences.

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Reason Files FOIA Lawsuit Against Bureau of Prisons for Inmate Death Records Fri, 17 Feb 2023 20:26:59 +0000 Reason reported in 2020 on allegations of fatal medical neglect inside two federal women's prisons. The Bureau of Prisons heavily redacted reports that would show if women died of inadequate care.]]> lawsuit text

Reason is going to court to try to pry free records about whether women who died in federal prison received adequate medical care.

Reason Foundation, the nonprofit that publishes Reason, filed a Freedom of Information Act (FOIA) lawsuit in the U.S. District Court for the District of Columbia against the Bureau of Prisons (BOP) today, seeking medical reviews of in-custody deaths in two federal women's prisons. Reason is represented in the suit by the law office of Deborah Golden.

Reason reported in 2020 on allegations of fatal medical neglect inside FCI Aliceville, a federal women's prison in Alabama. Numerous current and former inmates, as well as their families, said in interviews, desperate letters, and lawsuits, that women inside Aliceville faced disastrous delays in health care. They described monthslong waits for doctor appointments and routine procedures, skepticism and retaliation from staff, and terrible pain and fear.

Seeking to learn more, Reason filed a FOIA request in May 2020 for inmate mortality reviews at Aliceville, as well as FMC Carswell, a federal prison in Texas that is the only medical center for incarcerated women in the BOP system.

Carswell has also been the subject of numerous allegations of medical neglect. Fort Worth Weekly published investigations in 2007 and again in 2012 detailing suspect deaths and abysmal medical care at Carswell. Reason spoke to a woman formerly incarcerated at Carswell who said she witnessed another inmate die while begging for medical attention:

In one instance, she says she was sitting in sick call when she saw a woman pushing another inmate in a wheelchair. The two were banging on the door, begging for someone to look at the woman in the wheelchair, but they were repeatedly told to sit back down.

"After about three times, she pushed the lady in the wheelchair to the restroom, which was just right around the wall from where we were sitting, and [the woman in the wheelchair] fell over and died of a heart attack."

"Had the staff paid attention in that moment instead of telling them to get away from the door and go sit down—you know, basically wait their turn—then the lady would still be alive."

Whenever a federal inmate dies, a committee reviews the circumstances, whether BOP policies were violated, and gives recommendations on how care could have been improved. That information could reveal whether the BOP is aware of medical neglect within its walls and how bad the problem is.

However, nearly three years later, Reason still has not received any records at all from Aliceville, and when the BOP finally released mortality reviews from Carswell in March of last year, it redacted any information that would indicate if there was substandard care, such as the review committee's findings on the timeliness and appropriateness of care; problems encountered during the medical emergency; whether there was adequate documentation in the patient's medical files; and whether the patient received appropriate care per the BOP's policies.

screenshot of redacted documents
A portion of the redacted mortality reports released to Reason by the Bureau of Prisons.

The BOP claimed the redacted portions were confidential under exemption b(5) of the FOIA, the so-called deliberative process exemption. The exemption was created so bureaucrats could have frank discussions about policy decisions—what are called "predecisional" communications— without worrying about their opinions being splashed in a newspaper. However, it has become one of the most abused exemptions in the federal government's arsenal, used as a catchall to hide anything embarrassing or indiscreet. The National Security Archive dubbed it the "withhold it because you want to" exemption.

Reason filed an administrative appeal challenging the redactions, but the Justice Department's Office of Information Policy upheld the BOP's response in December.

To be clear, there is nothing predecisional about these mortality reviews. They are conclusions about whether inmates received adequate healthcare and whether BOP policy was violated. And they concern one of the federal government's gravest constitutional responsibilities: ensuring that incarcerated people under its supervision aren't subjected to cruel and unusual punishment.

The Freedom of Information Act is supposed to be broadly construed to ensure public access to government documents, but frequently the only way private citizens and news outlets can get federal agencies to abide by the statute is to file a lawsuit.

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Pennsylvania Governor Says He Won't Sign Execution Warrants Fri, 17 Feb 2023 19:07:12 +0000 Josh Shapiro

On Thursday, Democratic Pennsylvania Gov. Josh Shapiro announced that he would not grant any execution warrants during his tenure as governor—continuing a trend set by his predecessor. He also called on Pennsylvania lawmakers to pass legislation banning the death penalty in the state.

"I will not issue any execution warrants during my term as Governor," Shapiro wrote on Twitter. "When one comes to my desk, I will sign a reprieve every time—and I'm asking the General Assembly to send me a bill abolishing the death penalty in Pennsylvania once and for all." He added, "This is a fundamental statement of morality. Of what's right and wrong. And I believe Pennsylvania must be on the right side of this issue."

Shapiro was sworn in as governor in January. During his campaign, he voiced support for abolishing the death penalty, though he previously supported capital punishment for the most "heinous crimes."

"For more than a decade, including when I assumed office as Attorney General, I believed that the death penalty should be reserved for the most heinous crimes – but that it was, indeed, a just punishment for those crimes," Shapiro said in a Thursday press release. "However, when the first capital cases came to my desk in the AG's office, I found myself repeatedly unwilling to seek the death penalty. When my son asked me why it as OK to kill someone as a punishment for killing someone, I couldn't look him in the eye and explain why."

The governor noted that his decision to not allow for executions during his tenure was not a "statement on the integrity of individual capital convictions in Pennsylvania." However, he said that during his tenure as the state's attorney general, "two critical truths became clear to me about the capital sentencing system in our Commonwealth: The system is fallible, and the outcome is irreversible."

The announcement comes in the wake of increasing pressure for states to drop the death penalty entirely. Even in states like Alabama and Oklahoma, where support of the death penalty has long been high, a moratorium and a slowdown on the pace of executions, respectively, have been ordered in recent months. So far, 23 states have abolished the death penalty, according to the Death Penalty Information Center

This is not the first time Pennsylvania's governor has placed a moratorium on executions in the state. In 2015, Shapiro's predecessor, Gov. Tom Wolf (D), declared a formal moratorium on any future executions. Pennsylvania has not had an execution since 1999.

"Pennsylvania should do what 25 other states have done in outlawing the death penalty or refusing to impose it – including many of our neighbors such as New Jersey, Maryland, and West Virginia," Shapiro said. "We shouldn't aim to just fix the system. The Commonwealth shouldn't be in the business of putting people to death. Period."

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The SEC Is Starting a Massive Database of Every Stock Trade Fri, 17 Feb 2023 17:05:41 +0000 A group of Wall Street traders huddle around a desk at the New York Stock Exchange.

What little financial privacy you have when trading stocks is about to get even smaller next month. When you make a stock trade, your broker already is required by the Bank Secrecy Act to maintain records of it, monitor your trading activity, and report any suspicion of illegal activity to the federal government. But, starting in March, your broker will be required to directly report all of your trades, including your personal information, to a massive government database. If the Bank Secrecy Act concerns you—and even if it doesn't—just wait until you hear about the Consolidated Audit Trail (CAT).

