Reason.com https://reason.com/ Mon, 18 Mar 2024 21:38:23 -0400 en-US hourly 1 https://wordpress.org/?v=6.4.3 SCOTUS Ponders Whether the Biden Administration Coerced Social Media Platforms To Censor Speech https://reason.com/2024/03/18/scotus-ponders-whether-the-government-coerced-social-media-platforms-to-censor-speech/ https://reason.com/2024/03/18/scotus-ponders-whether-the-government-coerced-social-media-platforms-to-censor-speech/#comments Mon, 18 Mar 2024 21:00:17 +0000 https://reason.com/?p=8269310 Surgeon General Vivek Murthy | CNP/AdMedia/Newscom

The U.S. Supreme Court on Monday considered dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security. During oral arguments in Murthy v. Missouri, Louisiana Solicitor General J. Benjamin Aguiñaga said those private contacts, combined with public statements condemning the platforms' failure to suppress "misinformation," amounted to government-directed censorship. U.S. Principal Deputy Solicitor General Brian Fletcher disagreed, saying neither crossed the line "between persuasion and coercion."

If the federal government coerced platforms to censor speech by threatening them with "adverse government action," Fletcher conceded, that would be a clear violation of the First Amendment. But "no threats happened here," he argued, because White House officials merely "use[d] strong language" while encouraging the platforms to suppress speech that offended them and "referred in a general way to legal reforms in response to press questions." Any attempt to enjoin the government from privately pressuring Facebook et al. to crack down on controversial speech or publicly castigating them for failing to do so, he warned, would interfere with constitutionally permissible information sharing, "provision of advice," and federal officials' use of "the bully pulpit" to "call on the platforms to do more."

Aguiñaga argued that federal officials went far beyond providing information that might help the platforms enforce their own content rules. He said officials persistently pressured the platforms to broaden those restrictions and enforce them more aggressively, and the platforms responded by changing their policies and practices. "As the 5th Circuit put it," Aguiñaga said, "the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans." And most of that pressure, he emphasized, was applied behind closed doors, coming to light only as a result of discovery in this case.

"The government badgers the platforms 24/7," Aguiñaga said. "It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options, and it accuses platforms both of playing 'total Calvin Ball' and of 'hiding the ball'—all to get the platforms to censor more speech. Under this onslaught, the platforms routinely cave….Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

Fletcher and Aguiñaga both invoked Bantam Books v. Sullivan, a 1963 case in which the Supreme Court held that Rhode Island's Commission to Encourage Morality in Youth violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable. Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications with book distributors, which ostensibly sought their "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.

Last September, the U.S. Court of Appeals for the 5th Circuit ruled that some of the Biden administration's communications with social media platforms qualified as coercion under the Bantam Books test. It also held that some of the interactions amounted to "significant encouragement" under the Court's 1982 ruling in Blum v. Yaretsky. Although that case involved due process rather than freedom of speech, the Court held that private decisions can amount to "state action" when the government has "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." That holding jibes with the general principle that the government may not indirectly do something that the Constitution forbids it to do directly.

In this case, the 5th Circuit held that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency were so heavily involved in content moderation decisions that their "advice" qualified as "significant encouragement" under Blum. As the Foundation for Individual Rights and Expression put it in a brief asking the Supreme Court to uphold the 5th Circuit's decision, federal officials "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."

Fletcher urged the justices to focus on the persuasion/coercion distinction supported by Bantam Books rather than the question of "significant encouragement," which he said
"risks turning the platforms and lots of other entities that are interacting with the government into state actors," thereby "restricting their editorial choices under the First Amendment." And on the question of coercion, he said, it was not enough to show that some federal officials were talking about antitrust action, regulation, and increased liability for user-posted content as ways of holding platforms "accountable" at the same time that others were urging the platforms to banish specific speakers, delete particular posts, or suppress certain kinds of content.

Justice Samuel Alito suggested that the Biden administration treated social media platforms differently than it would treat news outlets such as The New York TimesThe Washington Post, and the Associated Press. "The White House and federal officials are repeatedly saying that Facebook and the federal government should be partners," he said. "'We are on the same team.' Officials are demanding answers. 'I want an answer. I want it right away.' When they're unhappy, they curse them out. There are regular meetings. There is constant pestering of Facebook and some of the other platforms…[Officials] suggest…rules that should be applied and [ask], 'Why don't you tell us everything that you're gonna do so we can help you and we can look it over?' And I thought, 'Wow, I cannot imagine federal officials taking that approach to the print media.'…If you did that to them, what do you think the reaction would be?"

At the same time, Alito said, the federal government had "these big clubs" to encourage compliance, including potential legal reforms that would expand the platforms' civil liability. "So it's treating Facebook and these other platforms like they're subordinates," he said.

The cursing to which Alito alluded, Fletcher noted, came in the context of a complaint about problems with President Joe Biden's Instagram account. "Are you guys fucking serious?" Deputy Assistant to the President Rob Flaherty said in an email to Facebook. "I want an answer on what happened here and I want it today." That exchange, Fletcher said, was "not about moderating other people's content."

Fletcher nevertheless conceded that White House officials often adopted a harsh tone when they demanded that platforms suppress messages they viewed as discouraging vaccination against COVID-19. "There's an intensity [to] the back and forth here, and there's an anger that I think is unusual," he said. "But the context for that, I think, is that these platforms we're saying publicly, 'We want to help. We think we have a responsibility to give people accurate information and not bad information, and we're doing everything we can to meet that goal.' That's where this language of partnership comes from. It's not just from the White House; it's these platforms, which are powerful, sophisticated entities, saying, 'We're doing the best we can.'…The anger is when the officials think that the platforms are not being transparent about the scope of the problem or aren't giving information that's available."

Justice Clarence Thomas, who joined Alito and Justice Neil Gorsuch in dissenting when the Court stayed the 5th Circuit's preliminary injunction in October, suggested that even amicable cooperation between the government and social media platforms could run afoul of the First Amendment. He asked Fletcher whether the government could "censor someone" by "agreeing with the platforms, as opposed to coercing the platforms." Suppose the platforms agreed that "we're on the same team" and "work[ed] together" with the government "to make sure that this misinformation doesn't gain sort of any following," he said. "The government can't censor by coordinating with private parties to exclude others' speech?"

Gorsuch likewise made a few points that might support a ruling against the government. He said suppression of a given plaintiff's speech could be deemed "traceable" to the government's conduct if the latter was "a motivating factor" in that particular moderation decision, even if it was not "a proximate cause." And he suggested that "a threat or an inducement with respect to antitrust actions" or protection from civil liability for users' posts, both of which could be relevant here, might "qualify as coercion." Likewise "an accusation by a government official that unless you change your policies, you're responsible for killing people"—a description that fits what Biden said about Facebook and other platforms.

While Fletcher focused on coercion and defined it narrowly, Aguiñaga argued that any contact in which a public official urges a platform to take down objectionable content carries an implicit threat because of the power that the government wields. If "my dear mother" complains to a platform about a post, he said, "they don't know her from Adam," so "they don't care, but they do care if it's the government."

Aguiñaga drew a distinction between rebutting misinformation and demanding its censorship. "If the government thinks there's false speech out there, the remedy for that is true speech," he said. "Nothing prohibits the government from going to that platform and saying, 'We've seen a lot of false information about election activity and COVID and vaccines.'….Nothing prohibits the government from saying, 'Here's a list of everything we say is true. That is true in our view, and you should amplify our speech. And anytime that false speech arises, you should put our posts right there next to it, saying this is the government's view on this issue.'"

Aguiñaga, who described himself as "a purist on the First Amendment," suggested that would be the right approach even when the government is responding to "factually erroneous information" about actions by U.S. troops (a hypothetical posed by Justice Brett Kavanaugh) or a social media "challenge" involving "teens jumping out of windows at increasing elevations" (as imagined by Justice Ketanji Brown Jackson). But he noted that suppression of some online speech, especially in the context of national security, would be constitutional if it withstood "strict scrutiny," meaning it was the least restrictive means of serving a compelling government interest.

"If you're concerned with the breadth of our arguments, that's one fail-safe," Aguiñaga said. "No matter how broad the standard [that] the Court adopts, there's always gonna be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things that you're outlining."

Justice Elena Kagan questioned whether any of the individual plaintiffs who joined Louisiana and Missouri in this lawsuit could prove their speech was suppressed as a result of government pressure rather than independent decisions by social media platforms. "There's just nothing where you can say, 'OK, the government said, take down that communication,'" she told Aguiñaga. "The government is making some broad statements about the kinds of communications it thinks [are] harmful. Facebook has a lot of opinions on its own about various kinds of communications." Based on "standard ideas about traceability and redressability," she said, "I don't see a single item in your briefs that would satisfy our normal tests."

Justice Sonia Sotomayor complained that Aguiñaga's brief was misleading. "You omit information that changes the context of some of your claims," she said. "You attribute things to people who it didn't happen to." In one case, she said, "it was [a plaintiff's] brother that something happened to, not her. I don't know what to make of all this….I'm not sure how we get to prove direct injury in any way."

Aguiñaga apologized. "If any aspect of our brief was not…as forthcoming as it should have been," he said, "I would take full responsibility for that." He cited a couple of examples that he thought "prove direct injury," but Kagan and Sotomayor remained skeptical. And Fletcher argued that the timing of government communications and moderation decisions affecting the plaintiffs does not support an inference that the former resulted in the latter.

Aguiñaga emphasized that the government's intervention resulted in the suppression of speech that otherwise would have been allowed. To illustrate that point, he cited an email from Meta executive Nick Clegg to Surgeon General Vivek Murthy, who had joined Biden in publicly charging Facebook with complicity in the deaths of unvaccinated Americans and urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures."

After thanking Murthy "for taking the time to meet,'" Clegg said, "I wanted to make sure you saw the steps we took just this past week to adjust policies on what we're removing with respect to misinformation, as well as steps taken to further address the 'disinfo dozen' [users the government has identified as major purveyors of anti-vaccine messages]: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen." Later Clegg told Murthy that Facebook "will shortly be expanding our COVID policies to further reduce the spread of potentially harmful content on our platform." Such exchanges, Aguiñaga said, show that platforms like Facebook were "moving beyond what their own policies require[d] because they felt pressure to take more action and to censor more speech."

In Fletcher's telling, however, federal officials were simply providing information and encouraging voluntary collaboration. Aguiñaga "started by saying that this is a massive attack on free speech," Fletcher said during his rebuttal. "The lower courts called it a coordinated censorship campaign. I want to be clear [that] if those things had happened, they would be reprehensible. It would be a huge problem." But under "a rigorous analysis of the facts and the law," he said, "we don't think that's [what] happened here. We don't think that's supported."

[This post has been updated with comments from Thomas and Gorsuch.]

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https://reason.com/2024/03/18/scotus-ponders-whether-the-government-coerced-social-media-platforms-to-censor-speech/feed/ 94 Surgeon General Vivek Murthy
The CCP Sucks. So Does Banning TikTok. https://reason.com/podcast/2024/03/18/the-ccp-sucks-so-does-banning-tiktok/ https://reason.com/podcast/2024/03/18/the-ccp-sucks-so-does-banning-tiktok/#comments Mon, 18 Mar 2024 20:47:34 +0000 https://reason.com/?post_type=podcast&p=8269305 TikTok logo displayed on a smartphone and Chinese flag visible in background | Jonathan Raa/Sipa USA/Newscom

In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman weigh in on the approved House bill that could potentially usher in a ban on popular social media app TikTok in the United States.

01:49—Legislation to ban TikTok

16:39—California's continued high-speed rail boondoggle

33:48—Weekly Listener Question

43:25—Elon Musk launches Starship rocket

46:31—This week's cultural recommendations

Mentioned in this podcast:

"Banning TikTok Would Give the Feds Way Too Much Power," by Robby Soave

"Algorithm Not for Sale," by Liz Wolfe

"TikTok's Opponents Want Chinese-Style Censorship in America," by Matthew Petti

"The U.S. Steel/Nippon Deal Should Be None of Joe Biden's Business," by Eric Boehm

"Hey look a new scientific book abt how TikTok is addicting kids like 'narcotics'!" writes Nick Gillespie on X, formerly Twitter

"California's High-Speed Rail Needs Another $100 Billion. That's a Great Reason Not To Build It." by Eric Boehm

"Annie Duke: Quitting Is Totally Underrated," by Nick Gillespie

"America Is Taking a High-Speed Train to Bankruptcy," by David Ditch

"How Florida Beat California to High-Speed Rail," by Natalie Dowzicky

"The Problem With the 'Abundance Agenda,'" by Christian Britschgi

"We Told You Why and How California's High-Speed Rail Wouldn't Work. You Chose Not To Listen." by Matt Welch

"The Political Class Knew California High-Speed Rail Was B.S., and Supported it Anyway," by Matt Welch

"3 Reasons Obama's High-Speed Rail Will Go Nowhere Fast," by Meredith Bragg and Nick Gillespie

"On the Passing of a Liberal Deregulator," by Matt Welch

"Learning From Kodak's Demise," by Nick Gillespie and Matt Welch

"Milton Friedman Was No Conservative," by Brian Doherty

"Jennifer Burns on Milton Friedman's Legacy," by Nick Gillespie

"Oscar-Nominated Robot Dreams Is a Gentle Animated Love Story About Dogs, Robots, and 1980s New York," by Peter Suderman

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

Upcoming Events: 

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Audio production by Ian Keyser; assistant production by Hunt Beaty.

Music: "Angeline," by The Brothers Steve

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Law Enforcement Trainers File Scotus Amicus Brief against Maryland Rifle Ban https://reason.com/volokh/2024/03/18/law-enforcement-trainers-file-scotus-amicus-brief-against-maryland-rifle-ban/ https://reason.com/volokh/2024/03/18/law-enforcement-trainers-file-scotus-amicus-brief-against-maryland-rifle-ban/#comments Mon, 18 Mar 2024 20:41:30 +0000 https://reason.com/?post_type=volokh-post&p=8268802 Last week the International Law Enforcement Educators & Trainers Association filed an amicus brief in a U.S. Supreme Court case challenging Maryland's ban on many common semiautomatic rifles. The case is Bianchi v. Brown, and it has an unusual procedural posture; it is a petition for certiorari before judgement. Yet the case is one on which the U.S. Supreme Court has already ruled.

This post will first summarize the amicus brief, and then provide the procedural background, which is detailed in the Bianchi plaintiffs' cert. petition.

The facts about the banned rifles

As detailed in the amicus brief, the semiautomatic rifles banned by the Maryland General Assembly fire only one shot each time the trigger is pressed. This is the same rate of fire as the most common semiautomatic handguns, such as those made by Glock, Smith & Wesson, or Ruger.

The claim by gun prohibition advocates that such guns fire 300 to 500 times per minute has no basis in fact, and is contrary to common sense. It would take a superhuman trigger finger pull a trigger at the rate of 5 to 8 times per second, let alone do so for a full minute.

Nor are the banned rifles, including those based on the AR-15 platform, more powerful than nonbanned rifles. To the contrary, their standard ammunition is .223 inch or 5.56mm bullets that are small compared to most other rifle ammunition. Accordingly, their kinetic energy is lower.

Because the banned rifles are more powerful than handguns, but less powerful than most other rifles, the relatively low wounding power of this ammunition has been confirmed by decades of study by the US Army's Ballistic Research Laboratory.

Moreover, as documented in police training manuals, the banned rifles are the safest for defensive use within buildings, because their ammunition is especially unlikely to penetrate a wall.

The deadliest firearms in mass shootings are handguns. Researchers led by Dr. Babak Sarani, founder and chief of the Center for Trauma and Critical Care at George Washington University Hospital, examined the relationship between the type of firearm used, wounding characteristics, and probability of death in mass shootings. Babak Sarani, et al., Wounding Patterns Based on Firearm Type in Civilian Public Mass Shootings in the United States, 228 J. Amer. College Surgeons 228 (Mar. 2019). They studied firearm types and autopsy reports for 232 victims from 23 mass shootings, including high-casualty shootings with "assault weapons" at Orlando and Las Vegas.

Surprisingly, the researchers found that mass shootings with handguns are more lethal than those with rifles because handguns result in more wounds per victim and more injuries to vital organs. Id. at 228-29, 232-33. "All of us were shocked," Dr. Sarani said. "We came to the table with our bias that an assault weapon would be worse." Carolyn Crist, Handguns More Lethal Than Rifles in Mass Shootings, Reuters (Dec. 31, 2018).

Law enforcement perspectives

Because the banned rifles are relatively low-powered, their recoil is lower, and hence they are more accurate. Additionally, the rifles are replete with features (outlawed by Maryland) that enhance accuracy.

For example, a telescoping stock can adjust for a precise fit to the user's size. The customizable forward grip provides stability. Surrounding the barrel are rails (sometimes called the handguard or forend) that make it easy to add optics, such as scopes, red dots, and/or flashlights – all for greater accuracy.

So it is no wonder that these semiautomatic rifles are very commonly chosen by law enforcement officers to carry in their patrol cars. Law enforcement officers choose their patrol rifles for only one purpose: lawful defense of self and others. It is preposterous for a legislature to claim (falsely) that these rifles are "weapons of war," are useless for self-defense, and are made only for mass killing. This is a libel against law-abiding law enforcement officers.

Prudently, American citizens have always looked to law enforcement for guidance in choosing defensive firearms, because law enforcement firearms are selected with care. Officers choose their duty arms for one purpose: lawful defense of self and others.

The most important reason why citizens often do and should copy law enforcement officers' firearms selections is to ensure that citizens will have reliable firearms for defense. Officers' arms are well-suited for defense against violent criminals; and they are appropriate for use in civil society.

Law enforcement officers are not soldiers wielding weapons of war, and their interactions with citizens are not governed by rules of engagement for the battlefield. The challenged statute implicitly denigrates peace officers by treating them like an occupying army. Such negative attitudes make the public less willing to cooperate with law enforcement and damage community relations.

Procedural background

In 2013, the Maryland General Assembly enacted a sweeping ban on many semiautomatic rifles, particularly targeting those that are most useful for lawful defense of self and others. The ban was promptly challenged in Kolbe v. Hogan, a case which went through the complete discovery process.

At the time, the Fourth Circuit Court of Appeals, like most but not all other Circuits, evaluated Second Amendment cases under a "Two-Part Test," which was similar to the three tiers of scrutiny that had been used for free speech and equal protection cases. The district court applied a weak form of intermediate scrutiny and upheld the ban. Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014). Then, a three-judge panel of the Fourth Circuit held that—because the statute banned many common arms—strict scrutiny was the proper standard. Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016)

Before the remanded case could be decided the the District Court, the Fourth Circuit took the case en banc, and the majority ruled hat the banned arms are not even covered by the Second Amendment. By the en banc majority's theory, lightly premised on a tendentious reading of the Supreme Court's District of Columbia v. Heller, arms that are mainly suitable for military use are not part of the Second Amendment. Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).

The majority rationale was out of touch with current facts, since no military in the world uses semiautomatic-only rifles. The U.S. military and others choose service rifles that are capable of automatic fire. More fundamentally, the Kolbe majority rationale would deny Second Amendment protection to the very arms with which Americans won their War of Independence—namely the personally-owned muskets and rifles that American Patriots brought to service, because those were the arms that the States and the colonies had specified by statute were the best arms for the militia.

When plaintiffs petitioned for certiorari, Randy Barnett, Ilya Shapiro, Joseph Greenlee, and I wrote an amicus brief on behalf of the National Sheriffs' Association and other organizations. Certiorari was denied in 2017. At the time, the Supreme Court was refusing to take almost any case involving the Second Amendment. (The only notable exception was Caetono v. Massachusetts, a 2016 challenge to the now-defunct Massachusetts ban on electric stun guns.)

A new case, challenging only the gun ban (and not other 2013 items, such as a magazine ban) was filed in 2020. The District Court quickly dismissed the case based on Kolbe, and a Fourth Circuit panel tersely affirmed. Plaintiffs petitioned for certiorari.

A few days after the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, the Court granted, vacated, and remanded three cases for reconsideration in light of Bruen. One of them was the Maryland firearms ban case, now known as Bianchi v. Frosh. 142 S. Ct. 2898, 2899 (Mem.) (2022). (The other two cases were magazine bans from the Third and Ninth Circuits.)

The June 2022 remand led to oral argument before a three-judge Fourth Circuit panel in December 2022. The panel took over a year to write an opinion. Then, while the draft opinion was presumably being circulated among the Circuit's other judges, the Fourth Circuit sua sponte took the case away from the panel, and in January 2024 took the case en banc. The iron rule of Fourth Circuit jurisprudence has always been that no decision in support of a Second Amendment plaintiff can survive the process of appellate review. See Kopel, Data Indicate Second Amendment Underenforcement, 68 Duke Law Journal Online 79 (2018) (also noting same problem in Second and Ninth Circuits).

The Bianchi plaintiffs, represented by David Thompson of the D.C. constitutional litigation boutique Cooper & Kirk, petitioned for certiorari before judgement. They argued that the Fourth Circuit's dilatory procedures are an obvious attempt to evade Supreme Court precedent, which clearly dictates a ruling against the Maryland ban.

Perhaps as result of the cert. petition, the Fourth Circuit has scheduled a prompt en banc oral argument, on March 20.

Shortly after the Bianchi petition for certiorari before final judgement was filed, similar petitions were filed for several cases involving an especially draconian gun ban enacted in Illinois in 2023. The results in the district courts on preliminary injunction motions had been mixed, and the Seventh Circuit considered them all together. In Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023), a three-judge panel led by Judge Easterbrook relied on Kolbe, and held that the banning of a vast number of common firearms had nothing to do with the Second Amendment. In his view, the Second Amendment does not apply to arms "reserved to the military."

Judge Easterbrook's opinion would have been doctrinally solid if he had been interpreting the Mexican Constitution's right to arms, which states:

Article 10. The inhabitants of the United Mexican States have a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the Army, Navy, Air Force, and National Guard. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants.

See Kopel, Mexico's Gun Control Laws: A Model for the United States? 18 Texas Review of Law & Politics 27 (2013). But even if the U.S. constitutional right to arms had copied Mexico's, Judge Easterbrook still would have been wrong on the facts, because the arms banned in Illinois are not used by the U.S. military. And despite what Judge Easterbrook claimed, the banned firearms do not function like machine guns.

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Video of Marshall University Online Talk on "Putin's Western Supporters" https://reason.com/volokh/2024/03/18/video-of-marshall-university-online-talk-on-putins-western-supporters/ https://reason.com/volokh/2024/03/18/video-of-marshall-university-online-talk-on-putins-western-supporters/#comments Mon, 18 Mar 2024 20:18:15 +0000 https://reason.com/?post_type=volokh-post&p=8269421 Marshall University recently posted the video of my online talk on "Putin's Western Supporters," which is part of their weekly series of panels and lectures related to Russia's war against Ukraine.

In the presentation, I distinguish between Westerners who like and admire Putin's regime from those I call "anti-anti-Putinists," a term inspired by Cold War-era anti-anti-communists. I also explain why Cold War-era Western sympathizers with the Soviet Union were overwhelmingly on the political left, while Putin's Western supporters are mostly on the political right. Whereas the USSR's appeal was tied to that of egalitarian socialism and communism Putin's Russia promotes nationalism and social conservatism. Finally, I discuss the relative strengths and weaknesses of Putin's regime in the international war of ideas, and what can be done to counter it. Some of the points made relate to issues addressed in my recent National Affairs article, "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

Here's the video:

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The One-Man 'Cult' That Put St. Louis Under Surveillance https://reason.com/2024/03/18/the-one-man-cult-that-put-st-louis-under-surveillance/ https://reason.com/2024/03/18/the-one-man-cult-that-put-st-louis-under-surveillance/#comments Mon, 18 Mar 2024 16:45:06 +0000 https://reason.com/?p=8269297 Drone with St. Louis Gateway Arch in the background | Illustration: Lex Villena; Michal Šteflovič

One bad actor became an excuse for the government to ruin everyone's day. Or that's how some drone pilots in Missouri are feeling right now, after the self-described "rat king" and "cult" leader Jomo Johnson offered pay-per-view surveillance of St. Louis and the city responded with ham-handed restrictions.

The St. Louis Board of Aldermen voted last week to require any drone pilot flying for commercial reasons to have a city license. (That's on top of the Federal Aviation Administration license that commercial drone pilots already need.) The bill would also ban drones from flying within 25 feet of people without their consent or near public buildings and emergency vehicles.

Mayor Tishuara Jones says she's looking forward to signing it into law. The site DroneDJ calls the move "another example of isolated obnoxious drone operation producing regressive rules for all users."

While the bill throws barriers in the way of businesses like real estate photography, it exempts "members of the press who operate drones to collect video footage or photographs for journalistic purposes and activities protected by the Constitution"—which leaves room for exactly the kind of livestreaming that the aldermen were trying to ban in the first place.

"We want to respect privacy, but also, there is a right to photograph in public," Johnson told a local NBC affiliate. "That's covered under the First Amendment."

The bill was a response to Johnson's company, SMS Novel, advertising paid surveillance livestreams of St. Louis neighborhoods. SMS Novel offered to let users submit requests for surveillance of specific locations. Johnson described his service as a "unique opportunity for both entertainment and security." 

It's unclear whether the surveillance even existed in any meaningful form. The local news station First Alert 4 tried to pay for SMS Novel's livestream on the first day of streaming but never gained access to the video. The two samples of SMS Novel footage that are posted to YouTube show jerky, nearly-unwatchable piloting.

Surveillance would not be Johnson's first creepy business venture. Different versions of the SMS Novel website have offered different services. One version let people pay $200 to have their pet audition for a film about "the mythical tale of the dog that followed Jesus." Another version sold AI-generated books for nearly $100.

In a video, SMS Novel described itself as a "writing cult" around Johnson, a "subservient rat king of writers devoted to the Almighty Word, joined at the tails by the power of AI."

Speaking in defense of his drone venture, Johnson has presented himself as an upstanding crime fighter rather than an cult leader. He told a February 29 board meeting that "we shouldn't demonize Black voices that try to create solutions for crime in St. Louis and other cities."

Johnson said he was speaking "as someone who has frequented St. Louis much and also as a future resident." Other people at the meeting shouted, "He doesn't even live here!"

In his January 29 interview, Johnson also called himself "a drone businessperson who represents drone pilots." Many in the drone community, however, see Johnson as a threat to their ability to self regulate.

"If you're in the drone business and you're trying to create a drone business that's going to create this kind of havoc, keep in mind that there will be an overreaction," flight instructor Greg Revardiau said during his weekly Pilot Institute news video. "Everybody—in this case, in St. Louis—can owe it to [Johnson] that now they may not be able to fly in certain areas."

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Pornhub Pulls Out of Seventh State https://reason.com/2024/03/18/pornhub-pulls-out-of-seventh-state/ https://reason.com/2024/03/18/pornhub-pulls-out-of-seventh-state/#comments Mon, 18 Mar 2024 15:30:30 +0000 https://reason.com/?p=8269275 Pornhub site on mobile phone | Nikolas Kokovlis/ZUMAPRESS/Newscom

Pornhub has begun blocking visitors from Texas, where the authorities are attempting to enforce a new law requiring web porn platforms to check viewer ages. The company called the law "ineffective, haphazard, and dangerous."

Since Pornhub pulled out, Texans have greatly increased Google searches for tools to mask the geographic location of their devices.

We've been here before—with age-check laws, attempts to get around them, and porn platforms cutting off access. In fact, Texas is the seventh state that adult content platforms run by the Canadian company Aylo (formerly MindGeek) have left over age verification requirements. As a result, residents of Texas and six other states are blocked from visiting such popular sites as Pornhub, Redtube, and YouPorn.

There may be a better way forward when it comes to thwarting minors' access to porn while still protecting adult privacy and free expression. But it's also more complicated—and less likely to indiscriminately punish porn platforms, producers, and performers. Unsurprisingly, politicians don't seem interested.

'Not an Effective Solution' 

Pornhub went dark in Texas last Thursday, following a late-February lawsuit filed by state Attorney General Ken Paxton against Aylo. Paxton has accused the company of failing to follow the state's age verification law, which requires adult-content websites to make sure viewers are at least 18 years old. A federal court has called the new Texas law unconstitutional. But the 5th Circuit Court of Appeals then gave the state a green light to start enforcing it—hence Paxton's lawsuit.

"As you may know, your elected officials in Texas are requiring us to verify your age before allowing you access to our website," reads a message on Pornhub that now greets visitors from Texas. "Not only does this impinge on the rights of adults to access protected speech, it fails strict scrutiny by employing the least effective and yet also most restrictive means of accomplishing Texas's stated purpose of allegedly protecting minors.

"While safety and compliance are at the forefront of our mission, providing identification every time you want to visit an adult platform is not an effective solution for protecting users online, and in fact, will put minors and your privacy at risk," the statement continues. "Attempting to mandate age verification without any means to enforce at scale gives platforms the choice to comply or not, leaving thousands of platforms open and accessible. As we've seen in other states, such bills have failed to protect minors, by driving users from those few websites which comply, to the thousands of websites, with far fewer safety measures in place, which do not comply."

Pornhub makes a good point, and one that prohibitionists of all sorts are wont to ignore. Banning (or putting up major barriers to) products that people want doesn't stop people from wanting and accessing those products. It simply bars people from accessing them in the safest and most transparent way possible. And this is especially true where the internet is concerned, since the internet is a global and not easily constrained phenomenon.

There will always be websites willing to provide porn without carding viewers. These platforms are also less likely to take other steps to stay within regulatory or creator-protective limits. By driving viewers away from platforms like Pornhub—sites that engage in at least some content moderation, are relatively receptive and responsive to authorities, and are willing to forge mutually beneficial partnerships with porn creators—age verification laws could actually increase viewership of exploitative or otherwise undesirable content.

"The Texas law for age verification [won't] actually protect children," suggested Pornhub. "But it will…reduce content creators' ability to post and distribute legal adult content and directly impact their ability to share the artistic messages they want to convey with it."

Age Verification Fallout 

"Searches by Texas users for the term 'VPN' jumped more than fourfold" after Pornhub blocked access to Texans, Variety reports.

VPN stands for virtual private network, a tool used to mask the geographic location of internet users. Using a VPN, a resident of Texas could access Pornhub content by appearing to be located in some state where Pornhub is not blocked.

We've seen similar spikes in interest in VPNs in other states where Pornhub has blocked users.

States where Pornhub (and sister sites, such as Redtube and YouPorn) are now blocked include Arkansas, Mississippi, Montana, North Carolina, Texas, Utah, and Virginia. Each of these states recently enacted an age verification requirement for adult content websites. Last March, Utah became the second state to enact such a law, and the first to find residents blocked by Pornhub. The Arkansas, Virginia, and Mississippi laws—and Pornhub blocks—started last summer. The North Carolina and Montana laws took effect this past January, with Pornhub blocking access shortly before that.

The Louisiana Difference 

Louisiana was the first state to enact a law requiring web porn platforms to verify visitor ages. Yet Pornhub has not blocked visitors from Louisiana. Why?

The difference is in the details of complying with Louisiana's law. Verifying visitor ages in Louisiana does not require porn sites to directly collect user IDs. Rather, the state's government helped develop a third-party service called LA Wallet, which stores digital driver's licenses and serves as an online age verification credential that affords some privacy.

Using this service does not require people to turn over their real identities to porn sites. "Through LA Wallet's [Anonymous Remote Age Verification] capabilities, adult content sites can anonymously verify the age of users," its website states.

This system isn't perfect, but it is less invasive than the alternative—closer to a convenience store clerk glancing at someone's ID than to creating a gigantic porn viewer database linked to real identities. This makes it more attractive to people visiting porn platforms and to the platforms themselves.

