The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy


Zip-Lining: Not an "Essential Service"


An interesting little decision on whether contractual waivers of negligence liability are enforceable in recreational contexts: Yes as to zip-lining, under Colorado law, says Judge William J. Martinez in today's Cowles v. Bonsai Design, LLC (D. Colo.):

Colorado law "distinguishe[s] businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public." Chadwick v. Colt Ross Outfitters, Inc. (Colo. 2004). Numerous prior cases have confirmed that exculpatory waivers may be enforced in the context of recreational services and activities because such activities do not involve a duty to the public of a kind that would make enforcement of such contractual waivers against public policy. Zip-lining, which involves no matter of great public importance, is clearly recreational in nature. Thus, there is no duty to the public preventing enforcement of the Waiver.

Note that such waivers may be unenforceable in some other states—and may be unenforceable even in Colorado to the extent the plaintiff can show gross negligence, as the court suggests in allowing plaintiff to amend the complaint to add a gross negligence claim.

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  1. It seems that as a policy matter, it should be just the opposite. Zip-lining businesses lure individuals to participate in an activity that is non-essential and which many would not otherwise engage in but for the marketing efforts and convenience of zip-lining businesses. So, a fortiori, we should not allow such businesses to waive their duty to provide the care that a decent and reasonable person would in operating such a business.

    If not allowing such a waiver causes prices to rise and fewer people to participate in zip-lining by businesses that refuse to abide by the duty to take the care that a decent and reasonable person would, that sounds like a feature, not a bug. Businesses that exercise more care and more efficiently would have fewer accidents, and this would tend to be reflected in lower prices relative to their more dangerous and reckless competitors. With limits on liability, in sharp contrast, the true cost of zip-lining is concealed from the unsuspecting customer. Market signals are muffled. Worse, the price of using responsible zip-lining businesses would tend to be higher, since taking precautions may involve the expenditure of money, but the benefits of such precautions cannot be captured by the business in the form of reduced liability.

    Also lost on the court. People tend not to read or think about the implications of waivers when they are just looking to engage in a simple transaction before a horrible accident and do something fun. As such, what is really happening here isn’t two parties seeking to order their affairs in a thoughtful manner that maximized their liberty so much as a business seeking to minimize personal responsibility as much as possible and distorting market signals in the process. All at the expense of the public and zip-lining businesses that would prefer to operate in a more decent and responsible manner.

  2. IANAL. With regard to my then minor children, over the past 20 years I have signed what must have been a hundred or more documents like this, with lots of all-caps language about waiving, indemnifying and the like. I did so with the thought that it seemed largely against public policy that a minor could have their individual rights extinguished by a third party (me, their parent), and that such a waiver would not have been any material barrier should a lawyer be required after some unfortunate event.

    What do the lawyers amongst the conspiracy opine as to whether such waivers would ever be applied with regards to minors? What is a parent to do when faced with such documents that purport to their minors.

Please to post comments

Pro-Riot & Pro-Police-Abuse

A common thread among two kinds of arguments.


Here's the structure:

Look, normal legal behavior sometimes just doesn't work to achieve Justice.

We've tried and it hasn't done the job.

[Pick your preference:]

  1. The public / government / power elites / etc. won't listen to us until we riot.
  2. The criminals won't be deterred unless they know they're facing some street justice from the police (a beating, an arrest even if it's not legally justified, etc.).

We're just doing what needs to be done.

If you're too squeamish, don't interfere with the people who have the guts to do it.

I'm not advocating either, of course; they are bad means that on balance generally lead to bad ends. And each understandably generates serious blowback: The rioters make lots of people appreciate more the need for police presence; the police abuse makes lots of people appreciate more the need for constraining the police. But I thought I'd note the structural similarity.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This argument assumes that police violence is directed towards justice, as opposed to consolidating power. This assumption is presented without evidence, and contrary to observation.

    1. Exactly this.

      Eugene, you must be tired. Your “logic” posts lately leave a lot to be desired.

  2. Why did the Federalist Society use military equipment, gas, and projectives to clear peaceful, anti-bigotry protesters from Lafayette Park?

    So its chicken could cross the road.

    “Often libertarian,” indeed.

    1. The US Secret Service wished to expand their defensive perimeter and I can’t say that I blame them.

      Remember that these are the same folks who were defending Obama and having enough problems with one nut at a time coming over the top of the fence. What are they going to do if 50 do?

      And even if they shoot them — which would be legitimate — at least half the fired rounds will miss, and those rounds will hit people downrange. But if the park is empty, they won’t.

      1. Indeed. I can’t believe that the Secret Service hasn’t expanded their perimeter all the way to Dupont Circle yet, just to be on the safe side.

        1. If it is necessary, it is necessary.

          1. Necessary has a trend to drift into unnecessary fairly quickly when it comes to violence.

      2. These are the same lawless rioters that tried to rush into the secure White House grounds. Can’t blame the Secret Service for wanting to be able to effectively do their jobs.

        1. Constitution be damned.

          1. Yes, this was entirely about routine White House security and the timing was entirely based on security concerns. Remember, they cleared the park prior to the curfew. If they had wanted to present even a modicum of justification, they would have waited. But they wanted the confrontation, Trump wanted to “look tough” (who other than a moron thinks such things make a person look tough rather than weak?), so they went into the park during a peaceful protest shooting pepper balls, violently shoving foreign journalists, and all the rest.

  3. I think it depends on if “street justice” means lawful self defense against those that threaten us. Then there is nothing wrong with the second one.

    I would also note that the first one isn’t necessarily wrong either if the formal legal system is corrupt, illegitimate, and/or harmful to the rights of the people. As the Declaration says “whenever any form of government becomes destructive to [the inalienable rights of life, liberty, and the pursuit of happiness] it is the right of the people to alter or abolish it.” Is not what these people are trying to do? Alter their form of government because government officers have become destructive of the young black men’s natural right to life?

    1. Devin Watkins: Lawful self-defense is definitely not what I had in mind (it’s certainly not “police abuse”); I’ve clarified the post slightly.

  4. My take on this is a bit different — there are a lot of WHITE men (and women) shot by the police, and what the current rioting is telling a lot of impressionable young people is that VIOLENCE WORKS.

    Don’t be surprised to see folks like the Klan start advocating for their victims of police violence. After all, VIOLENCE WORKS — and why not use what works, regardless of the means or methods?

    1. You and prof. Volokh are absolutely right! The KKK and BLM are all very fine people who have a reasonable point of view!

      1. The thug who took the rifles into Cornell wound up as the head of TIAA/CREF.

        Violence works — and it ought not to. Not in a civilized society.

        1. Are you familiar with American history? At all? America wouldn’t exist without rioting against an unjust government. Brutal police are the method of choice for autocrats, dictators, authoritarians.

          In other words, “structural similarities” aside, it is possible for rioting to be on the moral side. (I am certainly not saying the looting in this case or the rioting in this case was right. I don’t believe it is advancing the cause. It is a “bad means” that is obstructing us from achieving the just ends.) But in principle, rioting can be necessary and effective. (e.g., Boston Tea Party).

          Extrajudicial police punishment is always wrong if you care about a society based on the rule of law.

          Failure to comprehend this is a colossal moral and political failure. And inviting people to view this as moral equivalence is, frankly, monstrous.

          Eugene, you are smarter than this post. The “structural” similarities you are so impressed by could be equally applied to:

          Look, normal legal behavior sometimes just doesn’t work to achieve Justice.

          We’ve tried and it hasn’t done the job.

          [Pick your preference:]

          The public / government / power elites / etc. won’t listen to us until we ignore the rules on where we are supposed to sit on the bus.

          We can’t get the political power we need to do [good thing] without steering contracts to our political donors’ companies in violation of law.

          We’re just doing what needs to be done.

          If you’re too squeamish, don’t interfere with the people who have the guts to do it.

          Very impressive structural similarities. (/sarc).

          In other words, the structural similarities are banal and can be applied to virtually any arguments. Because the “structural similarities” are so common and are you so uncommonly intelligent, one then wonders why you make this observation unless you intend to make a moral equivalence.

  5. The structural similarity between two bad arguments? Not interesting.

    The demands are two-fold, not exclusive. On one hand, peaceable assembly, free speech, and the right of petition must be protected. On the other hand, rioting and looting must be stopped and prosecuted. Both objective must be accomplished according to law.

    The problem is leadership, in both cases. Means are available, at least for now, to keep protests orderly, to protect rights, and to guard property.

    If leaders, and particularly President Trump, continue to create gratuitous provocations, the protests might grow to overwhelm the means of control. It would be a great thing for the nation if other elected Republicans came to their senses, saw the peril, and reined Trump in.

    1. Yes, because appeasement works so well.
      Ever hear of a man named Neville Chamberlain?

      These are Obama’s Children, and we are going to have to start shooting them to put an end to this. It gives me no joy to say that, but they have been allowed to do anything for so long that it’s kill them or surrender and that’s not acceptable.

      TRUMP 2020, Pence 2024!

      1. It gives you great joy.

        You would love to see some protestors shot.

      2. Remember a guy named Hitler and all of Nazi Germany? They were people too. They could have easily not used violence at anytime. And if I recall correctly, they weren’t using it for a justifiable reason at all.

  6. … And the winning streak continues! I’ll take bothsideism for $400, Alex!

  7. Wow, what a chicken and egg problem.

      1. Genesis 1:20 And God said, “Let the water teem with living creatures, and let birds fly above the earth across the vault of the sky.
        (He did not say let there be eggs to produce birds – – – – – – – )
        Ergo, ipso facto, henceforth thereunto – Chicken first.

        1. But do *chickens* fly? Did chickens fly? (Hell, it’s the Bible. I am sure Biblical chickens could fly, if such were God’s will.)

        2. I think you’re right.

      2. Good point. I wonder if there’s an equivalent metaphor that is less susceptible to biological/physical explanation (or theological/philosophical for a young-earth creationist)?

  8. Ah. Equivalence. any thing but criticize Trump.


    The police have the means to control their bad actors. Too often they don’t.

    Peaceful protestors can’t control looters and rioters, especially when the protestors have gone home.

    1. As applied to current events, exactly this.

  9. Those arguments run the opposite way, too. That is, in states such as New York which have already adopted the “anti-cop agenda” to the extent that arrested rioters are being immediately set free on their own recognizance, a good case can be made that rioting won’t be deterred unless and until members of the public start going out and killing looters and arsonists themselves.

    Avoiding this necessity is why I urge President Trump to send the army to those states and do the job that their police won’t do.

    1. It’s incredible insights like these which makes one sure George Floyd is smiling down from Heaven.

    2. Lol. You like violence, you just want to be the one doing it/making sure it’s done for your benefit.

      1. Protecting life, property, and civilization is its only legitimate use.

        1. Those last categories are extremely broad you know and can justify pretty much anything. I’m not sure that there is a genocide in history that isn’t done for the purposes of defending civilizations.