The Consolidated Audit Trail is intended to collect and accurately identify every order, cancellation, modification, and trade execution for all exchange-listed equities and options across all U.S. markets, allowing the Securities and Exchange Commission (SEC) to track orders and identify who made them.

The SEC ordered the CAT to be created in 2012 after regulators had difficulty identifying the causes of the 2010 "flash crash." At the time, then-SEC Chair Mary Schapiro described the CAT as providing regulators with the "data and means to exponentially enhance [their] abilities to oversee a highly complex market structure." And in years since, the CAT has been championed as necessary for the SEC's enforcement efforts.

The CAT began collecting trading data in 2020, after years of development replete with challenges and controversies. It is scheduled to begin collecting customer information on March 17, 2023. Although the SEC has limited the scope of customer information to be collected—initial plans called for Social Security numbers, dates of birth, and account numbers—brokers must still provide customer names, addresses, and birth years which allows for easy identification of individual investors.

This massive surveillance database is a financial privacy nightmare. 

Most of the criticism leveled at the CAT has focused on data security. The CAT will absorb information about tens of billions of trades daily, making it quite possibly the largest database in the world. Its sheer size will be an invitation for criminals, who then-SEC Chair Jay Clayton recognized in 2017 "could potentially obtain, expose and profit from the trading activity and personally identifiable information of investors."

The government is hardly immune from hacking; indeed, the SEC itself was hacked in 2016. Thousands of users (not just at the SEC) will have access to the CAT, with vague standards guiding their use of the data accessed, creating even more security gaps. And while the SEC proposed a rule to address some data security concerns in 2020, the agency has taken no action to finalize that rule or anything similar (despite a flurry of other rule making).

But these criticisms seem to assume that if the government had good enough data security, this type of intrusion into Americans' financial privacy would be acceptable. That's simply not the case. Personal and financial privacy are key components of life in free societies, where individuals enjoy a private sphere free of government involvement, surveillance, and control. As SEC Commissioner Hester Peirce recognized

Our purchases and sales of securities, particularly when aggregated together as the CAT would do, are a rich form of value expression. They might express a view of how markets work, a determination on the efficiency of markets, expectations about the future, or even a moral philosophy.

Trading is thus an expressive activity, and the CAT raises the same types of civil liberties concerns as any other mass surveillance program. It doesn't matter if the SEC has good intentions, seeking only to use the CAT to understand our markets better and to enforce existing laws. Financial privacy is vital because it can be the difference between survival and oppression for those who hold disfavored views.

In this way, the CAT burdens not only Americans' First Amendment rights of speech and expression but also their rights under the Fourth Amendment to be free from unreasonable government searches and seizures. Although a 1976 Supreme Court case about the Bank Secrecy Act found that information shared with a third party—there, the bank—is not protected by the Fourth Amendment, that doctrine is ripe for revisiting given the ubiquitous role of intermediaries in modern life. But even if the CAT's surveillance isn't constitutionally deficient, its data collection is troubling and should be treated no differently than other areas of American life where people reject broad-based surveillance of their activity. 

This is especially true where the benefit of surveillance seems marginal. The SEC isn't without the ability to analyze trading information absent the CAT, although it's understandably tempting for the agency to want to see every trade in close to real time. Some have suggested alternatives to prohibit personal information from the database, leaving the SEC to make case-by-case requests of brokers when warranted. This is the minimum the agency could do to protect customer privacy (especially where the SEC is touting enforcement cases brought with CAT data prior to including personal information). But such solutions leave the surveillance machinery in place; Commissioner Peirce's suggestions of a more limited database focused on institutional investor trading or improvements to already existing systems are better choices to protect the privacy of individual investors.

The CAT threatens American investors' privacy. Knowing that the SEC is watching your every trade is too great a cost for easier SEC enforcement. Despite the years of planning and expenses already incurred, the SEC should put the CAT back in the bag—or let it out only when declawed—to protect the liberties of American investors.

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Remy: Uncle Sugar Fri, 17 Feb 2023 16:00:11 +0000 Remy as Uncle Sam

These funds were for the pandemic…but why not buy yourself a little something too?


Getting Congress to cut spending is getting harder these days
The only thing that we've been trimming are our resumes
We sent out money for pandemic help
But don't hesitate to go spoil yourself

Is your municipal golf course in need of a spritz?
Do you want a stadium? Do you not exist?
Can you not even afford to put air in your balls?
Pick up the phone and put in a call to

Uncle Sugar
Sending cash to the entire nation
Uncle Sugar
Send the tab to the next generation

All is right in the world when you're reading the blotter
And see Ted Kennedy's institute is underwater
Sure this cash was for less people dead
But at least we finally found a way to pay a debt

How could you've known when you borrowed for that fancy degree
The gender studies companies would not be hiring?
You signed your name and said you'd pay them one way or another
Don't they know your daddy's creepy brother is

Uncle Sugar
Sending cash to the entire nation
Uncle Sugar
Send the tab to the next generation

It was the greatest civilization the world has ever seen
Though not everything they did was done impeccably
Every few decades their dollars cut in half
From the looks of this they also worshipped golden calves

And when a pandemic came and times got hard
They gave cash to first responders…of misparked cars
Voted themselves money, borrowed abroad
How did it end? With thunderous applause for

Uncle Sugar
Sending cash to the entire nation
Uncle Sugar
Send the tab to the next generation

Music and lyrics written and performed by Remy; video produced by Meredith Bragg, Austin Bragg, and John Carter

Tom Brady Photo Credit: Brad Muckenthaler

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Private College Coaches' Flexibility to Eject Team Members Based on Condemnation by Teammates Fri, 17 Feb 2023 15:02:17 +0000 From a decision Tuesday in Doe v. Haverford College, handed down by Judge Gerald Austin McHugh (E.D. Pa.):

Plaintiff is a senior at Haverford College … and has been a member of a varsity sports team since his first semester as a freshman. Plaintiff became a captain of his team during his junior year. The parties agree that Plaintiff had no issues with his coaches and teammates during his first two and a half years on the team.

During the spring semester in 2022, a rumor began to circulate that Plaintiff had sexually assaulted an unnamed female student on the Haverford campus. According to Plaintiff, the rumor contained no specific details about the alleged assault, and Plaintiff has consistently denied any physical or sexual contact with the student identified as the victim of an assault. Two of John's co-captains reported the allegation to their coach in early February of 2022. The coach advised John that he was required to report allegations of sexual misconduct due to his position and notified Haverford's Title IX Office of the allegation. The coach suggested to John that he step away from the team until it was resolved, and that same day Plaintiff notified his teammates via email of his intention to briefly step away from the team.

The Title IX Office reviewed the information provided by John's coach and considered whether it would open a formal investigation into the allegation. At some point, the Office also communicated with the alleged victim, who stated that she did not intend to file any formal complaint against Plaintiff. After conducting this preliminary inquiry, the Title IX Office did not open a formal investigation and communicated to Plaintiff that he could continue his life at Haverford as normal.