Louisiana's law may still pose privacy risks and infringe on free speech. But at least Louisiana attempted to mitigate these issues, unlike the other states that have passed age verification laws. It took the time to develop a system that allows adult content sites to anonymously verify users, instead of just telling tech and content companies to work it out themselves, user privacy be damned.

A Better Way Forward?

It's pretty clear that the days of open-access digital platforms are receding. Online age verification proposals—not just for porn but for social media—are sweeping the country. Last year, age-check laws aimed at adult content were introduced in at least 11 states. And so far this year, at least seven states (Georgia, Idaho, Indiana, Iowa, Kansas, Ohio, and Oklahoma) have seen proposals put forth to card visitors to online porn platforms.

The Free Speech Coalition, an adult industry trade group, has challenged some of these laws in court, as have some porn platforms.

But Aylo—which was acquired by Ethical Capital Partners last year—has another idea as well. It wants to see age restrictions implemented at the device level.

"We believe that the real solution for protecting minors and adults alike is to verify users' ages at the point of access—the users' devices—and to deny or permit access to age-restricted materials and websites based on that verification," Alex Kekesi, Aylo's vice president of brand and community, explained in an emailed statement. (He also said "this is not the end" of the Pornhub battle in Texas and that the company is "reviewing options and consulting with our legal team.")

Device-based verification could work in different ways, but the basic advantage is that it can keep internet porn away from kids without implicating adult user privacy.

In a device-based system, parents could make sure their minor kids' devices were specially equipped with a mechanism to alert websites that person using it is under 18. This device-based trigger—which could work equally well on porn, social media, or other platforms where people might want to proactively restrict access for kids—could accomplish the goal of restricting access to some group of users without requiring every user to forgo anonymity.

There's also a more expansive way of doing device-based verification, which would require anyone using a smartphone or computer device to verify their age with the device provider (as opposed to making it an opt-in thing). This option would obviously be more of a burden on adult user privacy, and therefore is more objectionable. Jonah Aragon lays out an array of potential problems with this approach here.

Either way—kids-only or more expansive—"such an approach requires the cooperation of manufacturers and operating-system providers," noted Pornhub in the statement now visible to Texas visitors.

I think this helps explain why we see less of a push for device-level verification. Computer and smartphone companies have more political clout than porn companies; it's much easier for politicians to make special demands of the latter than the former.

Add the facts that 1) politicians are lazy and 2) at least some of them want to reduce porn viewership more broadly and not just for minors, and it's not hard to imagine why politicians have been focused on making porn companies card users rather than pushing for device-based solutions.

For what it's worth, a voluntary, device-based technical solution isn't just better from a civil liberties standpoint; it may also be better at restricting access for kids.

The initial ruling against Texas' age verification law, "noted that Texas' own studies tended to show that content filtering and parental controls would be more effective, and better tailored, than age verification," First Amendment lawyer Ari Cohn pointed out last year. And while some people suggest that these voluntary parental control measures don't cut it because parents are too dumb or careless to use them, "that does not allow the government to sidestep them as a less restrictive means," Cohn noted.

Today's Image

Michael Lacey being interviewed by Elizabeth Nolan Brown with a Reason film crew filming
Interviewing journalist and Backpage co-founder Michael Lacey for an upcoming Reason video | Phoenix (ENB/Reason)

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Bloodbath https://reason.com/2024/03/18/bloodbath/ https://reason.com/2024/03/18/bloodbath/#comments Mon, 18 Mar 2024 13:30:39 +0000 https://reason.com/?p=8269263 Trump stands in front of an American flag | TANNEN MAURY/UPI/Newscom

Another day, another Trump speech controversy: Remember the "grab 'em by the pussy" comments Donald Trump made in the early '00s that came out during the 2016 presidential race? Or his "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters" comment from the same campaign? Those soundbites loom large in people's imaginations, but they weren't especially vague; they required no distortion to be unflattering to the man who said them.

Now, though, each new Trump comment seems like a Rorschach. His "bloodbath" comment in Vandalia, Ohio, on Saturday is no exception, but perhaps indicative of how this campaign cycle is going to go.

Pearls were clutched up and down the Acela corridor: "Trump says country faces 'bloodbath' if Biden wins in November," was how Politico chose to headline Trump's remark. "Trump says some migrants are 'not people' and predicts a 'blood bath' if he loses," was how The New York Times characterized the speech. And don't even get me started on what various MSNBC commentators said. (OK, here's one: "He was sending a call to his supporters to have a reprise of January 6," said former New Jersey Gov. Christine Todd Whitman, who then compared Trump to Adolf Hitler.)

Here's what Trump actually said: "Let me tell you something, to China, if you're listening, President Xi…those big, monster car manufacturing plants that you're building in Mexico right now, and you think you're going to get that, you're going to not hire Americans and you're going to sell the cars to us? We're going to put a 100 percent tariff on every single car that comes across the line, and you're not going to be able to sell those guys if I get elected. Now, if I don't get elected, it's going to be a bloodbath for the whole— That's gonna be the least of it. It's going to be a bloodbath for the country. That'll be the least of it. But they're not going to sell those cars, they're building massive factories."

The "that'll be the least of it" part sure is weird, but to totally remove the context—Trump was talking about tariffs and car manufacturing and loss of jobs—from the "bloodbath" comments strikes me as media malpractice. (More competent pundits might take the opportunity to point out how slapping big tariffs on foreign-manufactured cars would be bad policy, a point made repeatedly by Reason's Eric Boehm.)

Later, Trump said, "If this election isn't won, I'm not sure that you'll ever have another election in this country," which strikes me (and others) as the more concerning soundbite than the one the media is seizing on. And he referred to illegal immigrants as "animals" in his speech, which doesn't tell us anything new about what Trump believes, but sure isn't aligned with what I value.

Still: The media chose not to focus on these chunks of the speech or on the actual trade policy Trump was promoting. Many mainstream publications did not even provide viewers and readers with full context so they could judge the comments themselves. This strikes me as a problem—one that's been pointed out repeatedly over the last eight years—requiring some self-reflection that may unfortunately never come.

Fighting at Al Shifa: In Gaza, fighting has once again broken out at Al Shifa hospital, where the Israeli military says Hamas fighters are shooting from.

Back in November, the Israel Defense Force (IDF) decision to raid Al Shifa was controversial. Isreal said the hospital was being used as a Hamas command center and a means of covering the entrances to the terrorists' underground tunnel network. (The November raid uncovered stockpiles of weapons hidden in MRI rooms as well as tunnel entrances on the grounds.)

The IDF is calling the new raid a "high-precision" operation, saying it is based on new intelligence that indicates senior Hamas militants are hiding out at the hospital. Still, it's a high-risk operation with lots of potential to harm civilians—and some evidence that's already happened.

"The hospital and the surrounding area house about 30,000 patients, medical workers and displaced civilians, and a number of people were killed and wounded, the [Hamas-controlled Gazan] health ministry said," reports The New York Times. "It added that a fire had broken out at the gate of the complex, which caused some people to suffocate and made it difficult to reach those who were injured."


Scenes from New York: New York Gov. Kathy Hochul is ordering a review of how the state has been issuing cannabis dispensary licenses, having already called the legal weed rollout "a disaster." (I have a Reason documentary in the works about this precise issue.)


QUICK HITS

  • "Who are currently the most influential thinkers/intellectuals on the Left?" asks Tyler Cowen over at Marginal Revolution.
  • Check out this Bloomberg explainer on the end of Japan's negative interest rates.
  • Sen. Bernie Sanders (I–Vt.) wants the government to establish a 32-hour workweek; National Review editors tearing the idea apart.
  • High-end space dining is now a thing (if you're willing to fork over half a million).
  • "The Kremlin stage-managed Russia's presidential vote over the weekend to send a singular message at home and abroad: that President Vladimir V. Putin's support is overwhelming and unshakable, despite or even because of his war against Ukraine," reports The New York Times' Paul Sonne.
  • lol:

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https://reason.com/2024/03/18/bloodbath/feed/ 464 Donald Trump celebrates his win in the 2024 Iowa Caucus at the Iowa Events Center in Des Moines, Iowa on Monday, January 15, 2024.
Employers May Not "Take Adverse Employment Actions … Based on [Employees'] Race or Gender to Implement" "Diversity and Inclusion" Programs https://reason.com/volokh/2024/03/18/employers-may-not-take-adverse-employment-actions-based-on-employees-race-or-gender-to-implement-diversity-and-inclusion-programs/ https://reason.com/volokh/2024/03/18/employers-may-not-take-adverse-employment-actions-based-on-employees-race-or-gender-to-implement-diversity-and-inclusion-programs/#comments Mon, 18 Mar 2024 12:23:30 +0000 https://reason.com/?post_type=volokh-post&p=8269180 From Tuesday's Fourth Circuit decision in Duvall v. Novant Health, Inc., written by Judge Agee and joined by Judges Quattlebaum and Floyd (upholding a damages award of "about $4 million"):

After a week-long trial, a North Carolina jury found that Novant Health, Inc. terminated David Duvall because of his race, sex, or both, in violation of Title VII of the Civil Rights Act of 1964. In addition to the finding of liability, the jury awarded Duvall $10 million in punitive damages [reduced to the statutory maximum of $300,000].

The court summarized the facts, as usual in this situation, in light most favorable to the verdict:

Duvall, a white man, began working for Novant Health in 2013, when Executive Vice President and Chief Consumer Officer Jesse Cureton, a black man, hired him as Senior Vice President of Marketing and Communications. Based in North Carolina, Duvall reported directly to Cureton and held the same position throughout his employment with Novant Health. Evidence presented at trial demonstrated that Duvall performed exceptionally in his role, receiving strong performance reviews and gaining national recognition for himself and the marketing program he developed for Novant Health.

Despite all that, Cureton fired Duvall in July 2018, a decision that came as a shock to both Duvall and his colleagues. Moreover, Novant Health—a multibillion-dollar company with tens of thousands of employees and an extensive human resources department—had no record of any documented criticism of Duvall's performance or reasons for his termination.

Immediately after firing Duvall, Novant Health elevated two of Duvall's deputies, a white woman and a black woman, to take over his duties. It then later hired another black woman to permanently replace Duvall.

Believing Novant Health fired him merely to achieve racial and gender diversity—or more specifically, to hit certain diversity "targets"—within its leadership, Duvall sued his former employer under Title VII and North Carolina state law in federal district court….

The court concluded there was sufficient evidence to support the jury verdict:

To begin, Duvall presented evidence about the context surrounding his termination. The jury heard that Duvall was fired in the middle of a widescale D&I initiative at Novant Health, which sought to "embed diversity and inclusion throughout" the company, and to ensure that its overall workforce, including its leadership, "reflect[ed] the communities [it] serve[d]." There was evidence presented that Novant Health endeavored to accomplish this goal by, among other things, benchmarking its then-current D&I levels and developing and employing D&I metrics; committing to "adding additional dimensions of diversity to the executive and senior leadership teams" and incorporating "a system wide decision making process that includes a diversity and inclusion lens"; and evaluating the success of its efforts and identifying and closing any remaining diversity gaps.

The jury also heard about the demographic data from 2015 and 2017 that Novant Health collected. From a factual standpoint, the data revealed a decline in female leaders and an overrepresentation of male and white leadership in comparison to the total workforce. It also showed an increase in white male representation "with each level of management," compared to a decrease in "African-American representation … at each level [of management] with the exception of the executive team." By 2019, however, Novant Health saw a dramatic increase in female leaders just from the year prior (the period in which Duvall was fired). It also reflected a decrease of white workers and leaders and an increase in black workers and leaders over the life of the D&I Plan. Additionally, after remaining gaps in the Hispanic and Asian workforce were identified, Novant Health adopted a long-term financial incentive plan that tied executive bonuses to closing those gaps by achieving a specific percentage of each group.

Against that backdrop, we consider the evidence specific to Duvall and his termination.

As noted above, there was substantial evidence at trial that Duvall performed superbly in his role at Novant Health…. But despite this evidence of his exceptional performance, the jury heard that Duvall was abruptly fired, having been told only that Novant Health was "going in a different direction." … Finally, the jury heard Cureton offer shifting, conflicting, and unsubstantiated explanations for Duvall's termination. [Details omitted, but can be seen in the full opinion. -EV] …

{To be clear, employers may, if they so choose, utilize D&I-type programs. What they cannot do is take adverse employment actions against employees based on their race or gender to implement such a program. And as recounted above, the evidence presented at trial in this case was more than sufficient for a reasonable jury to conclude that is precisely what Novant Health did to Duvall.}

But the court set aside the award of punitive damages, because such damages were available "only in limited circumstances:"

Title VII authorizes punitive damages only when a plaintiff makes two showings. First, the plaintiff must show that the employer engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact). Second, the plaintiff must show that the employer engaged in the discriminatory practice with malice or with reckless indifference to the federally protected rights of an aggrieved individual. That is, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law.

And, the court held, plaintiff introduced no "affirmative evidence" that the employer actually "perceived [the] risk" that its actions were illegal: Duvall "offered no evidence as to the training or qualification that Novant Health offered to or required of Cureton, or a comparable executive, to establish the requisite knowledge of federal anti-discrimination law. Duvall even cross-examined Cureton yet never elicited from him testimony establishing his personal knowledge of federal anti-discrimination law, let alone that he perceived a risk that his decision to fire Duvall would violate it." And the "inference that Cureton had the requisite knowledge given his career as a corporate executive" was insufficient.

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Racially Discriminatory Enforcement Lawsuit Against Duluth Police Officer Can Go Forward https://reason.com/volokh/2024/03/18/racially-discriminatory-enforcement-lawsuit-against-duluth-police-officer-can-go-forward/ https://reason.com/volokh/2024/03/18/racially-discriminatory-enforcement-lawsuit-against-duluth-police-officer-can-go-forward/#comments Mon, 18 Mar 2024 12:01:21 +0000 https://reason.com/?post_type=volokh-post&p=8269229 From Kirk v. City of Duluth, decided last Wednesday by Judge Patrick Schiltz (D. Minn.):

Plaintiffs Aaron Kirk, who is black, and Amy Kirk, who is white, are a married couple who reside in a predominantly white neighborhood in Duluth, Minnesota. The Kirks allege that, beginning in 2007 and continuing for many years thereafter, they were subjected to a campaign of racist harassment from two of their neighbors (who lived with each other). Specifically, the neighbors repeatedly made false and unfounded complaints about the Kirks to the Duluth Police Department, subjecting the Kirks (and sometimes their children) to over 100 interactions with the police. On every occasion, the responding officers found the complaints to be unfounded.

The neighbors' complaints ran the gamut from frivolous to serious, including complaints that the Kirks' daughter was drawing on the sidewalk with chalk; that the Kirks' dog (a small Schnauzer) was aggressive and made too much noise; that the Kirks were running a methamphetamine lab; that Aaron Kirk was abusing his child; that Aaron Kirk was "slamming doors" and making noise inside his own home; and that Aaron Kirk was planning to steal roofing materials that the neighbors' contractor had left outdoors. On one occasion, one of the neighbors called Aaron Kirk "nigger" and threatened to call the Ku Klux Klan. The same neighbor twice told police that she was going to shoot the Kirks' dog.

According to the complaint, the "most recent[ ]" incident—an incident that did not involve the neighbors—occurred in July 2020. Aaron Kirk was driving on a Duluth street when defendant Dustin Turcotte cut him off. Kirk sounded his horn, and Turcotte responded by, among other things, repeatedly calling Kirk "nigger," following Kirk first to a restaurant and then to a bank, blocking Kirk's car in the restaurant parking lot, and repeatedly threatening to beat Kirk with brass knuckles.

Turcotte fled after a squad car arrived while the two were outside the bank. Kirk reported Turcotte's conduct to the responding officer, Sara Schutte, who then walked away from Kirk and began speaking to a third-party witness. Kirk left the scene, but officers later showed up at his home and arrested him for fleeing a police officer. While transporting Kirk to jail, Schutte remarked to Kirk: "I could have let you go, but you were being an asshole so I'm taking you to jail." Schutte eventually cited Kirk for disorderly conduct, obstructing the legal process, and reckless driving. Kirk remained in jail for four days; all charges were eventually dropped.

Lawsuits against the government for failing to protect people from private misconduct are very hard to win, and indeed the failure-to-protect claims were thrown out here, because plaintiffs didn't plausibly allege that the city was affirmatively involved in the neighbors' misconduct; some of the claims were also outside the statute of limitations. But plaintiffs' discriminatory prosecution claim was allowed to go forward:

[T]he Kirks allege that Schutte violated the Equal Protection Clause by discriminating against Aaron Kirk following the road-rage incident with Turcotte. Defendants argue that this claim fails because the Kirks have failed to identify a similarly situated comparator of a different race. See Mitchell v. Kirchmeier (8th Cir. 2022) ("To prove that the officers who allegedly shot him violated the Equal Protection Clause, Mitchell would need to show that they treated people who were not Native Americans but were otherwise similarly situated to him more favorably than him.").

The Court disagrees. Kirk was ostensibly arrested for fleeing a police officer. But Turcotte himself, who is white, also left the scene. As defendants point out, the complaint does not expressly allege that Turcotte was not arrested, but that is a reasonable inference from the allegations in the complaint. Defendants' motion to dismiss this claim is therefore denied….

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Today in Supreme Court History: March 18, 2008 https://reason.com/volokh/2024/03/18/today-in-supreme-court-history-march-18-2008-4/ https://reason.com/volokh/2024/03/18/today-in-supreme-court-history-march-18-2008-4/#comments Mon, 18 Mar 2024 11:00:54 +0000 https://reason.com/?post_type=volokh-post&p=8179595 3/18/2008: District of Columbia v. Heller argued.

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ACLU, Once a Defender of Free Speech, Goes After a Whistleblower https://reason.com/2024/03/18/aclu-once-a-defender-of-free-speech-goes-after-a-whistleblower/ https://reason.com/2024/03/18/aclu-once-a-defender-of-free-speech-goes-after-a-whistleblower/#comments Mon, 18 Mar 2024 11:00:37 +0000 https://reason.com/?p=8269206 A laptop whose screen is open to aclu.org, the homepage for the American Civil Liberties Union. | Casimirokt | Dreamstime.com

Among the unfortunate changes of recent years has been the transformation of the American Civil Liberties Union from an advocate for free speech and other individual rights into just another progressive political organization. Historically, despite much pushback, the group defended the right of people from across the political spectrum to advocate and protest. But the organization has become unreliable on the issue; most recently in the very 21st century debate over gender identity, which sees the ACLU of Missouri targeting a whistleblower who is critical of medical transitions for minors.

Targeting an Activist's Communications

"Strange evening," journalist Jesse Singal wrote March 7 on X (formerly Twitter). "The ACLU of Missouri subpoenaed Jamie Reed, demanding (among other stuff) all her communications w/me. I emailed them saying (politely) wtf, you're the ACLU. Got a call from a lawyer there saying it was a mistake – 'It's a big team.' Okay."

The subpoena Singal attached (supposedly since modified, though a redacted version of the original remains publicly available through the Missouri courts website) demanded of Reed "all communications, including any documents exchanged, between you and Jessie Singal concerning Gender-Affirming Care provided at or through the Center." It also sought "all communications, including any documents exchanged, concerning Gender-Affirming Care involving media or between you and any media outlet or any member of the media" (journalist Benjamin Ryan says that would include him). The subpoena also demanded Reed's communications with state officials, legislators, and advocacy organizations.

Jamie Reed, it should be noted, isn't a party to the case behind the subpoena, which is a challenge to Missouri's 2023 ban on "gender transition surgery" and "cross-sex hormones or puberty-blocking drugs" for minors. But she was a motivator for that legislation as a former staffer at the Washington University Transgender Center at St. Louis Children's Hospital who developed significant doubts about what she believed to be a lack of safeguards in place regarding permanent changes to children's bodies and lives. In a widely read piece for The Free Press, she described such interventions as "medically appalling."

Whether you agree with Reed or not, she's a sincere advocate for a position on an issue that commands attention and has serious policy implications. Just this month, New York magazine published a piece arguing that minors have an absolute right to change their bodies, while Britain's National Health Service stopped prescribing puberty blockers for children in gender identity cases because of doubts about their safety or effectiveness. Reed is engaged in public debate of the sort that civil libertarians defend, so it's bizarre to see the ACLU of Missouri putting the screws to her over her advocacy. Or it would be if the ACLU wasn't undergoing a painful and very public transformation.

Liberty Runs Up Against Ideology

"An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important," Michael Powell noted for The New York Times in 2021. The ACLU's "national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police."

This came after leaked internal ACLU case-selection guidelines revealed the organization to be stepping back from viewpoint-neutral advocacy of free speech rights.

"Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed," ACLU staffers dithered in a 2018 memo. "As an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions."

In the legal battle over medically assisted gender transitions for minors, the ACLU of Missouri, which did not respond to a request for comment, appears to have decided that the progressive position on transgender identity takes precedence over the free speech rights of a whistleblower and advocate. This is a remarkable change of position for an organization that, at the national level, still warns that "the government has aggressively investigated and prosecuted national security whistleblowers and…private sector employees continue to face arbitrary discipline and privacy intrusions."

It's difficult to square that position with a demand of a whistleblower that she reveal with whom she's been in communication about her former work. But the subpoena makes sense for a partisan organization that's less concerned about liberty than with scoring points for a larger political agenda.

Filling the ACLU's Abandoned Shoes

"There are a lot of progressive political groups out there. I'm glad to have more of them, because that's my politics too," former ACLU Executive Director Ira Glasser, concerned about the changing direction of his old organization, told Reason in 2020. "But there's only one ACLU…. It's taken 100 years for the ACLU to develop from the 30 or 40 people that started it in 1920 to the powerhouse of civil liberties that it is today. If the ACLU isn't there for speech, who will be?"

Who will be, indeed? As a partial answer to that question, it's worth pointing out that Glasser is now on the advisory council for The Foundation for Individual Rights and Expression, along with Wendy Kaminer, a former ACLU board member. Former ACLU president Nadine Strossen is now a FIRE senior fellow. Other ACLU alumni include co-founder Harvey Silverglate, who is now on the board of directors, and FIRE Vice President of Communications Matthew Harwood.

"Many of FIRE's founders and backers are former leaders of the ACLU who have grown disillusioned with the group," Politico's Josh Gerstein wrote in 2022.

FIRE's expanded scope, from supporting civil liberties on college campuses to broader advocacy for free speech, is still new. But it's a major step towards adopting the ACLU's old role as the older organization transforms into a very different kind of group with more explicitly ideological priorities.

That's not to say the ACLU no longer ever advocates for civil liberties or is universally hostile to free expression; you'll still find the group's lawyers intervening in cases such as the federal indictment of journalist Tim Burke. But the group has become unpredictable on matters of individual liberty, and it now depends on the issue as to whether the "civil liberties" organization will favor or oppose freedom.

This case emphasizes a sad transformation for the ACLU. It's especially unpleasant for people on the receiving end when the onetime civil liberties organization slips into authoritarian mode.

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Archives: April 2024 https://reason.com/2024/03/18/archives-april-2024/ https://reason.com/2024/03/18/archives-april-2024/#comments Mon, 18 Mar 2024 10:00:32 +0000 https://reason.com/?p=8265866 Reason's vaults]]> archives | Illustration: Joanna Andreasson, April 2019 issue of Reason

5 years ago
April 2019

"Pot, and the impoverished undocumented immigrants who often bring it, are no longer flowing across the border at the rate they once were. This decline has virtually nothing to do with expensive security innovations at the border and everything to do with legalization in the United States. If it were any other industry, one imagines the president would be delighted: When it comes to pot, customers prefer to buy American."
David Bier
"The Wall Won't End Pot Smuggling at the Border. Legalization Will."

"It's just accounting. If you spend more than you earn, someone is giving you a loan. If the U.S. imports computers from China more than it exports soybeans to China, 'we' have to provide nice-looking IOUs—for example, engraved portraits of Ben Franklin that cost 12.5 cents each to print. For one of Ben's portraits we get $100 worth of computers. Pretty good, eh?"
Deirdre Nansen -McCloskey
"Quit Worrying and Learn To Love Trade With China"

15 years ago
April 2009

"In the 1880s, when a French crime fighter named Alphonse Bertillon pioneered the mug shot as a unique form of portraiture, the photographs he took were expected to do one thing: help establish an individual's identity at a time when driver's licenses, fingerprint files, and Facebook pages didn't exist. Today mug shots are still used to identify, but we also want them to punish, deter, and entertain. Unfortunately, they do such a good job of the latter that we've been indifferent to the ways they short-circuit due process. But while we're gawking at the haunted eyes of a Midwestern meth freak or the haunted hair of Nick Nolte, cops across America are using virtual rogues' galleries to normalize the idea that the government has the right to punish you without bothering to convict you of a crime."
Greg Beato
"Criminal Verite"

30 years ago
April 1994

"Feminists who today draw attention to the absence of women's rights in the Muslim world are correct, but they overlook the point that men also lack such rights. Men may indeed be free to oppress women at home or in the workplace—but they may themselves be oppressed by others acting with the authority of the state. As David Pryce-Jones has amply documented in The Closed Circle, the weak are at the mercy of the strong in the Arab world, and in a polity based on power women are bound to be the losers."
Tom Bethell
"The Mother of All Rights"

40 years ago
April 1984

"If freedom lovers are to judge foreign policy by the same standards as domestic policy, we cannot adopt the view that a good end justifies any means. And from the perspective of constitutional limited government, it is difficult to see any principle that justifies sending U.S. armed forces around the world to secure other people's freedoms. Since the large majority of governments systematically violate their citizens' rights, such a standard would amount to carte blanche for intervention everywhere."
Robert Poole
"Defending Everyone?"

45 years ago
April 1979

"Everyone agrees that we have to get off the fossil-fuels kick of the past two centuries—not so much because we are running out, but because of the accumulation of carbon dioxide in the atmosphere. The dynamics of the process are poorly understood at present, but we have some reason to believe that continued dependence on fossil fuels could, in two more centuries, raise the mean temperature of the biosphere by six to eight degrees centigrade because of increased opacity of the atmosphere to infrared radiation (the so-called greenhouse effect)."
Peter Vajk
"No More Doomsday"

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Brickbat: Pint-Sized Prison https://reason.com/2024/03/18/brickbat-pint-sized-prison/ https://reason.com/2024/03/18/brickbat-pint-sized-prison/#comments Mon, 18 Mar 2024 08:00:06 +0000 https://reason.com/?p=8268433 A child's hands clutch prison bars. | Tinnakorn Jorruang | Dreamstime.com

A girl in the United Kingdom's Wetherby Young Offender Institution twice had her clothes removed while being restrained by an all-male team of prison officers, according to a report by the Inspectorate of Prisons. The girl was reportedly trying to use her clothes to harm herself. Wetherby is a correctional institution for people aged 15–18. The report found 24 children were strip-searched in one 12-month period, half of them forcibly; pain-inducing restraint techniques were used nine times over the same period. The report said that not one use of such techniques was found to be appropriate by an independent review panel. It also discovered that one use of the restraint injured a child, but this was not reported to officials.

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Monday Open Thread https://reason.com/volokh/2024/03/18/monday-open-thread-44/ https://reason.com/volokh/2024/03/18/monday-open-thread-44/#comments Mon, 18 Mar 2024 07:00:23 +0000 https://reason.com/?post_type=volokh-post&p=8268853 The post Monday Open Thread appeared first on Reason.com.

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The Priorities of the Judicial Conference of the United States https://reason.com/volokh/2024/03/17/the-priorities-of-the-judicial-conference-of-the-united-states/ https://reason.com/volokh/2024/03/17/the-priorities-of-the-judicial-conference-of-the-united-states/#comments Mon, 18 Mar 2024 01:07:49 +0000 https://reason.com/?post_type=volokh-post&p=8269223 I think it is helpful to take a step back and consider the priorities of the Judicial Conference of the United States.

For decades, people on both sides of the aisle have raised valid complaints about forum shopping in patent and bankruptcy cases. There is not just judge shopping; there is actual judge selling, in which judges invite litigants to file in their courts. This is a real problem that may not garner headlines, but affects far more cases than those brought by the Texas Attorney General. And unlike with constitutional or administrative law challenges, which are reviewed de novo, and can be stayed by higher courts quickly, patent and bankruptcy cases are reviewed with a very deferential standard, and tend to stand.

But the Judicial Conference did not adopt a policy to address this issue on which there is bipartisan consensus. Instead, they adopted a policy with the express intent to clamp down on a practice used on only side of the aisle. These judges were surely aware of the impact of their policy. But they proceeded anyway.

And I've learned this policy was viewed as utterly uncontroversial. The Judicial Conference has two lists–the consent list and the discussion list. Items on the former list are adopted by acclamation without any debate. Items on the latter list are discussed before the vote. The policy on randomized assignments was placed on the consent list. Could it really be that every member of the Judicial Conference thought this issue was so uncontroversial that it didn't even warrant a discussion?

It gets worse. Was the policy adopted at the meeting mandatory or optional? On Tuesday, Judge Sutton told reporters that the policy was mandatory, and would "supersede local standing orders." But by Friday, a memorandum was released suggesting the policy was only optional. What happened? There are two possibilities.

First, the policy, as voted on, was optional, but Judge Sutton completely messed up. Second, the policy as voted on was mandatory, but after the blowback from me and others, they changed course, and the mandate became optional.

The first possibility would cast Judge Sutton in a bad light, but maybe it is unfair to make him the scapegoat. The second possibility, however, would cast the entire Judicial Conference in a bad light. Rather than standing strong behind their policy adopted by acclamation, they cut and ran when negative press came in. I will take some credit here, because, as usual, I shifted the Overton window to set the terms for debate. If everyone fell in line with what my friend Sam Bray wrote, the policy may never have been changed. You're welcome.

In many regards, this episode illustrates much that is wrong with the judiciary. People who become judges care deeply and profoundly what others think about them. Indeed, this approach to careerism is the only way to navigate oneself through the political process to a lifetime appointment. I've written this before, but I'll say it again: anyone who actually wants to be a lifetime judge should be immediately disqualified from holding the position. The problem, of course, is that someone has to hold these positions, and it will be difficult to slot in people who don't actually want the job. At times I favor term limits for the sole purpose of sussing out those who seek this lifetime power.

Will there be any oversight from Congress on this matter? While the courts are generally immune from inquiries about their decisions, their work as an administrative body stands in a very different light. At a minimum, I would be interested to see what sort of research was done on how often nationwide or statewide relief resulted from a single-judge division. Surely such a report was circulated to the judiciary in advance of this non-momentous vote. Or did the committee just vote based on claims from Schumer or Vladeck? I would also be interested to see whether the policy approved on March 12 was mandatory or optional, and whether a change was made in response to public pressure. If the Judicial Conference will operate as a body that responds to political pressure, it should be treated as such.

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The New York Times Again Worries That Free Speech Endangers Democracy https://reason.com/2024/03/17/the-new-york-times-again-worries-that-free-speech-endangers-democracy/ https://reason.com/2024/03/17/the-new-york-times-again-worries-that-free-speech-endangers-democracy/#comments Sun, 17 Mar 2024 22:15:07 +0000 https://reason.com/?p=8269188 Donald Trump at the "Stop the Steal" rally that preceded the Capitol riot | Abaca Press/Gripas Yuri/Abaca/Sipa USA/Newscom

On Monday, the U.S. Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which raises the question of when government efforts to suppress "misinformation" on social media violate the First Amendment. Neglecting that central question, The New York Times portrays the case as part of a conspiracy by Donald Trump's supporters to undermine democracy by promoting false claims that mislead voters and threaten the peaceful transfer of power.

