Short Circuit: A Roundup of Recent Federal Court Decisions

Cell phone radiation, bikini baristas, and an onslaught of horribles.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Veggie burgers, vegan chorizo, meatless meatballs. Illegal! Thanks to a new law passed at the behest of the meat industry that went into effect this week, Mississippi can now impose fines and even criminal sanctions on plant-based food producers that accurately label their products based on what foods they are meant to be a substitute for. Which violates the First Amendment. Read more at Bloomberg.

  • By law, the feds must publish a privacy impact statement before "initiating a collection of new information" involving personally identifiable data that will be stored electronically. Nonprofit: Which the feds didn't do before deciding to add a citizenship question to the 2020 census. D.C. Circuit: The nonprofit hasn't been injured, so the case is dismissed for lack of standing.
  • Boston city hall occasionally flies a guest flag. That could be the flag of another country, the LGBT rainbow flag, a flag commemorating Juneteenth, what have you. But a request to fly a Christian flag is rejected. First Circuit: And that's ok. This is government speech, and the government is free to steer clear of religion.
  • Victims of billionaire financier and sex offender Jeffrey Epstein seek to nullify his plea agreement (which strikes some as being too lenient). One victim accuses the financier's friend of recruiting victims, which the friend denies. The victim then sues the friend for defamation. The defamation case eventually settles after much of it, including the entire summary judgment record, is litigated under seal. Did the district court err by not allowing the public access to more material? Alan Dershowitz, Miami Herald, and Michael Cernovich: Yes! Second Circuit: In large part, yes. But we "urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment."
  • Fairview Township, Penn. police officer steals drug proceeds from arrestees, is himself arrested. Officer: I was entrapped! Third Circuit: No. Although the FBI enlisted a fellow cop to keep an ear to the ground, the now-former officer was not induced to steal.
  • Are immigration detainees entitled to the constitutional protections afforded by the Due Process Clause? The Third Circuit says yes and rejects qualified immunity for a Berks County, Penn. guard who repeatedly raped a detainee (of which he was later convicted) and officials who allegedly ignored it.
  • Allegation: Iberville Parish, La. inmate reports extortion scheme involving prison guard to warden. In retaliation, three guards encourage another inmate to beat up the whistleblower and stand by while his jaw and teeth are broken. Fifth Circuit: There are some procedural hurdles standing in the way of the whistleblower's lawsuit. But he's since been released from prison, so he can sue again without some of the procedural hurdles.
  • Tennessee police show up at house to serve a civil levy. The target of the levy exits the house, claims he doesn't live there and that he has no keys to get back in. Police let him leave (after taking his pocket change in partial satisfaction of the levy), but then circle the house looking for other property that could be taken. Uh oh! They smell marijuana and see what they believe to be partially smoked joints. They get a search warrant, come back, and discover a load of marijuana in the house. Sixth Circuit (over a dissent): No qualified immunity for the police, who should have known they couldn't search the curtilage (immediate surroundings) of the house without a warrant.
  • Mentally ill inmate begins to improve while in prison treatment program. But after raising complaints about Lenox, Mich. prison officials, he is abruptly transferred out of the program. His mental health rapidly declines, to the point where he attempts suicide, after which he is kept restrained and left to lie in his own waste for six to seven hours. Sixth Circuit:  Nobody gets qualified immunity in this "parade of horribles." (Also, don't write any emails you wouldn't want to see appear in a published judicial opinion, such as suggesting that a mentally ill inmate be transferred "to Mars.")
  • After being roughed up by a Providence, Ky. police officer during a traffic stop, man tries to file a complaint. So the officer goes to his house, tasers him, maces him, breaks his nose, and beats him with his baton (all of which is caught on a body camera). After man is taken to hospital, the officer cites him for "(1) harassing communications, (2) resisting arrest, (3) assaulting a police officer, and (4) criminal mischief" for allowing his broken nose to bleed on the officer's uniform. Sixth Circuit: Qualified immun…no, just kidding. The officer is going to jail for 42 months.
  • Purdue University student accused of sexual assault is suspended after allegedly Kafkaesque disciplinary hearing. The investigative report falsely says he confessed; two of the adjudicators don't read the report at all; he's not allowed to see the evidence against him; he can't call an eye witness; and the complainant presents her story only through a hearsay summary offered by a Purdue employee. Seventh Circuit: Could be fundamentally unfair, in violation of the Due Process clause, and sex discrimination against a man, in violation of Title IX. (But the due process claim has lots of technical problems.)
  • Allegation: Suicidal teen puts a gun to his temple. A Benton, Ark. officer orders him to drop it. The teen begins to move the gun away from his head. The officer shoots, kills him. District court: It would have been "nearly impossible" for the officer to tell if the teen was complying with the order or if instead he was about to point the gun at officers. Eighth Circuit: No qualified immunity.
  • Ninth Circuit (2017, over a dissent): There's nothing wrong with Berkeley forcing cell phone retailers to post a warning that suggests cell phones may expose users to unsafe levels of RF radiation. Supreme Court: Why don't you double-check that. Ninth Circuit (2019, over the same dissent): There. Is. Nothing. Wrong. With. Berkeley . . .
  • The "act of wearing almost no clothing while serving coffee in a retail establishment" is not protected First Amendment expression, says the Ninth Circuit. So no need to enjoin a pair of Everett, Wash. ordinances that require bikini baristas to dress more demurely.
  • Infirm inmate serving lengthy prison term sues guards after they allegedly injure him on walk across prison yard. At trial on his Eighth Amendment claims, the inmate is visibly shackled. Which was plain error, says the Ninth Circuit. The inmate's dangerousness was a merits issue at trial, so the trial court erred by ordering the inmate's shackling without first determining whether shackling was necessary.
  • Allegation: Pretrial detainee has psychotic break, defecates on himself during transport to hospital. Denver sheriff's deputies remove his soiled clothing, march him through hospital wearing naught but a pair of mittens. Tenth Circuit (over a dissent): There's no prior case directly on point that put the deputies on notice that that violated clearly established law. But the detainee can still sue them because it's so outrageous.
  • Scott County, Ky. sheriff's deputy initiates high speed chase of suspected drug dealer. Much goes wrong, and the fleeing drug dealer crashes into another car, killing the driver. Driver's estate sues the deputy. And to trial the case must go, says the Kentucky Supreme Court, overruling a prior decision holding that injuries caused by fleeing suspects can never be attributed to pursuing officers. H/t: TheNewspaper.com.
  • And in en banc news, the Fifth Circuit will not reconsider its decision extending qualified immunity to Texas officials who searched a doctor's records without first giving him a chance to challenge their subpoena. The search violated the Fourth Amendment, but the officials couldn't have known that because there was no precedent on point saying so. Judge Willett takes the opportunity to edit his separate opinion; what had been a concurring dubitante is now a partial dissent that directly—and sharply—calls for a reevaluation of the qualified immunity doctrine.

In nearly every state (45 states plus D.C.), it is perfectly legal for doctors to dispense prescribed medication from their office during an in-person visit with a patient. But not in Texas. In Texas, of the state's nearly 65,000 physicians, only eight—who work in rural areas—are eligible to dispense medication. There is no good reason for the ban; pharmacies lobbied for it, and they got it. "The state trusts me to perform complex eye surgery, but doesn't trust me to give routine eye drops to my patients as they walk out the door," says IJ client Dr. Kristin Held. "The ban on doctor dispensing raises drugs costs, endangers my patients, and hinders my ability to practice medicine. The only ones who benefit are the pharmacies." In June, Dr. Held and Dr. Michael Garrett partnered with IJ to file a lawsuit challenging the ban. Read more here.