  10. To summarize both sides – ‘might makes right’ (?)

  11. I’ll say this for Americans, we really like violence. And there are plenty of legal opportunities for violent people to do violence and get paid, even for it. Our second (or first?) most cherished right is the right to own tools that make violence both easy and more violent. And of course, our entire history has shown that we reward the violent people. So long as the violence is pointed in the right direction. We have legal immunity for extremely violent acts. Indeed we even try to demonize people who use no violence to stop great violence. See Hugh Thompson and William Calley.

    Of course, it doesn’t have to be this way. Maybe we can just try and be calm? And like don’t fantasize about ourselves in violent situations? There is always a choice to be better. If you claim to be against violence, don’t get caught in the trap of defending your violence just because you’re the one doing it or supporting it. If you feel a violent urge, maybe just eat a snack instead.

  12. The riots and violence are justified in the minds of the left because those are agents of social change. Remember the ends ALWAYS justify the means to the Left.

    There is no other absolute in our country other than power. That is it. Morals and ethics are gone. Non-existent. As long as the power and authority is on the side of the Left it will get cheered and applauded.

    If (or when) the Right figures this out and deposes of some the fascist governors you won’t hear the end of it. But until that happens riots get the thumbs up.

    So Lefties if it is a Revolution you want, it is going to be one you get. Just be careful what you wish for sometimes you might just get it all and some you don’t want.

    1. Dude. You are justifying your violent fantasies so hard right now.

      Also, you don’t know what fascism is, and don’t realize you’re the target for their appeals.

  13. I’m disappointed that, over the past several days, this entire issue has seemed to veer away from blaming George Soros for bad things that happened at the protests and riots. Can we please get back to anti-Semitic loony conspiracy theories?

  14. I’m think police violence is terribly corrupting people’s confidence in our public institutions, and I wonder why in a state like Minnesota that can elect public officials with real power like AG Keith Ellison, who is a black Muslim (but not a current member of the Nation of Islam) and Ilhan Omar can’t elect officials that can run a competent not overly violent police force.

    But I will point out riots and looting affect people’s lives much more negatively than police violence does. The impact of not having functioning supermarkets over square miles in Chicago and some other cities due to looting and burning takes a terrible toll that hits the elderly and poor single mothers harder than the mostly young that are causing the violence.

  15. Maybe I’m just not paying attention, but I’ve heard no one trying to justify rioting. On the other hand some police are trying to justify excessive force.

    1. People tend to see criticism of police violence as pro-rioting.

  16. Eugene Volokh is absolutely right about the similarity of the two kinds of reasoning.

    It should be further noted that both approaches are also contrary to the interests of their respective advocates, and not just because of blowback, but because the message is muffled.

    Massive peaceful protests are effective and cannot be easily ignored. But when you have looters and rioters, the message becomes muffled and the morality of the message confused. Likewise with the police, whose very profession is supposed to uphold the ideal of upholding and enforcing the law, and not breaking it. But excessive force is illegal, so rather than sending a message that the law must be upheld, instead the message is the law is only meant to be enforced upon an inferior class of beings, also known as the general public. The message sent then isn’t that the law must be upheld; instead the message sent is that might makes right and the only ones who follow the law are those two weak or two poorly positioned in society to have the privilege to ignore it.

Please to post comments

Free Speech

47 U.S.C. § 230 Preempts State Right of Publicity Claims

and other state (but not federal) intellectual property claims brought over platforms' hosting of third-party content.


From today's decision by Judge John M. Younge in Hepp v. Facebook, Inc. (E.D. Pa.), which I think is likely correct (and which follows Ninth Circuit law but rejects the contrary view from two federal district courts in New Hampshire and New York):

Plaintiff is a newscaster [and co-anchor] who has worked for the Philadelphia-based Fox 29 news team since November 2010…. Plaintiff alleges that "[a]pproximately two years ago, [she] discovered through her co- workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites." …:

  • "[Her] photo was featured in a Facebook advertisement soliciting users to 'meet and chat with single women.'"
  • "[Her] photo was featured on Imgur under the heading 'milf,' which is a derogatory and degrading slang acronym that refers to a sexually attractive woman with young children."
  • "[Her] photo was featured on Reddit titled 'Amazing' in the subgroup r/obsf ('older but still $#^@able') and posted by a user known as 'pepsi_next.' There is a hyperlink for the photograph which links to the Imgur site." …

[Title 47 U.S.C. § 230] states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and expressly preempts any state law to the contrary. In other words, internet service providers are not liable for third-party content. Section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir. 2003). Under the statute there are, however, certain causes of action that are specifically not barred by § 230(c), including "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2).

"Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum." Zeran, 129 F. 3d at 330. In fact, many courts have observed that § 230 immunity should be broadly construed so as to implement Congress's policy choice….

[1.] Plaintiff seeks to hold Defendants liable for information provided by another information content provider…. Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized Plaintiff's image). Rather, it is reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached thereto, that Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.

[2.] Plaintiff's claims seek to treat each Defendant as a "publisher or speaker" of the content posted by third parties. "The Third Circuit has held the CDA immunizes traditional publisher conduct, such as 'deciding whether to publish, withdraw, or alter content.'" For the Defendants here, such decisions "involve deciding whether to provide access to third-party content or whether to delete the content from [their] archiv[e] or cache."

[3.] With respect to the CDA's exclusion for "any law pertaining to intellectual property[,]" the Court recognizes there that there is a split of authority over the scope of this exclusion. Specifically, there is disagreement between the Ninth Circuit and some district courts over whether the CDA preempts state law intellectual property claims. Compare, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) ("We have observed before that because Congress did not define the term 'intellectual property law,' it should be construed narrowly to advance the CDA's express policy of providing broad immunity."); with Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did not preempt plaintiff's right of publicity claim); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) ("Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims."). {Moreover, the Court's research has yielded no case law from any other appellate courts that has clearly resolved whether the CDA preempts right of publicity claims.} …

Read More

Short Circuit: A Roundup of Recent Federal Court Decisions

Common sense, various poems, and rogue, mooning journalists.


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

Ever wondered what it's like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

  • After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent's hard-pass credentials (which allow ondemand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone's have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish "rogue, mooning journalists," but first it must give them some notion of the rules they must abide by, which it hasn't. So the correspondent's suspension likely violated due process.
  • Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he's not in need of assistance. Instead of leaving, they call in a dozen "tactical reinforcements," triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
  • To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don't want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won't do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
  • "Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems," last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: "The Virus's emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail." Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court's order is stayed.
  • In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
  • Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter's status as a gov't official.
  • Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
  • Kentucky outlaws "bodily dismemberment, crushing, or human vivisection of the unborn child" unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
  • Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
  • St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman's description of her robber, and he's convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman's phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should've heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
  • Georgia's ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party's First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for. UPDATE: They done fixed it.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county's extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is "coming soon" and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t.”

    It’s logically impossible to issue a complete set of rules, but I should think it isn’t actually required to enumerate every offense that can lose you a press pass.

    1. “rogue, mooning journalists,”

      I did not get the court’s reference to this. When I think of “mooning,” I think of either (a) pulling down one’s pants and bending over, or (b) moving about in a listless manner.
      Neither seems to apply to the journalist’s behavior on that day. And, in regards to Definition B, mooning behavior seems absolutely innocuous…it’s a person’s purposeful and deliberate actions that might be potentially dangerous or unprofessional.

      Is there a 3rd “mooning” meaning that I’m unaware of and applies to the behavior in question here?

      1. Could it perhaps be “rogue, moonlighting journalists”?

        Back when I was 16 years old, Playboy magazine wasn’t my go-to source for White House news…..

      2. It’s definition A.

        “Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President…”

        Sounds like protected speech to me.

        1. Nice catch. I used Search to hunt for “mooning” and therefore missed the line you saw. Thanks.

    2. What does the DC criminal code say about criminal threatening?

      Assuming this met that standard, wouldn’t that alone constitute grounds?

      1. This is ridiculous.

        Karem threatened no one. That asshole Gorka blew nothing up into something and then went and got the press pass revoked.

        The fierce 1A defenders are of course making excuses for WH behavior.

  2. “Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis.”

    OK, I glanced at the rationale for why this was compatible with the twenty-sixth amendment. Not persuaded – it seems like clear-cut age discrimination to me.

    Texas could simply allow absentee balloting for someone with a medical excuse. This might have a “disparate impact” but would avoid explicit age discrimination.

    1. It is age discrimination, as the opinion recognizes. It’s just not unconstitutional age discrimination.

      1. Amendment XXVI
        Section 1.
        The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

        Section 2.
        The Congress shall have the power to enforce this article by appropriate legislation.

        1. Imagine a law giving special assistance to one race of voters but not to another. How can that be distinguished from giving aid to one age of voters but not another?

  3. Glad to see the 1972 Libertarian plank is still protecting women’s individual rights from mystical bigots, race suicide eugenicists and Dixiecrats after all these years. Irish voters’ repeal of Amendment 8 had made it clear that even the brainwashees of Romish or Ceausescu’s Romanian doctrine no longer can be depended on to frivolously point service pistols at American physicians and frightened women. –libertariantranslator

  4. Third Circuit definitely got that one right, although I am curious as to how the equal protection challenge would shake out. I assume that would have used strict scrutiny because it was a classification regarding a fundamental right. Or would it still be intermediate scrutiny? I’m not even sure how this law would pass rational basis review. Surely there are other industries with a history of political corruption that don’t have their contributions restricted. If so those means aren’t rationally related to stopping political corruption. Unless they could have shown it is uniquely corrupt somehow?

  5. Let me see if I get this straight.

    Cops shoot a man in his home for the offense of accidentally triggering his med alert and that’s OK.

    Cop accidentally kills a man who is resisting a legitimate arrest and even though every officer at the scene is immediately fired and has now been arrested, we have worldwide protests.

    Am I missing something here?

    1. Mostly, you’re missing the “caught on videotape” though there are also strong components of “it lasted nine minutes” and “lots of bystanders tried to inject some sanity into the situation and were rebuffed”. The med alert killing is still wrong but, based on what we know, not as egregious.

      You’re also doing a lot of work with “accidentally kills a man” – deference that the cops would certainly not show you if you held someone down for 9 minutes and interfered with first responders.

      1. Accident implies negligence of some sort. When at best the officer was reckless, which definitely isn’t the same as an accident. And based on the cries from Floyd and the witnesses about his state, there is a very strong case for the officer acting knowingly. Did he ever cross the line into a purposeful killing? It would be very hard to prove that, but nine minutes is certainly enough time to form that intent.

        1. Don’t trouble Dr. Ed with facts. He doesn’t believe in them.

      2. If you think “accidentally” is doing a lot of heavy lifting in Ed’s comment, you should instead focus on his tortured (pun intended) definition of “*resisting* a lawful arrest.” If you think that laying perfectly still on the ground, gasping and crying for help, with 4 cops on you, with no weapon on you or around you actually equals “resisting” . . . well, you have a view of ‘resisting’ that–thank God!–99.9% of humans don’t share with you. (But I do admit that other Russian trolls/bots would probably use the word in the same way you are doing.)

  6. My fellow Texas lawyers, especially those of us admitted to practice in the Western District of Texas, may wish to know which federal district judge there undertook, in the words of the Fifth Circuit panel in the mail-in voting case, took the Covid-19 crisis to be “a roving commission to rewrite state election codes.”