"In a world of unlimited online communications" where "anyone can reach huge numbers of people with unverified and false information," Times reporters Jim Rutenberg and Steven Lee Myers ask, "where is the line between protecting democracy and trampling on the right to free speech?" This is not the first time that Myers has described freedom of speech as a threat to democracy. Last year, he worried that "the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem that, in the case of a pandemic, threatens public health and, in the case of the integrity of elections, even democracy itself." The purported conflict between free speech and democracy is a bizarre and highly misleading way to frame the issues raised by Murthy.

When Biden administration officials persistently pressured social media platforms to curtail speech those officials viewed as dangerous, Rutenberg and Myers say, they were trying to "balance free speech with democratic rights" and "seeking a delicate balance between the First Amendment and social media's rising power over public opinion." The implication is that government officials have the authority to weigh freedom of speech against competing values on a case-by-case basis. But that is not the way the First Amendment works.

The First Amendment bars the government from "abridging the freedom of speech," full stop. As interpreted by the Supreme Court, that command applies to all sorts of speech, no matter how inaccurate, misleading, controversial, offensive, or hateful it might be, unless it fits into one of several narrowly defined exceptions, such as defamation, true threats, fraud, obscenity, and incitement to "imminent lawless action."

The speech that worries Rutenberg and Myers, such as false claims about COVID-19 vaccines and fraud in the 2020 presidential election, does not fit into any of those exceptions. It is therefore constitutionally protected, precluding any ad hoc attempt to balance the value of allowing it against the risks that might entail.

The Biden administration concedes as much. "No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content," it says. "But no such threats occurred here."

The dispute in Murthy centers on whether federal officials' interactions with Facebook et al. amounted to "significant encouragement" of censorship and/or crossed the line between persuasion and coercion. While civil liberties groups disagree about the answer to that question, they agree that it needs to be addressed.

The Foundation for Individual Rights and Expression (FIRE) is urging the Supreme Court to uphold the 5th Circuit's conclusion that "executive branch agencies violated the First Amendment by interfering with private moderation decisions." Those agencies, FIRE says, "used both carrot and stick tactics to achieve indirectly what the Constitution prohibits [when it is done] directly: governmental control over social media moderation decisions."

FIRE sees "substantial evidence" that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security
Agency "engaged in unlawful 'significant encouragement' by placing persistent pressure on platforms to change their moderation policies." Some federal officials, it says, "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."

FIRE also agrees with the 5th Circuit that some of these communications qualified as coercive. "White House officials issued 'urgent, uncompromising demands to moderate
content' and used 'foreboding, inflammatory, and hyper-critical phraseology' when social media companies failed to moderate content in the way they requested or as quickly as officials desired," it says. "Demands to remove specific posts 'ASAP,' the use of words and phrases like 'you are hiding the ball,' and officials warning they are 'gravely concerned' made clear the threats to social media companies were 'phrased virtually as orders.' And officials repeatedly 'refuse[d] to take "no" for an answer and pester[ed]' the social media companies until they 'succumb[ed].' More ominously, they 'threatened—both expressly and implicitly—to retaliate against inaction.'"

The record "contains copious evidence that the social media platforms understood communications from the White House and FBI agents to be threats and acted accordingly," FIRE says. "For example, a social media platform expressly agreed to 'adjust [its] policies' to reflect the changes sought by officials. And several social media platforms 't[ook] down content, including posts and accounts that originated from the United States, in direct compliance with' a request from the FBI that they delete 'misinformation' on the eve of the 2022 congressional election. When the White House and FBI 'requested' the platforms to jump, they ultimately, if reluctantly, asked how high."

FIRE adds that the White House and the FBI "threatened 'adverse consequences' to social media platforms if they failed to comply." When the platforms' content moderation "was too slow for the White House's liking, officials publicly accused them of 'killing people'" and "privately threatened them with antitrust enforcement, repeal of Section 230 immunities, and other 'fundamental reforms' to make sure the platforms were 'held accountable.'"

In addition to those "express threats," FIRE says, "both White House and FBI officials' statements contained implied threatened consequences because those officials are backed by the 'awesome power' wielded by the federal executive branch. For example, White House officials frequently alluded to the President's potential involvement should social media platforms not moderate content to their satisfaction." And "as a federal enforcement agency that conducts various internet investigations," the FBI "has tools at its disposal to force a platform to take down content."

The Electronic Frontier Foundation (EFF), which filed a Murthy brief in support of neither side, sees the situation somewhat differently. It worries that too broad an injunction against government interaction with social media platforms could preclude useful and constitutionally permissible contacts that inform Facebook et al. of misinformation threats they might want to counter by applying their own rules. But even EFF thinks some of these contacts can plausibly be viewed as coercive. EFF mentions Deputy Assistant to the President Rob Flaherty's "communications to Facebook regarding specific Tucker Carlson and Tomi Lahren posts expressing COVID-19 vaccine hesitancy," which it describes as "at least a close case that should likely be resolved against the government."

Rutenberg and Myers' article, by contrast, barely acknowledges that Murthy raises any legitimate First Amendment concerns at all. Instead they worry that the Supreme Court's decision "could curtail the government's latitude in monitoring content online." To be clear: Rutenberg and Myers think that would be bad.

As they see it, Trump's stolen-election fantasy poses a clear and present danger to democracy, as evidenced by the Capitol riot that interrupted congressional ratification of Joe Biden's victory. They note that Trump, after being banished from social media in the wake of the riot, is now back on those platforms, free to promote his phony grievance as he tries to unseat Biden in this year's election. Worse, "Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen." As a result, "the torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force."

Trump's banishment, of course, was the result of private decisions by private companies, as was his restoration. The decisions at issue in Murthy, by contrast, were made in the context of unrelenting government pressure that the Biden administration argues was constitutionally permissible. Rutenberg and Myers clearly agree.

When social media platforms crack down on controversial speech at the government's behest, users are apt to think twice before expressing opinions that might offend the authorities. But Rutenberg and Myers are not worried about such self-censorship. Instead they worry that constitutional objections to the government's social media meddling have had a "chilling effect" on efforts to curtail online speech.

To emphasize the need for such intervention, Rutenberg and Myers quote Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency. "We're in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure," Easterly said at a 2021 conference, "so building that resilience to misinformation and disinformation, I think, is incredibly important." She promised to "work with our partners in the private sector and throughout the rest of the government and at the [Department of Homeland Security] to continue to ensure that the American people have the facts that they need to help protect our critical infrastructure."

Ensuring that Americans "have the facts" is one thing. It involves responding to "misinformation and disinformation" by citing countervailing evidence. But when fighting "misinformation and disinformation" entails government-encouraged censorship of controversial speech, it raises obvious First Amendment concerns. The very idea of a government agency charged with guarding "our cognitive infrastructure" should set off alarm bells for anyone who values freedom of thought and freedom of speech.

The fact that Rutenberg and Myers do not hear those bells suggests they assume that Orwellian mission can only affect speech they do not like, because the government will inerrantly distinguish between "misinformation" and worthwhile content. That is a pretty shortsighted view for people whose work depends on a constitutional provision that bars the government from enforcing such judgments.

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The Ethics of Law Professor Amicus Briefs Revisited https://reason.com/volokh/2024/03/17/the-ethics-of-law-professor-amicus-briefs-revisited/ https://reason.com/volokh/2024/03/17/the-ethics-of-law-professor-amicus-briefs-revisited/#comments Sun, 17 Mar 2024 20:30:23 +0000 https://reason.com/?post_type=volokh-post&p=8269199 The number of amicus briefs submitted by academics has increased dramatically over the past several decades. In principle, such scholars' briefs should help courts resolve difficult cases by sharing relevant expertise. Judges are necessarily generalists. Scholars in a particular field, on the other hand, may have genuine expertise about the specific issues at hand in a given case that could assist the judges in making a decision.

Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of Legal Analysis article, Professor Richard Fallon suggested that too many  professor "compromise their integrity" by joining amicus briefs "too promiscuously." In 2001, Professor Ward Farnsworth reached a similar conclusion, and suggested that law professors "should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." (My co-bloggers Orin Kerr and Ilya Somin also weighed in on some of these questions in 2010.)

As the number of amicus briefs has increased, I suspect the influence such briefs have on the courts has declined—and I suspect this is particularly true for those briefs filed by interest groups (which often file briefs for fundraising or promotional purposes) and large groups of academics. While a brief submitted by a few well-known experts in their field of expertise may well matter, I doubt many judges are impressed by relatively generic submissions filed on behalf of dozens of academics–and with good reason.

In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories' scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state's law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)

If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.

In my own case, I have never been willing to sign on to amicus briefs that did not address matters within my expertise and that would satisfy the Farnsworth standard, but I have become even more reluctant to sign such briefs over time. These days, as a general rule, I will not sign a brief unless I helped to write it or had some role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered views (which may happen if, say, the brief author drew from my published work). It is not that I do not have opinions about how I would like many cases to be decided. It is rather that there is no reason a court should care what I think about a case unless I can say, without hesitation, that I have studied the matter to a degree the judges have not. Is this approach too stingy? Perhaps, but I am inclined to think it is the right one.

From Professor Fallon's 2012 article:

With respect to questions of professional identity, many of today's law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.

The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars' briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards

 

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And the RBG Leadership Award Goes To . . . https://reason.com/volokh/2024/03/17/and-the-rbg-leadership-award-goes-to/ https://reason.com/volokh/2024/03/17/and-the-rbg-leadership-award-goes-to/#comments Sun, 17 Mar 2024 20:11:40 +0000 https://reason.com/?post_type=volokh-post&p=8269203 In descending order of absurdity, the five honorees this year are: Elon Musk, Rupert Murdoch, Sylvester Stallone, Michael Milken, and Martha Stewart.

Seriously?!  Yes, I am afraid so.

The award has been given annually since 2019 by the Dwight D. Opperman Foundation, and was established to "recognize an extraordinary woman who has exercised a positive and notable influence on society and served as an exemplary role model in both principles and practice." Previous winners were Barbra Streisand, Diane Von Furstenburg, and Queen Elizabeth II.

The Foundation—set up after the death of Mr. Opperman, who was the CEO of West Publishing Company and a Trustee of NYU Law School for many years, as well as a personal friend of the Justice—issued a press release announcing the award that breaks new ground in tone-deafness.  E.g.,

"Justice Ginsburg became an icon by bravely pursuing her own path and prevailing against the odds," said Brendan V. Sullivan, Jr., chair of the RBG Award. "The honorees reflect the integrity and achievement that defined Justice Ginsburg's career and legend." [How, exactly?]

"Regardless of Elon Musk's stratospheric accomplishments, in receiving the first RBG Award for Entrepreneurship, Musk's focus is clear and unwavering: 'Free speech is the foundation of democracy,' Musk said."

"Rupert Murdoch, the most iconic living legend in media, will be bestowed with the Media Mogul RBG Award. Murdoch said: 'This recognition not only reflects my journey in the media and publishing industry but also represents the relentless defense of civil liberties and a commitment to civil discourse that Justice Ginsburg embodied'"

You could come up with a less appropriate list of honorees—but not easily. It is truly unbelievable. Not that the Foundation might want to bestow awards on incredibly rich white guys; as the saying goes, "I was born on a Tuesday, but it wasn't last Tuesday," and I understand how this game works. But that nobody stopped and said "Um, maybe this won't look so great"? Or "Maybe we should go for the only-one-incredibly-rich-white-guy-a-year strategy"?

I know both of RBG's children—record producer James and law professor Jane—and I was wondering how they would react to the news.  Their reaction came over the weekend in a public announcement: "An affront to the memory of our mother" and "an insult to her name and legacy," and a demand that her name be removed from the award.  Sounds right to me.

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The Economics and Politics of Star Trek https://reason.com/volokh/2024/03/17/the-economics-and-politics-of-star-trek/ https://reason.com/volokh/2024/03/17/the-economics-and-politics-of-star-trek/#comments Sun, 17 Mar 2024 20:05:59 +0000 https://reason.com/?post_type=volokh-post&p=8269192 Star Trek | NA
(NA)

At the Econlib site, political philosophy graduate student and UnPopulist editor Akiva Malamet has two insightful new pieces on the economics and politics of Star Trek.

The first is "Star Trek: Just Short of Utopia." Here's an excerpt:

Star Trek is often seen as utopian science fiction, but a close look shows that the world of the Federation is not as peaceful and inclusive as it first appears. Following Gene Roddenberry's dream of a future society lacking prejudice and focused on inclusion, social and legal equality, and egalitarian post-scarcity economics, Trek is well-known for its strong moral compass and its progressive, even leftist values.

It is a world I appreciate and admire, as a die-hard Trekkie who holds many similar commitments. And yet the United Federation of Planets doesn't truly resolve deep differences and divergent interests among different beings. Rather, it obscures them with cultural uniformity, propounding a quasi secular humanist, even anti-religious philosophy, coupled with a near-complete transcendence of material constraints. This allows the Federation to sidestep the kind of conflicts that real differences, both in beliefs and in material endowments, create. By contrast, the staunchly economic perspective of the Ferengi makes them better able  to cope with hard tradeoffs and ensure genuine respect for diversity, despite their many ethical and social deficiencies. Yet the discussion cannot end there; in the final analysis, we need a synthesis that incorporates the moral ideals of the Federation together with the Ferengi's pragmatism to find a balance of the wisdom embodied in the Star Trek universe.

The second is entitled "Star Trek: Markets on the Edge," and takes a closer look at economic issues in the Trek universe:

In the Federation, most goods and services are produced via replication. The need for production and trade via the division of labour is greatly diminished (though there is demand for luxury artisanal, non-replicated goods….). Thus, the Federation seems to have overcome much of the knowledge problem around satisfying dynamic, subjective preferences and efficiently allocating scarce resources with competing uses. It is an economy of abundance beyond even the dreams of most economists or sci-fi writers. This is coupled with egalitarian values and the self-important assurance that the Federation is populated by virtual saints only interested in self-actualization and universal brotherhood.

By contrast however, outside (and sometimes within!) the Federation's utopian core of planets, people often fight over insufficient replicators, scarce machinery, food, medicine, and other resources. Supply ships are vital for bringing scarce items to distant worlds, and for transporting goods that can't be replicated, such as dilithium and rare medicines….

Notably, while replicators can recreate almost anything, it appears that replicators themselves cannot be easily reproduced. Trek never tells us if creating replicators is costly. Yet it is apparent that replicators cannot be provided easily for all. Contrary to Jean-Luc Picard's assertion that "…the acquisition of wealth is no longer the driving force in our lives" the Federation has not overcome self-interest, greed, or other constraints of human nature. It has simply changed the transaction costs of conflict by exploiting technology that severely reduces scarcity. When scarcity returns, so does conflict over resources.

Job allocation adds further support to the view that the Federation relies on advanced technology more than it does a sci-fi version of the New Soviet Man or Rawlsian ideal theory. It is unclear how the Federation incentivizes people to take on jobs that are less desirable or whose social importance is less well-understood….

As they say, read the whole thing!

I made similar points about Star Trek's treatment of political and economic issues in a 2016 article for Learn Liberty. Like Malamet, I praised the franchise for its commitment to ethnic tolerance and diversity, but also expressed reservations about the Federation's seeming intolerance for ideological diversity:

Star Trek creator Gene Roddenberry stressed the virtues of tolerance and cooperation across racial, ethnic, and national lines. In the original 1960s series, the bridge crew of the Enterprise includes an Asian, a Russian (included at the height of the Cold War), and a black African, at a time when such diversity in casting was unusual. The inclusion of a black female bridge officer was considered such an important breakthrough for racial equality that Martin Luther King persuaded Nichelle Nichols, the actress who played Lt. Uhura, to stay on the show when she was thinking of quitting.

Star Trek also featured the first interracial kiss on an American network TV show, and—in the 1990s—one of the first lesbian kisses.

The Federation… seems to successfully incorporate a wide range of cultures and lifestyles, and offers a combination of material abundance and toleration….

The uncritical acceptance of socialism may be a manifestation of the Federation's more general troubling ideological homogeneity. Especially among the human characters, there seems to be remarkably little disagreement over ideological and religious issues. With one important exception (discussed below), few human characters oppose the official Federation ideology, and those few are generally portrayed as fools, villains, or both.

The Federation is a collection of racially and ethnically diverse people who all think alike, at least when it comes to the big issues. The series' creators likely intended this as an indication of humanity's future convergence toward the "truth." But it is also subject to a more sinister interpretation: just as socialism tends to stifle independent economic initiative, it also undermines independent thought….

Even more than Malamet, I was troubled by Star Trek's largely uncritical embrace of socialism, and relative neglect of the value of economic incentives:

[A]t least from a libertarian perspective, the otherwise appealing ideological vision of Star Trek is compromised by its commitment to socialism.

The Federation isn't just socialist in the hyperbolic sense in which some conservatives like to denounce anyone to the left of them as socialist. It's socialist in the literal sense that the government has near-total control over the economy and the means of production.

Especially by the period portrayed in The Next Generation, the government seems to control all major economic enterprises, and there do not seem to be any significant private businesses controlled by humans in Federation territory. Star Fleet characters, such as Captain Picard, boast that the Federation has no currency and that humans are no longer motivated by material gain and do not engage in capitalist economic transactions…..

The problem here is not just that Star Trek embraces socialism: it's that it does so without giving any serious consideration to the issue. For example, real-world socialist states have almost always resulted in poverty and massive political oppression, piling up body counts in the tens of millions.

But Star Trek gives no hint that this might be a danger, or any explanation of how the Federation avoided it. Unlike on many other issues, where the producers of the series recognize that there are multiple legitimate perspectives on a political issue, they seem almost totally oblivious to the downsides of socialism.

Elsewhere in our respective pieces, Malamet and I both explain why the existence of replicators and other incredibly advanced tech doesn't vitiate the problems associated with socialism. He and I may be the only two commentators to call attention to the importance of the fact that there is no way to replicate a replicator, and therefore these devices turn out to be important scarce goods in the Star Trek universe.

We also both highlight ways in which Deep Space 9—my favorite among the many Star Trek series—takes a more critical view of the Federation than previous movies and series' did, including both its ideological and religious homogeneity, and some aspects of its political economy.

Since I published my piece in 2016, there have been several new Star Trek series, most notably Discovery, Picard, and Strange New Worlds. Malamet largely ignores these new series. But all three take a more critical perspective on the Federation than earlier franchise products have. Discovery and Picard both have severe flaws, sometimes to the point of becoming sprawling, incoherent messes. But Strange New Worlds is much better. It takes a highly critical perspective on on several aspects of Federation ideology and society, most notably its hostility to genetic engineering. I hope to have more to say about it in the future.

Skeptical readers may wonder why we should even care about the politics and economics of a fictional universe. The most obvious answer is because it's fun! I give some additional reasons in this 2011 article, emphasizing that science fiction and other aspects of popular culture can influence the broader political discourse.

The post The Economics and Politics of Star Trek appeared first on Reason.com.

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Two Posts on Irish-American Politics and History, and its Lessons for Today https://reason.com/volokh/2024/03/17/two-posts-on-irish-american-politics-and-history/ https://reason.com/volokh/2024/03/17/two-posts-on-irish-american-politics-and-history/#comments Sun, 17 Mar 2024 19:01:52 +0000 https://reason.com/?post_type=volokh-post&p=8269189 St. Patrick's Day | NA
(NA)

Happy St. Patrick's Day to all who celebrate!

It is, I hope, an appropriate time, to re-up two posts on the Irish-American politics and history:

  1. "The Declining Political Significance of Irish-American Identity," Mar. 17, 2023

This post describes how and why the political salience of Irish-American identity has declined enormously over the last century, and what can be learned from that experience. An excerpt:

Today is St. Patrick's Day. And tonight, Irish-Americans across the country will be gathering to toast their control of the highest political office in the land. After all, Joe Biden is only the second Irish Catholic president of the United States. For their part, millions of WASPs are seething about the loss of their political hegemony to the Irish. St. Patrick's Day celebrations are a painful reminder of their humiliation. Police forces in major cities are on alert for possible ethnic riots.

OK, actually nothing like that is happening! In reality, very few Americans care that Biden is an Irish Catholic. Even fewer fear that he is somehow promoting Irish interests at the expense of WASPs….. Political conflict between Irish-Americans and WASPs has almost completely disappeared….

It wasn't always so. In the 19th and early twentieth centuries, political antagonism between Irish and WASPs was ubiquitous, sometimes rising to the level of anti-Irish rioting by nativists. There was also substantial discrimination and social prejudice against the Irish….

How did this change come about? The story is long and complicated… But one crucial factor was that most Americans came to realize that the differences between Irish-Americans and other groups were far less significant than previously thought, and also that these ethnic and religious divergences should be downgraded in the name of universal liberal principles.

2."Are Hispanics Following the Path of the Irish?"Jan. 1, 2024

This post comments on Noah Smith's insightful piece arguing that Hispanics are following the same path of assimilation as Irish-Americans did in earlier generations. I think Smith is largely right, but offer two major caveats.  Here is an excerpt:

Hispanics are by far the largest American immigrant group of the last several decades, and also the focus of the most extensive nativist concerns. Immigration restrictionists contend that Hispanic immigrants increase crime, undermine American political institutions, and cannot or will not assimilate. In a recent post, prominent economic policy commentator Noah Smith compiles evidence that these complaints are largely misplaced, and that Hispanics are in fact following a trajectory similar to that of Irish-Americans in the late-nineteenth and early-twentieth centuries….

Today's fears of supposedly violent and unassimilable Hispanics are remarkably similar to the nineteenth century stereotype of brutish, un-American Irishmen…

In [his]… article, Smith compiles evidence that the concerns about Hispanics are largely false: they are in fact rapidly assimilating, quickly increasing their wealth and income, and have significantly lower crime rates than native-born Americans (a point that applies even to undocumented immigrants). Most of this evidence is well-known to students of immigration policy. But Smith does a valuable service in compiling it in one relatively short and easily accessible piece….

I would, however, note a few relevant caveats to Smith's thesis. First, it is not entirely true that Irish and Hispanic immigrants "were mostly working-class folks who came for mainly economic reasons." In reality, many Hispanic immigrants were and are refugees from oppressive socialist regimes in Cuba, Nicaragua, and (most recently) Venezuela. Some others have fled repression at the hands of right-wing dictatorships….

A second caveat is that Hispanic migrants are a much more diverse lot than the Irish were. They come from a variety of different nations and ethnic groups. This makes generalizations about them more difficult….

Finally, while Irish immigrants arrived in an era when there were few restrictions on European immigration, many Hispanic migrants are undocumented. Today, there are an estimated 7 million or more undocumented Hispanic immigrants in the US, which accounts for some one-third of all foreign-born Hispanics, and over 70% of the total undocumented immigrant population.

For obvious reasons, lack of legal status reduces migrants' incomes and educational opportunities, and impedes assimilation. The existence of this anchor makes Hispanics' progress look even more impressive than it would be otherwise. But, unless immigration policy changes, it is likely to continue to slow down the assimilation process highlighted by Smith.

The post Two Posts on Irish-American Politics and History, and its Lessons for Today appeared first on Reason.com.

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I've Won an Argument about Israel I Wish I Hadn't https://reason.com/volokh/2024/03/17/ive-won-an-argument-about-israel-i-wish-i-hadnt/ https://reason.com/volokh/2024/03/17/ive-won-an-argument-about-israel-i-wish-i-hadnt/#comments Sun, 17 Mar 2024 16:02:10 +0000 https://reason.com/?post_type=volokh-post&p=8269186 Over my 20+ years of blogging at Volokh, commenters have often questioned why I focused my attention on what I saw as unfair attacks on Israel, rather than on Israeli policies I disagreed with that might be obstacles to a future peace deal. My response was consistent: debates over specific Israeli policies were a sideshow. Israel's harshest critics simply wanted Israel to cease to exist, and given that this goal could likely be achieved only via genocide, I chose to focus my attention on that. My commenters were also pretty consistent, arguing that I was being paranoid, that the vast majority of critics, even the harshest ones, wanted a two-state solution, not to eliminate Israel.

We have had something of a test of this debate since 10/7. Hamas is a terrorist theocracy with explicitly genocidal goals. It carried out a taste of those goals on 10/7, and its leaders promised to repeat those atrocities again and again until the "Zionists" were driven from Israel.

So whatever one thinks of Israeli policy, or Israel's eventual response to 10/7, one would think, based on my interlocutors' position, that critics of Israeli policy would nevertheless agree on one thing: Hamas must be deposed, one way or another. There is no plausible two-state solution with Hamas in power; the harsh critics are almost all self-styled progressives, and there is nothing progressive about Hamas's policies toward freedom of religion, LGBTQ rights, women, militarism, antisemitism, and so on, nor its constant theft of humanitarian aid. Hamas's rule in Gaza is essentially every Progressive's worst nightmare.

Yet, ever since at least 10/10, when it became clear that Israel's reaction to Hamas's atrocities was not going to be to capitulate, the harsh critics have been all but unanimous in calling for Israel to essentially surrender ("immediate ceasefire") with Hamas still in power, and have almost to a person not called on Hamas to surrender and abdicate. (And self-styled human rights organizations have felt free to make up human rights law, including contradicting their own past public positions in other conflicts.)

I have to admit that I underestimated the mendacity of these people. As much as I knew that they hated Israel much more than they were concerned with the well-being of Palestinians, I didn't imagine that they would be willing to run interference for, if not outright support, Hamas, certainly not after Hamas put its brutality and genocidal intentions on display for all the world to see. I would have expected something more like "immediate ceasefire, but the world has to work on replacing Hamas with something else."

Of course, there are those who take the latter position, or the Biden position, which is to support Israel but be critical of specific wartime policies and the lack of a long-term plan. But the remarkable thing is that I have yet to see even this position among the harder left: "I wish Hamas would surrender and release the hostages, because that would be good for all sides, but since I don't think it's possible to get Hamas to surrender, I think Israel needs to desist for humanitarian reasons."

Indeed, if you ask prominent folks on X, people who are complaining the loudest about civilian suffering in Gaza, "would you prefer the war go on, or that Hamas release the hostages and surrender," basically no one is willing to say publicly that he or she would prefer Hamas to surrender. Israel losing is more important than ending civilian suffering in Gaza, than any sort of peaceful resolution of the conflict (which obviously requires an end to Hamas rule), than innocent hostages being released, or anything else. If you are a progressive and you find yourself carrying water for a truly reactionary, genocidal organization like Hamas, maybe it's time to do some soul-searching.

The post I've Won an Argument about Israel I Wish I Hadn't appeared first on Reason.com.

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Today in Supreme Court History: March 17, 1777 https://reason.com/volokh/2024/03/17/today-in-supreme-court-history-march-17-1777-5/ https://reason.com/volokh/2024/03/17/today-in-supreme-court-history-march-17-1777-5/#comments Sun, 17 Mar 2024 11:00:46 +0000 https://reason.com/?post_type=volokh-post&p=8179591 3/17/1777: Chief Justice Roger Brooke Taney's birthday.

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After a Century, the Federal Tea Board Is Finally Dead https://reason.com/2024/03/17/after-a-century-the-federal-tea-board-is-finally-dead/ https://reason.com/2024/03/17/after-a-century-the-federal-tea-board-is-finally-dead/#comments Sun, 17 Mar 2024 10:00:31 +0000 https://reason.com/?p=8265788 Members of the federal tea board sit around a table to taste tea | Photo: Members of the Board of Tea Experts meet to taste teas, 1947; Getty

"I see no reason," the late Sen. Harry Reid (D–Nev.) once declared on the Senate floor, "why those in this country who enjoy drinking tea need someone else to tell them what tastes good."

Yet for nearly 100 years that is exactly what the government did, thanks to one of the strangest agencies ever to be a part of the federal bureaucracy.

In addition to the usual beverage regulations aimed at ensuring proper storage and safe handling, imported tea was required for decades to pass a literal taste test before it could be sold in the United States. The task fell to a group of Food and Drug Administration (FDA) appointees, who would gather annually in a converted Navy warehouse in Brooklyn to smell, slosh, sip, and spit the various oolongs, greens, and Earl Greys that tea merchants sought to sell to Americans.

This was the federal Board of Tea Experts.

The board's members would taste dozens of teas over the course of several days. The process was more an art than a science. According to a 1989 Washington Post profile, there was no uniform method for tasting. Some board members worked in silence while others slurped their tea or gargled it loudly. Some preferred to taste the tea hot; others let it cool first. The warehouse where they gathered was outfitted with pictures of old-timey sailing ships, a kitchen sink, several kettles for boiling water, boxes upon boxes of tea, and large windows. The board's then-leader Robert H. Dick told the Post thatto properly inspect the tea"I have to have a north light."

When Reid voiced his objection to the tea board in 1995, the agency had already survived two decades' worth of efforts to shut it down. Congress finally ended the board's oversight of tea imports a year later, but the federal Board of Tea Experts technically still existed for another 27 years. It was officially terminated on September 19, 2023.

The bizarre history and surprising longevity of the federal tea-tasting board is something of a mixed bag for anyone who wants to see more federal programs iced for good.

On one hand: The board was eventually shut down.

On the other: If it takes nearly 50 years to get rid of something as useless and insignificant as the Board of Tea Experts, what hope can there possibly be to do away with larger governmental entities backed by more powerful special interests? Hardly an election season goes by without some (usually Republican) presidential hopefuls promising to abolish this department or that agency—the Department of Education and the Environmental Protection Agency are perennial favorites. Are those efforts doomed before they begin? Will those promises always be empty?

The weird tale of the Board of Tea Experts holds a variety of lessons for anyone interested in shrinking the size and scope of government. It's a warning about the stickiness of bad ideas, about an inertia that can limit even the smallest attempts at trimming the state.

"This is the reason people are upset about government," Reid said in that 1995 Senate floor speech. "What an absolute waste of taxpayers' money is it to have them spend $200,000 a year swishing tea around in their mouths."

A Tea Board Is Born

Anthropologists believe human beings were drinking tea before recorded history. In China, where tea was first cultivated, accounts of the drink's benefits for keeping healthy and staying awake date back at least as far as the Shang dynasty (founded around 1700 B.C.); physical evidence of tea consumption and the tea trade goes back well over 2,000 years.

The relationship between tea and the state is ancient too. According to one Chinese legend, the drink was invented when leaves were accidentally blown into a cup belonging to Emperor Shennong, who was fond of sipping boiled water. The resulting brew tasted good, and presumably gave the mythic ruler one of humanity's first caffeine highs.

Tea made its way to Europe (and then the Americas) in the 1600s. A 1657 listing from a London coffee shop offered tea for sale starting at 16 shillings per pound—roughly $190 per pound today. Governments all over the world tried to subsidize and monopolize the tea trade at various times, and many collected bountiful revenue from their citizens' and colonists' addictions.

In the New World, that quest for revenue helped spark a history-altering backlash. The uprising in Boston Harbor on the night of December 16, 1773, wasn't the first tax revolt in American history, and it wouldn't be the last. But it remains the most memorable, and a crucial part of the country's founding mythology. The lingering cultural memory of the Boston Tea Party might have even played an indirect role in the creation of the federal Board of Tea Experts more than a century later.

"Since the British drank a lot of tea, they would pick the best teas, and then a lot of times when they had something they didn't want, that was left over, or maybe even damaged or something, they would fill the order from the United States with some of that tea," Dick, whose tenure on the Board of Tea Experts lasted from 1947 until 1996, explained in a 1984 interview published as part of an internal history of the FDA.

Worried that British tea exporters were taking advantage of their less sophisticated American customers, Congress passed the Tea Importation Act of 1897. The act created a new federal commission charged with ensuring the quality of the nation's tea supplies. But from the start, the board's standards seem to have been quite open to interpretation. When the Tea Importation Act was first passed, it merely said "that the tea should be rejected if it was unfit," Dick explained in that interview. "Well, unfit meant different things to different people."