NEXT: If Children "Will Be Enrolled and Be Participants in the Catholic Religion," Does This Require Taking Them to Mass?

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  1. Concerning the first bullet (privacy impact statements), even if the case was allowed to proceed, I doubt the non-profit would have succeeded.

    Personally Identifiable Information (PII), “. . . refers to information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.”

    I don’t think citizenship meets this criteria (in spite of the sorry stereotypes TrueAmericanParrot throws out every other comment).

  2. Businesses have the right to use the terms that consumers understand,

    That is about the veggie burger issue, or whatever you want to call it. It begs the questions. The questions are what do consumers understand, on what basis, and who decides.

    Repeated reminders are also less than forthright when they insist that opponents of labeling vegetable products with the word “meat,” are interested parties from the meat industry. Sure the meat industry has an interest. And the vegetable substitute industry has an opposing interest. And the begged questions remain undecided, while the free market issues get bypassed.

    My decision? Not that anyone cares, but I suggest that product labeling questions which turn on questions of paradoxical labeling ought to be decided in favor of stark contrasts, not by encouraging line-skirting ambiguity.

    But I also have an interest. I want clear labels on genetically modified foods. I don’t want anyone telling me the 1A says I can’t have them.

    I particularly object to GMO promoters who want to neuter clear labeling, while insisting that the only thing that could possibly count is their preferred food safety message. I advocate that everyone with environmental objections should be free to decline GMOs on the basis of those, and to see clear labels in the marketplace to help them do it. I am baffled why anyone claiming to be a free market supporter would insist otherwise.

    1. Seems like you are more interested in government forcing your kind of labeling than anything neutral.

      1. Government gets to regulate commerce. Perhaps your objection is to that, instead of to the substance of my comment.

        Otherwise, why shouldn’t furthering free-market decision-making be a goal for government to pursue while doing the regulating? And given opposing interests, why isn’t promoting clear labeling, and leaving it at that, not the path which runs closest to government neutrality?

        1. No, my objection is that your sole intent seems to be to bend the regulatory apparatus to your crony interests, cloaked in language about neutrality.

          1. Language about neutrality which you apparently wish to criticize baselessly. Or perhaps that was an oversight. Here is my question again. Can you answer it:

            And given opposing interests, why isn’t promoting clear labeling, and leaving it at that, not the path which runs closest to government neutrality?

            1. The presumptive choice for government neutrality is “government takes no action”.

              A sentence that begins by stating “government requires…” is NOT “government takes no action”. QED.

              1. James Pollock, a presumption of no government action is not a neutral presumption. It is a presumption in favor of the status quo, including in favor of every aspect of the status quo which government previously created.

                Looks like a lot of folks agree that it’s best to avoid answering my question. Here it is again:

                And given opposing interests, why isn’t promoting clear labeling, and leaving it at that, not the path which runs closest to government neutrality?

                Care to answer?

                1. “why isn’t promoting clear labeling, and leaving it at that, not the path which runs closest to government neutrality?”

                  The presumptive choice for government neutrality is “government takes no action”.

                  A sentence that begins by stating “government requires…” is NOT “government takes no action”. QED.

        2. “Otherwise, why shouldn’t furthering free-market decision-making be a goal for government to pursue while doing the regulating?”

          Sure, that’s a valid goal. The problem on GMO labeling is that the forms of labeling being pushed anti-gmo activists don’t further informed free-market decision-making. It’s pure fear mongering.

          The proposed labels tell you nothing about what altered genes are in a product nor give you scientifically valid risk information (the real science says the risks are minimal to non-existent). They are pure scarlet letter shaming.

          And the real truth is that prior to modern gene editing techniques, they were using radiation to induce gene mutations to see if anything useful would pop out. Which of the two would you suppose is really more dangerous?

          And beyond that, if you include even older plant hybridization and controlled breeding techniques, there is absolutely nothing in our entire food supply that hasn’t been genetically modified and it’s been that way for several centuries.

          1. First, and once again, I do not object to GMOs on the basis of human health or safety. Even if we are wrong on those questions, we would presumably discover our error at some cost in human illness or mortality—perhaps a high cost—and then stop doing it, thus ending the problem with plenty of unaffected humans left over.

            I do object to GMOs on the basis of environmental dangers. If, for instance, a lack of caution on that front pushes too many kinds of insect pollinators to extinction, that would likely prove a harder problem to limit, and could be catastrophic for humans.

            As we have seen with North Atlantic Cod, when complicated-but-favorable ecological conditions are disrupted by bad human practices, it may not prove sufficient to stop those practices to restore the former complicated interactions. With ecology, there is always a risk that environmental degradation can turn into a one-way ratchet, to the detriment of humanity (or of any other class of organisms). No one yet knows how to manage that risk, except insofar as possible, by not taking it in cases where it can be recognized.

            However much the GMO industry may approve, your comparisons of GMO techniques to previously practiced gene modification techniques are naive. Older methods of plant breeding have the advantage of depending on chance interactions among genes which have typically been around, and interacting by chance, for millennia. All those previous interactions—likely including the very ones selected for by human breeders (given a tiny frequency of managed cross breeding compared to myriad instances of natural breeding, the likelihood is overwhelming)—have thus already passed a practical test for environmental compatibility. Any gene combinations which delivered major environmental disruptions likely proved self-limiting and disappeared. So cross-breeding and hybridization are not useful models for what to expect from GMO technology.

            GMO technology has the capability, and is practiced for the purpose, of delivering characteristics that could never have evolved naturally, such as glyphosate resistance. Even if whatever genetic combination that confers glyphosate resistance did happen by chance previously, in the absence of glyphosate it never got any test of environmental compatibility which would be comparable today, as we for the first time ever in natural history drench the environment with glyphosate.

            Thus, environmental effects from GMO organisms can be expected to be utterly novel, and otherwise unpredictable. And certainly not predictably alike with results from traditional cross-breeding. It seems unlikely that GMO industry players, with the genetic sophistication they have, could even be offering that excuse in good faith.

            1. This is scientific gibberish, no different in kind than the FUD offered by anti-vaxxers.

              1. This is scientific gibberish, no different in kind than the FUD offered by anti-vaxxers.

                Nieporent, to show that, you would need to show that ecological experts say it is gibberish—just as medical experts say anti-vaxxers speak gibberish. Good luck. Every paragraph is grounded in a specific long-accepted ecological generalization.

                Perhaps you are unfamiliar with ecological thinking. For all I know, you could even be scornful of it. Ecological thinking does lead to some conclusions which inconvenience libertarian ideology—especially for those libertarians who suppose ideological axioms can be used to deduce facts. Or more commonly, to suppose unwelcome factual assertions are refuted if they seem contrary to ideology.

                1. “Perhaps you are unfamiliar with ecological thinking. ”

                  Someone in this discussion isn’t good with biology, and it isn’t Mr. Nieporent.

                2. “Nieporent, to show that, you would need to show that ecological experts say it is gibberish”

                  This premise is also nonsensical.

    2. How are “GMO promoters” attempting to neuter clear labeling?

      It takes quite a bit of effort in the US supply chain to avoid GMO components in many foods and those manufacturers who go to that effort are free to proudly mark their products “GMO Free”. They are even free to create a trade group that defines what “GMO Free” means, create a logo, licensing scheme, and engage in advertising campaigns to promote the “GMO Free” logo.

      Some people like to buy “Organic” food. The government has determined that food that is not “Organic” is safe as long as it is manufactured to government standards. It seems to have worked quite well for products which are “Organic” to be labeled as such to seek a market.

      Some people like to buy kosher food. There is no evidence that food that does not meet those standards is unsafe. It seems to have worked quite well for manufacturers who choose to adhere to kosher standards to label their products as “Kosher” rather than requiring that every product that is not kosher be labeled “Not Kosher”.