    PACER confirms that it was the Hon. Fred Biery, a Clinton appointee confirmed in 1994.

    1. Oh my gosh, they just ripped that dude. It was awesome! Fred Biery, hang your head in shame.

      My favorite: “There is not a single principle of rational-basis review that the district court got right.”

      Plenty of other gems

      “the court jerry-rigged some straw men and proceeded to burn them”

      “an order that will be remembered more for audacity than legal reasoning”

      “and various poems”

      “not whether they offend the policy preferences of a federal district judge”

      “hurling invectives at what it apparently saw”

      “No stranger to rank speculation, the judge then accused Texas…”

      “Shooting in the dark, the court guessed that Texas…”

Please to post comments

Why Trump Might Still Get Re-elected

A brief headline and photo essay.


Almost every day, Donald Trump shows that he lacks the temperament and judgment to be president. Why might swing voters vote for him? Because they think that putting his opponents in power might be even worse. Trump's re-election likely depends on whether Trump's actions or "the resistance's" are foremost in persuadable voters' minds.






Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A photo essay of three stories that were lies. Not mistakes, not misinterpretation. Lies .

    But you go right ahead and believe the dnc scribes at NYT “report” on what President Trump is doing.

    1. Americans need to stand united against the Christian fascism of the Trump presidency and the GOP. Together, by voting for Joe Biden this November, we can promote a more democratic and socially just American Dream!

      1. HA! I saw a Reddit entry that said the same people who thought Obama was a Muslim think that Trump is a Christian.

        1. Reddit is cancer but the fact that it is an echo chamber means that everyone is going to be super salty when Trump gets re-elected.

        2. I won’t pretend to look into his heart, but my opinion is that he’s a “cultural Christian” if you know what that mean.

          The realpolitik truth of the matter, is that, no matter what’s in his heart, he’s done more to defend religious liberty than any GOP president in recent memory, and Hillary, well, she wouldn’t have. That has earned him a lot of support from religious types, no matter his lack of adherence to doctrine.

          Biden, as a supposed Catholic, who counseled Obama against the birth control mandate, wouldn’t be so bad to religion on a personal level, but the rest of the party would be.

          1. If you’re a Christian, Republican, and oppose the welfare state, Democrats call you a hypocrite. If you’re a Christian, Democrat, and support “gay marriage”, abortion, and insurance covered contraception, Democrats call you a progressive who supports religious pluralism in America.

          2. Let me guess: a “cultural Christian” is someone who doesn’t go to church but who does vote to lower taxes?

            1. As a Reformed Jew, my values come from the New York Times.

            2. Cultural Christian (a paraphrase): Poorly catechized. Their beliefs about Jesus Christ are fuzzy and out of focus. They hold their beliefs in a sentimental haze in which they vaguely feel that what they believe is “Christian” but would not want to pin it down. They think we have matured and moved on from such nit picky sort of questions.

              1. Despite you telling us you won’t look into the President’s heart, you’ve determined that he has “fuzzy and out of focus” beliefs about Jesus Christ (based on what?), held “in a sentimental haze” and you know how he “vaguely feel[s]” as to what is “Christian but” that he doesn’t “want to pin it down”.

                It’s not nit picky in so far as you say on the one hand that you won’t assume to know what another person believes, while on the other saying you know exactly what he believes.

                1. There was a question upthread by Martined wonder what a “cultural Christian” was. I was trying to be helpful in providing a definition. As he is quite hostile towards religion, I presume he didn’t know.

                  So, it’s not nit picky to define what I think Trump is while also admitting that I don’t know for sure. It’s like saying I think your being pedantic, then defining pedantry when someone asks what a pedant was, but admitting that I don’t know for sure, meaning you could also be obtuse.

                  1. Well you don’t want to look into the guy’s heart, so there’s really no reason to speculate.

                    1. The biographers, historians, and writers of the world, who can’t even presume to know what goes on in a person’s mind, but still presume to explain anyway based on evidence, would like a word with you about why they are wasting their time.

                    2. NToJ owned, but wants to sputter like he wasn’t. It’s really less embarrassing for you if you admit mad_kalak more than adequately explained his two statements.

                      But never admit error!

          3. “I won’t pretend to look into his heart…”

            First, you don’t need to “look into” the President’s heart to know what he’s about. He is one of the most outspoken humans in history, due to the bully pulpit and twitter. Second, you look into people’s hearts all the time, ascribing motives to people you disagree with politically that are not apparent. Why are the President’s motives the only safe ones, to you?

            I don’t know what “cultural Christian” means if, in your opinion, the President is a cultural Christian. Does that mean you think he attends churches? Prays? Says “Merry Christmas”? All of the above? Something else?

            1. NToJ,

              I absolutely agree that there really is little reason to suspect Trump has a religious bone in his body. Everything he says, almost particularly when it comes to Christianity, screams amoral, irreligious. But cultural Christians are a thing and he probably fits in there. I think the whole point of “cultural” Christian is that they don’t really have any religious or metaphysical commitments consistent with Christianity, they just want to ingratiate themselves with people who do, in fact, hold those religious or metaphysical beliefs.

              I think saying Merry Christmas and eschewing Happy Holidays gets you in the door.

              1. President Trump is close to divinity, as compared to Pelosi.
                So defining Pelosi Religiosity, gives a value to measure against, to define President Trumps faith.

                1. Please. Pelosi has asked for forgiveness in her life. Trump brags he hasn’t. Pelosi has, to my knowledge, not violated her marriage vows to three different women. Pelosi has not been credibly accused of sexually assaulting over 10 people. Pelosi has not bragged about sexually assaulting women. Pelosi actually attends religious services, actually reads the bible, and can undoubtedly name, not just one favorite verse, but multiple verses. Yes, you can use Pelosi as a measuring stick for Trump’s religiosity. He still doesn’t measure up. Consider that.

          4. Trump also has done more to defend Israel as well.

            What I don’t understand about American Jews is exactly what part of “Kill the Jews” they can’t understand.

            1. Which part of “most American shouting ‘kill the Jews’ support Trump” don’t you understand?

  2. Presumably Trump will get elected. After all, he already has George Floyd’s endorsement:

    “”Hopefully George is looking down right now and saying, ‘this is a great thing that’s happening for our country.’ This is a great day for him.””

    1. Real hot take here by David – Sitting President of the United States might get reelected.

      1. I should note the even hotter part of the take – whether President gets reelected will depend on, in the next five months before election, who voters prefer more: President or his opponent. How are Bernstein’s opinions free?

      2. That’s the nice thing about secret ballots — the mob can’t attack you for voting as you please. And I’m thinking a Trump landslide…

    2. Actual transcript, not misleading left wing journalist:

      “Equal justice under the law must mean that every American receives equal treatment in every encounter with law enforcement, regardless of race, color, gender or creed, they have to receive fair treatment from law enforcement. They have to receive it. We all saw what happened last week. We can’t let that happen. Hopefully George is looking down right now and saying, “This is a great thing that’s happening for our country.” This is a great day for him. It’s a great day for everybody. This is a great day for everybody. This is a great, great day in terms of equality. It’s really what our constitution requires and it’s what our country is all about.”

      What exactly is wrong with that?

      1. Yup. Much like MLK, if George Floyd were alive today, he’d be a Republican …

      2. For the record, I linked to the video, so I certainly didn’t mislead anyone.

        As for your final question, if that’s your response to that video, I really don’t know how to help you.

      3. What’s wrong with that? Let me give you an analogy: a Philosopher or Scientist professing a brilliant idea. Except that he is Jewish. In Weimar Germany.

        1. I don’t know what you’re trying to say, but I really hope you’re not comparing Trump to Jews in Weimar Germany.

          1. “The white man is the jew of liberal fascism” – actual quote from Jonah Goldberg in his best-selling book, lauded by the conservative intelligentsia (seriously), “Liberal Fascism.”

            Notably, Goldberg has now been alienated from the movement because he is no longer crazy enough …

            1. Yeah…conservative denial that they’re primary targets for fascist appeals is going to get them and us into trouble someday. Or maybe it already has.

  3. But seriously. America’s gotten to a place where even John Kelley thinks that electing an amoral ethical void of a man might not have been such a good idea:

    “I think we need to look harder at who we elect. I think we should look at people that are running for office and put them through the filter: What is their character like? What are their ethics?”

    And yet he might still get re-elected because white people like David Bernstein can’t imagine why African-American’s might want to set the world on fire.

    1. Ever since Biden defeated Corn Pop at the local community pool, Joe has been considered the Emperor of Black People.

    2. I agree. We need to replace this old, white, loud, rude, incoherent, self-righteous man with Joe Biden!

      1. At least Biden has empathy. Or the ability to feign it. You won’t see him smiling after mass shootings or saying how recent murder victims would really be happy due to the fall in the unemployment rate.

        1. You misspelled “entropy”. Dementia is a terrible thing to witness in a loved one.

        2. I agree. Joe empathizes with the people, which is why he wants to disarm them and leave guns only for the valiant agents of the state!

          1. Who themselves are racist thugs and must be defunded.

      2. You forgot “handsy”

    3. “What is their character like? What are their ethics?”

      Joe Biden got punished in college for cheating and he crushed his 1988 campaign by plagerising a speech from a foreign politician. He routinely kisses, hugs and smells the hair of women in public settings. He was a star athlete in high school who suddenly developed “asthma” to dodge the draft. He let his son shamelessly trade on his being VP to get lucrative foreign contracts. He was the “Senator from MBNA” [a major credit card company] who led the effort to deny borrowers the ability to discharge such debts yet. He voted to make Robert E Lee a citizen again and openly brags about his friendship with racist senators.

      He is just a stupider version of Trump.

      1. One key difference is that Trump is a sadist, whereas Biden does not appear to be one. Trump openly revels in causing pain. Biden does not. I would rather have a stupid person with questionable morals who at least understands the need for morals and empathy than an outright immoral and sadistic man who is also extremely stupid.

        1. A sadist and a masochist are sitting at a bar.
          The masochist says “Hit me!” and the sadist calmly replies “No.”

        2. So you prefer a hypocrite.

          Trump is a lot smarter than Biden. Its ursine cunning, not book smart, but its real. Joey is just dumb.

          1. Frankly, yes. At least the hypocrite doesn’t encourage other people to behave immorally. And Republicans have supported them for years, and continue to do so. For instance they don’t seem to care that pro-life representative Scott DesJarlais pressured the patients he slept with into abortions. Biden’s hypocrisy is pretty mild compared to that.

            A hypocrite is less bad than someone who is an open and proud sadist. He enjoys inflicting pain. The fact that someone is proud of being an asshole actually does not make them less of an asshole and does not give them license to continue being an asshole. So yeah, I’d much rather have the hypocrite who shows the ability to be contrite than the proud asshole any day of the week.

        3. Do you evidence of this, or is this possibly projection.

          1. Biden finished 76th in a [third rate] law school class of 85.

            He used to claim he was in the top half though.