Over time, tasting standards for different types of tea were put into place. Imported tea had to match the federally approved flavor profiles to be legally sold, with the tasters responsible for setting the standards. After the FDA was created in 1906, the tea-tasting board was rolled into the new agency, which would eventually grow to regulate cosmetics, pharmaceuticals, and, of course, food. But the Board of Tea Experts remained a unique element of the FDA's sprawling portfolio. "Tea is the only food or beverage for which the [FDA] samples every lot upon entry for comparison to a standard recommended by a federal board," noted a 1996 analysis from the House of Representatives.

As the Post detailed in its 1989 profile, the annual gathering of the tea-tasters was not meant to identify the best teas or set particularly high standards for what would be allowed into the country. Rather, "the task is to select the worst that are still drinkable" and then use those standards as the basis for what would be permitted to enter the country for the rest of the year. At the height of its vague yet absolute powers, the tea board employed testers based in Boston, New York, and San Francisco; their job was to translate the board's standards into practice. A separate but related entity, the Board of Tea Appeals, provided due process for anyone wronged by the tea-tasters' opinions.

Even with some standards in place, bureaucratic laziness sometimes prevailed. At one point, Dick recalls being told by a then-senior member of the board that "you don't need to look at all of those teas because you can look at the prices and you can tell which is the good tea and which is the bad tea." Too bad consumers couldn't be trusted to do the same.

If the board was protecting consumers, it doesn't seem to have been protecting them from much—the board rejected less than 1 percent of the teas submitted for approval each year. But Dick argued the mere threatof rejection was a protection.

"If you eliminate the Tea Act then you've got a case of where somebody is going to take chances," Dick said in 1984. "If they have a poor tea, they don't know whether it will be rejected or not, and they don't know whether it would be sampled or not, and they may be tempted to ship it. So, it would make a difference."

There is a long history of domestic industries using made-up or exaggerated concerns about consumer safety to seek political power, then using that power to limit competition or create cartels. It's tempting to project that narrative onto the history of the Board of Tea Experts.

But there's a problem with that theory, says Ryan Young, a senior economist at the pro-market Competitive Enterprise Institute. There was not much of a domestic tea production industry in the 1890s. Even today, the vast majority of tea consumed in the United States comes from abroad, primarily India and China.

There may have been legitimate reasons to worry about the quality of tea being imported into the U.S. at the time the board was created, says Young. But it was private industry, not government, that solved it.

"Back then, groceries were often sold out of crates and barrels, often with no way to know who the producer was or where the product came from," he says. "Brands are an extremely important self-regulation device in markets. They improve trust and accountability, whereas anonymous producers can get away with all sorts of shenanigans."

By the middle of the 20th century, private self-regulation had solved the problem that the Board of Tea Experts was supposed to fix.

But government programs don't just go away when they become obsolete.

Photo of Alexander J. Grille, chairman of the Board of Tea Experts, in 1961
Alexander J. Grille, chairman of the Board of Tea Experts, 1961 (Getty)

The Long, Slow Death of the Tea Board

Can drinking tea help you live longer? Some studies suggest as much. Research published in Advances in Nutrition in 2020 found that regular consumption of tea is correlated with a lower risk of death from various cardiovascular issues, including strokes. The study's authors attributed tea drinkers' longer life spans to "flavonoids"—a pigment found in many tea leaves that is thought to be a powerful antioxidant.

I know of no peer-reviewed study suggesting government bureaucracies tasked with tea tasting have longer than average life spans. But the available evidence suggests that, indeed, they are quite difficult to kill.

"These tea-tasting people are just like lizards," Sen. Reid declared in 1995, comparing the board to critters he said he'd catch as a kid, ones whose tails would grow back even after they were yanked off. "You grab them and jerk something off and they are right back."

By then, the Board of Tea Experts had survived more than a quarter-century with a target on its back.

The first attempt to eliminate the tea board occurred in 1970, when the Nixon administration tried to redirect the board's budget of $125,000 (almost $1 million today) to other parts of the FDA. Nixon was looking for an easy public relations coup, according to a contemporary New York Times report. Killing off the tea-tasting board would be a symbol of the federal government's commitment to belt tightening, or so he thought.

The tea industry fought for the board's survival, arguing that the president had no power to drain the board's budget unless Congress first repealed the 1897 law that authorized it. With Congress apparently uninterested, Nixon quietly surrendered.

The attempt at least provided one lasting moment of hilarity. While digging through boxes of documents at the Richard Nixon Presidential Library and Museum in 2021, Ashton Merck, a postdoctoral researcher at North Carolina State University, came across a letter ostensibly mailed from a dormitory at the University of California, Berkeley. The letter writer claimed to represent a group of individuals who were "appalled at [Nixon's] proposal to eliminate one of the few remaining bastions of tradition and culture in this country" and the planned liquidation of Dick's job as the only full-time employee of the board.

The name of this alleged group taking the time to bend the ear of the most powerful man in the world? "The Committee To Keep Dick Tasting."

In the ensuing years, the tea-tasting board routinely turned up on lists put together by groups like Taxpayers for Common Sense as a target for federal budgetary pruning. Presidents Jimmy Carter and Ronald Reagan both made half-hearted attempts to kill the board, without success.

In the '90s, Congress finally organized a serious revolt against the board's existence. Reid, an unexpected advocate for shrinking government, took on the role of Sam Adams. In a 1993 speech supporting his bill to cut off funding for the tea-tasting board's expense reimbursements, including a $50 per diem for each member, Reid reached for the obvious metaphor. A "congressional tea party" was necessary, he said, to "dump the tea experts overboard."

The bill passed. But even after losing their per diems and expenses, the board simply poured another cup.

Two years later, Reid aimed to bag the board for good. Working across the aisle with Sen. Hank Brown (R–Colo.), Reid pushed through a proposal to cut off all taxpayer funding for the board's staff. But that provision was struck from the final version of the bill during a conference committee meeting, following what The Washington Post termed "last-minute lobbying" from the industry.

"It's a sign of how difficult it is in Washington," Brown told The New York Times in September 1995. "Defeating some of this nonsense is going to be a long tough job. The tea board is quite resilient."

At that point, Reid boiled over. No longer content merely to pull the metaphorical tails off the tea bureaucrats, Reid and Rep. Scott Klug (R–Wis.) drafted bills to repeal the Tea Importation Act of 1897 and abolish the Board of Tea Experts for good. The bill passed both chambers of Congress unanimously and was signed into law by President Bill Clinton on April 9, 1996.

The Board of Tea Experts had boiled its last kettle. Or so it appeared. Technically, the tea-tasting board outlived the man who played the biggest role in killing it. Reid died in late 2021, after a long Senate career that culminated in an eight-year stint as majority leader (during which time he battled a congressional Tea Party of a different kind).

Fifteen months after Reid passed away, the federal Board of Tea Experts was finally gone for good—after existing in a sort of limbo for more than two decades in which it had no members and no budget. Its obituary: a brief September 2023 notice in the Federal Register, which records the doings of the executive branch agencies, announcing that the FDA was removing "the Board of Tea Experts from the Agency's list of standing advisory committees" in accordance with the law passed by Congress in 1996—yes, 27 years prior.

Time To Kill

A lot of things happened in American politics during the two and a half decades that the Board of Tea Experts existed in a sort of bureaucratic limbo. One of the more amusing moments took place on a debate stage in Michigan on November 9, 2011, where Gov. Rick Perry of Texas had a political moment for ages.

"And I will tell you, it's three agencies of government when I get there that are gone: Commerce, Education, and the, uh, what's the third one there? Let's see," the presidential hopeful said, awkwardly trying to recall what he wanted to tell you.

This was near the peak of the GOP's Tea Party era—a small-government populist movement that recalled that other, more famous story about the intersection of tea and American politics—and the candidates vying for a chance to challenge President Barack Obama were competing to see who could make the most aggressive promise to slash government.

"You can't name the third one?" asked moderator John Harwood, incredulously. The crowd laughed. Other candidates shouted suggestions. But it was hopeless. "The third one. I can't. Sorry," Perry concluded, before meekly adding, "Oops."

Perry's campaign limped along a little while after the remark, but for all intents and purposes, that was the moment it ended. It was a moment that mattered not only because of the comedy of a polished politician coming unglued on national television, but because it highlighted the humongous gap between Perry's campaign-trail blather and the reality of governing. How could anyone believe he had a workable plan to close entire federal departments when he couldn't even remember his own talking points?

A few years later, then-President Donald Trump appointed Perry to run the Department of Energy—the same department Perry couldn't remember he wanted to abolish.

With the annual federal budget deficit now nearing $2 trillion and the national debt reaching unsustainable levels, it's important for politicians to have big goals for cutting government. But ambition means nothing if not backed up with a practical plan of action. That's the difference between Nixon's failed attempt at killing the Board of Tea Experts as a public relations maneuver and Reid's serious, yearslong effort that finally buried it.

Trying to tear down old programs that no longer make sense—if they ever did—also cuts against the natural tendency of most politicians.

"Every new president and committee chair wants to make a mark, and so they push to create new programs of their design," says Chris Edwards, a budget policy expert at the Cato Institute. "They don't bother trying to repeal the related old and outdated programs because that would use major political capital they would rather use creating new programs."

The Board of Tea Experts is not the only federal agency or program to be successfully closed or privatized. Edwards points to the Office of Technology Assessment, an internal congressional study committee that produced reports on a wide range of scientific and technological issues for about 20 years before being shuttered in 1995 for being duplicative and unnecessary.

But the vast majority of the traffic is moving in the opposite direction. According to Downsizing the Federal Government, a Cato-affiliated project that Edwards runs to track the sprawling size of the federal government, there were 2,418 grant or subsidy programs on the books this year, more than double the number that existed in 1990.

That's why the best time to plan to close regulatory bodies and other government agencies isn't when they become obviously unnecessary—it's when they are created.

At first, every government agency has some reason for existing, even if it's not a good one. Even the Board of Tea Experts, which was rooted in those late–19th century worries about Americans being served subpar tea. Once it's created, regulators and their rules warp markets and create constituencies that benefit from preventing change—including the regulators themselves.

In the mid-1980s, Dick was arguing for the tea board's continued relevance by pointing to potential consumer harms that were no longer realistic in a world with grocery stores and extensive private quality-control operations. Nearly 30 years after the Board of Tea Experts was effectively shuttered, there's no indication that Americans are drinking worse tea—because the board and its standards weren't accomplishing anything the market hadn't already sorted out decades ago. And, of course, the FDA still holds the power to regulate tea (as it regulates all food and drink in the United States), even in the absence of a special board tasked with sipping each imported batch.

Is there a way to ensure programs and agencies that have outlived their usefulness are actually shut down? Young of the Competitive Enterprise Institute points to Texas. The state's Sunset Advisory Commission, which periodically reviews government agencies and recommends to the state Legislature when one is no longer serving a purpose, claims to have played a role in abolishing 41 agencies, consolidating another 51, and saving taxpayers more than $1 billion.

With mandatory sunsets, Young says, "ineffective or unneeded agencies can still shut down, even if Congress can't muster up the courage for a vote."

Absent some kind of institutional reform, federal programs only seem to end up on the chopping block when they make an enemy of someone in a powerful position. Without Reid, the Board of Tea Experts might very well be holding its annual tasting session right now.

When any changes do happen on their own, they tend to be incredibly slow.

In October, the Prune Administrative Committee—a federal entity that oversees the "handling of dried prunes"—took the first step toward abolishing itself after an internal review found that the costs of the board's regulations "outweigh the benefits to industry members."

But it isn't going away for good just yet. No, the committee will continue to exist for at least another seven years, during which time it will issue no rules or regulations. If America survives that wild experiment with ungoverned dried plums, the committee and its parent, the U.S. Department of Agriculture, will decide whether to make the arrangement permanent.

"Inertia might be the strongest force in all of politics," says Young. "If it takes 50 years of reform efforts to close down a tea-tasting board, then larger reforms are doomed without some kind of institution-level change


More Wasteful Than the Tea Board?

The Board of Tea Experts was a uniquely silly and superfluous part of the federal bureaucracy. No other product has ever been subjected to literal taste testing by federal officials before it could be legally sold.

Sadly, it is not the only silly or superfluous part of the government. A comprehensive list of pointless and wasteful government programs would be too long to print, but here are six others begging to meet the same fate as the tea board.

(Photos: iStock)

Popcorn Board: Created by Congress to "develop new markets for popcorn and popcorn products." The board funds itself by charging fees to popcorn producers—fees that presumably are passed along to popcorn eaters. Maybe that's why it's so expensive at the movie theater? Similar user fee–funded boards include the National Fluid Milk Processor Promotion Board, the National Mango Board, the National Potato Promotion Board, and the National Watermelon Promotion Board.

Mushroom Council: They say no one wants to see how the sausage of government gets made, but what about the shit it's grown in? A part of the Department of Agriculture (USDA), the Mushroom Council is supposed to "maintain and expand existing mushroom markets and uses." Imported mushrooms are taxed 0.0055 cents per pound to pay for that critical work.

(Photos: iStock)

Denali Commission: Created in 1998 to fund infrastructure projects in Alaska, the Denali Commission was targeted for elimination by both Barack Obama and Donald Trump—but Congress keeps funding it anyway. Mike Marsh, the commission's inspector general, wrote in 2013 that the agency is "a congressional experiment that hasn't worked out in practice" and urged Congress to "put its money elsewhere." In FY 2023, the Denali Commission had a budget of $13.8 million.

(Photos: iStock)

Christmas Tree Promotion Board: A 12-member board (one for each day of Christmas?) created in 2011 to "expand the market and uses of fresh-cut Christmas trees" and funded with a new fee of 15 cents on all real Christmas trees sold in the country. Nothing says "Merry Christmas!" like a new tax on the people who are already using your product. Interestingly, this was not created by an act of Congress but by the USDA's Agricultural Marketing Service, which Congress authorized in 1996 and gave the ability to create new boards and agencies like this one. Oh, administrative state, how lovely are thy line items.

Corporation for Travel Promotion: Established in 2010, this 11-member board within the Department of Commerce is charged with "providing useful information to those interested in traveling to the United States," as if there weren't already dozens of websites and tour books doing the same thing. It's now known as Brand USA. Foreigners seeking visas to enter the United States pay a $4 fee to fund the corporation, even though they likely don't need to be convinced to visit.

(Photos: iStock)

Rural Utilities Service: The Rural Electrification Administration was created as part of the New Deal in 1936 to expand the nation's power grids and phone lines to far-flung homes and communities. These days it's pretty difficult to find homes that lack electricity or phone service, but the administration is still around (though it was renamed in 1994). This tiny corner of the USDA—yep, it's not even part of the Energy Department—cost taxpayers $154 million this year.

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A Numbers Game: Who Would The Judicial Conference's New Policy Help And Who Would It Hurt? https://reason.com/volokh/2024/03/16/a-numbers-game-who-would-the-judicial-conferences-new-policy-help-and-who-would-it-hurt/ https://reason.com/volokh/2024/03/16/a-numbers-game-who-would-the-judicial-conferences-new-policy-help-and-who-would-it-hurt/#comments Sun, 17 Mar 2024 01:35:02 +0000 https://reason.com/?post_type=volokh-post&p=8269176 I have now had some time to digest the Judicial Conference's policy. So much of what was reported about the policy was not accurate. The Washington Post headline sums things up: "U.S. courts clarify policy limiting 'judge shopping'—On Tuesday, officials said a new policy would mean assigning certain cases randomly. Now they say it is just guidance." I still don't understand how this rollout could have been executed so poorly. 

The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief–only certain types of state or nationwide relief. Critically, cases that have "implications beyond the parties before the court" would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned–even after the initial judge may have invested time and effort into the case.

In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an "an elegant solution" to reduce nationwide injunctions. What is that "elegant solution"? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?

It is important to unpack four different scenarios: (1) conservative litigants seeking nationwide relief in red states; (2) liberal litigants seeking nationwide relief in blue states; (3) conservative litigants seeking statewide relief in blue states; (4) liberal litigants seeking statewide relief in red states. Here is the upshot of the policy: it will be harder to obtain the desired relief in scenarios #1, #3, and #4, but the odds of obtaining the desired relief in scenario #2 will be virtually unchanged.

Scenario #1:  Conservative litigants seeking nationwide relief in red states

This scenario gets the most national attention: Texas or Mississippi or Louisiana seeks a nationwide injunction or vacatur of a federal policy in a district court within the Fifth Circuit. Indeed, other red states can get in on the action. After all, Missouri v. Biden is being litigated in Louisiana, even though Missouri is in the Eighth Circuit.. And it is no surprise where these suits are filed: never in Houston, Dallas, Austin, New Orleans, or Jackson. Always in the outposts. And this is no surprise. Historically, divisions with one or two judges are filled with an eye towards strategic litigation. By contrast, Republican appointees in large cities can include more traditional types–the law firm partner, the former state court judge, someone who served as a federal prosecutor, and so on. These judges will have the right judicial temperament, and be reliably conservative, but may be less likely to embrace novel legal theories that arise in strategic litigation cases. Conversely, those willing to relocate to the far-flung corners of the state are likely to be younger, less entrenched in polite society, and more comfortable with cutting-edge legal jurisprudence. This is not a secret. Everyone knows how this process works.

If this policy were adopted in the Northern District of Texas, the Southern District of Texas, and the Western District of Texas, the dynamics would be scrambled–at least in the short term. Instead of a virtual lock to draw a judge who was nominated in large part because of their likely views of strategic litigation, the case will more likely than not be assigned to an urban center. And that urban center will have a mix of Democratic-appointees and more-traditional-Republican appointees.

Let's walk through the numbers. The Northern District of Texas has twelve district judge positions (one of which is vacant), and a handful of senior status judges who draw a reduced caseload. (Here, and elsewhere, I will exclude senior status judges from the reassignment wheel to make the numbers easier.) Of the eleven active district court judges, seven are in Dallas, two are in Fort Worth, one is in Amarillo, and one is Lubbock. If nationwide or statewide relief is sought anywhere in the Northern District of Texas, the most likely reassigned division will be Dallas. At present, of those seven Dallas judges, one is a Clinton appointee, and the other six are appointed by Republican Presidents. And right down the interstate in Fort Worth are two Republican appointees.

The Southern District of Texas has nineteen district court positions (two of which are vacant), and a bunch of senior judges who draw a reduced caseload. Seven are in Houston, two are in Brownsville, two are in Corpus Christi, one is in Galveston, three are in Laredo, and two are in McAllen. If nationwide or statewide relief is sought anywhere in the Southern District of Texas, the most likely reassigned division will be Houston. By my count, Houston has four left-leaning judges and three right-leaning judges.

The Western District of Texas has thirteen district court positions (four of which are vacant), and several senior judges who draw a reduced caseload. There are four in San Antonio, one in Austin, one in Del Rio, one in Midland Pecos, and one in Waco. If nationwide or statewide relief is sought anywhere in the Western District, the most likely reassigned division will be San Antonio. San Antonio has about three left-leaning judges and one right-leaning judge.

On balance, this policy would make it harder for conservative litigants in Texas to obtain nationwide relief. As things are presently constituted, filing in the Northern District of Texas is likely the safest venue. Indeed, to stick it to critics, the Texas AG could simply file in Dallas and spin the wheel of fortune.

I haven't run the numbers yet on Louisiana and Mississippi, but I suspect there would be a similar dynamic, with most cases being filtered to urban areas, where the judges–on balance–lean center-left.

Scenario #2:  Liberal litigants seeking nationwide relief in blue states

Now, let's return to everyone's favorite district, the Northern District of California. There are three divisions: San Francisco, Oakland, and San Jose. Granted, Bay Area traffic is dreadful, but is easy enough to travel between these posts–even by public transit. Compare that to the 9 hour drive from El Paso to Waco, which are both in the Western District of Texas. 

There are fourteen judges in NDCA, with one vacancy. There are zero active judges who are Republican appointees. (A senior status Bush appointee, Judge Jeffrey White, recently said that Israel may be engaging in genocide.) If the California Attorney General seeks nationwide relief, there is a 100% chance the California Attorney General will draw a Democratic appointee, with a friendly appeal to the Ninth Circuit.

You will find similar lopsided numbers in the Eastern District of New York, the District of Oregon, the Western District of Washington, the District of Maryland, the District of Hawaii, and other favorable divisions. Any Republican appointees in those states were given blue slips by Democratic Senators. And don't forget about the D.C. Circuit, which if you exclude the stalwart senior status judges, is one of the most lopsided circuit courts in recent memory. 

You get the picture. I think an underlying presumption of this policy is that those who seek nationwide or statewide relief are doing so for improper reasons. But nothing will change with the ability of California, Hawaii, Oregon, Washington, Maryland, New York, and other states to obtain nationwide relief.

Scenario #3:  Conservative litigants seeking statewide relief in blue states

The new policy would apply not only to parties seeking nationwide relief, but also to parties seeking statewide relief. Any time a state statute is challenged as being unconstitutional, or preempted by federal law, the case will be reassigned. (I suppose a party can only seek summary judgment, but virtually all of these cases are litigated as pre-enforcement challenges, coupled with a TRO or PI.) 

These cases do not gain nearly as much notoriety, but conservative public interest groups do exist in blue states, and they use friendly forums to challenge progressive policies. For example, in New York, the Southern and Eastern Districts are lost causes for conservatives. (The companion case to Roman Catholic Diocese v. Cuomo started off with a defeat before a W. Bush appointee.)  Rather, most of the strategic litigation occurs in the Northern District of New York. Until fairly recently, a suit filed in Syracuse had a roughly 50% chance of drawing a senior judge appointed by one of the Bushes. (I was counsel on a challenge in Syracuse to Governor Cuomo's order shutting down a religious school in Brooklyn.) And at present, there is only one judge in Binghamton–a senior Reagan appointee. Much of the post-Bruen Second Amendment litigation has been filed in these forums. By contrast, all of the other judges in the Northern District were appointed by Clinton, Obama or Biden. But under the Judicial Conference's policy, a suit filed anywhere in NDNY is likely to be transferred to Albany, and a Democratic appointee.

I haven't run the numbers in other districts, but I know that in most blue states, there are small pockets of courts where the odds are better-than-average of drawing a Republican appointee. These pockets would be eliminated. And, on balance, conservative litigants will have more difficulty challenging liberal states policies in blue states. But in red states, the shoe will be on the other foot.

Scenario #4:  Liberal litigants seeking statewide relief in red states

This fourth scenario gets the least attention of all, as Democratic appointees who enjoin Republican policies are considered heroes in polite company. Progressive groups know all-too-well where to sue in red states. Often what looks like a neutral decision–filing in the state capital–is a very strategic choice. Consider the Tallahassee division of the Northern District of Florida. This has long been a bastion of progressive jurisprudence. In my book on the Affordable Care Act litigation, I explained that the Florida Attorney General filed suit in Pensacola, rather than Tallahassee, to avoid now-senior Judge Robert Hinkle. 

Today, filing in Tallahassee gives you (roughly) 3-1 odds of a Democratic appointee. And wouldn't you know it, Chief Judge Mark Walker seems to draw just about every case that challenges a new Florida law. (This former Judge Boggs clerk has real doubts about how "random" reassignment will work in reality.) Judge Walker issues an injunction everytime Ron DeSantis sneezes. Progressive groups know this, and file in Tallahassee. For a time, Walker had 100% of the cases in Gainesville, while Hinkle had 100% of the cases in Panama City. If the Judicial Conference's policy was adopted, any suit in Tallahassee seeking statewide relief could be reassigned to Pensacola which leans solid-right.

A similar dynamic would be at play in the Middle District of Florida. Orlando may have once been the happiest place on earth, but the federal court there is a no-go zone for DeSantis-signed legislation. But under the Judicial Conference's policy, those cases may be reassigned to the more-friendly Tampa division.

Likewise, progressives litigants (including the Biden administration) routinely sue the Texas government in Austin because the options are an Obama appointee, two now-left-leaning senior Republican appointees, and a Reagan appointee from Hawaii who consistently rules against Texas. They're batting a thousand. To paraphrase Justice Barrett in Lindke v. Freed, the distinction "turns on substance, not labels." But if the policy were adopted, cases can be reassigned to San Antonio and the hinterlands of west Texas, which has a higher share of Republican appointees. On balance, if the Western District of Texas adopts this policy, it would be better for conservatives and worse for liberals.

The NAACP and other civil rights organizations have their favored spots to file suit in Mississippi, Louisiana, Alabama, and other southern states. Those preferences too may be adjusted. This policy will likely scramble the preferences of the progressives groups in red states–I would not be surprised if they quietly oppose this policy. Or, they find different ways to characterize statewide relief to avoid being dinged by the clerk. Everyone likes forum shopping except when the other side does it.

The Consequences of the Policy

So far I've described the impact of this policy as the courts are presently constituted. But nothing is ever fixed. Every action has an equal and opposite reaction. This policy, if enacted widely, will alter the dynamics of judicial nominations in ways that Chief Justice Roberts and his colleagues may not have anticipated.

A future Republican President and Republican Senate will compensate for this policy by adjusting the types of judges appointed to urban centers. Whereas in the past, smaller courts were designated as likely destinations for strategic litigation, if the policy is adopted, every judge is a potential destination. It is no longer a safe bet to put a well-admired 50-year old law firm partner or former state-court judge on the federal bench in urban centers. Too risky with the random reassignments. As much as the Judicial Conference may detest Matt Kacsmaryk, the likely consequence of this policy is to ensure that more Matt Kacsmaryks are appointed to the federal judiciary across all divisions. Mission accomplished! 

The second likely consequence is to affect how blue slips operate. During the Biden Administration, Republican Senators have worked with Democratic Presidents to fill open district court seats as part of packages on circuit court nominees. District Court judges are sometimes considered fungible, because conservative litigants can choose where to file, and avoid compromise Biden nominees. Indeed, blue slips are often contingent on appointing a judge to a particular division. I think the Judicial Conference's policy undermines that conciliatory approach. Every district court blue slip that is returned is another possible venue for a reassigned strategic litigation case in a red state to be dismissed. In some regards, a district court judge is more significant than a circuit judge, as the former can slow-walk a case and keep it from appellate review. Or worse, transfer the case outside the Circuit, where it is virtually impossible to bring back. (See recent attempts to send SpaceX's case from Texas to California.) The likely consequence of this policy is that seats will go unfilled, and judicial vacancies will become longer. Along similar lines, I think Democratic Senators would not play ball on district court nominees with Republican presidents, to ensure their strategic litigation is unaffected. Ultimately, I think judicial vacancies will increase in states. 

I'll close this already-too-long post by repeating my initial reaction: the Judicial Conference has waded into a political minefield. In an attempt to appear apolitical, the judges have injected themselves into a political brawl. I highly doubt Judge Sutton realized that his remarks to the press would trigger a floor speech by Senator McConnell. If I had to guess, Sutton thought this was an opportunity to educate reporters about the dangers of nationwide injunctions, and he may have gone beyond the talking points of the new policy. One reporter told me it was Sutton's first day on the job! I don't know if the policy that was released on Friday was modified after the Sutton kerfuffle, or whether Sutton went off script. Justices sometimes do this during oral handdowns of opinions. In any event, I doubt the Judicial Conference will revisit the policy. I've learned the policy was accepted by acclamation without any discussion or dissent, including by the Chief Judge of the Fifth Circuit. Who would move to reconsider the policy? 

What happens next?

At this point, the ball is in each district court's court. This guidance is just that–guidance. They can choose to continue their present practices, and not adopt the policy. If they choose that course, they will be criticized by all the regular suspects on social media. Thankfully, life tenure insulates judges from such noise. But if they adopt the policy, the consequences I described above may make the situation far worse than it is now, without doing anything to reduce nationwide injunctions. I am not convinced that nationwide injunctions and forum shopping are significant problems. Appellate review exists to remedy those, as attested to by Judge Kacsmaryk's win-loss record at the Supreme Court. (Though the Court recently declined to stay his ruling about the Texas A&M drag show.) But this policy creates far more negative consequences than are justified to address this minimal problem.

There are also several pragmatic reasons why courts should reject this policy. First, it creates significant administrative work with substantial burdens on court staff: every complaint that is filed, and every motion for injunctive relief, will trigger a new review process. Cases will be reassigned–perhaps after a judge has already invested time and energy in a case. Second, there are risks of gamesmanship. Plaintiffs who do not like the judge they draw can simply amend the complaint, as a matter of right, and seek reassignment. This policy may reduce judge-shopping at the outset, but it will guarantee judge-shopping after the case is filed.

Third, not every judge will want to handle high-profile strategic litigation cases. These are complex cases that bring significant press attention–even death threats. Not every federal judge wants to deal with that nonsense. Whether you like it or not, Judge Kacsmaryk has more experience with difficult APA cases than just about any judge outside D.D.C. Fourth, some judges who are not receptive to conservative litigants will be hesitant about losing progressive litigants. Again, progressive groups will lose their forum of choice to challenge red-state litigation.

Fifth, adhering to this policy would alter how judges are selected, and likely yield fewer blue slips and more vacancies. Sixth, the entire genesis of this policy is to respond to political criticism from Senators Schumer and Whitehouse and some law professors on Twitter. The courts may not be willing to be viewed as tools to respond to political pressure. The safest course for these judges is to simply say: let Congress, who established the districts and divisions, decide how cases are assigned.

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Social and Economic Legislation and the Taft Court in the 1920s https://reason.com/volokh/2024/03/16/social-and-economic-legislation-and-the-taft-court-in-the-1920s/ https://reason.com/volokh/2024/03/16/social-and-economic-legislation-and-the-taft-court-in-the-1920s/#comments Sat, 16 Mar 2024 23:04:03 +0000 https://reason.com/?post_type=volokh-post&p=8269166 [The material below was originally posted at the Balkinization blog, for the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).]

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post's erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

Additionally, many Americans were repelled by the wholehearted support that numerous progressives had shown for the new federal wartime Leviathan and their desire to make it a permanent fixture. Post cites a letter from William Allen White as an illustration of the "innocent confidence of progressives."

I think the big thing to do now is quietly organize a hundred or so fellows who are dependable and who may take such steps as are necessary after the war to serve all the economic and social campaigns that the war brings to us. I think price fixing should be permanent, but not done by Wall Street. I think the government should tighten its control either into ownership or operation of the railroads. I think that labor arbitration should be a permanent thing, and that we should federalize education through universal training, making it a part of the system of education.

To many Americans in the post-war era, this attitude would not have appeared "innocent." Instead, it likely appeared as if enthusiastic supporters of a federal government exerting control over the economy, including regulating wages and prices nationwide, had revealed progressives' true intentions. Contrary to their pre-war claims of seeking significant reform within the existing system, it seemed they actually sought radical, even revolutionary, changes to the American economy and government system.

In the portion of the book I was tasked with reviewing and commenting on, Post overlooks the additional influence of events in Europe on this dynamic. The fact that European nations had become entangled in a brutal war without a clear purpose seemed to affirm America's superiority to Europe. Both in the past and today, many progressives looked to Europe as a model for their more interventionist and nationalist government policies. The emergence of the USSR, Communist revolutions in Germany and Hungary, and the sympathy expressed for Communism and anarchism in the US, especially among immigrants, heightened the apprehension of foreign ideas, including progressive concepts associated with Continental thinkers.

The theme of a "return to normalcy" provides a crucial perspective on the Taft Court era, especially considering President Harding's successful 1920 campaign on that very platform. Harding's victory reflected widespread dissatisfaction with the war and its impact on what we now call civil and economic liberties. Notably, it was Harding who appointed the Justices who steered the court in a more libertarian direction during the 1920s.