      Some people like to buy “Fair Trade” coffee. Should every coffee manufacturer be required to label their coffee “Not Fair Trade” if it’s not “Fair Trade”?

      Some people, probably, would like to buy only meat from animals who have had “Healing Crystals” held against them at least three times each day from birth to slaughter. Should all “non crystal” meats and products containing such meats be required to state on the package “Contains meat products from animals which did not have healing crystals held against them at least three times per day from birth to slaughter”?

      Perhaps some White Supremacists would like to buy food which has never been touched by the hands of “non-white” people. Should all manufacturers of foods which have been touched by “non-white” hands be required to add a statement to their labeling that “This product has been touched by hands of non-whites”?

      If you want “non-GMO” food to be labeled as such, the burden of proof is on you to prove that GMO foods are harmful to the consumer rather than you requiring manufacturers to assist you in your scare mongering campaign against GMO foods.

      1. BadLib, I neither contend that GMO foods are harmful to health, nor that they are harmful to the consumer in any particularized way. No scare mongering.

        I contend GMO crops are environmentally harmful, in a general way. In many cases—all the cases involving glyphosate—it is trivial to prove harm, because agricultural processes which rely on glyphosate are intended to be harmful to the environment. That is how they work. To convenience industrial agriculture, GMO crops use mass poisoning of organisms which are environmentally beneficial.

        I have no burden of proof, and GMO advocates enjoy no constitutional privilege. This is a political contest. Nothing in law should require the politics of GMO opponents to be hobbled by insistence on a showing of individualized harm, when their political objection is to general harm.

        Advocates against GMO labeling are advocates against free-market responses to general harms which only informed politics can address. It is a damned shame that so many folks who lack any material interest in agricultural special pleading, nevertheless jump in on the GMO question, motivated apparently by an ideology which opposes beneficial policies if they involve government action, and because they involve government action.

        1. I think one difficulty here is that many production processes, possibly most, for food and other things, are harmful to the environment. To require labelling of these products listing all the potential harms is not very practical.

          Of course products that are produced in less harmful ways can always be so labeled for the benefit of consumers who are interested.

          The proper role for government is to determine the magnitude and extent of the harm, and where it is significant, to require mitigation, or less harmful processes. If the factory in my town is polluting the water I’d rather not rely on distant consumers not buying whatever to help. I want the factory to stop.

          1. “…many production processes, possibly most, for food and other things, are harmful to the environment.”

            Indeed. Heck, any kind of agriculture (as opposed to perhaps low intensity hunting/gathering) is necessarily disruptive to the environment. Iowa used to be ??short grass prairie??, with a rich biota. Turning it into cornfields destroyed all that. And a field of organic artisanal kale is equally destructive to whatever was there before.

            Also, it’s hard to have labeling fine grained enough to make everyone happy. Take GMO for example. Some people might really be objecting to Roundup ready crops because the don’t like Roundup. Others might object to roundup but be fine with crops genetically engineered to resist some pest so that less pesticides are needed, while others might object to any genetic tinkering at all, but not care if the same genotype was developed by breeding. It’s pretty hard to please everyone.

            1. Absaroka, you are almost begging the question. The question is, “Which risks should we run?”

              Your answer seems to be, “Run them all, because we can’t get everyone to agree.”

              Also, about Iowa. Your description sort of takes the entire agricultural history of Iowa, and blames it for present conditions, without any regard for how recent practices might be producing different (and worse) environmental results than previous ones.

              1. “Absaroka, you are almost begging the question. The question is, ‘Which risks should we run?’
                Your answer seems to be, ‘Run them all, because we can’t get everyone to agree.'”

                You’re assuming your premise, again. Why is it that there should be only one answer to the question you propose? Ideally, every person would live in an environment that provided zero risks to their operative biology. But in reality, everybody lives in an environment that provides risks, some of them known and some unknown, some of them subject to mitigation and some not.

        2. “I contend GMO crops are environmentally harmful, in a general way. In many cases—all the cases involving glyphosate—it is trivial to prove harm, because agricultural processes which rely on glyphosate are intended to be harmful to the environment.”

          One problem with this. While it is technically true, it ignores the fact that glyphosate is LESS harmful to people and the environment than every method of protecting food crops from weeds that came before it.

          1. Slyfield, glyphosate is a comprehensive killer. Previous methods were haphazard, and far from comprehensive. That is why farmers choose glyphosate—it kills better, and it kills cheaper. The cheaper the killing, the more killing you can do. Experience shows glyphosate tends toward species extinctions in ways that previous methods did not. Glyphosate attacks the base of the natural food chain. It kills plants, which kills insects which depend on the plants, which kills other species which feed on the insects—reptiles, birds, and mammals alike. You did not need anything more than ordinary personal observation to notice that after the introduction of glyphosate farm environs became notably deader as wild habitats.

            Inefficiency and higher cost of previous weed killing methods put limits on which lands could be profitably farmed, leaving less-productive lands fallow as natural refuges. More cost-efficient farming opens up those natural refuges to profitable exploitation, causing loss of natural populations.

            As recently as the 1950s, farm country was a teaming menagerie of species, with some of the species present in what today would seem startling abundance. I know that because I saw it during my childhood and youth.

            In the same locations now, farm country is nearly sterile, except for the crops. Snakes and turtles of every description—formerly seen multiple times during any drive, or on any walk—are now reduced to seasonal sightings, worthy of comment. Grouse and quail are just about gone. Whip-poor-wills are never heard. Other insect-eating birds, which used to nest, now continue northward on their migrations, looking for better pickings. Bats, which had swarmed the evening sky, are now barely in evidence, and wild honey bees are far less common. Insects of other types, previously so abundant that driving on a country road required a comprehensive windshield cleanup about every half-hour, are now down to maybe a few bug splats on a multi-hour trip.

            Those missing insects should terrify everyone, but most folks today never saw natural abundance. They don’t know what an impoverished natural environment they are looking at. In a way, that is as scary as the missing insects themselves.

            1. What twaddle.

              Pesticides kill pests! Who knew! It’s a feature, not a bug. Here’s the deal – we have 300+ million people to feed. We surely know less impactful ways to farm, like weeding with hoes and fertilizing with the plow horse’s manure, but reverting to that era will mean 1)90% of us reverting to a lifestyle of subsidence farming and 2)to make a wild guess, 100 million of us starving. So if you want to ban glyphosphate, but not revert to the 1800’s, you need to tell us which pesticides you would like to replace it with. Or alternatively, sketch out your plans for food rationing.

              “Inefficiency and higher cost of previous weed killing methods put limits on which lands could be profitably farmed …”

              I don’t t think you’ve thought this through. You are objecting that current pesticides and practices result in what you call ‘sterile’ fields, i.e. ones that have fewer weeds. So we have an old school field that’s 90% crop and 10% weeds. You maintain that removing the 10% that’s weeds is bad, but you want to minimize the total planted acres. These are mutually contradictory goals.

              If you want to minimize the number of acres farmed (without talking about overpopulation), then maybe you should propose a food tax. After all, obesity is a problem! Such a tax, coupled with using state of the art farming, might reduce the number of planted acres. I’m not sure it will be politically popular, though.

              1. Absaroka, in the early 1950s, in summer, in Maryland and Virginia, every street light had a swarm of insects around it, far too many to count. The next light down the street was always just the same, and so were all of the street lights. Go back to those same places today, and you can see in 5 minutes that nearly all of those insects are gone.

                Do you acknowledge those missing insects? Can you explain why that doesn’t matter?