            1. No. He’s asking me if I have evidence Trump is a sadist.

              1. So he’s never seen Trump speak?

            2. Bob,

              You aren’t claiming Trump has been more honest about his academic record?


          2. It is not projection. I am incredibly anti-violence. I do not like seeing people in pain. Having experienced pain first hand, I do not enjoy anyone hurting. Trump on the other hand:

            Dec. 3, 2015 “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families.” Trump has on numerous occasions stated his belief in torture.

            Trump has on numerous occasions praised police brutality.

            He has pardoned war criminals.

            He praised a Congressman for committing an assault.

            He praised the Chinese response to Tienanmen Square

            He revels in threats of force. He uses words like rough, tough, dominate, etc. He enjoys instilling fear and pain.

            He revels in the failures of others. He loves mocking the deceased.

            He routinely disregards others feelings by lobbing personal insult after insult. He goes after people’s looks and families. He called Ted Cruz’s wife ugly. He said Ted Cruz’s dad killed JFK.

            He deliberately used an unfortunate death to attack media figures against the wishes of the family. Indeed, he routinely disregards the feelings of others who have had loved ones who have died, whether it is a a respected politician, a gold star family, a solider in Nigeria, a mass shooting victim, a person murdered by an immigrant, or most recently a police brutality victim.

            Then there are the people he admires: Kim Jong Un, a brutal dictator, the Saudi Royal Family, al Sisi, Bolsonaro, etc.

            At home he appoints openly cruel people like Stephen Miller.

            He gave the Medal of Freedom to a man who once compared a 12 year old girl to a dog on national TV. He retweets and supports racists like Katie Hopkins.

            Then there are all the accusations of sexual assault he has.

            Only someone who enjoys hurting people would say the things he says, advocate the positions he does, and do the things that he does. He is obsessed and fascinated with force, violence, insults, and demeaning people. When a person tells you who they are, believe them.

      2. So a second election with two miserable choices. The most solid argument for the article’s thesis.

        1. Why on earth do you link Biden would be so miserable? I think he’ll surround himself with perfectly adequate people.
          (If Trump had surrounded himself with reasonable and honorable people, he’d be seen as having a much more successful presidency. He chose to pick super-corrupt people–generally speaking–after running an entire campaign on draining the swamp.) I think Biden’s White House will be far cleaner than what Trump has proven to us that he was willing to do. And we know that his son will be a million miles away from any position of power…for God’s sake; Trump has his totally-unqualified daughter and totally-unqualified son-in-law entrenched as some of the most powerful voices in his administration! It reads as a bad joke…but it’s our reality.

          1. Trump’s other sons are major surrogates that people take seriously for some unknown reason. But unfortunately, Beau Biden passed away as did his eldest daughter Naomi back in 1972. You’re right that Hunter will definitely be a no show around the office given recent events. And despite being a social worker and activist, Ashley Biden keeps a relatively low profile. So we at least won’t have immediate family corruption.

          2. “Why on earth do you link (sic) Biden would be so miserable?”

            Like any politician of long tenure, Biden has more than enough in his history to criticize, even condemn. But no serious person believes that all the acts of dishonesty, malfeasance, incompetence, and immorality committed by Biden in his >40 years in the public eye, aggregated into one neat pile aren’t swamped into insignificance by a typical week in the life of Donald Trump. The notion that there’s any kind of equivalence is beyond risible.

            So why do they think Biden would be so miserable? They don’t. Their opinion has nothing to do with Biden, who on balance, is a decent man, the worst thing about whom can be said is that he’s a gaffe machine, and even in that regard he’s Churchillian next to Trump. So, again, why? Simply because he’s a Democrat, and these people are tribal absolutists. If Ronald Reagan came back and ran as a Democrat, they’d say he’s a worse person than Trump. They’ve abandoned all principle and shame for the sake of owning the libs.

    4. “why African-American’s might want to set the world on fire”

      Fake news. It’s white supremacist agents provocateurs doing the arson and looting in an attempt to discredit the movement and precipitate a race war.

      You fell for the right-wing talking points. Sad!

    5. All candidates or just the Republicans?

      I’m old enough to remmeber when Mitt Romney ran for President. The media labled him devil incarnate. GW Bush was literally Hitler.
      There is not a single republican the left will not smear, nor is there a single Democrat that is not on the short list, for Saint Hood.

      1. World record for number of lies per word in a single post.


    6. “And yet he might still get re-elected because white people like David Bernstein can’t imagine why African-American’s might want to set the world on fire.”

      I missed where David said that. Or where he mentioned any particular race, creed or color. African-Americans aren’t generally thought of as “swing voters.”

  4. A more honest opening statement would have been, “…he lacks the temperament and judgment to be president, according to my personal inclinations and picture of what a president should be.”

    On the other hand, to use a quote attributed to Lincoln anent General Grant, “…this man fights.”

    1. The journalism industry is morally bankrupt. It has never been about what Trump is doing as President but the criticism from the media is how Trump is acting as President. Style over substance but at least Obama was a cool hip black man.

    2. Being catty on Twitter does not make a man a fighter.

      1. No, but not caving when the left went apeshit with Kavenaugh is, nor, say, how he stayed true on that Russia impeachment farce by outing the previous administration for the political sin of spying on an opponent’s campaign…etc. etc. etc.

        Twitter is just one of the places where, due to the media’s reluctance to play it straight with him, he can sound off his opinions.

      2. Not a fighter?

        Identify a single human that would have survived, let along thrived, under the assualt waged against President Trump. Understand that no matter which Republican would have been elected, the exact same attack would have been launched by the FBI/IC/DoJ/State dept.. And not a single Republican would have fought back. Not the way the President has.

    3. It’s a rhetorical device. Even if you accept the opening statement, he shows the clear and explicit lies that have been thrown against Trump from pretty much the day he got into office.

      I think this is the wrong format for this sort of post. It seems better suited to Facebook, or a meme. A news site is better for long-form entries.

  5. Trump may get reelected because he was elected the first time; because of voter suppression and intimidation tactics; and because he is the incumbent who has not only the traditional benefits of incumbency but also an AG who appears ready and willing to use the DOJ to Trump’s maximum value.

    1. OtisAH, you could well be speaking about Obama. I presume I did not I wake up on some sort of Star Trek parallel universe where you are your ideological opposite (and if so, where is Spock with the goatee?)

      1. No, I couldn’t. And I wasn’t.

        1. Of course you weren’t, but despite your protests, you actually could have been.

    2. Voter suppression and intimidation tactics. That old canard again. It’s a lie that you tell as you suck your thumb at bedtime.

      1. When will children and undocumented Americans be allowed to vote via Twitter or Facebook Live?

    3. “voter suppression and intimidation tactics”

      Yawn. Maybe get some new writers.

    4. “The Russians, General. Don’t forget the Russians.”

      1. So many memorable lines and scenes in that movie.

  6. His opponent voted for all those anti-crime bills, all those wars, the civil asset forfeiture system, 3 strikes, etc.

    Versus Trump who achieved the lowest black unemployment ever and led the way on historic justice system reform in the First Step Act.

    Trump also defeated ISIS and we just signed a peace agreement with the Taliban after 18 years of fighting.

    But keep talking about “temperament”. Because negative emotions and status anxiety matter and achievements apparently don’t.

    1. That low black unemployment and overall economy was a continuation of a trend going back to Obama. So the best you can say is that Trump did not screw it up. But that has all been wiped out anyhow. The First Step Act was quite modest, and the Trump Justice Department continues to oppose releasing people under that act. ISIS defeat was long in the making, and he signed an agreement with the Taliban mostly by giving them what they want.

      1. – No president ever achieved those employment numbers before. If Trump can do it once, why not twice? (No one knows the future, of course.)

        – If presidents don’t get any credit for economic conditions after 3 years, then you’re saying it’s irrelevant who we elect because the economy is random and policies make no difference. Plus then Obama gets zero credit for the economic recovery in 2009-2011 — just another random thing that happened.

        – If the First Step Act is so “modest”, where was it on Obama’s list of achievements? Or any of the Presidents before Obama? Is America so strongly united on everything that we routinely achieve beyond-modest reforms?

        – ISIS conflict was long when Obama was in charge, short when Trump was in charge. ISIS got going under Obama and Trump cleaned up the mess.

        – You want to keep fighting the Taliban for 18 more years? Why?

        1. “No president ever achieved those employment numbers before. If Trump can do it once, why not twice? (No one knows the future, of course.)”

          It does raise some important issues. How did the President achieve these numbers? Did he do it with tax cuts accompanied by no spending cuts? Is artificially juicing the economy with money borrowed from future people a good idea? Maybe one reason no other President has achieved those numbers before is because it’s a fucking bad idea? We could have 0% unemployment, I bet, with enough tax relief and stimulus. (I’m not being fair to the President, anyway, since so much of tax cuts and stimulus require a lot of other people involved, too.)

          1. Borrowing money from the future seems to alternately be called no big deal and then disastrous depending who gets to spend the money and take the credit. Every president and congress does it though. I think it will ultimately be at least near-disastrous. But every president and congress still does it and will still do it until then.

            Only one president achieved record low black unemployment though.

            1. “Every president and congress does it though.”

              No they don’t. In my lifetime the budget was balanced.

              1. Newt Gingrich. You should drop him a note to thank him.

                1. I was very thankful to the Republican Congress for holding the line on spending, and was also thankful to them (and President Clinton) on not using a boom period as a pointless excuse to cut taxes. It was a great moment in American political compromise. In hindsight, balancing the budget may be the greatest compromise political event of my lifetime. Raising taxes and cutting spending during a boom isn’t popular but it’s fucking responsible. And it is exactly what economists recommend, and what you would expect adults to do.

                  Your reaction says a lot. You go into the comment assuming that I’m incapable of giving credit to (what you think) are my political opponents. You’re wrong in a lot of ways. Fiscally conservative Republicans have never been my political enemies. I’ve voted for Republicans, including for President. Several times. I voted for Republican Senators and Representatives after the 1996 tax and welfare reform. More importantly, I’m perfectly happy to thank and congratulate my political opponents when they do things I agree with. I don’t engage with the world in your brand of absolute tribalism to such a degree that it would make it impossible–or even surprising for that matter–to make such concessions.

                  1. NToJ,

                    Exactly right. I agree with everything you said. And, like you, I have voted for Republicans at all levels (including Senate and President), even if I more frequently vote Democratic.

                    Extreme tribalism is a major problem of our time.

                    On the deficit, the data is unequivocal. Democratic Presidents are better, just as they are on free trade. Republicans give lip service to it, but have no stomach to actually do something about it when in power. They will, however, put pressure on a Democratic President, which is one reason the Democrats all have better numbers than Republicans on the deficit.

              2. Not unless you’re older than me, and I’m approaching retirement. Using the accounting practices required of the private sector, the federal government hasn’t run a surplus since shortly after WWII.

                It’s commonly claimed that the government ran a surplus several years during the Clinton administration, but that was what is known as a “primary surplus”, which doesn’t count money spent to pay interest on debt, among other things. In normal accounting terms, there was a deficit every one of those years.