The inclination toward a "return to normalcy," seeking a shift back to pre-War levels of government regulation, is a key factor in understanding the overall approach of the pre-Depression Taft Court. This desire is particularly evident in the Court's skepticism toward novel or contentious applications of government regulatory power.

The apprehension of government overreach, intensified by the government's actions during the war, contributed to the Court's effort to systematize its jurisprudence on the liberty of contract. Previously perceived as somewhat arbitrary and inconsistent, the Court aimed to provide clarity. In the case of Adkins v. Children's Hospital (1923), Justice George Sutherland outlined acceptable infringements on liberty of contract beyond traditional police power concerns. These included regulations related to rates and charges for businesses with a public interest, contracts for public work, payment of wages, and hours of labor for health and safety reasons. Sutherland emphasized that, aside from these exceptions, "freedom of contract is the general rule, and restraint the exception," justifiable only in exceptional circumstances.

Looking more broadly, instances of perceived government overreach during World War I shed light on why the Supreme Court was willing to resurrect and broaden doctrines limiting government power that appeared to have been overshadowed by the progressive movement. Traditionalist conservative Justices advocating natural rights notions had no representation on the Taft Court after 1911. Law review commentary in the 1920s that advocated limits on government authority was philosophically incoherence.

As extensively detailed by Barry Cushman, the Taft Court Justices typically labeled as "conservative" a held a spectrum of generally moderate but progressive political views before joining the Court. Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559, 559-60 (1997); see also Logan E. Sawyer III, Creating Hammer v. Dagenhart, 21 Wm. & Mary Bill Rts. J. 67, 88 (2012). Despite this, and likely in part in response to the significant expansion of government authority during the war, these Justices aimed to uphold traditional limitations on government power while largely accommodating the growth of progressive regulation. Conversely, their counterparts, including Justice Louis Brandeis, were more radical Progressives reluctant to concede that the Constitution imposed significant and judicially enforceable constraints on the scope of government authority.

This analysis is at least consistent with Post's return to normalcy theme. His framework, however, is less useful in explaining the outcome of specific cases. As Post acknowledges, the Court continued to uphold some rather novel and intrusive exercises of the police power, while invalidating other exercises of government regulatory authority, some of which seemed rather anodyne.

Post's analysis improves significantly upon the once-robust literature that sought to explain the Court's rulings by reference to the Justices' alleged, but never documented, devotion to Social Darwinism.

Nevertheless, Post still clings to some mythology inherited from Progressive-era critics of Lochner. Quoting an article by Felix Frankfurter from 1916, and also citing Ernst Freund, Post states that Progressives had repudiated Lochner v. New York (1905) because "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon … those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Post believes that the Court's return to normalcy included a return to this "common understanding" vision of what constitutes appropriate regulatory action, and what is an undue and thus unconstitutional interference with normal ordinary economic activity.

The problem is that this is an incorrect, or at least incomplete, understanding of Lochner. Justice Peckham's opinion in Lochner indeed suggested that the Court should uphold the hours legislation at issue in that case if to the "common understanding" baking was an unhealthful occupation in need of special regulation. But the Court also would have upheld the law if scientific evidence before the Court had suggested that regulating bakers' hours served a legitimate health purpose.

The problem, however, was that the only party that provided any evidence about the health of bakery workers was Lochner, and that evidence showed that baking was not unhealthful relative to other common professions. Peckham alluded to this evidence without directly citing to it when he wrote, "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others."

In one of the more remarkable interpretive miscues in Supreme Court history, critics nevertheless almost immediately accused Peckham of engaging in formalism and ignoring what they saw as the obvious fact that baking was unhealthful. See, e.g., Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). For generations, historians and law professors even accused Peckham of making up the statistics he alluded to. If they had bothered to look at the briefs in the case, they would have seen exactly where he got them.

Conversely, Justice Harlan's dissent is often presented as an example of how a judicious judge, even one supporting liberty of contract in principle, should have assessed the facts. Harlan cited several studies indicating the unhealthfulness of baking. The problem, however, is that none of these studies were part of the record, lower court opinions, or briefs. Harlan's references did not even come from his own research, but from a pamphlet published by the bakers' union.

Considering how the Supreme Court functioned, it's uncertain whether Peckham reviewed Harlan's dissent before delivering his opinion. Notably, Peckham did not make any direct reference to the dissent in his own opinion. On a related note, historian Nicholas Mosvick has compellingly argued that Justice McKenna, who frequently cast the deciding vote in labor regulation cases, paid particular attention to whether there was empirical evidence backing a specific labor law. Nicholas Mosvick, Rehabilitating Lochner: A Study in the limitations of a Constitutional Revolution, 18 Tex. Rev. L. & Pol. 151, 162-64 (2013). Peckham's reference to scientific evidence played a crucial role in inspiring Louis Brandeis to submit his famous brief on the detrimental effects of long hours on women's health in Muller v. Oregon (1908).

Returning to Lochner, aside from Justices Peckham and Brewer, the relevant Justices typically showed significant deference to purported health regulations, including maximum hours laws. Besides the scientific evidence presented by Lochner, two additional factors likely influenced the Lochner majority. First, although the state asserted that the law in question was a health law, it was placed in the state labor code, not the health code, and a union representative was part of the panel responsible for enforcing the law. Second, the hours law in question was notably strict, lacking provisions for overtime, and violations carried criminal penalties instead of civil ones. For  example, a baker offering triple pay to employees for an extra hour of work to complete an important holiday order could face imprisonment. These factors, combined with the studies presented by Lochner, probably persuaded the swing Justices to align with the majority. In short, it's incorrect to suggest that Lochner ignored facts and evidence about the underlying law in favor of a singular reliance on common knowledge.

With that said, let's delve into Post's discussion of two major liberty-of-contract cases: Jay Burns Baking v. Bryan (1924) and Adkins v. Children's Hospital (1923). While Post discusses additional police power cases, including in a chapter on "businesses affected with a public interest," I will concentrate on these two cases for brevity's sake.

Jay Burns Baking involved a Nebraska law aimed to prevent consumer fraud by mandating loaves be baked in half-pound increments, with a strict one-ounce tolerance for over- or under-weight bread. Initially, I suspected that this law had special-interest origins. I speculated that modern factory bakeries favored these laws, finding compliance easier, while mom-and-pop bakeries opposed them. Despite my suspicion, after investigating with a research assistant through a search of baking industry journals, we found no supporting evidence. Our conclusion was that bakers' support or opposition to such laws had no clear correlation to any discernible factor.

According to Post, the Court, in rendering its decision, was aware that since the war, bakers had easily adhered to tolerances even stricter than those imposed by Nebraska. This information was detailed in Brandeis's extensive dissent discussing wartime regulations. Nevertheless, a 7-2 majority invalidated the law, deeming it an undue interference with occupational liberty, partly because compliance was seen as burdensome. Post suggests that the Court overlooked existing evidence because the majority deemed it unreasonable for the state, based on common knowledge, to interfere in this manner.

I disagree with Post that the majority should have considered Brandeis's analysis definitive. As Post acknowledges, Nebraska presented only a "perfunctory" defense of its law. Brandeis's analysis of wartime regulations was based on information almost entirely outside the record. As with Harlan's dissent in Lochner, it's far from clear that the Supreme Court should consider evidence that is not in the record. Among other things, Justices going off on their own evidentiary expeditions without an opportunity for the parties to weigh in has obvious potential for abuse.

Post concludes that the controversy over whether unwrapped bread could meet the law's weight requirement wasn't central to the legal dispute. In my understanding, the evidence from the parties suggested two ways for bakers to comply: wrapping loaves in wax paper or using lower-quality flour and leaving the bread unwrapped. Contrary to Post's treatment of this issue as inconsequential, wrapping bread negatively affects the crust texture. Essentially, Nebraska gave bakers the choice of baking lower-quality bread or selling only wrapped loaves. Brandeis's dissent doesn't counter this point.

Justice Butler's majority opinion highlighted the strong demand for unwrapped bread and affirmed bakers' right to provide it. This reasoning alone justified invalidating the law. Butler also argued that the one-ounce tolerance the law provided, intended to prevent deceptive practices, was too strict. He suggested it was unreasonable to assume consumers would mistake a significantly smaller loaf for a one-pound loaf.  Brandeis did not present contrary evidence.

Professor Barry Cushman has previously disputed Post's interpretation of Jay Burns Baking, which Post expressed in an earlier law review article. Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881 (2005). Post acknowledges Cushman's argument, but rejects it.  Most pertinent, Cushman points out that Justice Butler himself wrote a later unanimous opinion upholding a bread-weight law that provided for greater (3 ounce) tolerances. This shows, Cushman argues, that the Jay Burns Baking decision was based on the specific flaws the Justices saw in Nebraska's law, not some inchoate yearning for normalcy or reliance on common knowledge.

I side with Cushman, and would add one more point. Jay Burns Baking was a 7-2 ruling, with only Brandeis and Holmes dissenting. Brandeis and Holmes, of course, thought that the police power in the economic realm was virtually unlimited. So despite Brandeis's extensive dissent, it's more likely the dissenters, rather than the majority, who were relying on strong ideological presuppositions, in this case favoring judicial deference to regulation, rather than focusing on the facts of the case.

Adkins v. Children's Hospital, meanwhile, was a much closer 5-3 ruling, with Justice Brandeis recused (and who surely would have been a fourth vote to uphold the law). In Adkins, Justice George Sutherland wrote the opinion invalidating a DC minimum wage law that applied to only to women as a violation of the right to liberty of contract.

Post adopts the traditional progressive perspective on women-only minimum wage laws. He emphasizes the rationale that women, being in a weaker bargaining position than men, required protection from receiving inadequate wages. However, this view overlooks the complex political and economic dynamics surrounding such laws.

While some advocates of women-only minimum wage laws aimed to improve employment standards for women, others had less noble intentions. Supporters included male-only trade unions seeking to limit competition from women, opponents of immigration who believed married immigrant women were being forced to work by their husbands, paternalists focused on preserving women's health (especially reproductive health), moralists concerned about the potential moral risks of low-wage, long-hour jobs leading women into immorality and prostitution, "family wage" advocates hoping to shield men from what they considered as "destructive" competition from women workers, "maternalists" aiming to promote and preserve women's maternal roles in the family, and eugenicists who believed that working women weakened the race.

Post overlooks the less savory motivations for sex-specific minimum wage laws. He also only briefly discusses feminist opposition to these laws, notably by Alice Paul of the National Women's Party, in a few endnotes. This context, however, significantly influenced Adkins's outcome. Many women's rights advocates, including Alice Paul, opposed gender-specific minimum wage laws but supported laws applicable to all workers.

Justice Sutherland, was not a strict opponent of government regulation, see, e.g., Euclid v. Ambler Realty (1926), but in his pre-Court career, he had been a political ally of Alice Paul and a strong advocate for women's rights. He led the push for the Nineteenth Amendment in the Senate and helped draft the proposed Equal Rights Amendment. Paul resisted attempts to secure additional support for the amendment by adding a provision exempting sex-specific protective labor laws.

These facts help account not just for Sutherland's joining (and writing) the majority in Adkins, but also for his rejecting minimum wage supporters' claim that women workers needed special minimum wage laws because they were vulnerable to exploitation by employers in ways men were not--that, unlike men, women were unable to enter a fair bargain for wages. Sutherland proclaimed,

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued 'with diminishing intensity.' In view of the great--not to say revolutionary--changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.

One can certainly dispute, as the dissenters did—Holmes: "it will take more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"—whether women's attainment of civic equality meant that they should no longer be treated as presumptively necessitous in the economic marketplace. Nevertheless, I believe that any discussion of Sutherland's opinion in Adkins should emphasize his feminist background. See David E. Bernstein, Revisiting Justice George Sutherland, the Nineteenth Amendment, and Equal Rights for Women, 20 G'town J. L. Pub. Pol'y 143 (2022).

Beyond that, Sutherland was troubled by two aspects of the law. First, the law put the burden of supporting a worker on the employer rather than on the public, even if the employee was not worth the mandated wage. This is not a very strong argument, especially because the law did not require employers to retain any employees whose work was not worth the relevant wage.

Post emphasizes this part of Sutherland's opinion, suggesting that the redistributive aspect of Adkins was the key to the Court's hostility to the law. He associates this hostility with the Court's purported opposition to class legislation—opposition that I believe has been grossly exaggerated, at least with regard to liberty-of-contract cases brought under the Due Process clauses. See David E. Bernstein, Class Legislation, Fundamental Rights, and the Origin of Lochner and Liberty of Contract, 26 Geo. Mason L. Rev. 1024 (2019).

I suspect, meanwhile, that a second aspect of the law was the key factor in, if not Sutherland's opinion, at least his ability to get a five-vote majority, and in particular, to get Justice McKenna's swing vote. As previously noted, Post sees the law's basic purpose as ensuring that women workers earned enough to live on. Yet, the wages set by DC's minimum wage law varied dramatically among enumerated job categories:

These orders fix the sum to be paid to a woman employed in a place where food is served or in a mercantile establishment, at $16.50 per week; in a printing establishment, at $15.50 per week; and in a laundry, at $15 per week, with a provision reducing this to $9 in the case of a beginner. If a woman employed to serve food requires a minimum of $16.50 per week.

The government could not explain why women's cost of living varied depending on which industry they worked in. As Sutherland wrote, "it is hard to understand how the same woman working in a printing establishment or in a laundry is to get on with an income lessened by from $1 to $7.50 per week." While Post gives short shrift to this argument, it does, in fact, undermine the government's claim that the basis for the law was to ensure that women earn a living wage. Rather, it seems more likely that the law as implemented tried to ensure that women could not undercut, or compete, with male workers, to whom the law did not apply. It's unlikely coincidental that the lowest wage set was for laundry workers, a field dominated by women.

Another objection raised by Sutherland to the law was that the power of the government to create a minimum wage also implies the power to create a maximum wage. Generations of historians have been dismissive of this objection, suggesting that it was a dystopian fantasy on his part. These historians ignore that the US government ultimately did later fix wages several times, beginning with the National Industrial Recovery Act. In at least two instances, during World War II and via President Nixon's wage controls, such wage-fixing reduced workers' wages below market level.

Before I conclude, I should mention one significant quibble I have with Post's editorial choices. There is a great deal of interesting side discussions in the endnotes. My own preference is for endnotes to be primarily just endnotes, with little to no additional text. If material is important enough to be included, it's important enough to be in the main body of the book, not hidden in endnotes. And in this case, it would be a particular shame if readers neglected the notes, as they are rich with important details. At the least, I wish the editors of the Holmes Devise had chosen to use footnotes instead of endnotes, so one would not have to constantly consult materials many pages away from the text to get the full story.

To sum up, I agree with Post that a backlash against perceived out-of-control government during World War I was a significant factor in the Supreme Court's own backlash against what had seemed, by 1917, to be a retreat from any meaningful review of most purported police power regulations. I disagree, however, with the implication that the Taft Court Justices who were in the majority in cases like Jay Burns Baking and Adkins were inclined to ignore the government's case for the laws in question in favor of a Lochner-like reliance on common knowledge amounting, perhaps, to unexamined prejudices. As I have noted, the Lochner opinion itself paid due attention to relevant empirical evidence. And I think a fair reading of Jay Burns BakingAdkins, and other cases suggests that the Court was sensitive to the specific relevant context, language, and practical effects of each law.

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Cross-Ideological YIMBY Coalition Defies Increasing Polarization—So Far https://reason.com/volokh/2024/03/16/cross-ideological-yimby-coalition-defies-increasing-polarization-so-far/ https://reason.com/volokh/2024/03/16/cross-ideological-yimby-coalition-defies-increasing-polarization-so-far/#comments Sat, 16 Mar 2024 21:15:26 +0000 https://reason.com/?post_type=volokh-post&p=8269156 YIMBY | NA
(NA)

The New York Times and Atlantic writer Jerusalem Demsas both recently published articles on how the YIMBY ("Yes in my backyard") movement has cut across ideological and partisan lines in an era where such divisions have engulfed most other policy issues. The Times headline calls it "The Surprising Left-Right Alliance That Wants More Apartments in Suburbs":

For years, the Yimbytown conference was an ideologically safe space where liberal young professionals could talk to other liberal young professionals about the particular problems of cities with a lot of liberal young professionals: not enough bike lanes and transit, too many restrictive zoning laws….

But the vibes and crowd were surprisingly different at this year's meeting, which was held at the University of Texas at Austin in February. In addition to vegan lunches and name tags with preferred pronouns, the conference included — even celebrated — a group that had until recently been unwelcome: red-state Republicans.

The first day featured a speech on changing zoning laws by Greg Gianforte, the Republican governor of Montana, who last year signed a housing package that YIMBYs now refer to as "the Montana Miracle…."

Day 2 kicked off with a panel on solutions to Texas's rising housing costs. One of the speakers was a Republican legislator in Texas who, in addition to being an advocate for loosening land-use regulations, has pushed for a near-total ban on abortions.

Anyone who missed these discussions might have instead gone to the panel on bipartisanship where Republican housing reformers from Arizona and Montana talked with a Democratic state senator from Vermont. Or noticed the list of sponsors that, in addition to foundations like Open Philanthropy and Arnold Ventures, included conservative and libertarian organizations like the Mercatus Center, the American Enterprise Institute and the Pacific Legal Foundation.

Demsas makes similar points:

Over the past four years, as the affordability crisis has worsened, the YIMBYs have gained ground. In conservative Montana, an anti-California message spurred lawmakers into passing pro-development bills; in Washington State, ambitious proposals were passed in the name of affordability and racial equity. But members face pressure on both sides to abandon ship. How long can they hold on?

One reason the YIMBY movement has remained bipartisan is that it's decentralized. But the gang gets together periodically for a national conference amusingly called "YIMBYtown"—the rare place where you might find socialists, centrist economists, and Trump-supporting elected officials all in the same room, working toward the same goal.

I have been writing about cross-ideological agreement on this issue for years. Housing deregulation is a cause that unites a wide range of economists and land-use experts across the political spectrum. Thus, I—a libertarian property rights scholar—end up in the same boat with liberals like Richard Kahlenberg and Paul Krugman, and conservatives at the National Review.

Prominent political advocates of zoning reform include Virginia Republican Governor Glenn Youngkin and Colorado Democratic Governor Jared Polis. Gov. Polis captured the broad appeal of housing deregulation well, when he said recently that "[i]t's a solution to housing costs that embraces our individual property rights….  The fact that it's meeting a real need that people from the left to right, the center, no matter where they are politically, want to do something about high housing costs is really what makes it even more salient."

In a forthcoming Texas Law Review article, Josh Braver and I explain why the constitutional case against exclusionary zoning can also cut across ideological lines. I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause of the Fifth Amendment.

Of course,  the opposing side in this debate—the NIMBY ("Not in My Backyard") forces—also cuts across ideological lines. It includes left-wingers suspicious of capitalism and development, and right-wingers—including Donald Trump—who play on fears that deregulation will lead more poor people and minorities to move to white suburban neighborhoods. There are also many NIMBYs who believe—contrary to basic economics—that allowing developers build more housing will actually drive up costs rather than increase them. Others who fear that it will reduce property values and change the "character" of their neighborhoods. For some progressive homeowners in the latter camp, narrow self-interest trumps ideology. In reality, many existing homeowners have much to gain from housing deregulation, especially if they have children. But many either don't know that, are highly risk-averse, or both.

If I had to speculate on what really unites YIMBYs across the political spectrum, and divides them from their opponents, I would suggest that one big factor is that YIMBYs generally understand Economics 101 and apply it to housing issues. They know that increasing supply by allowing more construction reduces costs, and thereby also increases the availability of homes—especially to the poor and disadvantaged. NIMBYs, by contrast, tend to ignore or deny this.

More generally, YIMBYs are less likely than NIMBYs to see the economy as a zero-sum game where some people can only gain at the expense of others. Thus, they recognize that letting developers build more housing and letting more people "move to opportunity" benefits not only the developers and migrants themselves, but also the rest of society, which has much to gain from the resulting boost to productivity and innovation. Zero-sum thinking is at the root of many political divides, and likely plays a significant role here, as well.

I don't claim zero-sum thinking and economic ignorance are the only factors at work. As I've emphasized before, you can be a highly knowledgeable, logically consistent NIMBY if you are highly risk-averse and elevate preservation of the current "character" of your neighborhood over such concerns as protecting property rights, creating opportunity for the poor, and increasing growth and innovation. But NIMBYism would be a far less powerful political force if it were limited to people who think that way.

You can also reach NIMBY conclusions if you endorse complex "market failure" theories, which essentially hold that Econ 101 doesn't apply to housing. But then you would need to confront overwhelming evidence indicating that areas with little or no zoning (most notably Houston) have far more affordable housing, even in periods when demand goes up, because many people want to move there.

For the moment, YIMBYism remains a valuable cross-ideological coalition, one that has managed to score some important successes, despite also suffering some setbacks. Whether it can continue to defy the forces of polarization remains to be seen.

 

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Today in Supreme Court History: March 16, 1925 https://reason.com/volokh/2024/03/16/today-in-supreme-court-history-march-16-1925-5/ https://reason.com/volokh/2024/03/16/today-in-supreme-court-history-march-16-1925-5/#comments Sat, 16 Mar 2024 11:00:28 +0000 https://reason.com/?post_type=volokh-post&p=8179587 3/16/25: Pierce v. Society of Sisters argued.

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Seattle Law Mandating Higher Delivery Driver Pay Is a Disaster https://reason.com/2024/03/16/seattle-law-mandating-higher-delivery-driver-pay-is-a-disaster/ https://reason.com/2024/03/16/seattle-law-mandating-higher-delivery-driver-pay-is-a-disaster/#comments Sat, 16 Mar 2024 11:00:12 +0000 https://reason.com/?p=8268732 A delivery driver hands off a paper bag of takeout food to a customer. | Prathan Chorruangsak | Dreamstime.com

In 2022, Seattle's City Council passed an ordinance mandating a minimum earnings floor for app-based food delivery drivers in the city. The law finally went into effect in January 2024, but so far the main result has been customers deleting their delivery apps en masse, food orders plummeting, and driver pay cratering.

The ordinance, part of a legislative package called "PayUp," was passed under the banner of protecting gig workers. By setting a compensation floor for app-based delivery drivers based on miles driven and amount of time worked, the ordinance operates as a (supremely complicated) minimum wage.

The wage floor is based on labyrinthine calculations: the "engaged minutes" for drivers are multiplied by a "minimum wage equivalent rate," which is then multiplied again by an "associated cost factor" and then multiplied yet again by an "associated time factor." Next, this sum is added to the total of "engaged miles" of drivers, multiplied by the "standard mileage rate" and then multiplied once more by the "associated mileage factor." (If you're lost, don't worry—the text of the ordinance itself literally does the math for you).

Heralded as a "first-of-its-kind" legislative breakthrough when it passed, the first two months of the ordinance's operation have provided a grim real-world Economics 101 lesson. First, the delivery companies were forced to add a $5 fee onto delivery orders in the city to cover the sudden labor cost increase. On cue, news stories started popping up of $26 coffees, $32 sandwiches, and $35 Wingstop orders in which taxes and the new fee comprised nearly 30 percent of the total.

Local news station King 5 reported that Seattle residents started deleting their delivery apps from their phones in response to the spiking exorbitant delivery prices. Uber Eats experienced a 30-percent decline in order volume in the city, while DoorDash reported 30,000 fewer orders within just the first two weeks of the ordinance taking effect.

In turn, this decrease in demand directly impacted the pocketbooks of the delivery drivers themselves. A driver who made $931 in a week this time last year saw his earnings drop by half to $464.81 in a comparative week this year. Another reported consistently making $20 an hour prior to the ordinance, only to see his earnings likewise fall by more than half since its enactment.

In other words, while the ordinance theoretically raises driver earnings to over $26 per hour—a number that ironically far exceeds Seattle's $19.97 standard minimum wage—drivers are barely logging any hours as a result of the drastic decrease in demand for food delivery. As one Seattle driver summarized: "It was dead. Demand was dead." A second driver put it more bluntly: "I've got nothin'. I'm not gonna sit here for hours for one frickin' order."

In addition to drivers, those who have been hardest hit include local mom and pop restaurants that have seen delivery orders dry up, and even the city's elderly and disabled population who often depend on affordable delivery options for meals. One might imagine that progressive politicians would be quick to repeal a law that hurts workers, noncorporate local businesses, and the elderly and disabled all at the same time, but Seattle's government officials are busy either doubling down or dissembling.

A spokesman for the mayor noted that "should the data show there have been unintended impacts for workers and small businesses, we are always open to making improvements"—a criterion which has clearly been met already—but nonetheless clarified that the mayor still "stands strongly in support" of the minimum wage ordinance.

Meanwhile, the president of the City Council claims she is "very worried" about the ordinance's impacts so far—and even argues that "it's not the role of policymakers to regulate the profit margins of companies"—before going on to say "I'm not going to redo the whole legislation."

The near future looks even grimmer for Seattle delivery customers and drivers. After passing the PayUp package, the City Council then decided that implementing the minimum earnings portion of the ordinance would require five new full-time government employees in the city's Office of Labor Standards (expanding to nine employees by 2027) and $1.2 million per year (escalating to $1.56 million annually by 2027). To fund these additional costs—as well as other parts of the PayUp package—the Council voted this past November to tack on a 10-cent per-delivery fee, which will take effect in 2025 and is projected to generate $2.1 million in annual revenue for the city coffers.

While the desire to protect delivery drivers may be based on good intentions, the solutions pushed by progressive politicians too often hurt more than help. If policy makers really want to support app-based gig workers, they should instead enact rules protecting independent contracting status while also experimenting with portable benefit models that actually could help these workers.

But given the recalcitrance of city officials, Seattle residents likely will have to resign themselves to more $26 coffees for the foreseeable future.

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Don't Let E.U. Bureaucrats Design Americans' Tech https://reason.com/2024/03/16/when-bureaucrats-play-product-designer/ https://reason.com/2024/03/16/when-bureaucrats-play-product-designer/#comments Sat, 16 Mar 2024 10:00:36 +0000 https://reason.com/?p=8265766 An illustration of the European Union flag mangled by a frayed phone charging cord | Illustration: Joanna Andreasson

For years, iPhone users have been saddled with an unusual feature: The popular Apple smartphone used a proprietary cable, called the Lightning cable, for charging.

By the 2020s, most manufacturers of comparable devices had switched to a universal standard, USB-C. Even some other Apple devices—including the iPad, which in many ways resembles an oversized iPhone—moved to the common USB-C. But the iPhone remained stubbornly attached to its Apple-specific cord.

Inevitably, this caused headaches and complications for some iPhone users, even those fully ensconced in the ecosystem of Apple devices. What if you want to borrow a friend's charging cable and that friend uses an Android phone? What if you're also lugging around an iPad? How many charging cords does one person really need to carry?

But the iPhone 15, released in 2023, uses the USB-C port for charging—in Europe, the U.S., and everywhere else. Starting with this model, Apple customers won't have to worry about what type of phone their friends have when asking to borrow a charger.

This change didn't come from a new innovation or from consumer demands. It was mandated by European regulators.

In September 2021, the European Commission proposed a common charger regulation, claiming it was appropriate to reduce electronic waste and consumer frustration. The proposal was passed in 2022, and the mandate goes into effect in 2024.

This might sound like a boon for users. But in the long term, this sort of rule threatens to thwart future innovation by locking tech companies into government-determined feature sets that can be updated or improved only with regulatory approval. Rules like this turn bureaucrats into product designers.

The charging rules are a symptom of a larger problem. E.U. bureaucrats' "regulate-first" approach has been spreading beyond Europe's borders to impact American companies and American consumers. Unfortunately, many American policy makers seem to be looking to Europe as a model.

A Rising Wave of E.U. Regulation

Many Americans first experienced the impact of the European regulatory approach in May 2018, when they started noticing more click-through requirements to accept cookies and updated privacy policies. All those annoying security pop-ups and repeated notice of updates to terms of service on websites were the direct result of General Data Protection Regulation (GDPR), an E.U. policy that required companies to adopt specific practices around interactions with user data and users' rights related to those data.

The GDPR didn't just bring a bunch of annoying pop-ups, it also caused huge corporate compliance costs. When the GDPR went into effect in 2018, companies reported spending an average of $1.3 million on compliance costs. A Pricewaterhouse-Coopers survey found that 40 percent of global companies spent over $10 million in initial compliance. These weren't one-time costs; some companies spend millions annually to comply.

Unsurprisingly, some organizations decided to pull out of the E.U. market entirely rather than comply with these rules. Others chose to deploy these changes all around the world rather than try to tailor compliance to the European Union. In other words, they treated the E.U.'s rules as global requirements.

This is a common result of tech regulations: Laws passed in one region end up affecting citizens located in other areas as companies standardize practices.

Consider the Digital Markets Act (DMA), a European regulation that went into effect in 2022. Under this law, regulators can put additional restrictions on otherwise legal business practices for companies labeled "gatekeepers." In September 2023, regulators gave six companies—Alphabet (the parent company of Google), Amazon, Apple, ByteDance (the parent company of TikTok), Meta (the parent company of Facebook), and Microsoft—the gatekeeper label. Notably, five of these six companies are American, and none are European. Meta and ByteDance have challenged their designation as gatekeepers, while Microsoft and Google have announced they do not plan to challenge the change.

The DMA's rules aren't yet finalized. But they could keep companies stuck with the gatekeeper designation from prioritizing their own products or services, and they might impose restrictions on messaging and advertising.

The Digital Services Act (DSA) is another European regulation that could significantly change the way users experience the internet both in Europe and beyond. The DSA was part of a legislative package with the DMA, but it's focused on disinformation and supposedly harmful online content. The law gives regulators more power to require that online platforms respond to their requests for information about content moderation actions and speakers and even allow regulators to mandate takedowns.

Even prior to the DSA, European governments had far greater ability to intervene in moderation decisions than U.S. officials, who are mostly limited to making nonbinding requests. In contrast, companies subject to the DSA risk fines of up to 6 percent of their annual turnover.

Europe also adopted an AI Act in December. While E.U. bureaucrats trumpeted the law as the "first of its kind," that's not something to brag about. The regulation will create a series of stringent requirements on various artificial intelligence (AI) technologies. If there's good news, it is that some nations in Europe, including Germany, France, and Italy, are pushing for AI self-regulation instead. Although they probably won't stop new AI controls completely, their objections could at least reduce the regulatory burden that AI companies face and signal awareness of the impact such regulations can have on innovation.

Europe seems committed to forcing innovators to prove to regulators that a technology will not cause harm rather than making rules designed to stop proven harms. This approach to regulation—sometimes described as "the precautionary principle"—presumes a technology is guilty until it is proven innocent.

Europe's Tech Policy Isn't Just About Europe

In 2015, President Barack Obama applauded U.S. technological success and warned that European lawmakers were trying to use regulation to hamstring American business. "We have owned the internet," he told Recode. "Our companies have created it, expanded it, perfected it in ways that they can't compete. And oftentimes what is portrayed as high-minded positions on issues sometimes is just designed to carve out some of their commercial interests." He cast European regulation as a way to "set up some roadblocks for our companies to operate effectively there."

Obama isn't the only American leader to worry publicly about the E.U.'s overreach. In 2019, President Donald Trump said, "Every week you see them going after Facebook and Apple and all of these companies….They think there's a monopoly, but I'm not sure that they think that. They just think this is easy money." In 2022, a bipartisan group of senators warned that the DMA and DSA, "as currently drafted, will unfairly disadvantage U.S. firms to the benefit of not just European companies, but also powerful state-owned and subsidized Chinese and Russian companies, which would have negative impacts on internet users' privacy, security and free speech."