Shortly thereafter, Plaintiff met with his coach, informed him of the Title IX Office's conclusion, and asked to rejoin the team. The coach, however, advised John that he was no longer welcome on the team, as the other captains did not want him to rejoin. At a follow-up meeting on March 15, the coach allegedly advised John that the other captains' position was driven by their belief in the veracity of the sexual assault allegation. One week later, on March 22, Plaintiff had another meeting with his coach, the Title IX Coordinator, the Athletic Director, and the co-captains. At this meeting, his co-captains emphasized that their opposition to Plaintiff returning to the team was driven by (1) the sexual assault allegation and (2) unspecified misogynist behavior by Plaintiff. The coach, relying on these statements by the co-captains, stated at the meeting that Plaintiff would not be allowed to rejoin the team.

Since the March 22 meeting, Plaintiff—along with his parents, grandmother, and counsel—has engaged in numerous communications and meetings with staff and administrators at Haverford to seek reinstatement to the team. In early May, Plaintiff met with the Dean of Haverford and the Athletic Director to request that he be permitted to rejoin the team. But the Dean stood by the coach's actions, emphasizing that participation in athletics was a privilege for students, not a right, and stating that John's return would lead other team members and the coach to quit. In August and September, Plaintiff's parents and counsel reached out to Haverford officials in the hope of resolving the issue prior to the fall semester. Plaintiff further proposed a plan through which Haverford would assign a senior administrator who would ensure that the coach allowed Plaintiff to return to the team.

In response, the administration rejected Plaintiff's proposed plan and instead proposed a potential path to reinstatement that involved Plaintiff meeting with his coach and a co-captain to convince them to allow Plaintiff to rejoin the team. Plaintiff subsequently met with his coach on October 24, 2022. During the meeting, the coach acknowledged that the allegation of sexual assault was not a proper basis to keep Plaintiff off the team, but that his teammates also raised other concerns with Plaintiff returning to the team that were unrelated to the assault allegation. The coach would not elaborate and insisted that Plaintiff discuss these concerns directly with his teammates. Plaintiff was unable to meet with two co-captains of the team until several weeks later on December 2, after the winter season had commenced. During the meeting, one co-captain—Captain A—was steadfast in his belief that Plaintiff should not return to the team. When questioned on why, Captain A noted that he had general concerns with Plaintiff's treatment of women but did not identify any specific past event or occurrence demonstrating this behavior….

The court concluded that the refusal to reinstate Doe on the team likely wasn't a breach of contract:

[T]he Coach does not currently invoke the assault accusation as the basis for excluding Doe from the ongoing season. Rather, the Coach invokes the team's negative reaction to the prospect of Doe's return. Indeed, in his affidavit, the Coach represents that his decision not to reinstate Doe to the team was aimed at preventing disruption. Specifically, the Coach avers that:

A significant number of Doe's former teammates told me that they were deeply uncomfortable with Doe rejoining the team. Many said they would quit if Doe were re-instated. I decided that Doe's participation on the team would negatively impact the team atmosphere and severely hinder or eliminate the team's ability to perform to their fullest potential …

Based on my discussion with Doe, my discussions with the co-captains and team members, and my own personal observations regarding the team's dynamics, I determined that it was in the best interest of all involved to decline Doe's request to rejoin the team …

My decision was not meant to be punitive to Doe, but instead was a necessary operational decision to pursue optimal team performance. My decision was not based on any assessment of whether Doe had, or had not, engaged in conduct which, if true, would have violated Haverford's Sexual Misconduct Policy. It was based entirely upon my deep and sincere concern that allowing Doe to rejoin the team would negatively impact team performance and become a untenable distraction.

… Moreover, I am persuaded by Haverford's argument that the Coach's actions throughout the process constitute a reasonable exercise of the broad discretion that team sports vest in coaches to manage their teams. Coaches must generally consider a variety of factors—both objective and subjective—in managing a team, and these factors include concerns about distractions, team cohesion, and morale….

Many of the arguments Doe raises are equitable in nature, condemning "mob justice" and stressing how unfair it is that he lacks a process through which to defend his reputation. But the claim on which Doe seeks injunctive relief sounds in law, not equity, and my role is not to decide what comports with the traditional values of Haverford College or what is the appropriate course for a coach to follow when confronted with a mismatch between one of his athletes and his team. The specific legal question before me is whether Doe has established a reasonable chance of success on his breach of contract claim, and I conclude that he has not….

And the court also held that Doe hadn't sufficiently shown irreparable harm:

Courts are split on whether denial of athletic opportunity constitutes irreparable harm. If I were persuaded that Doe's absence from the team directly resulted from Haverford's failure to follow its Title IX procedures, a finding of irreparable procedural harm would readily follow. But the record here does not strongly support such a conclusion. Doe's college career is quickly approaching an end, and in that respect, it can be said that the opportunity to compete for Haverford will be irretrievably lost. But Doe points to no future consequences flowing from his ineligibility, such as loss of future opportunities as an athlete {[s]ome courts have even held that this type of loss is too speculative to constitute irreparable harm}, and even at this stage he could compete as an unaffiliated athlete in certain competitions, as his Coach pointed out in an email.

Ultimately, the harm Doe most seeks to address is reputational, and it is unclear that an injunction would provide such relief…. It is difficult to see how an order of this Court inserting itself into the affairs of a college athletic team will provide such relief, as teammates can still express their views in a variety of ways well beyond the control of the Court.

Congratulations to Joshua Richards and Levi Schy, who represent Haverford.

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Ohio Train Derailment Is Another Excuse for Mudslinging and Conspiracy Theorizing Fri, 17 Feb 2023 14:35:13 +0000 a train goes near the East Palestine, Ohio, site where a train carrying hazardous materials derailed on February 3

Long-term risks still unclear, experts say. Residents of East Palestine, Ohio, aren't sure if it's safe to stay in the area after a train carrying hazardous materials derailed there and authorities released toxic materials into the air from train cars in danger of blowing up.

The "controlled burn of the toxic materials has filled the air and covered surface waters and soil with chemicals," notes The New York Times. "Dead fish have floated in nearby creeks, and an unnerving aroma has lingered in the air."

All told, several dozen Norfolk Southern train cars—including 11 transporting hazardous materials—derailed near East Palestine on February 3. Two days later, hundreds of areas residents and businesses were told to evacuate and, on February 6, authorities released vinyl chloride from five of the tanker cars to keep them from exploding.

On February 8, the evacuation order was lifted. But although East Palestinians have been allowed to return to their homes and businesses, they worry that doing so is risky and say there's a lack of clear guidance about what is and isn't safe.