                1. I dunno. I’d want to see data. I haven’t seen what you have seen; there are still lots of insects when I visit Maryland and Virginia. And here in Washington, and Wyoming, and …

                  A few other thoughts:
                  1)Roundup is primarily a herbicide. If you want to go on a GMO/insecticide rant, I think you want to be talking about ‘BT’ engineered crops. I know, I know, so many pesky details.
                  2)I think that missing insects by east coast streetlights probably have more to do with insecticides east coast suburbanites are buying at Home Depot than roundup ready corn in Iowa.
                  3)To repeat: if you don’t like farming method X, you need to explain what you want to replace it with. Another pesticide? Famine? All those alternatives have downsides as well. You’re saying ‘I’m not going to take the blood pressure medicine my Doc recommended because it has side effects’. That’s fine as a personal choice, but hypertension has side effects as well. And before you make that decision for all of us, you ought to explain what your alternative is, and why it’s better. You haven’t done so.

                2. “Go back to those same places today, and you can see in 5 minutes that nearly all of those insects are gone.
                  Do you acknowledge those missing insects?”

                  Natural selection provided that the bugs that ignored artificial lighting at night had more offspring than the ones who were easily dazzled. Over 50 generations later, this means that today’s bugs aren’t all clustered around the streetlight.

                  1. Not bad, Pollock. Maybe worth investigating.

                    But it won’t explain why so many bats seem to be starving to death during the winter. Or why insect eating birds are in widespread decline.

                    1. “so many bats seem to be starving to death during the winter. ”

                      I wondered what bat biologists might think about causes of bat declines. Here is a typical answer: “Since 2000, collisions with wind turbines and white-nose syndrome (in North America) have been the leading causes of mass mortality in bats. Storms, flooding, drought, and other abiotic factors also cause mortality, and are likely to increase with climate change.”

                      White-nose syndrome is the leading cause listed in the first couple of pages from a google search for “reasons for bat decline”. Oddly, none of the sources mention GMO crops.

                      Bats aside, pollinators are important. You might want to read section 2.3.2, starting on page 112 of ” Thematic assessment of pollinators, pollination and food production” from ipbes dot net (That’s the “Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services”). Because their assessment is different from yours – for example, they point out that GMO crops can enhance pollinator populations because of the reduced need for conventional insecticides.

                      At the very least, a little research might cure you of your overly simplistic approach to a complex problem. Not growing food is unlikely to be a politically viable solution, so the question is how to grow food with the least impact. If your solution to pollinator decline is to repeal section 230 or ban GMO crops, you need to actually make a valid case that your solution is better, and your simplistic nostrums don’t begin to do that.

                    2. “But it won’t explain why so many bats seem to be starving to death during the winter. Or why insect eating birds are in widespread decline.”

                      What a surprise. My perfectly clear and obvious answer to one question is not also an answer to two unrelated, completely different questions, which it does not even claim to address, what with them not even showing up until after the original question was answered.

                      Presumably, this is the part where you complain that I have no argument, are arguing in bad faith, and totally “have nothing”. At least, unless your M.O. has recently changed?

                    3. Absaroka, white nose syndrome is said to kill bats by making them use increased energy during the winter, when they have no food sources available, and thus making them starve. Based on a conversation I had with a bat expert, who I found setting up bat tracking equipment in a national wildlife refuge, I don’t think it is yet clear whether the starvation is induced by the disease, or whether starvation is among the causes of the disease, or some combination.

                      I suggest it is a useful generalization that many organisms which starve become too weak to fend off disease, and thus die with a disease as a proximate cause of death. Studies of winter fat reserves in bats may help sort that out. I read an article which reported that insect shortages may be a cause of declining winter fat reserves. That is why I mentioned the bats.

                      I don’t think there is any disagreement that bats are in decline. Just as there is no disagreement that as a class, insect-dependent birds in North America are in decline.

                      If you want an interesting data comparison, which of course does not amount to a study, take a look at ebird.com. Navigate to the “hotspots” menu, and enter “Bombay Hook.” Bombay Hook, in Delaware, is a national wildlife refuge. What you will see is color coded map points, indicating species counts at various locations, including locations inside and outside the refuge.

                      The background that makes the picture interesting is that in the summer, Bombay Hook is one of the most insect-infested places you will find, and features also a spectacle of bird profusion and diversity. By contrast, the large area of Delaware which surrounds the refuge features, for many miles in all directions, a sea of corn and soybean farms—the kind which apply their chemicals with aircraft.

                      Get out of your car in summer at the refuge, and you had better have bug repellent on—and even then it takes fortitude to withstand the swarms. The refuge manager told me that even dedicated birders tend to avoid the place in the summer. By contrast, go just a few miles from the refuge, and get out of your car amidst the corn fields, and bugs will not trouble you. Nor will you see many birds, except maybe a soaring turkey vulture, or some starlings on a telephone wire.

                      The data part comes when you compare the species counts from data points in and around the refuge, with the other counts from the surrounding farm country. The comparison is basically between multi-hundreds of species among the bugs at the refuge, and typically < 100 species among the bug-free corn. At many sites in the agricultural area the species counts are in the lower 2-figure range.

                      It is worth noting that you don't have to go to a wildlife refuge to still find imposing insect concentrations. Just head for places where agriculture is not much practiced, such as the Adirondacks, and you can have the same buggy experience on a larger geographic scale. The whole country used to be that way. Here and there, it still is.

                      I can't alleviate the world's food and over-population dangers. I do suggest food scientists who can't solve their environmental impact problems—and don't even seem to be trying not to add to them—present even greater dangers. The respective catastrophes would be self-limiting for the former, but not for the latter.

                      Just as a concluding note, I do not suggest that all agricultural science is as heedless as the worst of it. Some of it may make critical contributions to alleviating both food problems and environmental problems. But of course that won't happen if unchecked ecological damage precludes it first.

                    4. “white nose syndrome is said to kill bats…”

                      What the National Park Service says about white nose syndrome: “Research indicates the fungus that causes WNS, Pseudogymnoascus destructans, is likely exotic, introduced from Europe. What started in New York in 2006…”

                      What’s there – the fungus is an invasive species.
                      What’s not there – any link to GMO crops.

                      What Bat Conservation International says: “The fungus grows on the skin tissues of hibernating bats, repeatedly rousing them from hibernation and causing them to consume their winter fat stores and starve to death before spring.”

                      And, again, no link to GMO foods.

                    5. Absaroka, just curious. Did you look at the bird species data for points in and around Bombay Hook? The counts at those points weren’t made with any intent to prove anything, except which birds were seen or heard, with both experts and committed amateurs doing the counting. The species counts are cumulative over years, and especially on the refuge the counts represent the collated evidence of literally thousands of reports from different observers.

                      I thought a data-oriented person such as yourself might find that information interesting, but you didn’t comment on it.

                    6. “I thought a data-oriented person such as yourself might find that information interesting, but you didn’t comment on it.”

                      Yeah, why didn’t you comment on this thing that Stephen just now brought up, before he brought it up?

            2. The cheaper the killing, the more killing you can do.

              The cheaper the killing, the less you need to do. Instead of having to engage in (literal) overkill with a broad spectrum of herbicides, you can just use some glysophate.

              And pardon me if I don’t accept “I don’t see as many bugs on my windshield as what I think I remember from my childhood 70 years ago would suggest” as actual scientific evidence.

              1. Last month, I drove across the country over a period of six days. There are still plenty of insects out there, ready to impact the windshield (and other parts of the vehicle).

                1. I don’t know but I wonder if increased laminar windflow designs in modern cars decrease insect impacts by helping swoop them over the car as part of wind resistance efficiencies.