Such concerns are far from misguided. Remember, five of the six designated gatekeepers under the DMA are American. Similarly, the DSA designated 19 companies as "very large online platforms" or "very large search engines" subject to increased regulatory scrutiny and specific requirements within the areas they are deemed potential gatekeepers. Of the 19 companies slapped with a "very large" designation, 15 are American and only two are European.

At times, some of these regulations seem constructed in such a way to directly target American companies—while giving a boost to the few European companies that might otherwise be subject to their regulations.

Global Consequences

This growing array of requirements could have unintended consequences for how products function far beyond Europe—and how we can use them to speak online.

Supporters of the GDPR claimed the law would preserve privacy and online safety. But some E.U. tech rules could actually make software and devices less safe. For example, requiring platforms to allow third-party payment processors or "side loading"—essentially installing software that isn't explicitly authorized by the phone or operating system manufacturer—is intended to level the playing field for smaller competitors. But making devices and software more open to third-party modification could also make them vulnerable to hacking. The likely global reach of these rules would mean those vulnerabilities wouldn't be limited to Europe.

More rules on product design, meanwhile, could produce a chilling effect on new tech. Companies may be less likely to try new products or privacy tactics that might not comply with European regulations if they know that will foreclose a big market. Even an innovation that improves privacy and cybersecurity might struggle to comply with GDPR requirements designed with a different model in mind.

It is not just innovation and security that are at risk. Americans may soon find themselves subject to European bureaucrats' norms when it comes to free speech.

Already, many European and Latin American countries have created laws governing hate speech or harmful content. These laws are likely to result in more aggressive takedowns by social media companies, especially on hot-button political issues. If tech companies decide to enforce a single global standard for community guidelines, American internet users will end up communicating in online spaces where the rules were designed to comply with foreign hate speech laws that aren't restrained by the First Amendment's protections.

What Not To Do in Tech Policy

While some American officials have criticized these E.U. regulations, others have seen them as an opportunity to argue that the U.S. should change its own approach. A growing number of American policy makers are looking to Europe as an example—or even actively collaborating with E.U. tech regulators.

In March 2023, the Federal Trade Commission sent officials to Brussels to aid in implementing and enforcing the DMA. At the same time, the agency has taken an increasingly aggressive approach domestically, attempting to enforce antitrust standards that resemble Europe's by waging a yearslong legal campaign against mergers in the tech sector. (This campaign has failed repeatedly in U.S. courts.)

Some policy makers have directly applauded the European approach. In June 2022, Sens. Ed Markey (D–Mass.), Bernie Sanders (I–Vt.), and Elizabeth Warren (D–Mass.) sent a letter asking the secretary of commerce to "restore the sanity" and follow the E.U. in requiring a universal charger for smartphones and certain other electronic devices.

Meanwhile, European regulators seem eager to gain a greater foothold in the United States. The E.U. has opened an office in San Francisco to promote compliance with its technology regulations, a move that seems to more than just tacitly acknowledge that these regulations will have a big impact on American companies.

The stakes are high. A 2022 study found that 16 percent of European companies would be willing to switch to a Chinese tech provider due to anticipated cost increases from the DMA. Others might turn to providers that are not subject to the regulations but provide inferior products either in quality or security. These policies would punish successful American companies while benefiting those of more questionable regimes.

The U.S. needs to be an alternative to such heavy-handed controls. It should stick with the relatively hands-off approach that has helped make America a global leader in tech.

In 1996, when the modern internet was in its infancy, Congress made clear it was the policy of the United States "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." As Rep. Christopher Cox (R–Calif.) said at the time, America does "not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because, frankly, the Internet has grown up to be what it is without that kind of help from the Government."

Similarly, the Clinton administration's Framework for Global Electronic Commerce not only described the potential benefits of the internet for global commerce but criticized the consequences of overregulation by declaring that the internet is presumed free. This nonregulatory position allowed the internet to flourish without tight constraints.

"For this potential to be realized fully, governments must adopt a non-regulatory, market-oriented approach to electronic commerce, one that facilitates the emergence of a transparent and predictable legal environment to support global business and commerce," read the Clinton report. "Official decision makers must respect the unique nature of the medium and recognize that widespread competition and increased consumer choice should be the defining features of the new digital marketplace."

Further, it cautioned that governments could "by their actions…facilitate electronic trade or inhibit it." This approach told innovators and investors they were free to try. It is miles from what we're seeing from politicians eager to crack down on tech companies today.

What's Really at Risk

We have a new iPhone charger now. For some users, it might be more convenient. But consider what would have happened if this decision had been made a decade earlier.

In 2012, smartphones were still evolving. Apple used cumbersome 30-pin chargers for their phones. Other companies used older USB options, such as micro- and mini-USB, which were clunky in different ways. When the Lightning cable arrived, it was faster, smaller, more durable, and more physically secure. It offered an improved user experience relative to the other options, which in turn spurred adoption of the USB-C standard.

A more regulated marketplace might have stopped this development in its tracks, letting bureaucrats who prioritize uniformity over all else decide on a single standard rather than letting the market evolve.

The debate about European tech regulations and their ripple effects on American companies and consumers is often framed in terms of safety or privacy or the consumer experience. But at heart, it's about a much simpler question: Who gets to design the future—the government, or innovators?

The post Don't Let E.U. Bureaucrats Design Americans' Tech appeared first on Reason.com.

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Beverly Hills Cop is a Fourth Amendment Movie https://reason.com/volokh/2024/03/16/beverly-hills-cop-is-a-fourth-amendment-movie/ https://reason.com/volokh/2024/03/16/beverly-hills-cop-is-a-fourth-amendment-movie/#comments Sat, 16 Mar 2024 08:57:04 +0000 https://reason.com/?post_type=volokh-post&p=8269137 I recently rewatched Beverly Hills Cop (1984), the Eddie Murphy movie, which came out when I was in junior high school.   It dawned on me that the movie is not just a vehicle for Eddie Murphy's comic talents.  It is that, to be clear; Murphy is fantastic in the movie. But there's a more important legal angle: Beverly Hills Cop is a Fourth Amendment movie.

There are lots of Fourth Amendment issues in the movie.  But the key scene, at the warehouse, could be an exam question.

Recall the facts.

Axel Foley (Eddie Murphy's character) is a Detroit cop on vacation who is trying to investigate his friend's murder. He is trying to get the police in Beverly Hills to investigate, but they refuse.  The Beverly Hills police chief instead orders Foley out of town, instructing Beverly Hills officer Billy Rosewood (played by Judge Reinhold) to drive Foley to the outskirts of town.

On the drive, however, Foley persuades Rosewood to ignore his orders and to bring Foley and his old friend Jenny Summers to a warehouse where Foley expects to find drugs being trafficked by Victor Maitland, the art dealer turned drug trafficker.  Summers has the key to the warehouse because she happens to work for Maitland at his art gallery, although of course she had no idea of his illegal drug activities.

Rosewood parks the car outside the warehouse. Rosewood wants to go inside the warehouse, too, but Foley tells Rosewood to stay in the car.  If Rosewood enters, Foley says, it will be an illegal search because they don't have probable cause.  I'll come get you if I find evidence, Foley tells him.  Foley wants Summers to give him the key so he can search by himself, but Summers refuses and insists on going with him.

Foley and Summers enter the warehouse with Summers' key, and they find a several wood crates that have the gallery's name on them.  According to Foley, they are crates from overseas that bypassed customs.  Foley uses a crowbar to open the crates, and they find cocaine inside.  "Go get Rosewood," Foley tells Summers.

But wait! Maitland and his evil crew are on to them.  They capture Foley and Summers in the warehouse. They take Summers away, and Maitland orders his men to kill Foley.

Meanwhile, Rosewood is watching from outside.  He has seen Maitland and his crew arrive at the warehouse.  He then sees Maitland leave minutes later, and he has Summers, who seems to be forced into Maitland's car before they drive off.  Rosewood is sufficiently worried about Foley that he breaks into the warehouse himself.  After entering, Rosewood saves Foley.

Assume Maitland somehow survives the later shooting at his estate, and that the government seeks to put on the following evidence at trial against Maitland:

(a) Foley's testimony about what happened in the warehouse,

(b) Rosewood's testimony about what he saw in the warehouse;

(c) Summers' testimony about what she saw in the warehouse; and

(d) the cocaine discovered in the warehouse.

Among the issues you might want to consider:

First, was Foley a state actor for 4th Amendment purposes when he entered the warehouse?  He was an officer outside his jurisdiction who had been told by both the Detroit and Beverly Hills police departments not to investigate.  He did so anyway for personal reasons, to bust the man who killed his friend.  Was Foley a private actor or a state actor?  Fourth Amendment state action generally requires the knowledge or acquiescence of the government.  But who is the government here: The police chiefs? Rosewood? Foley himself?

Second, was Summers a state actor for Fourth Amendment purposes?  Note that she is not just going along; she insisted on participating together with Foley and is working together with Foley.

Third, did Summers have common authority to consent to enter the warehouse?  If so, does her common authority extend to opening the crates that Foley used a crowbar to open, in which the cocaine was found?  If there was not common authority, was there apparent authority?

Fourth, did Rosewood have exigent circumstances to enter the warehouse? Seeing Summers get taken away sure seems bad, but was that the result of a police-created exigency caused by their possibly unlawful entry?  Or is this more of a Brigham City v. Stuart situation to save Foley's life?

Fifth, assuming the entry into the warehouse was unlawful and the cocaine has to be suppressed, does the scope of the exclusionary rule also go so far as to forbid testimony about what Maitland and his men said and did to Foley and Summers upon stopping them inside the warehouse?  Or does the criminal conduct by Maitland and his men break the causal chain and permit the testimony?

Extra Credit: Are any of your answers different if you apply Fourth Amendment law as it existed in 1984, when Beverly Hills Cop was released?

The post <i>Beverly Hills Cop</i> is a Fourth Amendment Movie appeared first on Reason.com.

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A Comment On The Judicial Conference's Policy From A Fifth Circuit Practitioner https://reason.com/volokh/2024/03/15/a-comment-on-the-judicial-conferences-policy-from-a-fifth-circuit-practioner/ https://reason.com/volokh/2024/03/15/a-comment-on-the-judicial-conferences-policy-from-a-fifth-circuit-practioner/#comments Sat, 16 Mar 2024 00:15:10 +0000 https://reason.com/?post_type=volokh-post&p=8269091 I pass along this comment I received from a well-known attorney in Texas who clerked on both the federal District Court level and at the Fifth Circuit. I suspect this attorney's views are widely shared:

The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a host of practical concerns about how such a policy should or would work if implemented.  The rollout was extremely problematic—no one actually knew what the policy was (including judges outside those on the Judicial Conference), how the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed authority to force all judicial districts to adopt the policy, and if so, under what authority the Judicial Conference was acting.    Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by how the very branch of government trusted with safeguarding the rule of law and the public's right of access to the courts went about this process, sowing confusion among the bar, litigants, judges, the media, other branches of government, and the broader public.  And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than those it purports to solve (to extent single judge division even pose any problems).

As announced on the federal judiciary's website, the public was informed "[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions 'whether by declaratory judgment and/or any form of injunctive relief.'  In such cases, judges would be assigned through a district-wide random selection process."  https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment (emphasis added).  This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random assignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide injunctions. https://www.politico.com/news/2024/03/12/federal-courts-move-against-judge-shopping-00146594 ("Sutton called the new policy 'an elegant solution' to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country.").  The policy memo to the judiciary however now indicates that the policy applies to "civil actions seeking to bar or mandate statewide enforcement of state law" or "nationwide enforcement of federal law."  If this was always the policy to be announced, then why did the judiciary website not state this in the press release?  Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy.  For example, if an individual litigant is seeking a declaration that certain agency practices are unconstitutional in proceedings they are involved in, which would have an effect of finding say that an agency's ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy?  Or would it not qualify if the litigant doesn't expressly seek a nationwide injunction even if a finding in the plaintiff's favor might carry that effect practically?  After all, the guidance memo says the policy applies "when the remedy sought has implications beyond the parties before the court and the local community," but this could be said of most litigation bringing constitutional claims even if the relief is narrowly targeted to the plaintiff.

Nor does the memo clear up the confusion on whether, when, and how this policy goes into effect and starts impacting cases. Media reported based on Judge Sutton's representations that "[t]he policy is effective immediately," setting off much confusion within the legal community about the Judicial Conference's authority and the policy's sweep due to the lack of the text of the actual policy being publicly released.  https://www.courthousenews.com/judicial-body-acts-to-curb-judge-shopping/; see also https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2O6UQMC000000?bna_news_filter=us-law-week#jcite ("Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse."); ("Sutton didn't rule out the rule applying to past or ongoing matters").  It is hard to square Judge Sutton's statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that "district courts should apply district wide assignments" to cases seeking this relief and stating that the guidance should not be viewed as "impairing a court's authority and guidance" to divide the business of the court under Section 137 at its discretion.  Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported authority to require this policy be implemented nationwide in light of blowback from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.

But Judge Sutton's representation still result in important questions unaddressed by the memo—if a particular judicial district does adopt this policy, could it be potentially retroactive and result in the re-assignment of currently-pending cases?  Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo?  As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or how it could impact currently pending cases.  But assuming any district court feels that it should adopt the Judicial Conference's policy regardless of whether they must, the questions of how practically this all works are legion and the memo does little to address them.

For example, who is going to making the determination about which complaints trigger random assignment under this new policy?  Will administrative staff in the clerk's office—who mostly don't have legal training or degrees—be charged with evaluating a complaint and discerning what relief is sought and whether it triggers random assignment?  Will it be a rotating cast of district court judges within a District charged with making an initial evaluation of all civil complaints and sorting them into a "random assignment across all divisions" category or just random assignment within the division in which the case was filed, thus creating a new significant administrative burden on district court judges and their law clerks?  To the extent the Judicial Conference guidance purports to address this problem it only states that the JS-44 Civil Cover Sheet should state "the remedy sought has implication beyond the parties before the court or that the case seeks to bar or mandate statewide or nationwide enforcement of a state of federal law."  But again who is making this determination—which is incredibly subjective if some non-legally trained clerk office staff (or even judicial chambers) is making a determination that "the remedy sough has implication beyond the parties before the court."  Far from increasing public confidence, this could result in much mischief as to how a case is categorized and give rise to certain like cases not being treated alike depending on who was making the subjective calls that day.  Some cases would be clear cut, but others would not.  This also potentially opens the door to improper ex parte lobbying of clerk's office staff without an Article III judge to referee how a case ought to be categorized.

Moreover, if complaints now need to be reviewed and evaluated to make these decisions on categorization for assignment, how quickly would the judges or clerk's office be able to make this determination, especially in cases seeking relief on an emergency basis?  And then in trying to avoid circumvention of the policy, the guidance suggests if a motion or amended complaint is filed adding such relief parties are now supposed to "prominently display such information in the case caption."  This seems rife with potential traps for the unwary—especially if counsel in its duty of candor to the court is having to make subjective calls about whether "the remedy sought has implication beyond the parties before the court" and could open up collateral litigation over whether such a representation should have been made.  As for the suggestion that an amended complaint triggers transfer back to the clerk's office for reassignment if the original complaint did not seek relief triggering the policy if filed within 30 days or before significant steps are taken, this would only create delay in cases being litigated on an emergency basis or lead to wasted party and court resources depending on a judge's subjective views of what qualifies as "significant steps," and has the potential to result in arbitrary application of this policy in practice.

Nor does the memo and guidance address what happens once one of these cases is assigned to a judge and what would it mean for where the case is actually heard.  Does random assignment mean if assigned to a judge in a different division than where originally filed that the judge would travel to the division in which the case was originally filed, requiring judges to "ride circuit" within their districts?  Or would the litigants and their counsel have to bear the cost of paying for travel and hotels in a different division increasing already high litigation costs for litigants seeking to challenge government action (which is already a significant barrier for ordinary citizens and entities impacted by government regulation struggling for financial resources to hire competent counsel to challenge the government action)?  If the vision is for the judges to "ride circuit" so to speak, would certain judges, such as ones on senior status or with health issues or other reasons to limit travel, be able to opt out of the "random assignment pool" narrowing the judges in the pool and undermining the goals of random assignment?  Or would the result be a second-class group of litigants who only can access the courts via zoom because the judge they are assigned to doesn't want to travel or it would strain the litigant's pocketbooks to travel to them? And if you have a case that seeks damages in addition to declaratory and injunctive relief, giving rise to a jury right should the case progress to trial, how would this impact where any potential jury pool would be drawn from—where the judge normally sits or the division where the suit was originally filed?

These are not small considerations—especially in a state like Texas where both Waco and El Paso are in the Western District of Texas but which are located a 9.25 hour drive apart.  Even trying to make a 3 p.m. hearing in the other division would require leaving before 5 a.m. if driving or require a flight and hotel costs the night before to ensure with our occasional nightmare of air travel they do not miss a hearing and incur a judge's displeasure.  There is a reason the federal statute setting up judicial districts and then also specific divisions and seats for those courts in Texas is so intricate, 28 U.S.C. § 124, and to transfer a case from one division to another within the district requires a showing that an intradistrict transfer is "clearly more convenient" pursuant to 28 U.S.C. § 1404(a).  See In re Radmax, Ltd., 720 F.3d 285, 289 (5th Cir. 2013) (although less deference to a Plaintiff's choice of forum when the transfer sought is intra-district, transfer still must satisfy the Section 1404(a) factors to show good cause for the transfer).  The statutory creation of divisions within district courts, like those in Texas, are aimed at addressing these practical considerations and ensuring access locally to the courts—those concerns don't go away just because a case seeks a remedy with impact beyond the parties.  The policy guidance in the memo completely ignores these practical questions and issues like funding for increased travel by district judges and law clerks as a result.

Putting aside the administrative aspects of who will sort which civil complaints implicate this policy and what this policy means for where a case will actually be heard, questions also remain as to exactly which cases would be swept into the new policy—after all, does an as-applied challenge that only seeks targeted individual relief fall in this policy because the remedy could be of importance beyond the parties?  And would this policy actually just increase the administrative burdens on the courts because instead of one suit seeking nationwide relief being filed, you just have 25 different parties filing suit seeking the same as-applied injunctive and declaratory relief in a single judge division?  Or would the courts (or clerk's office staff) say those as-applied challenges qualify under the policy and would trigger district wide assignment?

Finally, there remain questions of how the random assignment will work.  Is it only cases that are filed in single-judge divisions that trigger this policy?  If so, how would such an application not be arbitrary—why should it not apply to all cases filed in the district if district-wide random assignment is the gold standard.  If a judge based in Dallas can hear a case filed in Lubbock, Amarillo, or Wichita Falls under this policy, why shouldn't a judge based in Lubbock, Wichita Falls, or Amarillo be able to hear a case filed in Dallas under this policy?  But again, in state like Texas, with large swaths of geographic territory this raises all sorts of practical questions—are the Dallas, Houston, or Austin judges actually going to be regularly traveling to the outlying division (and vice versa) and if so, does this detract from the speedy disposition of other cases filed and being adjudicated within their own division?

On a practical note, practitioners think deeply about where to file their cases—often accounting not only for favorable caselaw, but also cost and speed considerations that arise from litigating in certain courts—and our judicial system, for better or worse, gives considerable deference to a plaintiffs' choice of forum so long as there is jurisdiction and the statutory venue requirements are satisfied.  Congress made choices to expand the venue requirements as recently as the 1990 amendments to 28 U.S.C. § 1931, allowing greater leeway in the choice of venue.  However, to file within a particular district and division, the plaintiffs will still have needed to show they satisfy the jurisdictional and statutory venue requirements—which in challenging a government action generally require either residence in that division or showing the government action burdens you in that district and division.  In a state with one judicial district and one division or a district that consists of only one division, this new policy may be of little practical consequence.  But in states like Texas, if adopted, it would be of enormous practical consequence in the form of increased potential litigation costs if the cases are transferred to a different division or, if this policy does not require intradistrict transfer but instead results in judges "riding circuit," potential increased docket congestion if judges are supposed to be traveling and are taking time away from cases filed in their normal duty stations.  See https://www.reuters.com/legal/government/conservative-us-judges-criticize-new-rule-curbing-judge-shopping-2024-03-13/ (Chief Judge Moses stating "assigning patent disputes district-wide has at times meant judges in her large district need to drive hours to preside over a case, taking away time from other matters on their dockets.").  That this policy pulls in cases by plaintiffs who truly reside in those in divisions seeking nationwide relief, gives little weight to burdens already faced by many plaintiffs in litigating against the government and the purpose why judicial divisions, in addition to districts, are statutorily established by Congress.

The questions identified above all give rise to concerns that this policy opens up new avenues for gamesmanship and subjective categorization of cases.  Now that the text of the guidance memo and policy is known, there are still far more questions than answers about how this would work should a judicial district choose to adopt the policy (and district courts should pause before considering doing so to examine whether this actually creates more problems and burdens than the one the Judicial Conference purports to solve).  But whatever one's views on the merits of any proposed reform or the practicalities of implementation, the rollout and the failure to immediately publicly release the text of the policy hindered clarity regarding the administration of justice and undermined confidence in our judicial system's impartiality and transparency.  After all, why do so many of Judge Sutton's statements to the press not match the guidance memo and policy that was distributed to the judiciary?  That does nothing to aid the public perception of the legitimacy and transparency of the courts.  The Judicial Conference—made up of the judges charged with protecting the rule of law and transparency in court proceedings—ought to have known better.  The bar, academics, other branches of government, and the public should be asking hard questions of the Third Branch about this process and why the court's own website and judicial spokesperson seem at odds with some of the information that was distributed to the judiciary regarding this new policy.

I will have much more to say about this case in due time.

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No, Imprisoning a School Shooter's Parents Isn't Justice https://reason.com/2024/03/15/no-imprisoning-a-school-shooters-parents-isnt-justice/ https://reason.com/2024/03/15/no-imprisoning-a-school-shooters-parents-isnt-justice/#comments Fri, 15 Mar 2024 21:32:40 +0000 https://reason.com/?p=8269070 James Crumbley is seen during closing arguments in his trial for involuntary manslaughter | Illustration: Lex Villena; Jeff Kowalsky/ZUMAPRESS/Newscom

A jury on Thursday convicted a Michigan man of four counts of involuntary manslaughter for failing to stop his son from killing four of his peers in November 2021, putting an end to a closely watched prosecution that broke new ground in its attempt to punish the parents of a child who committed a school shooting.

James Crumbley faces up to 60 years in prison, as does his wife, Jennifer Crumbley, who was found guilty of the same charges last month. Prosecutors posited the two bore responsibility for allegedly ignoring signs that their son, Ethan Crumbley, was depressed, and for gifting him the gun he ultimately used to execute Madisyn Baldwin, Tate Myre, Justin Shilling, and Hana St. Juliana at Oxford High School.

It may be hard to find sympathy for the Crumbleys, who have, unsurprisingly, been a magnet for backlash. It's plausible they were negligent parents. But it can simultaneously be true that punishing them criminally for that sets a very troubling precedent, no matter how much you dislike them.

The prosecution's argument hinged on a few key points: Ethan Crumbley had mental health issues, which the government said his parents did not do enough to address—a point they emphasized more during Jennifer Crumbley's proceeding. During James Crumbley's trial, the government zeroed in on the gun he purchased for his son as an early Christmas present: He was allegedly careless, prosecutors said, with how he stored the weapon, creating a perfect storm that cleared the way for Ethan to carry out that shooting about two and a half years ago.

But, no matter how ruinous their parenting, the case against the Crumbleys in some sense hinged on what the government wanted the law to say—not on what it actually said. As I wrote last month:

Despite the fraught subject matter, and the absolute tragedy of those deaths, Michigan law still appeared inept to apply to the Crumbley parents. Michigan lawmakers have had the opportunity to pass "child access prevention" legislation authorizing criminal charges against adults "who intentionally or carelessly give minors unsupervised access to guns," noted Reason's Jacob Sullum in 2021, but they have on multiple occasions rejected the idea. And while the state has since enacted a "secure storage" law pertaining to safely securing firearms, it was not on the books at the time of the murders.

It may shock some consciences that the Crumbleys enjoyed going to the gun range as a family activity. I can understand the queasy gut reaction—it's not my idea of a good time, either. But how someone feels about guns generally or politically shouldn't factor into whether or not a parent is criminally responsible for their child's actions.

In that vein, the alleged obviousness of Ethan Crumbley's depression is genuinely questionable, something that has gotten lost in the media hubbub surrounding the case. In Jennifer's trial, Kristy Gibson-Marshall, an Oxford High School assistant principal, testified she "didn't think [Ethan] could possibly be the shooter," so surprised was she that he would be capable of such a thing.

And then there is that notorious meeting at the school—where the Crumbleys were summoned to speak with administrators after a teacher discovered a disturbing drawing Ethan made. Following that discussion, he was allowed to stay on campus, where he would go on to commit the shooting shortly thereafter. But even that narrative isn't so cut and dry, particularly when considering the Crumbley parents did not make that decision alone. The school permitted him to stay. "The Crumbleys had specifically been told that their son should not be left by himself, and Ethan had just expressed to [Tim] Throne, the superintendent, that the thought of missing homework assignments depressed him," I wrote after Jennifer Crumbley's trial. "With hindsight, listening to him was obviously the wrong choice. But I can understand why it was made, as parents, whether weak or adept, are not clairvoyant."

Hindsight is always beneficial, after all, when analyzing events in retrospect. It is also actively unhelpful in determining what a given person would be thinking before having the benefit of knowing an end result. "He didn't know," Mariell Lehman, James Crumbley's defense attorney, told the jury. "He didn't know what was going on with his son. He didn't know what his son was planning." 

Prosecutors here, it seems, wanted to have it all. They wanted to prosecute the teenage Ethan Crumbley as an adult, and they did, securing the maximum punishment: life in prison without the possibility of parole. And, at the same time, they wanted to convince a jury that Ethan Crumbley was merely a child who wouldn't have done this if he'd had better parents. Those things are difficult to reconcile, and they speak most aptly to the incoherence of the case against them. That doesn't mean the Crumbley parents are blameless. But not every mistake should be punished with the hammer that is prison, no matter how difficult that may be to digest.

Karen McDonald, who prosecuted the cases, hopes that her playbook will be a model for the future. So while the Crumbleys were the first, they may not be the last.

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https://reason.com/2024/03/15/no-imprisoning-a-school-shooters-parents-isnt-justice/feed/ 118 James Crumbley is seen during closing arguments in his trial for involuntary manslaughter
Nathan Wade Resigns From Trump Prosecution in Georgia https://reason.com/2024/03/15/nathan-wade-resigns-from-trump-prosecution-in-georgia/ https://reason.com/2024/03/15/nathan-wade-resigns-from-trump-prosecution-in-georgia/#comments Fri, 15 Mar 2024 21:13:42 +0000 https://reason.com/?p=8269081 Atlanta attorney Nathan Wade | Alex Slitz/ZUMAPRESS/Newscom

On Friday afternoon, Georgia attorney Nathan Wade resigned from the Fulton County district attorney's prosecution of former President Donald Trump for attempts to change the 2020 election results. Wade was the lead attorney on the case, but his relationship with District Attorney Fani Willis drew unwanted attention to the prosecution.

The allegations first became public in January, when one of Trump's co-defendants filed a motion in the case alleging that Willis and Wade had been romantically involved. The motion claimed a conflict of interest and asked that Willis and her office both be disqualified.

Wade was hired in November 2021, and over the next two-plus years he was paid over $720,000 by the Fulton County District Attorney's Office—considerably more than either of the other attorneys hired for the case. Wade received this lucrative offer despite having no apparent experience in felony jury trials, much less one as complex as prosecuting a former president with racketeering.

In trying to get Willis disqualified, defendants claimed that Wade took her on lavish vacations and gave her expensive gifts during their relationship, giving Willis an incentive to keep the investigation going—and keep Wade employed—so she could continue to benefit from his paychecks. Wade and Willis claimed under oath that they split the cost of their trips, with Willis often paying him back in cash.

In a ruling issued Friday morning, Fulton County Superior Court Judge Scott McAfee split the difference. While he found that "Defendants failed to meet their burden of proving that theDistrict Attorney acquired an actual conflict of interest in this case," he also determined that "the prosecution of this case cannot proceed until the State selects one of two options. The District Attorney may choose to step aside, along with the whole of her office," or else "Wade can withdraw."

On Friday afternoon, Wade opted for the latter, tendering his resignation in a one-page memo addressed to Willis.

"The furtherance of the rule of law and democracy is and has always been the North Star of our combined efforts in the prosecution of those who are alleged to have attempted to overthrow the results of Georgia's 2020 presidential election," Wade wrote. "I am offering my resignation in the interest of democracy, in dedication to the American public, and to move this case forward as quickly as possible. I am proud of the work our team has accomplished in investigating, indicting, and litigating this case."

Willis soon replied with a brief of her own, accepting Wade's resignation and speaking of his tenure in glowing terms.

"I compliment you for the professionalism and dignity you have shown over the last 865 days, as you have endured threats against you and your family, as well as unjustified attacks in the media and in court on your reputation as a lawyer," Willis wrote. She calls him "an outstanding advocate" and expresses her "sincere gratitude on behalf of the citizens of Fulton County Georgia for your patriotism, courage, and dedication to justice."

Not present in either Willis' or Wade's memos was any realization of the inappropriate nature of their relationship and how it may well have tainted their case, which had been considered the strongest of any of the prosecutions against Trump. Instead, Willis engaged in an inappropriate relationship with a subordinate that would be frowned upon in nearly any workplace in America, much less one that has the power to wield criminal charges.

"If this case were in federal court, disqualification would be a no brainer—federal prosecutors are not allowed to participate in cases where someone with whom they have a close personal relationship has a substantial financial interest," Atlanta attorney Andrew Fleishman wrote at The Hill. "In other words, they can't hire a spouse or boyfriend to be a special prosecutor."

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The Text Of The Policy Approved By The Judicial Conference https://reason.com/volokh/2024/03/15/the-text-of-the-policy-approved-by-the-judicial-conference/ https://reason.com/volokh/2024/03/15/the-text-of-the-policy-approved-by-the-judicial-conference/#comments Fri, 15 Mar 2024 20:51:22 +0000 https://reason.com/?post_type=volokh-post&p=8269093 I obtained a copy of the report approved by the Judicial Conference.

First, why on earth could this memo not have been issued contemporaneously with the press release? This may be one of the most-botched governmental rollouts since HealthCare.gov. The Executive Committee should carefully re-assess their procedures here.

Second, the policy sweeps quite broadly, far beyond the national injunctions, but is prefaced by "should."

District courts should apply district-wide assignment to:

a. civil actions seeking to bar or mandate statewide enforcement of a state law, including a rule, regulation, policy, or order of the executive branch or a state agency, whether by declaratory judgment and/or any form of injunctive relief; and

b. civil actions seeking to bar or mandate nationwide enforcement of a federal law, including a rule, regulation, policy, or order of the executive branch or a federal agency, whether by declaratory judgment and/or any form of injunctive relief.

This policy does not apply solely to single-judge divisions, but applies to all courts.

Third, the policy is wildly underinclusive–it does nothing to address judge shopping in patent cases, which was the impetus of this policy. Third, the document says that the guidance "applies to" patent cases, but only where some sort of injunctive relief against the government if sought. Do most or many patent cases involve such relief? What about bankruptcy cases? "Case assignment in the bankruptcy context remains under study."

Fourth, the policy is pretty clear this is guidance. It uses the word "should."