                1. “…but that was what is known as a “primary surplus”, which doesn’t count money spent to pay interest on debt…”

                  What’s your source for this? The CBO has all the historical outlays here. The Total Outlays (Table H-3) has Net Interest which is “government’s interest payments on federal debt offset by its interest income.” The Outlays figure on Table H-1 for surplus years correspondences to the Outlays figures on Table H-3, which includes Net Interest on debt. And yet we still see surpluses.

                  Since 1974 we’ve had a “primary surplus” over a dozen times. But we did have actual surpluses in FY 1999 and 2000, even after factoring in interest on the debt.

                  But it really doesn’t matter whether we’re $1 over or $1 under the budget. For long-term planning, anything that keeps deficits low is great, since it reduces the future burden of interest payments. The more you borrow today, the more you will have to pay (in interest) tomorrow. If deficits are low enough, expected GDP growth can outpace interest. So you can have perpetual deficit spending while simultaneously interest as a percent of GDP goes down. But that can only happen if GDP growth over some period of time outpaces deficit spending. The beauty of the 1997-2000 fiscal responsibility was that it makes future budget balancing easier, since the interest we don’t pay later on money borrowed in the past is basically found money in the future.

                  1. It is so pleasant to see facts and reasonable argument rather than partisan carping and refusal to acknowledge even basic facts if those facts don’t align with one’s political commitments.

                    Thanks, NToJ, for consistently being one of the most reasonable posters on this site.

              3. for 1 year. Not overall for any congress or any presidency. Unless you’re 100 years old.

                1. As Brett pointed out, it depends how you measure it. If it’s primary surplus, it’s happened over a dozen times. One reason to use primary surplus–besides misleading the public–is because the Republican Congress that balanced the budget didn’t necessarily cause the previous debt that they had to pay interest on. So did those Republican Congresses in the mid-to-late 90s secure sufficient revenues to pay for the expenses they approved (as opposed to what some prior Congress had spent)? Yes. They did. We shouldn’t ignore the interest, but in terms of keeping their house in order, the 1997-2000 balanced budgets (“primary surplus”) reflected a fiscally responsible decision to authorize spending below receipts. We shouldn’t punish the merely “primary surplus” years (1997, 1998, as examples) that were really true deficits due to the profligate spending of decades of Democrats and Republicans that came before. I don’t have any idea what budgets Newt Gingrich voted on from 1979-1995, but assuming he tried but failed to keep spending down before taking up as speaker, I’m disinclined to blame him (or others) for merely barely breaking even. Don’t let perfect be the enemy of the good.

            2. And, please, compare every administration. The Democrats are always better on the debt.

              Nixon was far worse than Johnson, Ford was even worse than Nixon. In percentage terms, Carter was better than Ford. He was slightly worse (25-33% higher) in terms of nominal spending.

              Reagan was far, far worse than Carter by any standard. George H.W. Bush was marginally better than Reagan in percentage terms, but in nominal terms, he did nearly as much damage in four years as Reagan did in eight.

              Clinton balanced the budget and, in both percentage and nominal dollars, contributed less to the debt in eight years than H.W. did in four (or than Reagan did in eight).

              George W. Bush, obviously wanting to make the GOP proud, more than doubled the national debt and contributed more in nominal dollars, obviously, than everyone before him added together.

              Obama inherited a trillion dollar per year deficit and the Great Recession but had far, far lower deficit spending in percentage terms than George W. Bush, but in nominal terms he contributed more. Bush handed him trillion dollar deficits and his last budget proposed a $600 billion deficit (prior year was about that).

              Trump came in and, instead of the proposed $600 billion deficit, signed the “biggest tax cuts ever” juicing the by roughly $100 billion more for that year. Despite the “greatest economy ever” Trump continued increasing the deficit every year such that we were running trillion dollar deficits in “the greatest economy ever.” And, obviously, by the end of his term, he will have added nearly as much to the debt in four years as Obama did in eight. And is leaving his successor a damaged budget that projects trillion dollar per year deficits as far as the eye can see. (Next year’s is already projected at $2 trillion.)

              Trump, as he managed to do with casinos (!), has bankrupted us. And he did it in the “greatest economy ever”, as if the longest expansion in history, which he inherited from Obama, wouldn’t end at some point. Utter incompetence. But, actually, it’s worse than that. He doesn’t actually care about the good of the country, his only goal was to artificially juice the economic numbers to dupe people like Ben into believing he is an economic genius who can “do it again.”

              Trump put us in as weak an economic as it was possible to do leading into the coronavirus catastrophe (even if we naively assume he didn’t make that catastrophe worse than it had to be). Rather than using the good times to reign in the deficit, he understood that he could take credit for a “great” economy and, for his gullible base, blame the budget disaster on others and forces beyond his control. If you are honest, Trump owns the fact that we are crossing a debt-GDP ratio that threatens utter economic chaos and political upheaval.j

              Again, went from $600 billion to $1 trillion deficits during the “best economy ever” and now he’s pushing a $4 trillion deficit…in a single year.

              If you care about economics or the Constitution, you should put in office someone who actually cares about the country and its continued economic health. Trump is obviously not that person.

              1. Yep, partisans can spin stuff however they want alright.

                1. Don’t be so hard on yourself!

                  1. What do you mean? It’s simply a fact that US Presidents and Congresses haven’t balanced budgets in general for 50+ years. There’s one minor, temporary exception during an economic bubble that doesn’t change anything.

                    Why are you dishonestly pretending otherwise? No one is fooled. Don’t you get tired of playing dishonest games? WTF is the point?

                    1. The historical data on Presidents and Congress and spending deficits is public record. The CBO has been publishing it since 1962. We can track years where it’s very low (<1% of GDP), low (1-3%), medium (3-5%) and high (5%+). Because of the large variance, it just not the case that every president and every congress has spent to the same degree. You know this but continue to insist otherwise. The worst offenders have historically been Republican presidents. Not because they are evil, but because Republican presidential candidates love to promise tax cuts that neuter revenues, and aren't averse to spending.

                      The eye-opening stat is that revenues generally go up. Not because times are always good, but because the country is increasing in size, and so as GDP grows, revenues grow. And GDP generally grows. Since 1962, federal revenues have decreased only a few times. Some of it is attributable to economic downturns. Others are tied directly to tax cuts by Nixon, Reagan, and W Bush. (While simultaneously doing nothing to curb spending.)

                      The flip side of that equation are outlays. When have they gone down? From 1964 to present:


                      Balanced budgets are a solvable problem. It takes a lot of effort to take on huge deficits, even in bad economic times. We've seen presidents/congresses increase taxes, we've seen them cut spending, but rarely have we seen them do both. But it's not some fucking mystery to solve. If we want balanced budgets, we have to increase taxes and cut spending.

                    2. Ben,

                      “There’s one minor, temporary exception during an economic bubble….”

                      NToJ has already responded as effectively as possible. But it is important to see that when a President and Congress are both under pressure to make a difference, they can. When voters completely ignore their party’s profligate ways, you end up with Trump and absolutely runaway deficit spending during “the best economy ever.” If the only explanation for that “one minor, temporary exception” was a great economy, then why did deficits explode under Trump and a Republican Congress during “the best economy ever”? You seem to think deficits are random. They aren’t. They just require partisans like you to stop being so partisan and hold your party to account instead of relying on the myth (as shown by the stats) that Democrats will necessary have bigger deficits.

                    3. OK. Good plan. It might work 1-2 years out of 50 or 60. You can keep making excuses for your team and condemning the other team for the same deficit spending.

                      Partisans are unbelievably tedious

              2. You should tell black folks to remain unemployed to help the debt-to-GDP ratio.

                1. So, in addition to being racist, you are economically illiterate? Unemployment makes GDP worse which makes debt to GDP worse. Hello?

                  1. Sure. Not much reason to talk to completely tedious partisans. Go plague someone else.

  7. There is little question Trump will try to tear down Biden by painting him as an extremist. Given Trump’s miserable approval ratings, it’s likely his only chance.

    1. I agree. It’s kinda like how Romney, the moderate’s moderate, was given the 3rd degree this way by Obama?

      I would love a sorta 1992ish election, about economic policies and who checks their watch during a debate and who lies more about smoking dope and boinking mistresses.

      1. Obama’s net approval rating (approval minus disapproval) was about zero. Trump’s is about -10.

        1. “Obama’s net approval rating (approval minus disapproval) was about zero. Trump’s is about -10.”

          This is probably the most salient point. People are flinging their biases back and forth here, but at the end of the day, it’s the votes that matter.

          1. It’s not the vote that matters. The vote that matters happens in November. And in November 2020, like in 2016, I am likely to vote, thinking ‘Holy SH!t, how are these my choices?’ Many think it Trump is a terrible person. Mayhap he is. Many think Biden is a terrible person. Mayhap he is. One of them is almost certainly going to be president (health and Torricelli option being the most likely reasons someone else is sworn in in Jan 2021).

      2. Tbf, it was a little odd that Romney ran on a platform where his No. 1 priority was to repeal Romneycare.

      3. Martinned, Romney was not an ideal candidate from the GOP, but he won the process because the voters were told by the party elite that only a moderate had a chance of winning against Obama (and he was lucky not to have any serious competition).

        Josh…while approval ratings matter in the abstract, actual votes do (at least for elections, which is what the OP was making this thread about).

        1. I thought the point of the OP was that Trump is unpopular and his only chance of winning is to make his opponent more unpopular. And, I agree with that analysis.

        2. “Romney was not an ideal candidate from the GOP, but he won the process because the voters were told by the party elite that only a moderate had a chance of winning against Obama (and he was lucky not to have any serious competition).”


          And there ya go, the reason Trump will win: because we always fight the last war, and learn the wrong lessons from our enemies.

    2. approval ratings? The ones where President Trump is equal to, or higher than Obama at the same point of the Presidency?

  8. Why Trump might get re-elected.

    1. Trump been hard on China. Biden is soft on China. People think China’s to blame for the corona virus.

    2. People don’t like lockdowns. Democrats and liberal governors have been very pro-lockdown. Trump’s been working on letting businesses open up.

    3. As the lockdown lifts, the economy may boom back, helping everyone.

    4. Those more religiously inclined have viewed how Joe and the Liberals treat religion (as opposed to the protests). Those who want to defend religion and their religious rights understand the need for Trump.

    1. Would number 4 include the Archbishop of DC and the Episcopal Bishop of DC?

      1. When the Democrats in government somehow think that it’s just fine to have restaurants serve meals in restaurants to people in person, but also simultaneously think banning communion in Christian Masses is appropriate because of COVID-19 risks.

        Something’s gone very wrong with the liberal-group think.

        Meanwhile the Governor of Michigan violates her own social distancing order again….

        1. I could say the same about conservative group-think, thinking it is just swell to use government force for Richard III style photo-ops co-opting religious spaces over the objections of religious leaders themselves.

          Also, they literally forced a rector from their church.

          1. I must admit, that the mental imagery of a “Richard III style photo-op” is a good one. Shakespeare did not do him justice though, he was not that bad, but his version would do photo-ops.