                  1. Krayt, I wondered about that too, starting years ago. The idea seems so plausible that I have never been comfortable dismissing it. But however large that effect may be, it doesn’t do anything to account for extreme insect disparities among locations, with remnant natural environments swarmed with insects, and agricultural areas astonishingly insect-free (and bird-free, and reptile free, and otherwise sterile-looking) by comparison.

                    When I discuss this topic with right-wing ideologues, I have learned to expect denial or evasions as a first response. The changes I am talking about have been glaringly obvious, not subtle variations requiring careful measurement to establish; because it is midnight in in the mid-Atlantic, I say it is dark. “I dunno,” says Absaroka, “let me see the data.” Nieporent just intones, “Everything I say is true.”

                    Maybe that could be just ignorance of the natural world, instead of denial. There are plenty of people who have lived lives during the last 6 decades with very little natural experience. I don’t know what to make of it, but the responses I am getting back seem anything but forthright. “Absaroka,” is a peculiar internet name for someone without outdoor experience. I find the incivility and intolerance for the subject baffling.

                  2. The number of insect carcasses on the front of my vehicle indicates that no, the insects are NOT swooped anywhere.

        3. There is no such thing as “harmful to the environment.” The environment simply is; no state of the environment is inherently better or worse. Any activity changes the environment, but does not harm it. Of course, there are certainly changes that are better or worse for specific organisms in the environment. So, yes, using a particular pesticide may be worse for certain agricultural pests. But being people, one would normally think that people should worry about whether the changes are better or worse for people.

          And of course the relevant question would normally be better or worse than what alternative?

          1. No such thing as “harmful to the environment? Hold on. There’s a few events which would completely destroy the environment. Being consumed by a passing black hole should do it. Stellar supernova. Collision with a few thousand pounds of antimatter. Let your imagination run free, man!

            1. Those things would alter the environment in a way that is bad for life in general, however, the “environment” would still be there after.

              1. “the “environment” would still be there after.”

                In the sense that the “environment” would be completely gone, sure.

                1. All the mater and energy is still there, it’s just been drastically re-arranged.

                  1. “All the mater and energy is still there”

                    In the sense that they’re completely gone, sure.

    3. Repeated reminders are also less than forthright when they insist that opponents of labeling vegetable products with the word “meat,” are interested parties from the meat industry. Sure the meat industry has an interest. And the vegetable substitute industry has an opposing interest.

      Except that’s just meat industry propaganda. The vegetable substitute industry has no interest in confusing consumers into thinking their products are meat. The primary market for vegetable substitutes are people who don’t want to eat meat. So making consumers think that their products are really meat would be self-defeating.

      1. If what you say were true, the word “meat” would appear nowhere on any packaging for vegetable substitutes, lest your hypothetical self-defeating harm ensue. Your assertions are just vegetable substitute industry propaganda.

        1. That’s idiotic.

          As a rampant carnivore, I want to know when something is a new protein exchange, and for that I have to know what I’m exchanging it with. Does this replace black beans? Chorizo? Gyros? Ribeye? A non-meat product that’s just labeled “spicy black beans” isn’t helpful, but when it’s labelled “black bean based chorizo alternative” I get exactly what I want. And there are indeed some good chorizo alternatives.

          And when vegetarian friends from India come, that’s even more critical.

        2. What I say is always true, and you should stick to arguing against analogies because you’re bad at logic instead of just proving you’re bad at logic.

          When a veggie burger manufacturer writes “Veggie burger” on his product, he’s not trying to fool consumers into thinking that his product has meat in it, because his target market is people who don’t want to eat meat. He’s just letting consumers know what the products are – a substitute for meat burgers.

          The meat manufacturer, on the other hand, is trying to prevent consumers from learning that there is an alternative to his beef burgers, by forcing his competitor to use some sort of confusing or unappealing circumlocution.

          In any case, they’re not similarly situated, since the latter is trying to censor his competitor and the former is not.

          1. “What I say is always true”

            This is false, and therefore false.

          2. When a veggie burger manufacturer writes “Veggie burger” on his product, he’s not trying to fool consumers into thinking that his product has meat in it, because his target market is people who don’t want to eat meat.

            Sorry, no. You are mistaken about the market, and the marketing. Marketers know that however vegetarian their market may be, the market for this product is among vegetarians who long to eat meat. That is the market the product is designed to address. So the sales emphasis is in satisfying that longing.

            To do that, they give the product some appetizing name that steers clear of “veggie” anything. And they decorate the package with photography that looks just like meat burgers cooking—and which may in fact be meat burgers cooking, if the art director isn’t satisfied with the way the veggie product looks after the food stylists and Photoshoppers have done their best to paint it up to look like meat.

            The marketers don’t expect the vegetarians to be fooled, of course. But they will be delighted if some non-vegetarians are fooled. And of course they are also after conversions—people who do eat meat, and long to eat meat, and who won’t try the veggie product until they get a really convincing alternative experience of consumption from the marketing. The most convincing marketing will turn out to be a graphical presentation which a casual shopper will not discern to be a veggie product at all.

            1. “Sorry, no. You are mistaken about the market, and the marketing. Marketers know that however vegetarian their market may be, the market for this product is among vegetarians who long to eat meat. That is the market the product is designed to address. So the sales emphasis is in satisfying that longing.”

              This is just stupid.

              People who want to eat meat aren’t buying “veggie burger” products. They’re not even in that aisle of the grocery store. They’re over at the meat counter, buying ground beef.

              Based on personal recollection, the people who buy “veggie burger” products are buying them because they’re planning on serving hamburgers, and are either expecting vegetarians or considering the possibility of vegetarians showing up, and they want to have something to serve to them. Meanwhile, the actual vegetarians know that hamburgers are being served, don’t want to eat meat, and therefore eat something else right before they come to the cookout.

            2. I haven’t heard an argument this facetious since Coke stood in court and claimed no consumer in their right mind would “think [their product] Vitamin Water” was healthy for you.”

              1. Krayt, I might be able to address that comment constructively if you would say more, so I could understand what you think is facetious about it. My remarks came from experience with logo design, and package design for national brands during the 90s. I learned a bit about how the marketing industry works; unless you were too young at the time, you have almost certainly seen my work.

                Just remember that the ice cream pictured on the package is dyed Crisco, and the soup bowl has marbles on the bottom—to keep the soup solids up where the camera can see them. The big takeaway is that if you actually understand the marketing, like Nieporent thinks he does, then you weren’t the target demographic in the first place. If you are in their target demographic, the marketers know how to make you think what they want you to think. And what they want you to think is whatever maximizes sales, every time—which is why Pollock’s notion of a product designed to occasionally convenience vegetarian guests is pretty naive.

                1. “Pollock’s notion of a product designed to occasionally convenience vegetarian guests is pretty naive.”

                  Whereas your notion of marketing meatless products to people who want to eat meat is still colossally stupid. As pointed out, people who want to eat meat are not even in the part of the store where vegetarian products are displayed for sale.

                  (BTW, I also did packaging design back in the early 90’s.)

        3. “If what you say were true, the word “meat” would appear nowhere on any packaging for vegetable substitutes, lest your hypothetical self-defeating harm ensue”

          What a person buying a food-substitute product wants is something that is similar to the food being substituted, but which is not the food being substituted. So, to choose a different product of the kind, consider that some people like to put something in their coffee which is like, milk or cream, but which does not contain milk or cream. Applying the logic of your statement quoted above, the makers of such products would want to avoid putting the word “cream” on their packaging or referring to “cream” in their marketing efforts. So, we can test this theory by examing whether the word “cream” occurson the packaging of any non-dairy creamers, and… well, the entire category of products includes the term.