These worries have been exacerbated by speculation and hyperbole from politicians, pundits, and folks on social media—where "commentators have called the situation the 'largest environmental disaster in history' or simply 'Chernobyl 2.0,'" the Times points out:

They warned, without evidence, that vital water reservoirs serving states downriver could be badly contaminated. And they suggested that the authorities, railroad companies and mainstream news media were purposefully obscuring the full toll of the crisis.

"‎Planned attack, cover-up or both?" asked "Conservative Daily Podcast," a program known for pushing far-right talking points.

Some of that speculation was echoed by mainstream outlets like Fox News, which suggested the fallout could be catastrophic.

"You better punch in at 9 a.m., Ohio, even if it means inhaling mustard gas on the way in," said a sarcastic Jesse Watters, the Fox News host, on Tuesday, over a title reading: "Ohio town looks like Chernobyl."

In other words, the disaster has been fertile ground for conspiracy theorists and partisan mudslinging. (See, for instance, Florida Republican Sen. Marco Rubio using this as an excuse to call for the firing of Transportation Secretary Pete Buttigieg. Or The Nation using the opportunity to take shots at capitalism.)

Left in the lurch are the people of East Palestine, who aren't sure what to believe.

"I think most of the residents here are concerned that they're going to sweep this under the rug," East Palestine resident Lisa Simmons told PBS NewsHour. "We have got dead fish in the streams. There's a lot of reports of pets and animals dying. And we just want to make sure that we're taking care of here."

For what it's worth, the Environmental Protection Agency said the air is safe and public water systems are safe.

But there are still a lot of unknowns about long-term risks, some experts say.

Meanwhile, the National Transportation Safety Board (NTSB) is still investigating how this happened.

A report this week from the NTSB said there was an overheated wheel bearing on the rail car that started the derailment. Wayside hot-box detectors—which use infrared sensors to detect when rail car components are overheating—are supposed to detect this sort of thing and flag rail crews about issues. "A hot-box detector in East Palestine notified the crew moments before the train derailed," noted train industry publication FreightWaves. "It's unclear if any hot-box detector prior to East Palestine notified crews."

Around East Palestine, Norfolk Southern currently employs no signalmen who specialize in the maintenance of devices like hot-box detectors, according to FreightWaves. Christopher Hand, director of research at the Brotherhood of Railroad Signalmen, told the publication that signalmen these days spent most of their time on government-mandated tests rather than routine maintenance.

"At a very boisterous meeting [Wednesday] night in the local high school gym, East Palestine Mayor Trent Conaway told the crowd through a bullhorn that Norfolk Southern would be held accountable," reports The Bulwark. Conaway said: "They screwed up our town, they're going to fix it."

The Bulwark piece, by Ohio writer Daniel McGraw, delves into some interesting context about East Palestine and nearby areas, where environmental and economic concerns have been butting up against each other:

About twenty miles from where the derailment occurred, a plant operated by Shell Oil opened last fall. It was nearly ten years in the making. Located on the Ohio River near Monaca, Pennsylvania, the facility, known as an "ethane cracker," opened in November and employs about 600 people to make the tiny pellets that are the precursor for nearly every product made of plastic. These pellets are often called "nurdles."

The process of making plastics involves separating the ethane and methane out of natural gas and heating the methane until it transforms into ethylene, the highly reactive raw material for polyethylene, the most common kind of plastic. The process is ecologically problematic in several ways.

One day before the train derailed, two environmental groups announced they were suing Shell Chemical Appalachia, operator of the Monaca plant, for violations of federal and state air-quality standards….

But the business community and many elected officials argue that even if there are environmental risks, the economic benefits are undeniable—and sorely needed. "You can't just have a service economy," Beaver County Commissioner Jack Manning said in an interview last spring. He links the loss of the area's once-robust steel industry to the more than 50 percent decline in its school-age population between 1972 and 2012, and is eager for something to lift the community's prospects again.

It's against this backdrop that the train carrying chemicals that help make plastics derailed.

The big problem, writes McGraw, is that "the solution that the government and Norfolk Southern went with of burning the chemicals and then sending in the crisis manager to ascertain the severity of the situation seems like the sort of decision that favors the trains more than the people."

Whether that was the right decision or not is hard for laypeople to assess—which is probably what makes this situation so ripe for politicking and conspiracy theorizing.


Did the Pentagon shoot down a hobby radio balloon? President Joe Biden said on Thursday that the unidentified flying objects (UFOs) the U.S. shot down last week and over the weekend were not Chinese spy balloons. Meanwhile, some evidence suggests that at least one of them may have been a tiny amateur radio "pico" balloon. This sort of hobby ballooning relies on mylar helium party balloons to carry solar-powered transmitters, which can be picked up by amateur radio hobbyists.


There is speculation that at least one of the objects shot down over Canada, Yukon by a US Air Force jet may have been amateur radio pico balloon K9YO-15 which was launched from Illinois on October 10 2022. It was on it's [sic] seventh circumnavigation of the globe after being aloft for 123 days.

The launch blog post indicates that the K9YO-15 balloon was flying a silver mylar 32″ sphere SAG balloon which appears to be this one from…A pentagon memo notes that the object shot down over Canada was a "small metallic balloon with a tethered payload" which fits the description of the pico balloon exactly.

The K9YO-15 balloon ceased all WSPR telemetry transmissions while flying just below Alaska since Feb 11 00:18 UTC (just before sunset in Alaska when the solar panels would stop working).

By using NOAA wind models and the last known location by Alaska, K9YO-15 was projected to have been over Yukon when the US Air Force shot down the unknown balloon object at Feb 11 20:41 UTC (3:41 PM EST / 1:41 PM Yukon time according to Canadian Defense Minister Anand). Reports put the altitude of the shot down object at approximately 40,000ft (~12000 meters), which matches the projected ~11500 meters of K9YO-15. Based on the previous days transmission times, it is suspected that if it were operational, the balloon would have begun transmitting again sometime later in the Yukon afternoon when the sun was stronger, but no transmissions have been seen.

On February 14th the balloon was declared as missing in action by the launch group.

More here.


Fox News hosts' texts revealed in lawsuit from voting machine maker Dominion: 


Kentucky abortion ban can be enforced. Kentucky's Supreme Court held on Thursday that a lower court was wrong to halt enforcement of two state laws limiting abortion. "The two measures are Kentucky's so-called trigger law banning the procedure and a separate 'heartbeat' law restricting abortions at around six weeks of pregnancy," reports CNN:

Siding with Republican Attorney General Daniel Cameron, Justice Debra Hembree Lambert asserted in her opinion that the circuit court "abused its discretion by granting abortion provider's motion for a temporary injunction."

Planned Parenthood, along with an abortion provider represented by the American Civil Liberties Union and the ACLU of Kentucky, sued to block Kentucky's sweeping abortion laws after the Supreme Court overturned Roe v. Wade last year.

They filed two complaints challenging the two statutes, which effectively prohibit abortions in Kentucky except in limited circumstances where it is necessary to preserve the life of the mother, according to the opinion….