            That said, do you feel the same way about the silly Obama and Coast Guard Admiral Thad Allen photo-op on the beach during Deepwater Horizon? It was about as stupid as the Trump photo-op. But at least for me, Trump’s signaled he would go to bad for religion. The extreme left has a particular antipathy towards Christianity and Judaism (but not Buddishm or Mohammedanism or Hinduism) and I’m not a Hindu.

            1. Trump largely has gone to bat for religion.

              Liberals are going and taking down license plates and issuing fines and jail sentences for those who would open a small religious service… Meanwhile, large protests are A-OK (but only the right sort of protest).

            2. The Obama photo-op that nobody remembers? And nobody remembers it, being silly or otherwise, because he didn’t violently push previously peaceful protestors out of the way so he could have the photo-op, including firing pepper pellets and smoke canisters at them or put in an order that resulted in an Australian news crew being assaulted by federal agents.

              Even if surveying the scene of a disaster is a “silly” photo-op. Every President does that, including Trump throwing paper towels at disaster survivors in Puerto Rico. But somehow using force to clear a public park of peaceful protestors in order to stand in front of a church (not inspect it, not even say something about Jesus and loving your neighbor) and awkwardly hold a bible is viewed differently by such staunch liberals as Generally Kelly and General Mattis. What wusses, huh?

              So, yeah, Trump’s phot-op was pretty much exactly the same as Obama walking on an already largely empty beach to be seen looking at the results of an oil spill.

              1. Hey, I’m not a nobody. heh. Though in 10 years, only some hard core news junkies will remember the Trump bible photo op. Be fair, there was lots of commentary on Obama’s silly oil spill photo op.

                1. I think it’s the salient moment of the protests so far.

                  1. “the” salient moment? Huh, I figured it was all the idiots taking a knee or the bleeding body of Mr. Dorn.

                2. Did former senior members of Obama’s administration or of his cabinet speak out against Obama for (wait, what constitutional rights or even sense of decency did he violate by walking on an empty, oil-stained beach getting his picture taken?) that photo-op? Heck, forget whether any prominent Democrats spoke out. Did any Republican Senators chastise Obama for violating America’s fundamental values, constitutional principles, or even decency for the Deep Horizon photo-op?

                  Be fair. The only resemblance between the two is that both involved Presidents in photos.

              2. “including firing pepper pellets and smoke canisters at them ”

                You need to keep up, there was no gas used.

                For the record, I care not for Trump. But let’d be accurate – attack him for the things he’s done and not for products of the imagination. It’s not like there’s a dearth of pertinent real outrageous things he’s done…

          2. ahem, that should read “go to BAT”. Funny error actually.

    2. The religious angle has yet to fully play out. I think the Democrats are really going to regret how they trashed Christians during the lockdowns. They overplayed their hand for what seemed to be no appreciable reason (except to use authority). That might translate to a lot of votes for Trump come November.

      1. Christians, Jews, even Muslims….

      2. Until they’re reminded that they forced a priest from their church for a photo-op….

        1. “Their church”

          Are you sure about that?

          1. Well the rector is presumably a member of the Church, and goes there more than Trump. So it is almost certainly their church, in the same way the one you go to is your church.

            1. Yeah…that’s what I thought….

              They’re a rector…but not the rector of that particular church. But of a completely different church, with the same name… So, when they forced the rector away from the church (where she was assisting the protestors), she had to…go back to the church was she was ACTUALLY a rector…

              You ever get tired of the wordplay?

        2. An Episcopalian. Trump friendly religious don’t care about such creatures.

          1. Ah of course. I forget that Trump friendly religious people are mostly Real Christians™ with a smattering of Christian-certified Real Jews.™

            1. “Real Jews.™”

              Yes, Trump does get significant [though probably still minority] support from Orthodox and Haradim.

              1. Reformed Jews, like myself, are real Jews too and we support Joe Biden!

                1. Yeah, real Reformed (sic) Jews like yourself support bullshit.

                  There’s no such thing as a Reformed Jew. Troll better.

              2. Oh boy. The gentile Jew police are here again. You and Brett ever go down to the Conservative or Reform synagogues and tell them they aren’t actually Jewish?

                1. I belong to a Conservative synagogue myself. My wife’s family helped found one of the shuls which merged into it.


                  1. I sincerely apologize. I should not have assumed. I shouldn’t have made a flippant remark.

                    I am not Jewish. I was raised Catholic but left the church for a wide variety of reasons, and am an atheist more or less.

                    But I do not like the idea of anyone, particularly non-Jews, telling my Jewish friends or any other Jews that they aren’t really Jewish because of their politics. I find it a particularly odious sentiment. So I called it out. But I will be more circumspect in the future with my generalizations.

              3. The Modern Orthodox will support Biden.

                1. “Modern Orthodox will support Biden”

                  Yes, that is consistent with my “[though probably still minority]”.

    3. Trump’s approval ratings on handling coronavirus started out OK, and have steadily gone downhill, now matching his overall approval ratings (not good at all).

      1. “overall approval ratings (not good at all).”

        His favorability [very to similar to approval] rating on November 1, 2016 was 37%. Still won. Its higher now.

        He has to roll a 7-10 split again but you never know.

        1. He won because 1) Clinton was almost as unpopular, and 2) the electoral college (Trump lost the popular vote by about what you would expect based on the candidates’ favorability ratings.

          Right now, Biden’s favorability ratings are much better than Clinton’s.

          1. Are Joe’s favorability ratings really much better than Clinton’s?

            Right now, Joe is in the mid 40s for favorability. He’s got maybe 3 points on Trump. I mean, maybe Joe has 5 points on Clinton (compared to where she was in may/june 2016).

            But it’s not alot.

            1. Biden is just below net zero (favorable minus unfavorable) and Clinton was between -10 and -15.

          2. Right now Biden is so invisible he’s effectively a generic Democrat. And those always poll better than real Democrats.

            At some point he has to actually resume campaigning, and even, yes, share a debate stage with Trump. I expect that to be pretty brutal, even if they give him the questions in advance, would he remember them?

            1. Brett. You cannot seriously be this willfully ignorant about Trump’s ability on a stage. Don’t you ever listen to him talk? It’s all over the place. All the slurred words and rambling digressions peppered with insults and ridiculous musings? He’s not going to look more mentally fit than Biden.

              1. Have you seen Biden lately?

        2. “Its higher now.”

          It’s slightly higher than the presidents who have lost their reelection campaigns recently (HW Bush and Carter) and slightly (Obama) to significantly lower (Clinton, Reagan) to the presidents who won reelection.

          I think he’s still going to win. His margin for error is the largest object in the universe.

          1. I wouldn’t characterize Trump’s approval ratings as being “slightly” lower than Obama’s if that label is meant to imply Trump has anything more than a long shot chance to win (absent Biden’s favorability coming down). But perhaps, it is only “slightly” lower in the sense that Trump has a chance to improve on his numbers. The problem for Trump is there is no evidence that he can improve on those numbers.

            1. Slightly lower at 6% (as of today). Maybe that’s charitable, but I was trying to draw a distinction between 2-3%, 6%, and double digits.

              There’s another variable here, namely his disapproval, leading to his net approval. President Obama’s net approval was about 1% this time into his first term, the President’s is about -11% today. President W Bush was -5.8%. Presidents Clinton and Reagan were around 15-16%. The President’s current net approval looks much more like HW Bush and Carter than it does like the people who won.

              History isn’t a promise. And he may not need to improve his numbers, only murder Biden’s. Maybe someone will find his private email server at just the right moment. There’s also a lot of very simple shit the President could do to juice his numbers a few percentage points. Believable contrition, accountability, etc. aren’t going to convince anybody on the hard left, but he could peel off a few independents. And the economy could rebound better than expected.

        3. Why care about Joes poll numbers?

          You can’t seriously believe he will be the candidate.

          It has nothing to do with politics, Joe is in steady cognitive decline. To anyone that has watched a parent slide into dementia, the signs or indisputable.

          1. Anyone who focuses on Biden’s cognitive abilities while ignoring Trump’s cognitive abilities makes me wonder about that poster’s, well, cognitive abilities.

            1. Trump is stupid.

              Biden…well…best pick the Biden’s VP candidate very carefully.

              1. Agreed. But the names floated around so far (eg, Stacey Abrams, Kamala Harris) are extremely bright and cognitively unimpaired people…even in areas where I disagree with their policy choices or their philosophies. I thought Mike Pence had integrity (Okay, I was wrong there.) But he was a great pick for Trump. Younger, definitely cognitively unimpaired, etc.. I simply cannot believe that a candidate in his mid or late 70s would pick a VP who also was in his or her 70s . . . even for someone as tack-sharp as Warren.

      2. His approval/disapproval ratings on every topic always eventually converge on the same numbers: A little worse than the fraction of the population aligned with the Democratic Party. Because he’s a pretty good President from a Republican point of view, (Not a moral icon, but Republicans don’t expect politicians to be admirable.) and from a Democratic point of view he’s a Republican, and so an object of loathing .

        1. Trump’s problem is those approval ratings strongly suggest he will lose. If he is to win based on his own merits, rather than pulling down Biden, he has to move those approval numbers. Armchairs’ argument that he can do so based on his coronavirus performance is not supported by the data.

          1. June 17th, 2016…

            Gallup’s latest figures show Trump at 31 percent favorable/63 percent unfavorable – significantly worse than Clinton’s 41 percent favorable/54 percent unfavorable.

            We know how that turned out.

          2. Did you know that, on election day, Trump was 21% underwater? Today he’s only 13.3% underwater.

            Biden is running about 1.5% underwater, mind you, and Clinton was 12.6% underwater on election day.

            So, he won in 2016 despite being 8.4% more unpopular than Clinton. Right now he’s 11.8% more unpopular than Biden.

            So you might think he only needs to bring Biden down about 3.4% relative to himself. Strikes me as feasible, at least.

            1. Brett,
              I think you’re pretty close to accurate. And, of course, you and we are talking about nationwide numbers. It matters not at all if Trump is underwater by, say, 20 point in California. It matters what Trump is, in Florida, and Michigan, and Penn., and Minn., etc etc..

              Nationwide polls tell us that, overall, Trump is seen as a horrific person and a dreadful president. But if those key Midwest states again thread the needle and go for Trump by small margins, then Trump will win a second term–regardless of what ‘the people’ in America think.

              Unlike in 2016, I don’t think people will be shocked/surprised by a Trump win. And, although I tend to generally disbelieve the power of the Bradley Effect, I do think it does apply to Trump.

              I think there were, and still are, a significant number of voters who are too humiliated to admit that they will vote for a pathological liar, sexual abuser, and lifelong racist. But, come November, they will indeed pull the lever for Trump. I have grave reservations about what the polls therefore say, and I’m automatically adding 3-4% to Trump’s side in any Midwest statewide poll between now and election time. Add to that, voter suppression in any state where Republican’s can effect this, and I can easily see Trump winning a bunch of states by the same slim margins we saw 4 years ago.