          Food substitutes describe the type of food they’re meant to substitute for, so that people who are looking for a substitute can find the product. So products that are intended to be substituted for eggs are called “egg substitutes”, not “gooey yellow substance that can be scrambled or put into omelettes”.

  3. One could hope these qualified immunity results would continue until qualified immunity itself is discarded.

  4. But we “urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment.”

    Don’t worry. As a responsible member of the public, I plan to use avid discernment.

    1. I was going to type that paragraph followed by “LOL’. Because, yeah, in a case that involves powerful guys, money, minors, and sex the media will almost certainly exercise restraint, and the public will be totally discerning when they read the stories.

  5. Can’t say I’m too upset about doctors not being able to dispense medications directly (unless in the case of an exigent need). Having worked at a pharmacy, I can tell you that you’d be shocked at the number of times a pharmacist has to step in because a doctor has prescribed a medication that a patient really should not be taking due to a contraindication with another drug or condition.

    1. Supposing common pharmacy industry practices do provide a beneficial back-stop to physicians, how do we know that common physician practices do not likewise correct shortcomings common at the pharmacy?

      For instance, when a physician is trying by experiment to find the optimal dosage for a particular patient’s symptoms, why should the physician not be free to rely on a familiar drug supplier, to take factors such as generic supplier variability out of the evaluation?

    2. ” I can tell you that you’d be shocked at the number of times a pharmacist has to step in because a doctor has prescribed a medication that a patient really should not be taking due to a contraindication with another drug or condition.”

      Another drug that they got where? At your pharmacy?

      My doctor prescribed two drugs that have a known possible interaction, and discussed with me the possibility of the drugs interacting, and what symptoms would suggest a problem that would require further consultation.
      The pharmacy won’t fill the the prescriptions without delaying the dispensing, every time, so that the pharmacist can warn me that there are possible interactions between the drugs. Since the insurance company won’t let me have more than 30 days’ worth of either drug at a time, this means half-an-hour (minimum) every month is spent waiting for the the pharmacy tech to bring the one licensed pharmacist over to the consultation window to warn me that their computer system has flagged the possibility of a drug interaction.

      There’s no reason the same software couldn’t be operated by a medical doctor in their office. In fact, it’s highly likely that that same software is already there, since another one of its functions is to limit opioid prescription abuse, which is increasingly mandatory.

  6. Gotta love the Republican hypocrisy about being pro-market and less govt regulation:

    Mississippi can now impose fines. . . .

    In Texas, only eight physicians can dispense medication.

    1. I think this has less to do with conservative ideology and more with Mississippi wanting to flog its meat, uh, I mean, promote its meat products and suppress competition.

      1. Sure, Eddy.

        But it does show a willingness to drop free market ideology at the drop of a campaign contribution.

        No Democrat would ever be that inconsistent.

        1. b11 – I’m sure you’re being sarcastic about the No Democrat comment but there’s a difference.

          You’re talking a single politician where I’m talking about the entire Republican establishments of Mississippi and Texas.

          These anti-market/big government laws were passed by Republican state legislatures and Republican governors in highly entrenched Republican states – all who profess strong-market and small government policies.

        2. “No Democrat would ever be that inconsistent.”

          Presumably this was meant as humor.

          As for Republicans, there’s very little good to be said about them…except that they’re not Democrats.

  7. Note to self. Never buy coffee in Everett, Wa.

    1. This one left me curious. Isn’t there a precedent that nude dancing is Constitutionally protected? If so, what’s the difference between that and serving coffee in a bikini? Is there an argument that dancing is expressive and communicative, and coffee sales are not?
      Oh no. I’ve just published the seed for someone to use to start with nude dancing baristas.

      1. The trick is to put in stronger protection for free speech in your state constitution, like Oregon has. The state supreme court found that the state constitution protected dancing in the nude, even for commercial purposes. The prudes tried a couple of times to amend the constitution to say otherwise, and failed… voters liked it the way it was, even if it meant that nude dance venues could open (gasp!) in their own neighborhoods.

        Today, a thoroughly non-scientific subjective study suggests that nude dancing venues are in decline, but legal marijuana stores are popping up damn near everywhere.

  8. “Fairview Township, Penn. police officer steals drug proceeds from arrestees, is himself arrested.”

    But I thought civil forfeiture was legal?

    Oh, wait, it seems the cop didn’t hand over the loot to the appropriate government agency. That sort of thing isn’t legal yet.

  9. I am dismayed at the police officer being given 42 months in prison for entering a man’s home under false pretenses, repeatedly attacking him with multiple weapons, and then falsely charging him with crimes.

    No. The “officer” in question betrayed his oath of office to participate in ludicrously corrupt practices. This level of betrayal of the public trust deserves the death penalty.

  10. First Circuit: And that’s ok. This is government speech, and the government is free to steer clear of religion.

    What.
    Why is this not the exact definition of the government performing content-based discrimination in violation of the First Amendment, which ONLY binds the government? Discrimination against religion is banned no less than discrimination against the non-religious.

    1. Why is this not the exact definition of the government performing content-based discrimination in violation of the First Amendment, . . .?

      Maybe because there is a notion that government best empowers religious freedom by staying clear? Maybe because adopting the 1A free speech interpretation would conflict with the 1A religious freedom interpretation? Why should government speech display a Christian symbol, but not an Islamic one? What advantage is there to religion (or comity) if government, in all impartiality, does display the Islamic symbol? When Christians accede for their own present advantage—to get their Christian symbol displayed by government—to the notion of hypothetically letting government display an Islamic symbol at some future time, is it reasonable to suppose that government support for Islam to continue while Christians control government? If the content of religion matters at all, in any context, including adjudicating the 1A context, why does it not matter at all when courts are determining who is and who is not a sincere adherent of a particular religion?

      There is one consistent way to provide answers to all such questions. Separate government from religion entirely. Ours should be an explicitly secular government which tolerates all religions alike, and which practices the same comprehensive non-recognition of each of them.

      1. “…and which practices the same comprehensive non-recognition of each of them.”

        That certainly simplifies things. No more worries about kosher/halal diets for prisoners, for example.

      2. “Ours should be an explicitly secular government which tolerates all religions alike, and which practices the same comprehensive non-recognition of each of them.”

        While I don’t fully agree with modern establishment jurisprudence, I am mostly in agreement with you on this point with one caveat. The “which tolerates all religions alike” needs to be real tolerance. Meaning the “explicitly secular” government shouldn’t be allowed to promote agnosticism or atheism over religion or explicitly exclude religious organizations from participating in most programs.

        In this specific case, with the guest flags, if they do count as government speech rather than the private speech of the organizations offering the guest flags, then including religious flags becomes a threat to both free exercise and possibly an establishment of religion.

        1. I suggest the participation of religious organizations in government programs requires calibration. Surely religious people should not be excluded. Participation of a religious organization in mobilizing members to participate should be unobjectionable. The private practice of religion by organization members should be fine, so long as it makes no religiously-motivated demands on others, and so long as it does not otherwise attempt to modify for religious purposes the government program’s secular practices, purpose and goals.

          What is problematic is a normal expectation among the religious that they do get to modify government organizations’ practices, purpose and goals. Or, they insist, if they do not get to do that, then they have a claim of religious discrimination, or 1A speech infringement, or perhaps other objections, such as RFRA violations.

          I suggest that goes too far. If there is a religious prerogative to modify government programs for religious purposes, then the government’s secular prerogative is gone. Many federal government programs get administered locally, by bureaucrats who share local community characteristics. Where those are strongly religious characteristics, the inevitable result will be the trampling of the rights of the minority who are differently religious, or non-religious.

          1. “Surely religious people should not be excluded. ”

            Depends on which religion, and which practices are relevant. (and whether the “religious people” have other qualities other than being religious that are relevant… you might want to limit a serial arsonist’s service in the volunteer fire company, no matter how much religion they got.)