These policies and the accompanying guidance inform the district courts' statutory authority and discretion to divide the business of the court pursuant to 28 U.S.C. § 137. They should not be viewed as impairing a court's authority or discretion. Instead, they set out various ways for courts to align their case assignment practices with the longstanding Judicial Conference policy of random case assignment. Simply put, these policies should serve the purpose of securing a "just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

As I explained last night, 28 U.S.C. § 137(a) gives the District Courts this power. The Committee does not even cite the Judicial Conference's power under 28 U.S.C. § 331, which is positive.

Fifth, let me return to the botched rollout. Several press outlets said that this policy was mandatory and already in effect. Courthouse News reported that based on Judge Sutton's representations that "[t]he policy is effective immediately but it is unclear when courts would begin implementing these procedures or how that process would work." And Bloomberg Law reported, "Judge Jeffrey Sutton, chair of the Judicial Conference's executive committee, said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse." Bloomberg added, "Sutton didn't rule out the rule applying to past or ongoing matters." I have been a fan of Judge Sutton for many years, but this private press briefing was not his finest moment. Even if the policy was approved by many judges whom I respect, Sutton's remarks were woefully misunderstood by reporters. Some of that blame can be placed on the press, perhaps, but much belongs to the messenger.

Sixth, the policy puts forward a balancing test to determine how a case should be assigned:

The policy is applicable in instances when the remedy sought has implications beyond the parties before the court and the local community, and the importance of having a case heard by a judge with ties to the local community is not a compelling factor.

Did Justice Breyer write this? Are we really going to have untrained legal staff in the clerk's office deciding what are "implications beyond the parties before the court and the local community" and whether "ties to the local community" is a "compelling factor"? These are difficult merits questions on which people can reasonably disagree. Are law clerks or individual judges going to have to be burdened with making these determinations at the complaint stage? Will this issue be litigated: does the complaint now explain why a case should not be reassigned? Would the defendant be able to file a reply explaining why the case should be reassigned? Can Amici participate? Can a reassignment order be appealed? Mandamused? And, oh by the way, this policy is triggered if an amended complaint or motion is filed. This policy has now added untold layers on untold cases that seek any injunctive relief against state governments.

I regret that many of the judges who approved this policy have gone along with groupthink. They read about a problem, they don't like nationwide injunctions, they think certain judges in Texas whose initials are M and K make the judiciary look bad, so they cobbled together what looks like a facially neutral policy that will cause far more harm than good. You may think that my response is harsh. Wait till you see what real lawyers think–both on the right and the left. The burdens on the practice of law are substantial. No one will like this policy. I would not be surprised if most district courts read this guidance, and put it in the circular file.

[This post is under development, and has been updated.]

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Because 'Marijuana Is Dangerous,' 2 Inveterate Drug Warriors Say, 'Legalizing It Was a Mistake' https://reason.com/2024/03/15/because-marijuana-is-dangerous-2-inveterate-drug-warriors-say-legalizing-it-was-a-mistake/ https://reason.com/2024/03/15/because-marijuana-is-dangerous-2-inveterate-drug-warriors-say-legalizing-it-was-a-mistake/#comments Fri, 15 Mar 2024 20:20:33 +0000 https://reason.com/?p=8269020 Former Attorney General William Barr | Paul Kitagaki Jr./Zuma Press/Newscom

It will surprise no one to learn that William Barr, who made it clear when Donald Trump picked him to succeed Jeff Sessions as attorney general that he favored strict and uniform application of federal pot prohibition, and John Walters, who ran the Office of National Drug Control Policy during George W. Bush's administration, think "legalizing recreational marijuana" has been "nothing short of a disaster." Reason's Katherine Mangu-Ward already has ably rebutted their recent Free Press piece making that case. I'd like to add a few points about their approach to the subject, which combines valid concerns with strawman arguments, cherry picking, illogical inferences, reliance on dubious estimates, and tendentious interpretations of contested research.

Barr and Walters complain that marijuana legalization has "created the false perception that the drug is 'safe.'" They think refuting that false perception is enough to justify a return to prohibition. Because "marijuana is dangerous," they say, "legalizing it was a mistake." But the question is not whether marijuana is "safe"; it is whether marijuana's hazards justify the use of force to stop people from consuming it. Barr and Walters fail to seriously grapple with that question even in utilitarian terms, and they completely ignore moral objections to criminalizing conduct that violates no one's rights.

It easy enough to show that marijuana, like every other drug, has risks as well as benefits. But that banal observation is not enough to clinch the case for prohibition even if, like Barr and Walters, you ignore the claim that adults have a right to weigh those risks and benefits for themselves.

Alcohol, after all, is assuredly not "safe." By several important measures, it is substantially more dangerous than cannabis. A lethal dose of alcohol is roughly 10 times the effective dose. Given the dearth of fatal reactions to cannabis among humans, that ratio is difficult to calculate for marijuana. But based on research with laboratory animals, it is more than 1,000 to 1. Alcohol abuse results in potentially lethal organ damage of a kind that is not seen even in the heaviest cannabis consumers. Alcohol is more strongly associated with violence than cannabis, and it has a much more striking impact on driving ability.

Alcohol is nevertheless a legal drug, which reflects a judgment that the costs of prohibiting it outweigh the benefits. It is not clear whether Barr and Walters disagree with that judgment, since they do not mention alcohol at all. In fact, they seem keen to avoid any interdrug comparisons that might undermine the premise that marijuana should be banned because it is especially dangerous.

Barr and Walters warn that "THC, the psychoactive component in cannabis, produces a high by altering brain chemistry and interfering with the nervous system's normal functioning." The same could be said of any psychoactive substance. That description tells us nothing about marijuana's relative hazards.

Back in 1988, Francis Young, the Drug Enforcement Administration's chief administrative law judge, deemed such comparisons relevant in assessing how marijuana should be classified under the Controlled Substances Act. "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man," he observed. "There are simply no credible medical reports to suggest that consuming marijuana has caused a single death."

By contrast, it was well-established that both over-the-counter and prescription drugs could kill people when consumed in large doses. For aspirin, Young noted, the ratio of the lethal dose to the effective dose was about 20 to 1, while the ratio for many prescription drugs, such as Valium, was 10 to 1 or even lower. With marijuana, he said, that ratio "is impossible to quantify because it is so high."

Barr and Walters would have us believe that Young's assessment is outdated because today's "hyperpotent marijuana" is radically different from the drug that had been studied at the time. Yet the Department of Health and Human Services (HHS) recently echoed Young's basic point.

Explaining its rationale for rescheduling marijuana, HHS noted that "the risks to the public health posed by marijuana are low compared to other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). Although "abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder," it said, they are "less common and less harmful" than the negative consequences associated with other drugs. It concluded that "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others."

This does not mean increased potency poses no challenges. As anyone who was accustomed to smoking an entire joint or bowlful of crappy pot in college could testify, the high-THC strains and concentrates available in state-licensed pot stores require more caution. For occasional consumers, a few puffs is generally enough. But in a legal market, consumers can make that adjustment based on readily available information as well as personal experience. It is not different in kind from the dosing decisions that millions of Americans make when they consume alcoholic beverages that vary widely in potency.

Instead of considering the typical behavior of cannabis consumers, as HHS did, Barr and Walters focus on problem users. "It's conservatively estimated that one in three people who use marijuana become addicted," they aver, linking to a page of information from the Centers for Disease Control and Prevention (CDC). "One study estimated that approximately 3 in 10 people who use marijuana have marijuana use disorder," the CDC says.

The CDC is referring to a 2015 JAMA Psychiatry study based on data from the National Epidemiologic Survey on Alcohol and Related Conditions. The researchers compared survey results from 2012–2013 to survey results from 2001–2002. Inconveniently for Walters and Barr, who argue that legalization has led to an explosion in problematic use, the analysis found that "the prevalence of marijuana use disorder among marijuana users decreased significantly" during that period, from 35.6 percent to 30.6 percent. Although the first state-licensed recreational dispensaries did not open until 2014, 17 states and the District of Columbia had legalized medical use by 2013, and some of those laws (such as California's) were permissive enough that pretty much anyone could obtain the requisite doctor's recommendation.

Barr and Walters equate the survey-based definition of "marijuana use disorder" with addiction. But the former term encompasses a wide range of problematic behavior, including "abuse" as well as "dependence."

The JAMA Psychiatry study defined "abuse" as meeting one or more of four criteria: 1) "recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home"; 2) "recurrent substance use in situations in which it is physically hazardous"; 3) "recurrent substance-related legal problems"; and 4) "continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance."

These are all problems, but they are problems of different kinds, and they do not necessarily signify addiction as that term is generally understood. If someone swam, drove, or hiked a mountain trail while high a couple of times, for example, that could be enough to qualify for the "abuse" label under the second criterion.

The study defined "dependence" as meeting three or more of six criteria: 1) tolerance, 2) taking the substance "in larger amounts or over a longer period than intended," 3) "a persistent desire or unsuccessful efforts to cut down or control substance use," 4) spending "a great deal of time" on "activities necessary to obtain the substance, use the substance, or recover from its effects," 5) forgoing or reducing "important social, occupational, or recreational activities…because of substance use," and 6) continuing use "despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance."

Now we are getting closer to the conventional understanding of addiction. But equating any three of these criteria with addiction is still questionable. If a regular marijuana user found that he needed a larger dose to achieve the same effect, sometimes went one toke over the line, and decided to get high instead of going out with friends, for example, he could be deemed "dependent" under this test. More generally, critics of applying psychiatric diagnoses based on survey responses have noted that such data may result in overestimates because they neglect "clinical significance."

Despite these limitations, Barr and Walters conflate dependence/addiction with a much broader category of marijuana-related problems, and they deem the resulting estimate "conservative." That one-in-three past-year estimate is much higher than the lifetime dependence risk that a 1994 study calculated based on the National Comorbidity Survey: 9 percent for cannabis, compared to 32 percent for tobacco, 23 percent for heroin, 17 percent for cocaine, and 15 percent for alcohol. It is also at odds with a detailed 2010 analysis in The Lancet, which found that the dependence risks for marijuana and alcohol were similar while rating the overall harm attributable to alcohol more than three times as high.

I have just devoted half a dozen paragraphs to one dubious claim out of many in the Barr and Walters piece. As Mangu-Ward notes, they also gloss over the vigorous debate about the nature of the connection between marijuana and psychosis, ignore countervailing evidence regarding the alleged impact of marijuana on IQ, and erroneously equate any level of THC in a driver's blood with impairment.

Barr and Walters cite the persistence of black-market marijuana in states such as California as evidence that legalization cannot work when it is actually evidence that high taxes and burdensome regulations make it hard for licensed businesses to compete with unauthorized dealers. They likewise blame burglaries and robberies of dispensaries on legalization when the actual problem is the barriers to financial services created by continued federal prohibition, which force those businesses to rely heavily on cash.

Barr and Walters note that marijuana smoke contains "many of the same toxic and carcinogenic chemicals" as tobacco smoke, falsely implying that it is equally carcinogenic. In addition to differences in the composition of marijuana and tobacco smoke, the dose has to be considered: Given typical patterns of use (say, an occasional joint vs. a pack a day), cigarette smokers are exposed to much higher amounts of toxins and carcinogens than marijuana smokers. And Barr and Walters do not even acknowledge smoke-free alternatives such as vaping and edibles.

Barr and Walters cite increases in "marijuana-related ER visits" without considering how legalization might affect people's willingness to seek treatment or to identify themselves as cannabis consumers. They mention increases in "adolescent cannabis abuse" during "the past two decades" without acknowledging the lack of evidence that legalization has increased underage consumption.

Taking a stab at cost-benefit analysis, Barr and Walters cite a laughably bad Centennial Institute analysis that supposedly showed "every dollar of cannabis-related tax revenue [in Colorado] has been offset by $4.50 in costs due to marijuana-related traffic fatalities, hospital care, and lost productivity." In assessing the costs of marijuana use, such as health care expenses stemming from "physical inactivity" and lost productivity related to dropping out of high school, that report conflated correlation with causation. It counted tax revenue as the only benefit of legalization, ignoring the expansion of liberty and the boost in consumer satisfaction as well as the criminal justice and law enforcement benefits. Most egregiously, the study did not even attempt to measure how legalization had affected the negative outcomes it tallied.

Barr and Walters likewise see only costs from legalization, which they systematically exaggerate. "Greater marijuana use has contributed to the steady erosion of the civic responsibility, self-discipline, and sobriety required of citizens to sustain our system of limited government and broad personal liberty," they write. "A doped-up country is a nation in decline."

As Barr and Walters see it, "broad personal liberty" requires the state to dictate which psychoactive substances people may consume, asserting the authority to control their brains by controlling the drugs they use. That is a counterintuitive view, to put it mildly. Barr and Walters never even broach an issue that is central to this debate: When and why is it moral to deploy the threat and use of violence against peaceful individuals because you disapprove of how they get high?

The post Because 'Marijuana Is Dangerous,' 2 Inveterate Drug Warriors Say, 'Legalizing It Was a Mistake' appeared first on Reason.com.

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Short Circuit: A Roundup of Recent Federal Court Decisions https://reason.com/volokh/2024/03/15/short-circuit-a-roundup-of-recent-federal-court-decisions-254/ https://reason.com/volokh/2024/03/15/short-circuit-a-roundup-of-recent-federal-court-decisions-254/#comments Fri, 15 Mar 2024 19:30:25 +0000 https://reason.com/?post_type=volokh-post&p=8269028 Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

The "open fields" doctrine permits gov't officials to roam private land without consent, a warrant, or probable cause as long as they don't enter the "curtilage" around a home. The Fourth Amendment does not apply. So just how much land is unprotected? Over at Regulation, IJ's own Josh Windham and Dave Warren have crunched some numbers and come to some startling conclusions. Click here to learn more.

But wait, there's more! The very same open fields "doctrine" turns 100 years old this May. Please join us in Arlington, Va. to confer, commemorate, and kvetch with an all-star lineup of scholars, including Laura Donohue, Maureen Brady, Morgan Cloud, Daniel Epps, Luke Milligan, and James Stern. Click here for details! And be sure to click here for a lovingly crafted podcast episode on the history of the doctrine.

  • Boston U students sue for breach of contract for having to go remote in Spring 2020. They lose in district court, and, after they appeal, the legislature passes a law retroactively barring COVID-19 suits like theirs against higher ed institutions. Students: Hey, no fair, due process violation! First Circuit: Today's lesson is about rational basis. Class (and case) dismissed.
  • Teenager is convicted of murder in a 1992 shooting in the Bronx. Two eyewitnesses testify and identify him. But almost 20 years later one of them recants! And two alibi witnesses, who did not testify, come forward! Defendant asks for habeas relief, claiming actual innocence and witness tampering. District court: Wow, this sounds pretty bad! That is, bad enough to address the merits but not so bad that you get habeas relief. Second Circuit: We'll assume you can make a freestanding innocence claim, but not give it to you.
  • SEC goes after former investment advisor for submitting $290k in false expense reports—including for personal vacations, flights to the Super Bowl, and shopping—that were ultimately paid by the funds he managed. Second Circuit (over a dissent): But he only intended to rip off his employer; it was his employer who ripped off the funds. So he's off the hook (on these charges, at least)
  • The Fifth Amendment allows gov'ts to use eminent domain to take property only "for public use." If a town takes your property because it doesn't like you or what you're planning to build, but it says as a pretext that it'll leave the land as an empty field for a "passive park," is that bad-faith purpose still a "public use"? Second Circuit: Sure; who are we to second-guess the sagacity of town officials? Dissent: The "Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause," and for good reason—the town here admitted that the majority's view would allow it to "seize the homes of disfavored minorities" in order "to drive them out," "as long as the Town said it would build parks." By blessing that, we've now created a split with several other circuits and state high courts. (This is an IJ case.)
  • Defense attorney: So we've got a deal? You'll recommend a sentence of just one year over the mandatory minimum? Delaware prosecutor: Absolutely. . . . Your Honor, this "gangsta," this "puppet master" who "may as well have" pulled the trigger in a botched robbery that left two dead deserves only 22 years, and not the maximum sentence of life in prison. Defense attorney: No objections, your Honor. Court: Life in prison it is. Third Circuit: The gov't has to honor its plea deals, and it may have fallen short here, but the prosecutor didn't tell the judge anything she didn't already know. Harmless error.
  • Allegation: Witness to barfight tells Meadville, Penn. officer that the attacker had braided hair and resembles an individual (the plaintiff) in Facebook photos who had a different hairstyle. The officer tells a judge that the witness "identified" the plaintiff as the attacker, omitting the discrepancy about hairstyles. The plaintiff is arrested. (All charges are dropped.) False arrest? Malicious prosecution? Third Circuit: If true, the officer "exaggerated and hid facts to manufacture probable cause." No qualified immunity.
  • Defense attorney: So we've got a deal? We agree on a total offense level of 14? Federal prosecutor: Absolutely. . . . Actually, your Honor, let's make that 18. Does that breach the agreement? In that case we take no position on whether it should be four higher than 14. Defense attorney: Objection, your Honor! Third Circuit: The gov't has to honor its plea deals, and it really fouled this one up. Remanded for resentencing before a new judge.
  • There are few things more fragile than trust, except perhaps for the ego of a gov't lawyer subject to even the mildest sanction for misleading a judge. In related news, the Third Circuit holds that a federal judge did not abuse his discretion when—after concluding that the Philadelphia District Attorney's office misled the court about the depth of its investigation regarding a death-row inmate whose habeas petition the office conceded—he ordered DA Larry Krasner to apologize to the family of the murder victims and be more forthcoming in the future.
  • Relatedly, no habeas for the death-row inmate mentioned above, who was convicted in 1985 for torturing and killing two people and leaving their infant daughter to freeze to death (miraculously, she survived). Per the Third Circuit, he suffered no prejudice from his counsel's failure to offer his prison records as mitigation evidence at sentencing because, among other things, that would have opened the door to evidence of his repeated escape attempts.
  • HHS's Title X program provides hundreds of millions of dollars to clinics to distribute contraceptives and other family planning services. Grantees must "encourage family participation." But Texas law gives parents a right to consent before their children obtain contraceptives. Does Title X preempt Texas law? Fifth Circuit: Sure does not. If Congress intended to nullify state requirements that parents consent to their teenagers' getting the pill, it should've done so more explicitly.
  • It takes a lot for a lawyer's closing statement to be so bonkers that the court of appeals will reverse the judgment entered in their client's favor. And these lawyers win the prize, says the Fifth Circuit, after cataloguing how "they employed nearly every type of improper argument identified by our court, including highly improper and personal attacks against opposing counsel, remarks about [the plaintiff's] wealth, a discussion of matters not in the record, insinuations that [the plaintiff] had lower moral standards because he was from Michigan, and suggestions of [the plaintiff's] bad motives through counsels' opinion." This tight 14-pager is worth a read in full. (And the oral argument, for those whose interest is piqued, is worth a listen too, with both sides' appellate lawyers acquitting themselves with distinction.)
  • Ohio law makes it a crime to display your filled-in ballots, and gov't officials have repeatedly issued public statements emphasizing the illegality of posting "ballot selfies." Plaintiff: I have taken ballot selfies in the past and refrained from posting them because doing so is a crime, and I would like to post ballot selfies in the future but am chilled from doing so. Because it's literally a crime. Ohio officials: This woman obviously has no standing. District court: Yeah, definitely no standing. Sixth Circuit: "Defendants in this case have not only failed to disavow enforcement, they have also publicly doubled down on the ballot prohibitions." Sure sounds like a case or controversy to us.
  • University of Oregon employee blocks Portland State University professor on one of Oregon's (then-called) Twitter accounts in response to professor's quote tweet. Professor sought to learn what policies governed his blocking and, when unsuccessful, sued for a First Amendment violation. Ninth Circuit (unpublished and over a dissent): The professor has raised serious questions on the merits of some of his claims, and the University's post-case-filing unblocking is not enough to limit the professor's sought relief.
  • Denver man has armed standoff with police in his mother's home, and police throw teargas cannisters into the house causing a fire. Mother sues under state law, but police invoke a Colorado immunity that shields officials unless their actions were "willful and wanton." District court: That's a fact question for the jury. Tenth Circuit (unpublished): "Willful and wanton" requires showing that the police knew the teargas would cause a fire, not just that it might cause a fire. Mother can't show that, so immunity granted. Concurrence: Also, this Colorado immunity is a legal issue that should have been decided by the judge, not a jury.
  • Wherein the Tenth Circuit gives some side-eye to a Colorado prison's "troubling" DEI programming—warning that "race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment"—but holds that in this particular case it wasn't so bad as to violate Title VII.
  • Atlanta firefighters respond to a housefire and find the remains of a married couple; they may have been strangled and the fire was intentional. The couple's son is arrested and spends a year in jail. Yikes! The investigating officer neglected to tell the judge that the son has a video-supported alibi. (All charges are dropped.) District court: The officer didn't know or have reason to know about the exonerating evidence. Qualified immunity. Eleventh Circuit: Reversed.

New case! Illinois holds more than $5 billion in unclaimed property—uncashed checks, forgotten accounts, and misplaced savings. And David Knott helps people go about recovering their property before it is escheated—that is, surrendered to the state. (Fun fact: "escheat" is the etymological origin of the word "cheat.") But state officials now say David must obtain a private detective license, which means learning about firearms handling, crime scene investigation, and electronic surveillance, and then apprenticing with a licensed private detective for three years. None of which has anything to do with the work he actually does, searching publicly available databases and helping people with paperwork. "It just doesn't make sense," said David. "My clients are happy, my business is providing a useful service, and now after years of helping people and companies reclaim their rightful property, Illinois wants me to get a totally irrelevant license. It's counter to the primary goal of the program." It's also unconstitutional. Click here to learn more.

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Ambiguous Vacatur in Lindke v. Freed https://reason.com/volokh/2024/03/15/ambiguous-vacatur-in-lindke-v-freed/ https://reason.com/volokh/2024/03/15/ambiguous-vacatur-in-lindke-v-freed/#comments Fri, 15 Mar 2024 18:28:44 +0000 https://reason.com/?post_type=volokh-post&p=8269065 As Eugene has noted below, the Court issued its opinions today in two cases about the First Amendment status of the social media posts of government officials.

One technical but interesting note is the way that the Court ends its opinion in Lindke:

To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

One thing that the Court commonly does when it announces a new test that might or might not be consistent with the lower court's opinion is to (1) vacate and (2) remand for proceedings consistent with the Supreme Court's opinion. This might well result in the original judgment being reinstated, but the judgment is vacated first, and then the lower court figures out what to do. But notice that the Court does not quite do that here—here it vacates the lower court's judgment only "to the extent that [the Court's] test differs from the one applied by the Sixth Circuit."

So what has been vacated? Is this a partial vacatur? That is, is the Court saying that the lower court's judgment is only partly vacated? It makes sense to partially vacate an opinion, but I am not sure how the Court could only partly vacate a judgment. The Sixth Circuit's judgment was the affirmance of a district court's grant of summary judgment to the defendant. If the Court envisions a partly-vacated-partly-affirmed-affirmance it might thrust us into the puzzle about exactly what a "judgment unit" is, as discussed here by Richard Re.

Or is this an ambiguous or conditional vacatur? That is, I take it the Supreme Court might be saying that it isn't sure whether the lower court's judgment needs to be vacated, because it isn't sure exactly what the Sixth Circuit's test is. (Or perhaps different justices who joined the unanimous majority read the Sixth Circuit's test differently, even as they all agree what the test should be.)

On this view when the Sixth Circuit gets the case back, they first need to make a threshhold judgment about whether their own judgment has been vacated, and then if the judgment has been vacated the panel needs to redo the analysis under the new test. I understand how this works, but it does have the funny feature of effectively delegating to the lower court the task of deciding what the mandate of the higher court has been. As a practical matter that may be perfectly straightforward, but as a formal matter it seems odd and not something I'd seen before. And in future cases ambiguous or conditional vacaturs could be much more interesting and even mischief-making.

Again, as a practical matter I'm sure this will work out straightforwardly on remand, but I wonder whether we will see more "To the extent that X, we vacate/reverse" decretal language in the future.

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The Government Doesn't Want You To See the Unused Space Force Logos https://reason.com/2024/03/15/the-government-doesnt-want-you-to-see-the-unused-space-force-logos/ https://reason.com/2024/03/15/the-government-doesnt-want-you-to-see-the-unused-space-force-logos/#comments Fri, 15 Mar 2024 17:59:29 +0000 https://reason.com/?p=8269057 redacted air force slide | Illustration: Lex Villena | Reason

As Sunshine Week 2024 draws to a close, the Air Force has marked the occasion by hiding the draft designs of logos and uniforms for the Space Force.

Reason filed a Freedom of Information Act (FOIA) request to the Air Force in January 2020 for drafts or alternate designs for the logo of the nascent Space Force, one of the Trump administration's more expensive and whimsical farces.

A quick four years later, the Air Force released 122 pages of communications between the public servants who designed the uniforms, logo, and seal for Star Fleet—excuse me, Space Force.

Unfortunately for everyone who was looking forward to seeing Project Runway: Department of Defense Edition, the Air Force redacted all images of the draft versions, citing Exemption (b)(5) of the FOIA.

redacted slide
(Reason)

Exemption (b)(5) is also known as the "deliberative process" exemption. It protects discussions between bureaucrats about policy decisions, under the reasoning that bureaucrats wouldn't be as frank if everything they said got dragged into the public eye (by annoying reporters like myself). 

Congress amended the FOIA in 2016 to state that agencies should operate with a "presumption of openness" and only withhold documents when there is a "foreseeable harm," not out of fear of embarrassment. Despite that, federal agencies still regularly abuse exemptions, especially (b)(5). In this case, the Air Force seems to be claiming that its staff would be afraid to design uniforms if their mock-ups were public. Sorry, but fashion's a tough business.

All is not lost, though. Some tidbits slipped by the censors.

For example, the communications include a scene of senior military officials scrambling to alter the uniform of Gen. John W. Raymond, the first chief of space operations, after President Donald Trump chose blue thread stitch for Space Force's new uniforms.

"Not sure if Gen. Raymond already reached out to you, but he wanted to see the possibility of getting his uniform turned to the blue thread stitch that was chosen by POTUS today ASAP," a message forwarded to numerous Air Force staff on January 15, 2020, read.

An Air Force brigadier general coordinating the response to the blue thread emergency replied:

"This is history in the making, and we get to play a part! Imagine the stories we'll get to tell future generations and to say we were there. Can't wait to read about this in textbooks on American history. What an honor! For now, immediate action please."

Is that sarcasm I detect, general? Surely not about something as serious as American space dominance.

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Pano Kanelos: 'Ideology Is the Death of Ideas' https://reason.com/podcast/2024/03/15/pano-kanelos-ideology-is-the-death-of-ideas/ https://reason.com/podcast/2024/03/15/pano-kanelos-ideology-is-the-death-of-ideas/#comments Fri, 15 Mar 2024 17:01:29 +0000 https://reason.com/?post_type=podcast&p=8268775 Pano Kanelos wants to change higher education | Illustration: Lex Villena

Pano Kanelos is the president of the University of Austin, which will be admitting its first class of 100 students this fall. The college was founded in 2021 as an antidote to left-wing monoculture in academia and is committed to free speech and the pursuit of truth. Reason's Nick Gillespie spoke with Kanelos, a Shakespeare scholar and first-generation college kid who grew up in a Greek diner in Chicago, about how the University of Austin will be different from virtually every other college around, why the humanities have virtually disappeared from higher education, and how a chance encounter with Nobel laureate Saul Bellow changed his life. He also does a quick, improvised close reading of the poem "Ovid in the Third Reich," by Geoffrey Hill, one of his major intellectual influences.

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Judge Orders Person to Stop Campaign of Criticizing Teenager Who Had Posted a Racial Slur When a Sophomore https://reason.com/volokh/2024/03/15/judge-orders-person-to-stop-campaign-of-criticizing-teenager-who-had-posted-a-racial-slur-when-a-sophomore/ https://reason.com/volokh/2024/03/15/judge-orders-person-to-stop-campaign-of-criticizing-teenager-who-had-posted-a-racial-slur-when-a-sophomore/#comments Fri, 15 Mar 2024 16:43:17 +0000 https://reason.com/?post_type=volokh-post&p=8269045 From P.S. v. R.S., decided Wednesday by the Indiana Court of Appeals, in an opinion by Judge L. Mark Bailey, joined by Judges Terry A. Crone and Rudolph R. Pyle III; for clarity, I'll describe "R.S." as Student (which he was at the time the criticism began) and "P.S." as Critic:

At the beginning of his sophomore year in high school, [Student] created a video of himself "spelling … out a racist slur." The video surfaced on social media during [Student]'s senior year in high school, and the video continues to circulate on social media.

[Critic], a concerned citizen, saw the video and began commenting about it and [Student] on her publicly accessible social media page. [Critic] "ke[pt] posting and reposting negative things against [Student,] … and … calling him out by his name as well." And [Critic] and other citizens appeared at the local school board meeting to "try[ ] to get some type of disciplinary" action imposed. [Student]'s father ("Father") contacted [Critic] and asked her to remove the video from her social media feed so that Father could "take care of [disciplining his son] in-house." [Critic] complied with Father's request but "then [the video] came back numerous times [and] other people started sharing it."

On May 3, 2023, [Student] filed a petition for a protection order against [Critic], alleging that [Critic] had used social media to stalk [Student], slander him, and disseminate false information…. [Student] testified that in making the video, he made a "dumb, stupid mistake" three years ago that had been circulating on social media for the "past seven [ ] months[,] and [Critic] has been slandering my name." Father told the trial court that the "only thing [Father and [Student]'s mother] have asked for from day one [is to] let us take care of our son, … but again, … [Critic] seems to keep … posting and reposting negative things against him."

[Critic] testified that she never contacted [Student] or his family, and that she "[d]idn't know where they lived, didn't know anything." [Critic] further testified that she did not "have any interest in targeting [Student on social media]," but that she believed it important to continue to comment on the matter. She told the court that in her future social media posts, she would "probably" "comment on" [Student] and any other individuals who had been involved with the video incident.

After hearing the testimony, the trial court denied [Student]'s petition for a protection order, ruling that "there's not grounds" to grant it. The court then sua sponte imposed what it termed a "mutual restraining order" on both parties, prohibiting them from—among other activities—communicating, harassing, or threatening each other directly or indirectly, including on social media. Specifically, the trial court instructed the parties as follows:

THE COURT: Alright, so here's what I am going to do. I am going to order both of you to not to [sic] communicate, not to harass, not to threaten each other in anyway [sic] shape or form, individually, directly, or through third … parties or any form of social media. And I'm not granting the Protective Order, that's denied cuz [sic] there's not grounds for a Protective Order. But I am granting a mutual restraining order so the two … of you leave each other alone. And if there's things that need to be addressed ah, as far as involvement and the school corporation or contacting law enforcement or amongst your friends that's perfectly fine. But, obviously there's been months of back and forth on social media where negative things were said on both sides and it's both of you just need to be adults and there's no reason for it. So do you understand ma'am? …

The appellate court concluded that the trial court lacked the authority under Indiana law to just issue the order on its own, without the parties' requesting it. The appellate court also concluded that the trial court's order didn't comply with the "specific requirements apply for every restraining order granted without notice," including "defining the injury, stating why it is irreparable, … stating why the order was granted without notice," and having the order last no more than a brief time before a full hearing. Because the appellate court reversed the order on those procedural grounds, it didn't need to decide whether the order violated the First Amendment.

Stevie J. Pactor and Kenneth J. Falk of the ACLU of Indiana represented Critic.