              1. “I think there were, and still are, a significant number of voters who are too humiliated to admit that they will vote for a pathological liar, sexual abuser, and lifelong racist. But, come November, they will indeed pull the lever for…”

                I suspect that more Trump supporters will feel shame but there will be a substantial number of Biden supporters as well. At least I hope most will feel ashamed…

            2. I didn’t say bringing down Biden wasn’t doable. I only said that has to be his strategy since moving his numbers up seems like a lost cause.

              1. Just get Biden on stage and talking about black people or women or Indians….

                1. Or get Trump talking about literally any woman he dislikes, or black people, or Russia, or China, or Iran, or illegal immigrants, or police violence, or subjects starting with either a vowel or a consonant.

                  If your argument is that, on a given subject, Biden will be fumbling and/or incoherent, while Trump will be articulate . . . . (color me skeptical)

  9. You could just say “People who want a bourgie liberal think Donald Trump lacks….”

  10. Another fact that still has to play out is how Biden will campaign (if he does at all). A big part of that will be his selection of a running mate. If he picks a left leaning VP and he runs left leaning then I think the road to the White House is going to be a lot harder for him. There are more people who are voting AGAINST the Democrat then are voting FOR Trump. Driving voters to NOT want to vote against him.

    1. if he does at all

      So far he has wisely kept his mouth shut. Never interfere with an enemy while he’s in the process of destroying himself, etc.

    2. I see little evidence of moderation among Dems. They need a Jim Webb. Klobuchar strikes right chords, but seems to have little chance in this moment.

      1. I’m frankly surprised that the Democrats ended up with a moderate like Biden. They could run a brick against Trump and it would still win. I’m surprised they didn’t go for Sanders. Pleased, but surprised.

        1. So Hillary Clinton didn’t even qualify as a brick?

          1. She didn’t have the benefit of having 4 years of actual Trump to run against.

            Also, note I said Sanders, not Warren. The person I figured the Democrats might go for is the sloganeering lefty, not the smart lady with the 10-point policy plans. They tried that with Clinton and both parts of that bit them in the ass.

        2. Sanders didn’t win for the same reason he didn’t win 2016: only a small percentage of black voters were persuaded.

  11. Of course Trump might win. Three months ago Biden was on the verge of dropping out. Things change.

  12. Voted 3rd Party in 2016. Dislike Trump, but think his character defects are unlikely to be successfully emulated by others. Words are ugly, but policies do not merit the level of condemnation they’ve received. My children can understand that people are complex, that well behaved people can be be wrong, and boors can be right in decisions of consequence. The Resistance is a bigger long term threat to US, and I have not seen Dems acknowledge faults. Rewarding Resistance is likely to perpetuate their more insidious and apparently socially acceptable tactics. From that perspective Biden may not be most moderate choice.

    1. Which policies, specifically, did you have in mind? Because the only policies of Trump that he’s actually responsible for* seem like they deserve exactly the kind of condemnation that they got.

      * Occasionally Trump gets a little confused. Today he was bragging about legislation that passed in 2014:

      1. That’s a kind of moronic tweet. Never assume that someone on twitter knows what the hell they are talking about.

        Trump was undoubtedly referring to this: “Veterans to get expanded access to private doctors at VA expense starting Thursday [June 4th]”

        “Veterans will have expanded access to medical care outside Department of Veterans Affairs facilities beginning Thursday under a law signed by President Donald Trump last year and touted as a major achievement by Trump on the campaign trail.”

        1. See that’s your problem “Trump was undoubtedly referring to…”. I appreciate your sojourn into the mind of the Donald, but history suggests your presumption is a crap shoot. While your abilities with respect to “normal” human beings probably do better than chance anyone be hard pressed to say what he is thinking or what he will say next.

    2. What are the Resistance faults that constitute a bigger long term threat to the U. S.?

      1. The Founding Fathers, presumably. Wouldn’t want to encourage such tactics…

        1. You know, you really ought to look at the example of John Adams. He was the lawyer for the Redcoats attacked by the mob in the Boston Massacre, and successfully defended them for their defense of their lives against the mob. I recommend at the very least watching that mini-series with Paul Giamatti as Adams. Brilliant stuff that.

  13. Biden is a saltine cracker. Trump is the incumbent. The only person who can defeat Trump is Trump. Pass the popcorn.

  14. Reading this blog (with its comments) has persuaded me that the Conspirators’ efforts have been counterproductive. They wanted to promote more hiring of movement conservatives at strong law schools. They likely have pulled up that ladder and burned it.

    UCLA likely is tiring of wincing at and apologizing for Prof. Volokh’s contributions to public debate on issues such as race, guns, and Pres. Trump. Harvard surely wishes for a do-over on Prof. Vermeule after observing his exhibition of adult-onset theocratic, medieval positions. Conservative law professors have, in general, devoted more effort to defending Pres. Trump and deriding his critics than they have advocating for their ostensible principles with respect to government, bigotry, reason, science, and decency as the Trump administration has trampled them.

    Which strong law school would (or should) want to hire movement conservatives these days?

    1. Bob Jones Bible College and Liberty University

    2. Hey faker…yea you Rev (I know you looked at ‘faker’ even before I said your name), could you provide some evidence of a UCLA wince or apology for Prof. Volokh?

      1. Does this suffice?

        If not, check the Volokh Conspiracy post entitled “UCLA Law Dean Apologizes for My Having Accurately Quoted the Word “Nigger” in Discussing a Case,” authored (one word in the headline gives it away) by Eugene Volokh (April 14, 2020, 5:14 p.m.)

        (Other than that, nice comment.)

        1. Touche! I stand corrected that there was an (undeserved) apology for saying nigger in a law school class in appropriate context.

          You must still be hurting from the good prof removing your comments to bring it up on an unrelated thread about Trump’s reelection prospects.

          I’m glad that calling you the faker you are got your attention though.

          1. It’s bad enough for you to celebrate illusory victories, but doing so for Prof. Volokh — who is smart enough to know he falls on the losing side of the culture war — is particularly shabby.

          2. Pointing out clinger hypocrisy is always a worthwhile endeavor.

            When Prof. Volokh climbs off his hobby horse, playing free speech champion and bane of censors, I’ll stop mentioning that he engages in viewpoint-controlled censorship.

            If he apologizes, I might consider mentioning it less frequently.

            1. If he apologizes, I might consider mentioning it less frequently.

              Well, carry on… clinger. LOL

    3. That ladder has been in ashes for at least a decade. Faculty hiring of conservatives dropped off a cliff about 20 years ago, and hit the rocks a few years later. Nothing the Conspirators could do would change that.

  15. Don’t be afraid, David…. just show us on the dolly where the Bad Orange Man hurt you.

    1. That’s that gets me about the OP. He wrote a whole book about why Obama should have been impeached, but he can’t stop the handwringing about Trump.

      Where are these angels that we can have govern us?

      1. Yeah, Bernstein writes weird posts lately. Every single one of them starts by condemning Trump, and then follows on with a long story about why Trump is really right/it isn’t so bad/will win re-election/etc.

        With anyone else I’d think the author wanted to hide their Trump sympathies for fear of public condemnation in their peer group, or something like that, but David Bernstein doesn’t strike me as someone who cares about his reputation. So why doesn’t he simply come out and admit that, after 4 years of Trump, he’d like 4 more please?

        1. I can’t disagree with anything in that assessment.

        2. Probably because he actually doesn’t want four more years of Trump. He just wants four more years of some Trump-like things that are led by someone who isn’t Trump. He’s obviously not going to get that, but a man can dream. A man can dream.

          1. Well, to be fair, if somebody who was Trump-like in their policies but otherwise not Trump were available, I’d want them, too. I find Trump embarrassing.

            But not embarrassing enough to want a Democrat or a RINO in the office.

            1. That Trump has actually managed to implement a conservative agenda instead of just whining about things, throwing a few bones our way, and appointing squish Supreme Court justices…I’m willing to put up with his tactics and style for some actual success for a change.

              I’m just embarrassed about the spending binge when it comes down to it, because the left and the media has done the “stupid” and “Hitler” routine on every GOP president since Ike. They would have done it to him too, if it wouldn’t have been laughed at so hard. They still tried too.

  16. Hmmmm….should I be more afraid of one nutty grandpa who has been thoroughly called out for every move he makes and counterbalanced to the point of impotence or a cult spanning all spheres of society running amok unopposed? Basically the only thing about Trump is he Tweets and sometimes says nutty stuff, usually as a bargaining chip. Other than that he pretty much runs like a moderate Republican. For some reason nobody realizes that even after he does it over and over again.

    1. If you think that this is what a moderate Republican looks like, I shudder to think what you imagine an extremist Republican might say and do.

      1. Fewer transgender bathrooms and less government interference with cake shops. *shudder*

        1. Because Trump supported transgender bathrooms and government interference with cake shops? What are you talking about?

  17. I don’t know if he has dementia, or it’s just who he always has been, but Joe Biden comes across as dumber than a lobotomized basset hound with the charisma of a carp, and that is the only reason why Trump might be re-elected. Any other democrat would steamroll him.

    1. Biden might pull it off if he can keep it together through the debates, but if he Zones out during the middle of a debate he’s toast.

    2. Any other democrat would steamroll him.

      I know history can be boring. It was sooo long ago, doesn’t translate to modern times, etc, etc. But history of 4 years ago ?about a man running for president against a slate of savvy politicians, might be germane.
      President Steamrolled more than a dozen qualified candidates. Yet somehow you are claiming that the 20 democrats that failed on a grand scale to show they had superior political chops to the lump that is Joe Biden, would get close to laying a glove on President Trump.

  18. “Why might swing voters vote for him?”

    First thing to mind is Joe Biden.
    Second thing is the Democratic party platform.
    Third thing is the ages of the Supreme Court Judges.

    1. Those three reasons are pretty much why he won against Hillary.

      Any competent not corrupt Democrat who would have a “Sista Soulja moment” should win.

      1. Agreed, unlike what Ilya Somin was trying to argue during the 2016 election…. it was at least as much about voting against Hillary as for Trump. If Bernie Sanders had been the Democrat nominee, I would have voted for him over Trump. Instead, I voted for Garry Johnson. No way was I voting for Hillary Clinton.

        1. Can’t have a lady president? Or did you have a different pretext you’d like to share with the class?

          1. “Can’t have a lady president?”

            Hillary has never been a lady.

          2. There have been tons of women politicians who could have won that election. It was there for the taking. But Hillary was in the unique position of having a lot of baggage that animated the other side and having more hubris than any candidate in history. Her lack of “likability” combined with historically bad campaigning led to defeat against a candidate that even the republicans didn’t want.

            Side question… why don’t very many competent women run for high office? I mean, sure.. male politicians are complete ass-hats… but the top female pols on both sides are not what I’d call formidable. I suppose Kamala Harris comes close… but you can almost see the devil horns when she speaks… so nobody trusts her. Tulsi has high likability… She might have given Trump trouble. But Wilson, Gillibrand and Warren are terrible. Not because of their gender. Not because of issues. They just are not good candidates. Low charisma, not impressive in presence…. just not good as a candidate.