            I have very little argument with people getting together and deciding that since their religion doesn’t allow X, none of the members of that religion should have X. When they decide that since the religion is against X, and most of the members of the community are of the religion, X should be prohibited by secular power. You don’t wanna eat bacon cheeseburgers, fine. If a burger joint opens, offers bacon cheeseburgers, and fails as a business because most of the community doesn’t consume bacon cheeseburgers, fine. But when the five city councilors get together and decide that no business license will be issued to a place that offers bacon cheeseburgers, that’s the wrong side of the line.

          2. “What is problematic is a normal expectation among the religious that they do get to modify government organizations’ practices, purpose and goals. Or, they insist, if they do not get to do that, then they have a claim of religious discrimination”

            I would agree that such would be problematic. Can you actually cite any evidence of it happening?

            1. Open your eyes, and look around, and you’ll see plenty of evidence that this happens. Still can’t see it happening? Blue laws are a good example.

              Another thing that is also common is claiming that one’s personal bias is not a personal bias at all, but rather a religious practice. People who want to persecute gay people seem to like to claim that it’s required by their religion. Opposition to contraception is another topic. People who get all bent out of shape because other people have sex outside of marriage cite religion for why the sex lives of other people are any of their damn business.

              1. ” Blue laws are a good example.”

                Can you point to any new blue laws passed since WWII? Agree they are an issue, but I’m not sure they count as an example to your specific point here. In any case, most blue laws are OLD. Not an example of anything happening in the present.

                “People who want to persecute gay people seem to like to claim that it’s required by their religion.”

                1. Doesn’t affect the goals/operation of any government agency in any way.
                2. Not wanting to participate in any way in same sex marriage ceremonies is not “persecuting” gay people.

                1. ” most blue laws are OLD. Not an example of anything happening in the present.”

                  Except, of course, for the ones that were passed and are still in effect.

                  ““People who want to persecute gay people seem to like to claim that it’s required by their religion.”
                  1. Doesn’t affect the goals/operation of any government agency in any way.”

                  Mostly true… post Lawrence v. Texas.

                  “2. Not wanting to participate in any way in same sex marriage ceremonies is not ‘persecuting’ gay people.”

                  Don’t seem to recall saying anything about same-sex marriage. Is it on your mind for some reason?

            2. Matthew, I had Hobby Lobby in mind when I wrote it. Any reason why that isn’t a clear enough example?

        2. ” The ‘which tolerates all religions alike’ needs to be real tolerance.”

          So when the Aztecs next door start sacrificing neighbors at dawn by cutting out their hearts with obsidian knives… you want them put on the school board?

      3. Except that discriminating against someone BECAUSE they are religious is no less a violation of the First Amendment than discriminating against someone because of WHICH religion they follow. Christian or Islam, or any other.
        Any honest person would treat the religious group’s symbols the same as any other group’s… but that is not what they did here.

        The ‘government speech’ claim is fairly weak, too… it reminds me of the attempts to claim that Trademark and Copyright are government speech – a claim we’ve seen handled almost appropriately by the Supreme Court.

        1. The difficulty here is that here I think there’s a good argument the flag represents the government’s speech, not the religious group’s. It can limit its own speech to non-religious subjects if it wants.

          1. That’s the same argument rejected in the recent trademark and copyright cases – that the government can limit “it’s own speech” even when performed through the actions of other groups.

            Let me try more simply: Do you accept that the government, in general, cannot discriminate against a group for being religious, even if there is no targeting of a specific religion?

            1. “Do you accept that the government, in general, cannot discriminate against a group for being religious, even if there is no targeting of a specific religion?”

              No, at least not as stated.
              The problem is that “religious” is a term that is defined by the practitioner.
              Suppose I found a new religion that claims that the path to spiritual growth is through the rape of minor children… the more children a practitioner rapes, the higher their spiritual growth.
              If I make an announcement describing this new religion, can government still make laws regarding the rape of minor children? (Note that there’s no evidence that anyone… including, I feel I should add, myself… actually practices this religion.)
              As you ponder this, consider how many religions there are, with actual, devout followers, which suggest or even advocate the killing of non-believers. Is murder still a criminal act?

              So, in my opinion, you’re going to have to find a different delimiter than “religious” to exempt things from statutes of general applicability.

              1. Non sequitur. No right is absolute – this has been long established. Free speech doesn’t mean you can lie in court, because it is harmful to the right to a fair trial. Raping small children, like murder/human sacrifice, is a behavior that society has determined is significantly more harmful than banning it would be.
                You could PROMOTE such a religion… but if you practiced it, you would be in trouble.

                But you’ve lost the thread again – you are focusing on a SPECIFIC religion, rather than the question I asked – is it acceptable to discriminate against a group for being religious without regards to their religion?

                1. “Non sequitur. No right is absolute”

                  Speaking of non-sequiturs, who claimed any right is absolute?

                  “But you’ve lost the thread again – you are focusing on a SPECIFIC religion”

                  You missed the point entirely if THAT’S what you see. The problem with excepting “religious” people from laws of general application is that “religious” is a label people apply to themselves and their behavior, not one that is (or can be) objective. How you got from “every person decides for themselves what is ‘religious'” to “focused on ONE religion” suggests you didn’t actually read what I wrote.

                  ” is it acceptable to discriminate against a group for being religious without regards to their religion?”

                  The answer, as you conceded above, is still “yes”, for the reason I listed (twice now… maybe you’ll read one of them.)

                  1. You really don’t understand English, do you? You keep focusing on specific religions, like the child-rape religion you made up. And yet, that is explicitly NOT the question I’m asking.

                    I’m not, and never have, suggested that religious people are exempt from laws. That’s your strawman, and you are abusing it good and hard. Try addressing my posts, and not your fevered imagination.

                    The question is whether or not the government can discriminate against someone for the mere fact that they are religious. You keep focusing on what one person believes, or what they define to be religious.
                    What you’ve failed to respond to is what I’ve actually asked: if they say they are religious, with zero further details… can the government refuse to give them some privilege or benefit that people that say they are not religious are eligible to get?

                    1. “You really don’t understand English, do you? You keep focusing on specific religions”

                      If this is your analysis of what I keep focusing on, the problem with understanding English appears to be at your end.

                      “I’m not, and never have, suggested that religious people are exempt from laws.”

                      No, you’re not claiming that they are, you’re asking if they should be. You’re suggesting that the government not be allowed to make laws that apply to religious people. The problem with that is that any person can say that any action arises from their religious-ness, thus, if government is not allowed to make laws that apply to religious people, they cannot make laws. This is because what is “religious” is an individual, and wholly subjective, determination.

                      “You keep focusing on what one person believes, or what they define to be religious.”

                      I keep pointing out that “religious” is whatever anyone says it is. For one person, eating bacon is a religious experience. For another person, NOT eating bacon is a religious experience. There is no objective meaning for “religious”, only subjective.

                      “What you’ve failed to respond to is what I’ve actually asked: if they say they are religious, with zero further details… ”

                      What I’ve responded, several times now, is that the answer is “yes”. You don’t seem to like that the answer is “yes”, and the reason the answer is “yes” is because of the way the question is set up, but it is.

                    2. Damn, you really don’t have any reading comprehension.

                      At no point have I ever suggested, or asked, if religious people should be exempt from laws. I have never suggested that laws that apply to all people should not apply to religious people. You are explicitly attacking an argument I have never made!
                      You also fail in basic logic – if the government is prevented from discriminating against religious people, as it is prevented from discriminating against minorities, it does not mean those groups are immune to laws. It doesn’t even suggest such a conclusion. Discrimination requires separation of groups on grounds… any law that applies to all people by its very nature does not discriminate.
                      All of your “yes”es have been to some question I haven’t asked. You haven’t addressed my question yet. I don’t think you’ve even understood it.