After a circuit court temporarily enjoined the abortion bans last summer, an appellate court judge granted the attorney general's emergency request to dissolve the injunction, but an appellate panel later recommended that the state's highest court weigh in on the injunction.

More here.


• A Shreveport, Louisiana, police officer has been charged with negligent homicide in the February 3 shooting of an unarmed man, Alonzo Bagley. The officer, Alexander Tyler, was responding to a domestic disturbance report.

• Economist Emily Oster tackles "panic headlines" about screen time and processed foods.

Reason's Billy Binion looks at a letter that hundreds of contributors to The New York Times sent on Wednesday to express discontent with the paper's coverage of transgender issues.

• "It's important for people to grasp reality because no single issue will affect our fiscal future more than Social Security and Medicare," writes Veronique de Rugy.

• OnlyFans creators talk A.I. porn.

• In Virginia, a fight is brewing over access to data from period-tracking apps. ("If you're concerned about a surveillance state newly empowered to snoop through your personal information to possibly prosecute you for procuring an illegal abortion, privacy measures must be much more thorough than merely deleting a period tracking app," noted Reason's Liz Wolfe last summer.)

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Plaintiffs "Played Spanish Music at Home"; Neighbors "Complained to the Police"; Tort Litigation Ensued Fri, 17 Feb 2023 14:13:35 +0000 From an opinion in Valentin v. Wysock handed down Wednesday by Third Circuit Judge Stephanos Bibas, sitting by designation in the District of Delaware:

I have already written two opinions describing this case's facts. Here is the gist: Valentin and Matos played Spanish music at home. Their neighbors, Michael and Patricia Wysock, disliked hearing it, so they complained to the police. After the police visited Valentin and Matos's home fourteen times, officer Christopher Hewlett arrested Valentin for violating a county noise ordinance. Ultimately, the county dismissed the charge. Upset, Valentin and Matos then sued the Wysocks, Hewlett, and the county. I dismissed the claims against the county. There are still a few claims left against the Wysocks and Hewlett….

First things first: the claims against the Wysocks are based on state law. Though the Wysocks happen to be police officers, the complaint "does not allege that they were acting under the color of state law, as [42 U.S.C.] § 1983 requires." Valentin and Matos do not dispute this. See D.I. 54; D.I. 60, at 2. So Delaware law governs.

And Delaware does not recognize either a statutory or common-law cause of action for harassment. In Delaware, statutory harassment is a crime. 11 Del. C. § 1311. As the Delaware Supreme Court has explained, criminal statutes like § 1311 "impose general prohibitions," suggesting that they do not "create rights for a particular group of citizens, but … protect the public at large." Given § 1311's "penal focus," it "cannot be stretched to include civil redress for personal damages." So Valentin and Matos cannot sue the Wysocks for harassment under this statute.

Nor does Delaware common law create a harassment cause of action. Valentin and Matos cannot cite any Delaware case sustaining such a cause of action….

Sensing this, Valentin and Matos now ask me to let them change their claim from harassment to intentional infliction of emotional distress. I decline their invitation. Justice does not require allowing this amendment. Valentin and Matos make no effort to explain how the pleaded facts would support an intentional-infliction claim. And letting them change theories now, after discovery has closed, would prejudice the Wysocks. Plus, Valentin and Matos have "had multiple opportunities to state a claim but ha[ve] failed to do so." Neither their initial complaint nor their first amended complaint mentioned intentional infliction of emotional distress….

Valentin alone brings a malicious-prosecution claim. Unlike harassment, Delaware recognizes a cause of action for malicious prosecution. To bring a malicious-prosecution suit, Valentin must plead that a criminal proceeding (1) was brought against her (2) "by, or at the instance of the [Wysocks]," (3) was "terminated in [her] favor," (4) was brought with malice and (5) without probable cause, and (6) resulted in "injury or damage." The Wysocks rightly concede the first and third elements: the police "instituted a charge against Valentin for violating the [n]oise [o]rdinance, and that charge was ultimately dismissed." And I already decided that Valentin adequately alleged that she was arrested without probable cause. That leaves instigation, malice, and damages….

[Under Delaware law,] "The cause of action available to the arrested person against the [private-citizen] instigator is a suit for malicious prosecution." … Nor does reporting crime to the police immunize one from suit…. [Valentin] plausibly pleads that the Wysocks "initiated" proceedings because "[i]t was their recitation of the incident [that] caused [her] to be arrested." So her allegations that the Wysocks instigated the prosecution suffice.

But Valentin's malice and damages allegations do not. She must plead "actual malice, in the sense of an improper motive or wanton disregard of the [prosecuted party's] rights." She claims that the Wysocks' "improper motive" was "racial and linguistic animus." But she gives scarce other facts suggesting that the Wysocks acted with such animus. All she says is that the Wysocks "derid[ed] [her] Spanish-language music." These are mostly "naked assertions devoid of further factual enhancement."

Indeed, Valentin's main support for asserting animus is that she and Matos "are Hispanic and listen to Spanish-language music." But those facts are still consistent with the Wysocks' contending that the music violated the noise ordinance. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Without more, Valentin's malice allegations fall on the wrong side of the line…. "[A] bare allegation that defendants[ ] instituted proceedings solely to intimidate and harass is insufficient to plead malice." …

Similar problems plague her damages allegations. She says that the Wysocks' malicious prosecution caused her to "suffer damages, in the form of both economic and non-economic damages including pain and suffering, embarrassment, loss of reputation, loss of enjoyment of the value of [her] home, and other such harms as will be borne out by the evidence." She tries to beef them up in her response brief, explaining how she was damaged. But because those explanations are missing from her complaint, I cannot consider them….

Yet these deficiencies are fixable. So I dismiss Valentin's malicious-prosecution claim without prejudice. She has one last chance to amend this claim….

Finally, both Valentin and Matos claim that the Wysocks defamed them…. But Valentin and Matos do not "identify the exact comments or specific publication attributable" to the Wysocks. They allege only that the Wysocks "made statements that falsely imputed a crime to" them, namely the noise-ordinance violation. Without more specific allegations, I "cannot evaluate" the defamation claim. So I will dismiss the claim without prejudice.

One last note: the Wysocks suggest that "statements made to the police to instigate criminal complaints are absolutely privileged." But the Delaware Supreme Court has clarified that such statements are only conditionally privileged. Conditional privilege is an affirmative defense, which is typically inappropriate to resolve on a motion to dismiss. And the privilege's abuse [which can rebut a claim of conditional privilege -EV] is "ordinarily a question of fact." So now is not the right time to consider the privilege….

Congratulations to Shae Lyn Chasanov (Tybout Redfearn & Pell) and Nicholas Jaison Brannick (New Castle County Law Department), who represented the defendants.