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S. Ct. Announces Test for When a Government Official's Social Media Posts Are "State Action" https://reason.com/volokh/2024/03/15/s-ct-announces-test-for-when-a-government-officials-social-media-posts-are-state-action/ https://reason.com/volokh/2024/03/15/s-ct-announces-test-for-when-a-government-officials-social-media-posts-are-state-action/#comments Fri, 15 Mar 2024 16:18:36 +0000 https://reason.com/?post_type=volokh-post&p=8269040 From Justice Barrett's unanimous opinion this morning in Lindke v. Freed:

Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.

For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke's speech.

When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media….

The Court began with the familiar principle that the First Amendment applies only to government action, not private individuals' action. There's little controversy that social media pages run by government entities (e.g., by city councils, school boards, executive agencies, and the like) involve government action. But individual officials are both individuals and officials, so the question is which hat the person is wearing while running a social media page. Here is how the Court analyzed this:

[S]tate or local official[s] who routinely interact[] with the public … may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But … [while they] can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability "acts of officers in the ambit of their personal pursuits," the state-action requirement "protects a robust sphere of individual liberty" for those who serve as public officials or employees.

The dispute between Lindke and Freed illustrates this dynamic. Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." This right includes the ability to speak about "information related to or learned through public employment," so long as the speech is not "itself ordinarily within the scope of [the] employee's duties." Where the right exists, "editorial control over speech and speakers on [the public employee's] properties or platforms" is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke's First Amendment rights—instead, he exercised his own….

For the reasons we explain below, a public official's social-media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first….

The first prong of this test is grounded in the bedrock requirement that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State." An act is not attributable to a State unless it is traceable to the State's power or authority…. [When the challenged conduct "entail[s] functions and obligations in no way dependent on state authority," state action does not exist….

[Lindke] insists that Freed's social-media activity constitutes state action because Freed's Facebook page looks and functions like an outlet for city updates and citizen concerns. But Freed's conduct is not attributable to the State unless he was "possessed of state authority" to post city updates and register citizen concerns. If the State did not entrust Freed with these responsibilities, it cannot "fairly be blamed" for the way he discharged them. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.

Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed's bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed's state authority—because he had none. For state action to exist, the State must be "responsible for the specific conduct of which the plaintiff complains." There must be a tie between the official's authority and "the gravamen of the plaintiff 's complaint." …

Section 1983 lists the potential sources [of official authority]: "statute, ordinance, regulation, custom, or usage." Statutes, ordinances, and regulations refer to written law through which a State can authorize an official to speak on its behalf. "Custom" and "usage" encompass "persistent practices of state officials" that are "so permanent and well settled" that they carry "the force of law."

So a city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager's power to do so has become "permanent and well settled." And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.

Determining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage. In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially. For example, state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject.

At the same time, courts must not rely on "'excessively broad job descriptions'" to conclude that a government employee is authorized to speak for the State. The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.

In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action….

For social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it. State officials have a choice about the capacity in which they choose to speak. "[G]enerally, a public employee" purports to speak on behalf of the State while speaking "in his official capacity or" when he uses his speech to fulfill "his responsibilities pursuant to state law." If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president.

The context of Freed's speech is hazier than that of the hypothetical school board president. Had Freed's account carried a label (e.g., "this is the personal page of James R. Freed") or a disclaimer (e.g., "the views expressed are strictly my own"), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal. Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbeque is personal, we can safely presume that speech on a "personal" page is personal (absent significant evidence indicating that a post is official). Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a "City of Port Huron" Facebook page) or is passed down to whomever occupies a particular office (e.g., an "@PHuronCityMgr" Instagram account). Freed's page, however, was not designated either "personal" or "official," raising the prospect that it was "mixed use"—a place where he made some posts in his personal capacity and others in his capacity as city manager.

{An official cannot insulate government business from scrutiny by conducting it on a personal page. The Solicitor General offers the particularly clear example of an official who designates space on his nominally personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment rulemaking belongs exclusively to the State, its exercise is necessarily governmental. Similarly, a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page. By contrast, a post that is compatible with either a "personal capacity" or "official capacity" designation is "personal" if it appears on a personal page.}

Categorizing posts that appear on an ambiguous page like Freed's is a fact-specific undertaking in which the post's content and function are the most important considerations. In some circumstances, the post's content and function might make the plaintiff 's argument a slam dunk. Take a mayor who makes the following announcement exclusively on his Facebook page: "Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules." The post's express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city's webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech "relate[d] to his public employment" or "concern[ing] information learned during that employment."

Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.

One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke's comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke's comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook's blocking tool highlights the cost of a "mixed use" social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability….

The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

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The U.S. Steel/Nippon Deal Should Be None of Joe Biden's Business https://reason.com/2024/03/15/the-u-s-steel-nippon-deal-should-be-none-of-joe-bidens-business/ https://reason.com/2024/03/15/the-u-s-steel-nippon-deal-should-be-none-of-joe-bidens-business/#comments Fri, 15 Mar 2024 16:05:18 +0000 https://reason.com/?p=8269001 Joe Biden Kamala Harris U.S. Steel Nippon Steel |  CNP/AdMedia/SIPA/Newscom

In a more sane country, President Joe Biden would not need to form an opinion about the potential sale of U.S. Steel to Japan-based Nippon Steel—and if he did have an opinion about it, it wouldn't matter.

Unfortunately, that's not the reality we currently inhabit.

"It is important that we maintain strong American steel companies powered by American steel workers. I told our steel workers I have their backs, and I meant it," Biden said in a statement on Thursday. "U.S. Steel has been an iconic American steel company for more than a century, and it is vital for it to remain an American steel company that is domestically owned and operated."

It remains unclear exactly what steps the White House plans to take to prevent Nippon, a publicly traded international company that already operates steel plants in the United States, from acquiring U.S. Steel. But Biden's announcement has already harmed the very company he claims to be trying to help: U.S. Steel's stock price tumbled on Thursday and fell again on Friday morning.

That should tell you something about who the winners and losers are in this situation. The deal with Nippon isn't some foreign invasion; it's a mutually beneficial deal executed with the consent of U.S. Steel's leaders. Why should they have to get permission from the president to do business?

Indeed, being bought by Nippon would potentially benefit everyone involved, from U.S. Steel's shareholders and executives all the way down to the workers in its plants. Nippon has announced plans to invest $1.4 billion in reviving U.S. Steel—potentially doing something that neither former President Donald Trump's tariffs nor Biden's blue-collar schtick has been able to accomplish.

"In many ways, the deal is a victory for Biden's attempts to revive American manufacturing," explains The Wall Street Journal. "U.S. Steel would receive an injection of capital and technology. The U.S. and Japan would together take on China's dominance in the global steel market."

Biden's opposition to the deal is partially about performative politics—about using these companies, their employees, their shareholders, their employees, and their customers, as pawns in an attempt to gain a marginal advantage in a contest for power: November's election. That's embarrassing.

It's also a decision likely swayed by cronyism. As the Journal notes, Ohio-based Cleveland Cliffs made an unsuccessful bid to buy U.S. Steel last year, and the company has been lobbying hard to get federal officials to block the U.S. Steel/Nippon deal so it can have another shot at making the purchase. That's gross.

"It's clear that President Biden's decision to come out against the deal is blatantly political," Nancy McLernon, president and CEO of the Global Business Alliance, which advocates for the interests of foreign-based businesses operating in the U.S., said in a statement. "This announcement is a snub to one of America's closest allies. Japan is the largest foreign investor in the United States and contributes heavily to the U.S. economy, providing nearly one million American jobs. Blocking this deal not only contradicts the Biden-Harris Administration's open investment policy but also risks alienating a key economic and security partner."

A few facts worth keeping in mind: Despite its name, U.S. Steel is not an extension of the federal government. If McDonald's rebranded itself as U.S. Burgers And Fries, it would still be a private company, not a part of the government subject to presidential whims.

Here's another: Despite the way the two companies are frequently described, U.S. Steel is not really an American company and Nippon is not really a Japanese one. Both are publicly traded, meaning they are owned by their shareholders, who could be located anywhere in the world. Nippon is no different than Toyota or Nintendo, both publicly traded Japan-based companies that employ Americans and have many Americans as customers. To imply differently is nothing more than politically convenient xenophobia.

Put another way, if Nintendo wanted to sign a promotional deal with McDonald's and the president declared his intention to stop it—that would be obvious government overreach and, well, pretty weird too. It's none of his business. This is the same.

It would be nice if we could chalk this up as a unique situation driven by the combination of U.S. Steel's iconic (and confusing) branding and Biden's desire to court favor with blue-collar voters before the election.

Unfortunately, this seems like part of a disturbing bipartisan trend. Under the guidance of Biden-appointee Lina Khan, the Federal Trade Commission (FTC) has attempted to block several proposed mergers as she's tried to reshape and enlarge the FTC's role in regulating such deals. The Biden administration's Department of Justice played a big role in blocking a potential airline merger earlier this year.

Meanwhile, prominent Republicans like Sen. J.D. Vance (R–Ohio) have signaled support for Biden's intervention in the U.S Steel/Nippon deal and applauded the more activist role of the FTC under Khan's tenure. Vance is reportedly a leading contender to be named Donald Trump's vice presidential pick, potentially giving him an even greater platform to demand governmental control over private businesses' decisions. (Vance, it is also worth noting, represents the state where Cleveland Cliffs is headquartered. Perhaps that's why he's conveniently forgotten that foreign investment in American industries can be a boon for American workers, something he wrote about in Hillbilly Elegy.)

Even the recent, bipartisan attempt to ban TikTok—or to force its sale, possibly to former Treasury Secretary Steve Mnuchin—shares similar elements of government overreach and blatant cronyism that are apparent in the U.S. Steel situation.

This is all madness. Private companies shouldn't need to hire armies of lobbyists to gain approval from the president and Congress before engaging in business deals. While there may be some narrow role for government to play in preventing consolidation that creates monopolies, that's obviously not a factor in the U.S. Steel deal (nor the TikTok situation)—nor is Biden even attempting to pretend that it is. He's simply intervening because he doesn't like the idea of a nominally American steel company being purchased by a nominally Japanese one. That's completely inappropriate.

Biden and Vance are allowed to voice their opinions about the U.S. Steel/Nippon deal, of course, but no one should be forced to give a hoot what they think.

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Problemista Is a Magical Realist Fable About the Absurdity of America's Immigration System https://reason.com/2024/03/15/problemista-is-a-magical-realist-parable-about-the-insanity-of-americas-immigration-system/ https://reason.com/2024/03/15/problemista-is-a-magical-realist-parable-about-the-insanity-of-americas-immigration-system/#comments Fri, 15 Mar 2024 13:49:43 +0000 https://reason.com/?p=8269005 Scene from the movie "Problemista" | A24

Immigration restrictionists sometimes like to say they favor immigration, so long as it's legal. Why can't immigrants get in line and follow the rules? The problem is that the legal system is labyrinthine, and the rules often border on the absurd. It's Kafka-esque—or at least Kafka as filtered through the lens of Monty Python and Charlie Kaufman. It's existentially terrifying, but also sort of bizarre and at times even quite funny. 

That's a reasonable approximation of the view taken by Problemista, a magical realist immigration fable about an aspiring toy designer from El Salvador who just wants to find a work visa. That sort of story could easily become saccharine or somber, but filmmaker and star Julian Torres generally keeps the tone light and charming. This too-eager-to-please movie sometimes suffers from a surfeit of whimsy; at times it feels like gagging on rainbows. But the best sequences are quirky journeys into the surreal designed to capture the frustrations of American immigration policy and the seemingly impossible demands it places on those who just want to work. 

Problemista follows the travails of Alejandro, a young man living in New York City who dreams of creating unusual toys for a company like Hasbro. He has a notebook full of ideas, most of which are twists on some familiar toy in which the toy is in some ways broken or altered to make a social point: There are Cabbage Patch Kids with fake cellphones that display their complicated relationships, toy trucks with flat tires, multicolored Slinkys that refuse to climb down the stairs. It's not entirely clear why any real-life kid would actually want to play with these intentionally mangled things; they're not really toys so much as gimmicky art projects.

So it makes sense when Alejandro, after being fired from a shifty cryogenic life preservation company, ends up working in the art world for a woman named Elizabeth. Elizabeth's husband Bobby (rapper and musician RZA) is a client at the cryogenics company, and in conscious life he was a painter; she wants to put on a show of her husband's paintings, all of which are of eggs. The yolk's on Alejandro. 

Elizabeth, you see, is not a good egg. Indeed, something in her has cracked. 

As played by Tilda Swinton, Elizabeth is self-absorbed, demanding, and difficult in the extreme, the sort of person who cannot be pleased and always feels wronged by the world. But she offers him a path to something he desperately needs: a work visa that will allow him to stay in the country legally after being fired. So he puts up with her rages and tries to help her stage the show. It isn't, er, eggsactly easy. 

In the meantime, he has to come up with money to help fund the cost of obtaining a visa—but officially, because of his immigration status, he's not allowed to earn money. So he resorts to cash jobs found on Craig's list, which is represented by a sort of cackling, glitching demon character doling out gig work that may or may not pay at all. 

If all this sounds a little bit forced, a little bit over-the-top, a little bit too pleased with itself, well, yes. At times the movie comes across a little like one of Alejandro's unfortunately designed toys—conceptually clever but intentionally broken, a neat idea that you can't really play with. 

But the movie is bursting with interesting, weird ideas, and it's often genuinely charming as well, with its dream-like portrayals of immigration purgatory and the struggle to keep Elizabeth happy recalling Monty Python alum's celebrated fantasy sequences in Brazil. Torres, who himself was born in El Salvador, has worked as a comedian and writer in the past, but he displays real promise as a first-time filmmaker. Americans and moviegoers are better off that he's doing his work here. 

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20 Killed https://reason.com/2024/03/15/20-killed/ https://reason.com/2024/03/15/20-killed/#comments Fri, 15 Mar 2024 13:30:40 +0000 https://reason.com/?p=8268995 aid convoy | Majdi Fathi/ZUMAPRESS/Newscom

20 killed and 100 injured: The Hamas-controlled Gazan health ministry accused Israeli troops of carrying out a brutal and "targeted" attack on "civilians waiting for humanitarian aid" in Gaza City while the Israeli military blamed Hamas gunmen for the unexpected attack that killed 20 and injured at least 100, possibly closer to 200.

The Israel Defense Forces (IDF) in fact "facilitated the passage of a convoy of 31 humanitarian aid trucks containing food and supplies intended for distribution to civilians in the northern Gaza Strip," according to a military spokesman.

"Approximately one hour before the arrival of the convoy to the humanitarian corridor, armed Palestinians opened fire while Gazan civilians were awaiting the arrival of the aid convoy," said the IDF. "As aid trucks were entering, the Palestinian gunmen continued to shoot as the crowd of Gazans began looting the trucks. Additionally, a number of Gazan civilians were run over by the trucks."

For the last few months, aid convoys have been greeted by massive crowds flocking to them in desperate hopes of getting food. A little over two weeks ago, though, IDF forces did open fire on a crowd of Palestinians attempting to get food in a similar situation, killing approximately 100. "Israeli officials acknowledged their troops opened fire on the Gaza City crowd Thursday, saying they did so after the crowd approached in a threatening way," per NPR's reporting, which the IDF semi-contradicted, declaring that "dozens were killed and injured from pushing, trampling and being run over by the truck" (in an odd bit of blame-shifting). But again: it is very difficult to know what actually happened, whether such threats did in fact exist, whether IDF forces exercised proper restraint, and whether any Gazan health ministry officials—controlled by Hamas—are telling the truth. Skepticism is warranted, over and over again.

Trump trial delays: The prosecutors in the Donald Trump hush money case have proposed a 30-day delay to the trial's start since a new batch of evidence was made available earlier this week. Trump's lawyers had requested 90 days (par for the course for them), but some sort of delay now seems likely. "The Manhattan district attorney's office, which accused Mr. Trump of covering up a sex scandal during and after the 2016 presidential campaign, said the delay would give Mr. Trump's lawyers time to review a new batch of records," reports The New York Times. "The office sought the records more than a year ago, but only recently received them from federal prosecutors, who years ago investigated the hush-money payments at the center of the case."

And a decision is expected today pertaining to Trump's Georgia case, as to whether Fulton County District Attorney Fani Willis is disqualified, which would mean a new prosecutor must be appointed, which would lead to delays (Willis' whole office would be thrown off the case). "Trump and others in the case are seeking to disqualify Willis after accusing her of financially benefiting by hiring her special prosecutor in the case, Nathan Wade, with whom she became romantically involved," per CNN.

"Defense lawyers claimed that the relationship between the prosecutors presented an untenable conflict of interest, because Mr. Wade was paid more than $650,000 in public funds while he was at least partly paying for cruises and other vacations he took with Ms. Willis," reports The New York Times. 

It's an open question as to how these proceedings will affect Trump's ability to make his pitch to voters in advance of Election Day.


Scenes from New York: Last week, New York Gov. Kathy Hochul announced that she was deploying 1,000 total National Guardsmen and police officers to patrol the city's subway system. This week, there was a shooting on the A train that left a man in critical condition.

On the northbound A train, around 4:45 p.m., a fight broke out between a 32-year-old man and a 36-year-old man that ended in one man shooting the other while the train was still moving, leaving commuters trapped inside. When the doors opened at the Hoyt-Schermerhorn station in downtown Brooklyn, passengers flooded out and streamed up the stairs.

It was the 36-year-old man who appears to have started the fight, screaming "I will beat you up" and threatening the 32-year-old man. At one point, the older man was stabbed (seemingly by another passenger, who was working with the threatened man) and then pulled out a gun, which the 32-year-old man turned back around on him, shooting the aggressor.

It's not clear that bag checks—part of Hochul's plan, which is legally dubious—would have stopped this (the gun was in a pocket), or that an uptick in officers patrolling the stations themselves (vs. the actual subway trains, where this all transpired) would have helped much. There is already a Transit Police station at Hoyt-Schermerhorn, so officers apparently responded quickly once the train pulled into the station. But that's not to say nothing would stop threats like these, to which New Yorkers have become unfortunately accustomed: yelling about how you're going to beat up an apparent stranger is deranged behavior, seemingly only the type of thing a profoundly mentally ill person would start doing, yet mentally ill and homeless people customarily make train cars their temporary shelters—cops seemingly know this and allow it, which is a deliberate policy choice that could always be reversed.


QUICK HITS

  • Zach Weissmueller and I hosted a very polarizing debate—Who's right about George Floyd?—between writer Coleman Hughes and investigative journalist Radley Balko that's getting a fair amount of criticism online. For background: Hughes wrote a piece for The Free Press on Floyd's death, Derek Chauvin's trial, and the documentary, The Fall of Minneapolis, which Balko responded to with a (very long) three-part series over at his Substack. We invited both on to hash it out, and a bit of chaos ensued.
  • Hungary is "an ally that behaves unlike any other" and is "alone on the defining issue of European security of the last quarter century, Russia's war in Ukraine," said David Pressman, the U.S. ambassador to Hungary, in remarks made yesterday on the 25th anniversary of Hungary's admittance to NATO.
  • "A recent pickup in inflation isn't likely to shift Federal Reserve policymakers' forecasts for three interest-rate cuts this year and four in 2025," reports Bloomberg.
  • Crawfish emergency down in Louisiana.
  • We should possibly do less U.S.-engineered regime change, not more.
  • You won't believe these Canadian auto theft prevention tactics:

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Senate Race Revealed Shortcomings of California's 'Top Two' Primary Reform https://reason.com/2024/03/15/this-years-senate-race-reveals-shortcomings-of-californias-top-two-primary-reform/ https://reason.com/2024/03/15/this-years-senate-race-reveals-shortcomings-of-californias-top-two-primary-reform/#comments Fri, 15 Mar 2024 11:30:33 +0000 https://reason.com/?p=8268950 Voters cast their ballots in inside San Francisco City Hall on March 5, 2024. | Liu Guanguan/China News Service/VCG/Newscom

If you think debates about tinkering with election rules are vicious, then you need to turn your attention to the endless battles between baseball's traditionalists and reformers. The former treat America's pastime as something almost sacred—a bastion of timeless and slow-moving beauty in an ever-changing world. Unlike professional football, which is forever tinkering with its rules, baseball should, in their view, cling to the past.

"I have observed a creep towards instant gratification in a game whose best quality was that it challenged us to be patient," wrote traditionalist Noah Gittell. But after seeing the results of Major League Baseball's recent changes that are designed to speed up the game (e.g., adding a pitch clock), he decided that the tweaks are OK. This isn't the first time the league has changed rules, he noted.

Columnist George Will, who wrote a book celebrating the culture of the game, rejoiced at the new rules. He believes the latest rule adjustments restore the spirit of the past, when fast-moving games were common and athleticism was more important than analytics (see Moneyball). They might also restore attendance levels. Sometimes the best way to energize an institution is to adjust the way it operates.

At the last Giants game I attended, I nearly fell asleep from boredom, so I'm not the best person to pontificate about balls and strikes, but I see parallels with our election system. For years, reformers have tried to re-energize the democratic spirit by endlessly changing and adapting the voting process. They are responding largely to low voter turnouts.

Unlike their counterparts in baseball, America's politicians haven't come up with the right formula yet—perhaps because most of the people proposing rule changes have a vested interest in the outcome of the specific contests (unlike MLB officials, whose interest centers on the game itself.) It is clear from Tuesday's primary election, however, that the latest "big" California primary rule change is a bust.

In 2010, California voters approved Proposition 14, which created a "top two" primary for every election except president, central committee, and nonpartisan elections such as boards of supervisors and superintendent of public instruction. Under the old system, Republicans would choose their candidate and Democrats theirs. They would face off in November. Under the new rules, everyone runs against each other. The top two vote-getters face off in the general election, regardless of their party.

Supporters made grandiose promises about how the new system would reduce partisanship and force candidates to moderate their positions by campaigning for all voters rather than the party faithful. It was going to increase voter participation and strengthen democracy. "It's time to end the bickering and gridlock and fix the system," according to Prop. 14's "yes" ballot argument. Supporters claimed it would force politicians to work together for the good of the state.

One needn't be a cynic to realize that "top two" didn't usher in an era of peace and goodwill. California's elections are more vicious than ever. The state Republican Party has largely faded away, but the result is nastier battles among Democratic factions. The Legislature and state constitutional offices are now filled with progressive ideologues. Tuesday's turnout was low. One can't blame Prop. 14 for everything, but it hasn't lived up to its billing.

"Top two" created a new set of rules that ambitious politicians can game. Consider the race for U.S. Senate. In the past, Democrat Adam Schiff would have debated his Democratic opponents in a primary that focused on which candidate appealed best to Democratic primary voters. Republican Steve Garvey would have debated his GOP opponents in an effort to woo GOP voters.

Instead, Schiff used reverse psychology by running ads attacking Garvey in conservative media as a means to bolster support for Garvey. It was a clever ploy to keep his main opponents, Democrats Katie Porter and Barbara Lee, out of the final runoff. The end result is the same—the leading Democrat squares off against the leading Republican in November, with Schiff almost certainly winning. But who can claim this goofy process has reduced bickering and cynicism?

Politico also reported that one union, annoyed at state Sen. Josh Newman (D–Orange County) for not supporting one of its signature bills, "launched and funded a collection of neophyte Democratic challengers" in an effort to dilute the Democratic primary vote and keep Newman from advancing to November. It failed. Similar gamesmanship took place in traditional primaries, but the "top two" made these games easier to play.

It's probably time to change the rules yet again, perhaps to a "final five" system (more on that in a future column). Just like with baseball, there's nothing wrong with adjusting rules to get a better outcome. But let's not pretend any rejiggering is a panacea for whatever ails our election system—and let's make sure the new rules actually make sense.

This column was first published in The Orange County Register.

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https://reason.com/2024/03/15/this-years-senate-race-reveals-shortcomings-of-californias-top-two-primary-reform/feed/ 45 Voters cast their ballots in inside San Francisco City Hall on March 5, 2024.
With Another Nasty Election Looming, Prepping Goes Mainstream https://reason.com/2024/03/15/with-another-nasty-election-looming-prepping-goes-mainstream/ https://reason.com/2024/03/15/with-another-nasty-election-looming-prepping-goes-mainstream/#comments Fri, 15 Mar 2024 11:00:58 +0000 https://reason.com/?p=8268959 Jars of food sit on rows of shelves, as if preparing for hard times. | Glenda Powers | Dreamstime.com

In these unsettled times, after the pandemic and related disorder, if you're wearily preparing for election year chaos, you're not alone. The Department of Homeland Security says "the 2024 election cycle will be a key event for possible violence" which half of Americans expect to be a feature of future political contests, no matter who wins. As divided as the country is, such fears unite us in preparing for hard times, whether they result from political turmoil or the natural unpredictability of the world.

Growing Ranks of the Prepared

"Researchers say the number of preppers has doubled in size to about 20 million since 2017," Reuters reports. "Much of that growth is from minorities and people considered left-of-center politically, whose sense of insecurity was heightened by Donald Trump's 2016 election, the pandemic, more frequent extreme weather and the 2020 racial justice protests following the murder of George Floyd."

Reuters based the story on attendees at a recent "Survival & Prepper Show" in Longmont, Colorado, where a "30-year-old lesbian" mingled with "bearded white men with closely cropped hair," "hippy moms," and "Latino families." Attendees cited COVID-19, supply-chain interruptions, power outages, and other disruptions that eroded faith in authorities and pushed them to prepare for emergencies.

It's unfortunate when anybody suffers through reminders that social order can be fragile. But it's wise for people to take responsibility for their well-being. In fact, the attendees at that show are representative of a significant segment of Americans.

"In 2022, 55 percent of adults surveyed stated they had pursued three or more of the twelve preparedness actions," the Federal Emergency Management Agency (FEMA) reports of survey results in its 2023 National Preparedness Report. "Although a variety of factors may be contributing to the changes in preparedness that FEMA has recorded over time, one of the most significant factors was the COVID-19 pandemic." (The 12 actions include assembling and updating supplies, making your home safer, and planning with neighbors; see a full list here.)

Among the more serious and sympathetic researchers on preparedness is U.S. Army Col. Chris Ellis, who has worked with FEMA to analyze the state of preparedness among Americans. In his 2021 paper, The Noah Virus: Who Is Infected With High Resiliency for Disaster?, he defines prepping as "the act of readying one's self or one's family, via means of supplies, tools, and skills, for a potential (often severe) future hazard, either natural or manmade."

"The 20 million US preppers mark has solidly been crossed," Ellis wrote for The Prepared in 2022. "If you use the broader definition of a prepper as someone who can handle at least two weeks of disruption, the number gets even higher."

Millions of Resilient Citizens

What's impressive is how many people don't stop there. Ellis uses the term "resilient citizens" to describe those "who can survive for 31 or more days at home without power, water, or transportation." He estimated that "14.9 million Americans had 31 days or more of at-home preparedness in 2020.  Ultra-Highly Resilient Citizens (97 days or more of preparedness) jumped from four million people in 2017 to 6.7 million in 2020."

That's a lot of people who have put away canned goods, purchased generators, and made plans for storms and power outages with the neighbors. And yes, as per Reuters, the ranks of regular preppers and resilient citizens extend far beyond the bunker-dwellers we see on bad TV shows.

A Wide Variety of Prepared Americans

In his 2021 paper, using data from 2018, Ellis found that resilient citizens were 75.1 percent white, 6.5 percent black, 1.4 percent Asian, 1.9 percent American Indian or Alaska Native, 1.9 percent Native Hawaiian or Pacific Islander, and 5.6 percent Hispanic. Urban dwellers made up 62.8 percent of resilient citizens, with 12 percent being small town/rural in the surveyed group. "Income, education, geographical residence, and political party either were statistically insignificant or not substantive," he added.

Of course, that was before the chaos of 2020, which spurred a sense of urgency among many.

"Asians disproportionately embraced prepping in '20, which perhaps makes sense given what they may have been hearing from friends and family back in Asia during early Covid combined with some of the anti-Asian racism that grew in the US in '20," Ellis wrote in 2022 using updated data.

The mainstreaming of preparedness overall should be no surprise given that Americans embracing one area of prepping—the ability to defend yourself and your family—have come to look much like the wider population in recent years.

"An estimated 2.9% of U.S. adults (7.5 million) became new gun owners from 1 January 2019 to 26 April 2021. Most (5.4 million) had lived in homes without guns," according to a study published in the Annals of Internal Medicine. "Approximately half of all new gun owners were female (50% in 2019 and 47% in 2020 to 2021), 20% were Black (21% in 2019 and in 2020–2021), and 20% were Hispanic (20% in 2019 and 19% in 2020–2021)."

People willing to breach the strong cultural and legal barriers to firearms ownership should find it relatively easy to stock the pantry and put away some candles. In uncertain times, taking on such personal responsibility becomes not just attractive but necessary.

"People are realizing that it's important to be able to depend on what you can do for yourself," Jennifer Council, a self-described black urban farmer, told Reuters.

Complacency Kills

The greatest barrier to resilience may be complacency, as recent disruptions fade into memory.

"From 2017 to 2019, FEMA observed a steep increase in the percentage of respondents who indicated (self-assessed) that they were prepared for a disaster," notes the 2023 National Preparedness Report. "However, by 2022, this percentage had dropped back to the level it was in 2017."

That's unfortunate, because the easing of public health fears (and damaging policy overreactions) and the return of relative order to the streets are a sign that crises are survivable, not an indicator that they're gone forever. Hopefully, 2024 won't deliver yet another unpleasant wake-up call.

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Today in Supreme Court History: March 15, 1933 https://reason.com/volokh/2024/03/15/today-in-supreme-court-history-march-15-1933-5/ https://reason.com/volokh/2024/03/15/today-in-supreme-court-history-march-15-1933-5/#comments Fri, 15 Mar 2024 11:00:04 +0000 https://reason.com/?post_type=volokh-post&p=8179583 3/15/1933: Justice Ruth Bader Ginsburg's birthday.

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Review: Tripping on Utopia Complicates the History of Psychedelics https://reason.com/2024/03/15/tripping-on-utopia/ https://reason.com/2024/03/15/tripping-on-utopia/#comments Fri, 15 Mar 2024 10:00:41 +0000 https://reason.com/?p=8265922 ministrippingonutopia | Grand Central Publishing

In one common account of modern psychedelic culture's origins, LSD was initially monopolized by the national security state, which saw such drugs as tools for "control of human behavior." The results included MKULTRA, an infamous CIA program that experimented on people without their consent. But in the 1960s, the story goes, the establishment lost control of these tools. Suddenly, utopian individualists like Timothy Leary were urging people to use drugs to seize control of their own consciousness—and the deep state was less interested in deploying LSD than in cracking down on its unauthorized use.

Benjamin Breen's Tripping on Utopia complicates this tale. The book focuses on the anthropologists Margaret Mead and Gregory Bateson, who in the 1930s developed their own utopian visions of fluid identities and resistance to psychological manipulation; while psychedelia was not at the center of their work, it was in their constellation of sources. They also developed strong ties to the national security state during World War II, and in the early Cold War their social circles included people directly tied to MKULTRA. Bateson backed away in horror, but Mead maintained her CIA connections for years.

Some of the book's conclusions have been disputed, with Bateson's daughter Nora arguing that Breen misconstrued archival documents and otherwise botched his facts. But no matter how that debate plays out, Tripping on Utopia makes it clear that these two conceptions of psychedelic drugs—as tools of liberation and as tools of control—were uncomfortably entwined well before the 1960s. The '60s crowd does not always come off well here either, but I'll say one thing for Leary: For all his overstatements and opportunistic personal behavior, which Breen recounts unsparingly, he believed it was just as wrong to coercively "alter the consciousness of thy fellow man" as it was to "prevent thy fellow man from altering his own consciousness."

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