                      Let me simplify again, and misquote the Supreme Court: Would you claim that it would be acceptable for a law to be passed preventing the police from protecting religious people?

        2. Except that discriminating against someone BECAUSE they are religious is no less a violation of the First Amendment than discriminating against someone because of WHICH religion they follow.

          Of course, if the private practice of religion is being singled out for discrimination. But to the contrary, if the question at issue is a government program’s practices, purpose, and goals. Those cannot come under religious influence.

          1. I don’t see a difference between this and Trinity Lutheran Church v. Comer. The government offers a public service to everyone… except those that are religious.

            As was said in that case, no one would accept that the government offer a service like police or fire protection to everyone except the religious.
            Similarly, no one accept if the government offered the airwaves to be leased by anyone… except the religious.
            So why is it acceptable for the government to offer to display any flag… except the religious?

            Remember, the government allowed the group to the use grounds, building, and signboards for their gathering, including displaying their religious symbols. Only the flag-flying was denied. How is that consistent?

            1. “Remember, the government allowed the group to the use grounds, building, and signboards for their gathering, including displaying their religious symbols. Only the flag-flying was denied. How is that consistent?”

              Giving people a place to pray isn’t the same thing as joining them in prayer. If you have 100 rooms, you can have 100 different people each praying the way they want to. But if there’s only one flagpost, then running up a single religion’s flag suggests excluding all the others.

              1. Only one group is allowed to use the grounds at a time – the same as with the flagpole. Usage on any resource automatically excludes others, because there aren’t unlimited of anything. If you had 100 rooms, you exclude the 101st or later groups.

                And I don’t see why allowing a religious group to display their symbols on posters displayed on government building walls is OK, but not to fly a flag. How are these things substantially different?

                1. “Usage on any resource automatically excludes others”

                  This isn’t true. Google “non-consumptive resources”. The fact that I’m connected to the Internet isn’t excluding you from it, as an obvious example.

                  ” I don’t see why allowing a religious group to display their symbols on posters displayed on government building walls is OK, but not to fly a flag. How are these things substantially different?”

                  Same answer as before, because it’s still true.

                  1. Considering I’m talking about the grounds of government site in question, this is a complete irrelevancy and of no value to the discussion.

                    You also failed to address why exclusive use of grounds and walls and floor space is acceptable but exclusive use of a flagpole is not. You instead claimed you had already answered that question (when you didn’t). You do this a lot… do you not actually know how to make an argument?

                    1. “Considering I’m talking about the grounds of government site in question, this is a complete irrelevancy and of no value to the discussion.”

                      What special properties does this “grounds of government” have that make it impossible to let two different groups use different parts of it?

                      “You also failed to address why exclusive use of grounds and walls and floor space is acceptable but exclusive use of a flagpole is not”

                      Do you need it a third time? OK, it’s still true. Giving people a place to pray isn’t the same thing as joining them in prayer.

                    2. The group was given exclusive use of the grounds, as is each and every group, during the time they use it. That means no other group is allowed to use it.

                      And, for the third time, you fail to answer a simple question but instead give a non-sequitur. In case you truly don’t understand why your non-answer fails, explain WHY in your example the exclusive use of a flagpole is “joining in prayer” but exclusive use of walls, floor space, or building grounds is not.
                      Just saying “It is so” is not an argument.

    2. As long as you don’t actually refer to your religious beliefs as such then the government will pretend your religious beliefs are not actually a religion.

    3. ” Discrimination against religion is banned no less than discrimination against the non-religious.”

      Incorrect. The government may not establish religion, (select one over others for positive treatment), and may not prevent followers from observing their choice of religions.

      So, they can’t make a law that prevents people from flying flags of a religious nature. That’s different from not flying a flag of a religious nature at city hall. Nobody has the right to fly a flag at city hall, so nobody has a right denied when they are not permitted to fly a flag at city hall.

      1. As I mentioned upthread, Trinity Lutheran is a Supreme Court ruling that says the statement is correct.

        The only justification the government even attempts is to claim that a third-party flying a flag on a government owned flagpole is ‘government speech’. They say this means the government wouldn’t be denying someone else the right to speech, because they’re actually denying themselves – which, obviously, they are allowed to do.

        1. “As I mentioned upthread, Trinity Lutheran is a Supreme Court ruling that says the statement is correct.”

          Alternatively, you misunderstand it.

          1. Then, please, explain how I misunderstand Trinity Lutheran.

  11. “Are immigration detainees entitled to the constitutional protections afforded by the Due Process Clause? The Third Circuit says yes and rejects qualified immunity for a Berks County, Penn. guard who repeatedly raped a detainee (of which he was later convicted) and officials who allegedly ignored it.”

    The Republican position is that the threat of rape would serve as a good deterrent among those considering a border crossing.

    (Which is why right-wingers are destined to continue to lose the culture war.)

  12. Ninth Circuit (2017, over a dissent): There’s nothing wrong with Berkeley forcing cell phone retailers to post a warning that suggests cell phones may expose users to unsafe levels of RF radiation. Supreme Court: Why don’t you double-check that. Ninth Circuit (2019, over the same dissent): There. Is. Nothing. Wrong. With. Berkeley . . .

    The party of science.

  13. I don’t think the constitutions any more gives prospective immigrants a right to any specific hearing or concepts of “fairness” applied in decisions whether or not to abort their stay in the United States than it gives fetuses a right to any specific process or consideration in the decision whether or not to have an abort a fetus’ stay in a woman’s womb.

    As the Supreme Court explained in Doe v. Bolton, the very notion of autonomy and sovereignty necessarily implies a right to make choices about one’s life including the right to abort and exclude for any reason or no reason, free of other people’s procedures. Thus, the concept that a prospective immigrant has a constitutional right to due process in immigration termination choices is fundamentally inconsistent with the idea that the United States is an autonomous, sovereign nation free to control its destiny. Trump v. Hawaii reiterated the idea that so far as the constitution is concerned, an alien can be excluded from the United States for any reason or no reason. Congress can, however, provide for procedures and grant rights if it wants.

    That said, I don’t think the fact that an alien can be excluded from the country arbitrarily means that a prison guard has a right to rape a detainee.

    I think the 3rd Circuit should have looked for statutory grounds for proceeding before it proceeded to address constitutional questions. I also think it should have limited the question at hand to whether there is a right for a detainee not to be raped, not whether immigrants have due process rights with respect to immigration procedures with complete generality.

    1. “I don’t think the constitutions any more gives prospective immigrants a right to any specific hearing or concepts of “fairness” applied in decisions whether or not to abort their stay in the United States than it gives fetuses a right to any specific process or consideration in the decision whether or not to have an abort a fetus’ stay in a woman’s womb.”

      Since 1973, whether or not a fetus (or third party purporting to be acting in the fetus’ behalf) has any process to avoid being removed has depended on exactly when such process is contemplated.

      “the concept that a prospective immigrant has a constitutional right to due process in immigration termination choices is fundamentally inconsistent with the idea that the United States is an autonomous, sovereign nation free to control its destiny”

      The United States, as sovereign, may choose to waive sovereignty, and has done so by extending rights (including due process) to “all persons” rather than to “all citizens”. So your argument is not a winner. If you want to change the rules to whom due process is due, you need a new amendment to alter the text of the fifth amendment.

  14. […] Short Circuit: A Roundup of Recent Federal Court Decisions Cell phone radiation, bikini baristas, and an onslaught of horribles. […]

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