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Once Upon a Time in the California Court of Appeal Fri, 17 Feb 2023 13:19:11 +0000 Once Upon a Time in Hollywood doesn't infringe 1960s actor Christopher Jones' right of publicity.]]> From McKenna v. Sony Pictures Entm't, Inc., decided Wednesday by the California Court of Appeal, in an opinion by Justice Lamar Baker, joined by Justices Laurence Rubin & Dorothy Kim:

Paule McKenna …, the executor of the estate of Christopher Jones, sued defendants and respondents Sony Pictures Entertainment, Inc., Boss Film Productions, Inc., and Visiona Romantica, Inc. … for allegedly misusing Jones's name and likeness (posthumously) in the film Once Upon a Time … in Hollywood….

Christopher Jones was a popular actor in the 1960s. He starred in the television series The Legend of Jesse James and a number of movies including 3 in the Attic and Wild in the Streets. Jones quit Hollywood in 1969. He died in 2014.

Once Upon a Time … in Hollywood (the film), is a film written and directed by Quentin Tarantino. It was produced by Boss Film Productions and released by Sony Pictures Entertainment in 2019. The film stars Leonardo DiCaprio as fictional actor Rick Dalton, Brad Pitt as his fictional stunt-double Cliff Booth, and Margot Robbie as real-life actor Sharon Tate. It depicts a few days in the lives of the three main characters in February and August 1969, and imagines (or reimagines, in Tate's case), how their lives intersect with the Charles Manson family.

A variety of products with recognizable name brands appear throughout the course of the film. For example, there is a scene in which Pitt's character Booth cooks a box of Kraft macaroni and cheese. A box of Wheaties cereal is on his counter while he does so, and a copy of TV Guide is seen elsewhere in his home. The same scene includes brief glimpses of Booth's television, which at one point plays an advertisement for Jones's movie 3 in the Attic and identifies Jones as one of its stars. In various other scenes, Booth wears a t-shirt with a logo for Champion spark plugs on it. Characters also at one point drive down Hollywood Boulevard and pass the Pantages Theatre, which was displaying a marquee for 3 in the Attic featuring Jones's name.

The court concluded that the complaint was properly dismissed under California's anti-SLAPP statute:

[The anti-SLAPP statute applies because t]he creation of a movie is an exercise of free speech … [as to] issues of public interest. The film concerns the culture of the late 1960s in Hollywood and the Manson family murder of Tate. These are matters of public interest about which discussions are still ongoing. The uses of Jones's name, the portrayal of Booth and/or Dalton in proximity to branded products, and the portrayal of Booth wearing shirts with brand logos on them are details that add to the depiction of the culture in Hollywood in the late 1960s. The public interest in these topics is demonstrated by the numerous articles and reviews discussing the film that defendants submitted in support of the motion, some of which specifically reference Tarantino's inclusion of era-appropriate products, as well as the many-months-long run the film had in theaters (late July to early October 2019).

Plaintiff advances a number of arguments to the contrary, most of which relate back to her contention that the activity on which her complaint is based is simply "false brand endorsement" or, in other words, the recreation of Jones's likeness and portrayal of that likeness in connection with commercial brands, without consent or credit. The film, she claims, is incidental to this false endorsement for profit issue and she asserts there is no public interest in the brand endorsement or in her private dispute with defendants over their alleged use of Jones's likeness. The problem with plaintiff's argument, however, is that the broader creative acts of including the aforementioned aspects in the film and the alleged use of Jones's likeness are inextricably linked. For example, in the context of the film, any alleged commercial reason for dressing Booth in a t-shirt with the Champion logo on it cannot be isolated from the creative impetus for the same action. Furthermore, defendants submitted a declaration representing the brands depicted (other than Hennessey) were included for artistic reasons and were used to "capture the look and feel of the time period," and to "accurately portray the late 60s."

Plaintiff also relies upon a handful of cases for the proposition that advertisements for an artistic work are not necessarily noncommercial speech. To the extent plaintiff relies on these cases to argue the advertisements for the film should not be eligible for anti-SLAPP protection, the authority is inapposite. Unlike the advertisements at issue in the cases plaintiff cites, the advertisements for the film are not alleged to include any false statements and are merely adjuncts of the film. To the extent plaintiff contends these cases transform the portions of the film with product placement into commercial speech, that is also incorrect. Both of plaintiff's cases addressed separate advertisements for creative works, not allegedly integrated advertising within the works themselves….

Thus, to resist the anti-SLAPP motion, plaintiff had to show a probability of prevailing on the claim, and she couldn't:

Civil Code section 3344.1, subdivision (a)(1) provides in pertinent part: "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof."

Subdivision (a)(2), however, exempts from subdivision (a)(1) a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works … if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work." But there is also an exception to the exemption. Under Civil Code section 3344.1, subdivision (a)(3), "If a work that is protected under paragraph (2) includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under this subdivision, notwithstanding the unprotected use's inclusion in a work otherwise exempt under this subdivision, if the claimant proves that this use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent from the person or persons specified in subdivision (c)."

Subdivision (k) of the statute provides that "[t]he use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather, it shall be a question of fact whether or not the use of the deceased personality's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a)."

The film unquestionably falls into the exemption under Civil Code section 3344.1 subdivision (a)(2), as it is an audiovisual work of fictional entertainment. In order to demonstrate minimal merit under subdivision (a)(3), then, plaintiff must have made a prima facie case that the film "includes within it a use [of a deceased personality's name, voice, signature, photograph, or likeness] … [that] is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good or services …."

There is no contention that Jones's voice, signature, or photograph was used in the film. Jones's name is mentioned twice during advertisements for his movie 3 in the Attic (played within the film), and his name appears fleetingly as characters drive past a marquee promoting the same movie. Plaintiff has not provided any evidence demonstrating these brief references to Jones, which narratively serve to identify Jones as a contemporary of Dalton and Booth, are "so directly connected" to any products, merchandise, good, or service that they constitute advertisements. The same is true of the appearance of Jones's name in promotional trailers for the film and the fake magazine promoting the film.

The true heart of plaintiff's claim is that Booth, and to a lesser extent Dalton, were based on and styled after Jones. Plaintiff identifies aspects of both characters that she contends make up a whole constituting a likeness of Jones. Some of these aspects are physical—like Booth's hairstyle and aviator sunglasses—while others are biographical—like the scene in which Dalton is comforted by a child. While we are doubtful that plaintiff has demonstrated a probability of success in alleging Jones's likeness was used in the film, we need not reach that issue to decide plaintiff has not demonstrated a probability of prevailing on her Civil Code section 3344.1 cause of action.

The film depicts Booth and Dalton, though primarily Booth, using a slew of household products and otherwise appearing in scenes that feature brand logos. It also depicts Booth wearing one or more t-shirts with a brand logo on it. In response to plaintiff's allegation, defendants submitted the declaration of producer McIntosh that asserts the only product placement in the film was for Hennessy cognac, a product not used by either Booth or Dalton and thus not associated with Jones's alleged likeness. The declaration further asserts the other products depicted in the film were used solely for creative, not financial, reasons and the filmmakers were not paid to include them. As the film was, in fact, not compensated for the inclusion of the products and was not advertising them through any sort of product placement, Booth and Dalton's proximity to the products was not so directly connected to any of the products that their presence constituted advertisement or sale….

The court likewise rejected plaintiff's federal trademark and false endorsement claim, as well as some other state law claims. Seems quite right to me. Congratulations to Louis P. Petrich and Elizabeth L. Schilken (Ballard Spahr), who represent the defendants.

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Massachusetts Lawmakers Propose Reducing Sentences for Inmates Who Provide Bone Marrow or Organs Fri, 17 Feb 2023 13:01:34 +0000 The bill (HD.3822), introduced last month by Reps. Carlos González, Judith A. Garcia, Bud L. Williams, and Russell E. Holmes, would

allow eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence … on the condition that the incarcerated individual has donated bone marrow or organ(s).

I actually support payment for organs, with proper safeguards (see my Medical Self-Defense article), but conditioning a reduction in a prison sentence on providing organs strikes me as going too far. (One might distinguish provision of organs from provision of bone marrow, since such provision apparently carries very modest risks to the provider, and since bone marrow regenerates quickly, though I'd still oppose even just the bone marrow feature.)

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Harlan Institute-Ashbrook Virtual Supreme Court Semifinalists Fri, 17 Feb 2023 13:00:22 +0000 Students for Fair Admission v. UNC]]> The topic for the 11th Annual Harlan InstituteAshbrook Virtual Supreme Court competition is Students for Fair Admission v. UNC. This week, twenty-six teams of high school students presented oral arguments in the semifinal round. The teams were superb. Truly, these high school students could compete in any law school moot court competition. The Round of 8 will be held in two weeks.

Semifinal Match #1

Team #12552 v. Team #12041

Semifinal Match #2

Team #12548 v. Team #12045

Semifinal Match #3

Team #12056 v. Team #12576

Semifinal Match #4

Team #12044 v. Team #12050

Semifinal Match #5

Team #11965 v. Team #12574

Semifinal Match #6

Team #11969 v. Team #12048

Semifinal Match #7

Team #12052 v. Team #12577

Semifinal Match #8

Team #11696 v. Team #11811

Semifinal Match #9

Team #12556 v. Team #11770

Semifinal Match #10

Team #12068 v. Team #11729

Semifinal Match #11

Team #12063 v. Team #11695

Semifinal Match #12

Team #11808 v. Team #12575

Semifinal Match #13

Team #11762 v. Team #12823

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Review: Ant-Man and the Wasp: Quantumania Fri, 17 Feb 2023 12:30:15 +0000 Kathryn Newton and Paul Rudd in Ant-Man and the Wasp: Quantumania

Ant-Man and the Wasp: Quantumania wants to psych you up about the launch of "Phase Five" of the Marvel Cinematic Universe, a corporate entity that's now 15 years old and starting to look a little winded. Phase Five will naturally be a multimedia delivery system, hauling out the third Guardians of the Galaxy movie, a pair of sequels (Captain Marvel, Captain America), and a bunch of Disney+ TV stuff. Let the endless cross-promoting begin. But not yet.

The first two Ant-Man movies derived most of their charm from Paul Rudd, whose small-scale, nice-guy warmth in the role of Scott Lang/Ant-Man was a welcome downshift from Marvel's usual action-fantasy megalomania. Unfortunately, Rudd is swamped by this third film, which is a boiling neon tsunami of towering blob creatures, walking broccoli stalks, big chrome spiders, Avatar-style hanging sky islands, and much, much more, quite a bit of it either on fire or in the process of being detonated at any given moment.

The story, such as it is, begins in Scott's native San Francisco, where we see that his daughter, aspiring Ant-Teenager Cassie Lang (Kathryn Newton), is embarked on a personal project to remotely map the mysterious Quantum Realm (QR)—a subatomic dimension that exists "outside of time and space," as they say. The QR is "a secret universe," according to Janet Van Dyne (Michelle Pfeiffer), the original Wasp, who was held captive there for 30 years. Janet, the wife of Scott's mentor, Dr. Hank Pym (Michael Douglas), who was the original Ant-Man, is horrified to learn that Cassie has established a connection with the Realm, since any such link could easily become a bridge—and sure enough [cue calamity].

Most of the movie plays out in the QR, unfortunately. The overstuffed retro artiness with which this world is rendered suggests a trove of classic sci-fi magazine covers that have been scissored into doilies and then run through a computer. This eventually grows tedious. Janet and Hank are here along with their daughter, Hope (Evangeline Lilly), the current Wasp and still Scott's love interest. As anyone will know who felt their brain sliding sideways while watching last year's Doctor Strange and the Multiverse of Madness, an anything-goes setting like the QR is a frustrating environment in which to attempt to tell a story. There's liable to be more than one version of the characters pinballing around, and here there's also a madly multiplying "probability storm" to create new kinds of confusion (in a funny scene in which Scott faces off against his many selves).

The movie barely has a story to tell (what there is of it is credited to Rick and Morty veteran Jeff Loveness), but returning director Peyton Reed can't keep it from sprawling anyway. The characters run around the Quantum Realm trying to escape, and a smooth-talking brute called Kang the Conqueror tries to stop them. Kang, who's played by Jonathan Majors, of The Last Black Man in San Francisco, is a worthy inheritor of the Big Badness once provided by the now-departed Thanos. Kang's problem—well, his enemies' problem—is that he can see the end of everything in advance. He knows how every conflict will turn out, and one can imagine that this allows him to plan surprises accordingly. He also collects time, or something, and can hand out spare wads of it as party favors. Majors brings a dark force to this seductive character, and he makes the movie a little more interesting whenever he rises up to say things like, "I don't live in a straight line."

But the most interesting thing in this oddly uncompelling picture is a quick scene in the end credits in which we get a dark, tantalizing look at things to come. It lasts maybe a minute or two, but it oozes atmosphere. Too bad that when everybody got together to make this picture, they didn't just go ahead and make that one instead.

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Businesses See Political Advocacy As a No-Win Situation Fri, 17 Feb 2023 12:00:17 +0000 A crowd protests Disney with placards saying "DISNEY WORKERS NEED A RAISE"

Politics have been seeping into our daily lives and ruining pretty much everything, and that's as true for business leaders as it is of those of us who buy from them. But debates over ideologically loaded environmental, social, and governance (ESG) concerns and "woke" capitalism show some companies embrace the danger by politicizing themselves. If you wonder whether corporations make a mistake by joining the battle, so do business leaders themselves. A recent survey found that corporate execs fret over the political minefield and worry that it's growing more hazardous.

The Conference Board, a century-old business membership and research organization, surveyed corporate leaders in recent months and found them in a foul mood.

"Ninety-eight percent of respondents describe today's political environment as challenging for companies, with 78 percent describing it as very or extremely challenging—up from just 47 percent in 2021," Paul Washington and Evan Ladao of the Conference Board's ESG Center, and Bill Black of the organization's Government Relations and Executives Council, wrote in a related report.

The report separated respondents' concerns into four categories: extremism/polarization; weakening of trust in government and political institutions; anti-corporate rhetoric and actions, including the "use of government power to reward or punish companies for political purposes"; and sharp state-level policy differences, including both anti-ESG backlash and pressure to expand ESG programs.

Some of these challenges are unavoidable; we all live in the same country and have to suffer the tribal divisions and regime uncertainty that plague American politics.

"The combination of a polarization among policymakers, coupled with extremely close elections, means that companies are facing potentially wide swings in government policy with each election, which is not conducive to business planning and investment," author Paul Washington commented.

But a lot of this pain is self-inflicted and avoidable.

"At the same time, many companies are understandably hesitant to speak out about certain issues because they can be attacked for going too far or not far enough," Washington added. And yet, many companies have waded into the battle and then don't like the pushback they suffer in return.

Case in point is the Walt Disney Company, the entertainment behemoth that rapidly went from the status of American icon to controversial political player. This month, state officials stripped the company of control of the board that oversees development around its Florida theme parks after it called for the repeal of legislation that restricts classroom discussion of gender and sexual orientation. The company has also come under fire from conservatives for programming incorporating politically progressive messaging. Disney has the right to take positions on controversial matters, but seemed unprepared for the inevitable backlash from those who disagree. Pushback should have been anticipated when corporate execs let themselves be convinced that getting political was a necessary marketing move.

"New research from Ipsos shows that more than half of American consumers shop with their political or social values in mind – a sign that even the most boundary-crossing companies will not be spared from America's political polarization," Clifford A. Young, president of Ipsos Public Affairs USA, and George Mason University government professor Justin Gest wrote of polling results in the summer of 2021. "Partisan consumers matter. Not only are there tens of millions of them, they also tend to be more educated and therefore have greater spending power."

As did other pollsters, Ipsos found that "partisan consumers exist in about equal numbers across the parties. But Democrats are significantly more likely to want and expect their favorite brands to take a stand on issues they care about." That helps explain why companies that embrace politics seem to overwhelmingly take progressive stances. But the polling results contained a warning: If roughly half of Americans want business to get political, then roughly half don't. Brands that do so risk alienating both those who prefer non-political brands and those who disagree on the positions taken.

"The Risk Brands Take in Commenting on Political Divisions: Alienating Consumers Either Way," is how competing polling firm Morning Consult headlined its own research the same year.

Polling this year continues to find division over politicized business, though both Trafalgar/Convention of States and Gallup now report a majority of Americans oppose corporate issue advocacy. Gallup adds that Democrats (and younger adults) remain among those most likely to favor mixing politics and corporate identity. That leaves a lot of room for businesses to start fights by taking sides.

Unsurprisingly, the Conference Board found "a majority of companies are concerned about ESG backlash from federal and state elected officials, advocacy groups, and employees."

The inclusion of employees on the list is interesting, since many companies say staff push them to endorse causes. But as the report notes, "employees are far from united in their views on many social issues" and pleasing one faction can alienate another. Netflix is among those firms that have advised staffers who can't leave their causes at home that they may want to seek employment elsewhere.

Business leaders don't expect matters to improve anytime soon. "Looking ahead to 2025, 71 percent of companies expect the challenges in the political environment to be 'about the same' (at 29 percent) or 'more challenging' (at 42 percent)," found the Conference Board.

So, why do business leaders continue to stroll into the political minefield?

There's "some evidence that companies publicly embrace ESG as a cover for poor business performance," University of Colorado finance professor Sanjai Baghat observed last March. "A recent paper by Ryan Flugum of the University of Northern Iowa and Matthew Souther of the University of South Carolina reported that when managers underperformed the earnings expectations (set by analysts following their company), they often publicly talked about their focus on ESG. But when they exceeded earnings expectations, they made few, if any, public statements related to ESG."

That is, companies may adopt causes to conceal their shortcomings at delivering goods and services. Customers seeking quality might want to pass over brands offering ideological marketing.

The Conference Board report offers advice to "help firms effectively manage risks associated with their corporate political activity," but some execs have had enough. While a third of survey respondents wanted business to take a "'leadership' role in improving the political environment," 29 percent preferred a supporting role. Thirty percent called for minimal political activity and 7 percent wanted to focus solely on business.

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Today in Supreme Court History: February 17, 1801 Fri, 17 Feb 2023 12:00:01 +0000 2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

Thomas Jefferson

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Review: Mastodon Decentralizes Social Media Fri, 17 Feb 2023 11:30:13 +0000 minismastadon

Elon Musk's shambolic takeover may not have been great for Twitter, but it was fantastic for Mastodon, a social media platform that saw usership skyrocket in response.

Mastodon is not a single site. Instead, it's a collection of "federated" independent servers, each centered around a topic: anarchism, food, etc. In practice it's like a mix of Reddit and Twitter, but less centralized. Decentralization is in fact Mastodon's big selling point: You don't have to worry about a San Francisco tech executive monkeying with your server.

I considered joining a metal or gaming server, but I knew where I belonged and what I deserved, so I joined one for reporters. It's easy to post and browse on Mastodon, and it's devoid of Twitter's late-life bloat. It's quiet, though, and it's still unclear whether Mastodon's growth will achieve exit velocity or come back down to earth.

Whether it rises or falls, Mastodon's existence is a reminder—for all the bipartisan caterwauling about the need for government to rein in Big Tech's supposed monopoly—that social media users can and do vote with their feet.

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Review: Raising the Bar Brings the Cocktail Revolution Home Fri, 17 Feb 2023 11:00:07 +0000 minisraisingthebar_Chronicle-Books

Raising the Bar: A Bottle-by-Bottle Guide to Mixing Masterful Cocktails at Home, Jacob Grier and Brett Adams help aspiring home bartenders build a bar, or at least a collection of booze, via a carefully sequenced collection of about two dozen bottles. Each recommended new bottle expands the cocktail repertoire a home barkeep can make by supplementing what he or she already has on hand. It's a clever and well-executed concept for what amounts to a boozy cookbook, with more than 200 great cocktail recipes.

This book and its concept is a product of what has been called the cocktail revolution—the reclaiming and rediscovery of pre-Prohibition-style recipes, knowledge, and theory via a distributed network of bartenders, booze makers, and online enthusiasts. It's an acknowledgment, after COVID-era bar closures, that this revolution has come home. Consider the bar raised.

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Brickbat: OK, Everyone Is Welcome Fri, 17 Feb 2023 09:00:00 +0000 A multicultural group of elementary school-age children.

Centennial Elementary School in Washington has backed off a plan to create a "safe space" club open only to "black, indigenous and people of color" students. After the club was announced, several white students expressed an interest in joining. Meanwhile, some parents said the idea of a racially segregated club promoted racial division.

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