            But Condi Rice is way more imposing than any of them… or Fiorina et. al. I don’t know if she’s loose and funny enough on stage to compete with Trump when he’s really on, but she’s way better than anyone on the D side, and most of the R side as well. (that’s ignoring any stances on issues, just the charisma, looks, etc. that make a candidate appealing)

            So yeah… there are plenty of potential lady presidents out there. Apparently most of them are too smart to run for the office.

            1. why don’t very many competent women run for high office

              Euh, because if they do they get character assassinated like Hillary was?

        2. If Jim Webb had won the Dem primary, I’d have voted for the first Dem since I cast a ballot for Bill Clinton in 1992. It would have been a landslide for the Dems. But Hillary had a stranglehold on the party apparatus, and the Dems had moved to far left for poor Jim Webb.

  19. There are a large number of votes who only vote for 4 issues: anti-abortion, anti-gay, anti-immigrant, and pro-gun. Trump gives them everything on those issues and the voters are happy to ignore everything else, no matter how bad, and they will enthusiastically support Trump all the way. He also gives big business what they want (less environmental, financial, and labor regulations), which helps. That is why Trump could win.

    And on the other side they are still sniping at Biden, not caring that the primary is over. The Ds have no unification.

    1. Anti-abortion: majority of Americans support right to an abortion at least through the first trimester, but not partial birth abortions (which the dems enthusiastically do)

      Anti-gay: nobody cares about this anymore, even in the reddest of red states

      Pro-gun: A year ago, this would have been a losing issue for the GOP. But with the latest unrest could work in their favor, especially if there is a spike in crime.
      Anti-immigrant: another moot point. Immigration has been declining for years, even before Trump.

      1. Pro-gun: More on this, from the video below, I’m seeing AR-15s and a 100rd magazine being carried openly in public*. All things the Democrats have banned in various states and things the NAACP is now promoting. Should be interesting to see the DNC platform when it comes to guns over the next month.

        *Misdemeanor in MN without a carry permit. Everything else legal for purchase in MN.

    2. Sooner or later, Biden and Trump are going to be on the same stage. And Biden is likely to forget which office he’s running for.

      The only reason Biden is still viable is that he’s in hiding.

      1. You really don’t want to play up the Biden has dementia angle. Do you not listen to Trump speak?

        1. So, out of the goodness of your heart, you’re giving advice to Trump about how to win the election? Anytime a liberal says “you don’t want to XYZ our your side will lose” that advice should be taken with a grain of salt.

          Trump often leaves a spoken paragraph a different place than he enters, but dementia? Nah. Biden has clearly not the mind he had during the Obama admin. Dementia? Likely not, but certainly age related decline. It happens to everyone.

          1. Yeah. I’m doing a bit of “concern trolling” here, I’ll admit it. But I really do truly think going all in on Biden having dementia when compared to Trump is a tactical mistake. Brett is being willfully ignorant about Trump’s mental capacity here. It’s not going to be genius lucid Trump on the stage versus a completely lost Biden.

            1. Trump isn’t particularly smart or articulate, but neither is he as dumb as the left portrays him to be. I would say that he, and a only 60 year old Biden, were about average intelligence. America’s system of choosing leaders selects on certain traits, like charisma, more than IQ.

              1. He has the low cunning of a manipulative middle school bully.

            2. The initial premise was “the only reason to vote for Trump is if the other side is worse”.

              Biden manages to be worse on “mentally stable”. That is an extremely low bar when Trump is the opponent. And he loses that one.

              Biden has always been a hothead, easy to provoke and prone to both temper tantrums and flights of fancy.

              But he’s incoherent this year. Not Trump “what the heck are you on about?” incoherent. Not even logically incoherent. I mean, completely incoherent. The poor guy cannot hold a thought in his head sometimes.

              Even if he wins, it is clear that he cannot serve as President. Not in a Trump “don’t let that guy near the levers of power” way. He cannot serve in a “he needs in-home care” and “take away the keys” kind of way. It isn’t a value judgement. It is a health issue.

              Which could actually win the election.

              If you have a Giant Douche and a Turd Sandwich… but you let everyone know that the Turd Sandwich is going to resign immediately…. you could win. Because the best quarterback on every nonwinning football team is always the backup quarterback.

              Nobody will take a hard look at the veep – particularly if they announce late. But everyone will assume that they are going to be the actual president.

              1. You know, you guys tried this ridiculous Hillary is near death’s door thing before and it didn’t work at all. I feel like there is an effort to gaslight people (or yourself) into thinking Biden is completely convalescent to justify voting for Trump.

                1. If you can watch Biden speak and not reach that conclusion…

                  Well… I suppose we all have opinions.

                  As far as “one side is worse than the other”, it really doesn’t come down to Biden. He’s kind of off to one side for the last 11 years, so that doesn’t attach to him on a personal level as much, even though he was in the White House when all of the shenanigans started.

                  No, even a perfectly healthy Biden would be burdened by the conduct of the left over the last few years. The overreach has been staggering. If you can watch the level of coordinated attack from the left against all political enemies, real and imagined and not come away worried… well, I suppose that’s a good way to know which team you are on.

                  If everything wasn’t such a dumpster fire, this would be the year… Libertarians vs Greens, hundreds of seats changing hands, a real libertarian (or progressive) moment.

                  Instead, we have Trump and a bunch of crazy people who want to usher in a socialist paradise.

                  1. I expect Trump to lose solely because there aren’t enough uneducated bigots and disaffected culture war casualties — not even in the desolate backwaters — to position him for another Electoral College trick shot.

                    America has become less white, less bigoted, less rural, less religious, and less backward in four years. Just not enough ignorant bigots left.

  20. How similar is America to 1933 Germany? Not very much. There are probably too many dissimilarities to count. Plus, we’re still a few years away from the two candidates most likely to lead us into an American-style fascism from being on the verge of power. The audience can guess who those are. But on the other hand Christopher Browning, a preeminent and well-respected Holocaust historian, did compare Mitch McConnell to Paul von Hindernberg….which isn’t great to say the least. Although there is a lesson in that: conservatives, only you can stop fascism. You’re a main target for fascist appeals, and because you occupy so many power positions in government will be the kingmaker in this regard. Your track record of stopping bad people from getting into government is not great recently, but I believe in you (sort of). You’re the real Antifa, but you need to show it.

    1. What does Christopher Browning, the eminent Holocaust historian, have to say about this –

      “A number of kosher stores and synagogues were vandalized and looted in the uptown Los Angeles neighborhood of Fairfax, between Saturday night and Sunday morning, by people protesting police brutality…

      “It was also reported that Congregation Beth Israel, one of the oldest synagogues in Los Angeles and also on Beverly Boulevard, was defaced with antisemitic graffiti that read “F**k Israel” and “Free Palestine” scrawled along its walls.

      “In addition to destruction and graffiti inflicted upon the synagogues, a number of kosher restaurants, bakeries and stores were ransacked by protesters, looting much of the merchandise and causing extensive property damage.”

      Maybe you’re right, only conservatives can stop this sort of thing…

      1. I don’t know. I suggest you ask him? But, Antisemitism and fascism aren’t the same thing. Left-wing movements are easily susceptible to antisemitism too. Antisemitism is not a necessary component of fascism. Although I assume it will eventually creep in to any American fascist movement, I assume a successful American fascist party won’t need to use overt appeals to antisemitism or even dog whistles. There are plenty of other out-groups here to demonize.

        1. I look forward to the day when people will be judged, not by the brown color of their skins, but by the brown color of their *shirts.*

          1. For fascism, black shirts; think Italy, not Germany.

            1. To be fair, I was addressing a commenter who invoked Paul von Hindernberg – the guy who made Hitler Chancellor. So a German comparison is just riffing on a theme.

  21. This is why “voting” in national elections will never, ever fix what ails this country. Washington D.C. is never going to fix itself.

    At best, it will always be a lesser of two evils situation, and more likely it just doesn’t make a damn bit of material difference either way.

    Aside from the need to reverse the trend away from decentralized government and toward a larger and more centralized government, which has been a constant basically since the founding, the problem is a more fundamental human one.

    People need to stop looking to the government and politicians, especially those in D.C., as the vehicle for manifesting morality. Abject ignorance of history has reached astounding levels.

    1. This is correct.

      And also how they identify the nutty people that they can safely ignore.

  22. As with everything I’ve ever read that is of the ‘this is how you get Trump’ genre reads like someone rationalizing why they in particular are voting for Trump.
    Dunno if that’s where Prof. Bernstein is, but certainly this is reflected in these comments. Which are quite low substance, because no one is really voting for or against Trump based on policies it seems.

    1. Obvious troll RabbiHarveyWeinstein hardly needs to do any work, as he takes both sides of an issue to screw with people.

    2. I’ve been around for almost 50 years and one thing that is clear is that nobody ever votes for a candidate based on policy-it’s based on a mental ratio of how much they like one candidate vs how much they dislike the other

      1. Even more than that – people seem to simply have a “gut reaction” for most of their decision. Which guy looks like a better leader? Who is “impressive”? Who has that intangible “charisma”?

        We have tribalism – “my tribe” vs “not my tribe” and we have a gut reaction. That’s about all there is to it.

        I agree with you… people can talk all they want about specific issues – very few people make their final decisions that way. They seem to have a gut reaction and then rationalize their way to the conclusion that they were right about their gut instinct.

  23. Trump *will* get re-elected. Mainly because Biden has become a Bernie bro. Biden is now so far to the left to placate the Dem party that Che Guevera looks like a Republican.

    Anyway, I met the last persuadable voter back in Feb, she was 70 and died of COVID in March. R.I.P.

  24. Your open nails it.

    The only reason to vote for Trump is that the other side is worse.

    We are living in a Giant Douche vs Turd Sandwich world.

    Neither is worthy of the office…

    And yes. The DNC are so very, very much worse. They’ve gone from “big government evil” way over into crazy town. Trump is terrible. And they manage to make him look like a sane choice. That’s a very impressive feat.

  25. someone rationalizing why they in particular are voting for Trump.

    Exactly. If Trump gets re-elected it will be because people like Bernstein grab on to any excuse to vote for someone who not only, “lacks the temperament and judgment to be president,” but is also an incompetent, cruel, and utterly dishonest individual, and has an Administration full of knaves and fools who are taking a wrecking ball to the country.

    But hey, Bernstein is pissed about a couple of headlines, so maybe that’s good enough.

  26. Electing Biden, or whoever the Democrat nominee turns out to be, is the greater evil. You must be pretty fucked-up to think otherwise.

    If Trump is elected then there is the possibility of another Gorsuch or Kavanaugh on the Supreme Court, maybe even two. If Biden (or any Democrat) is elected then any SCOTUS replacement is going to be shit because even if the Republicans hold the Senate they will do what they always do when a Democrat president nominates a judge, they will bend over and grab their ankles.

    You may think President Trump is a bowl of shit but the Democrat is a truckload of shit you will have to eat if the Democrat becomes President.

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University of Washington Urging "Accommodations," "Especially" for "Members of the Black Community," as to Assignments and Exams

"Accommodations might include extra time to finish assignments or providing a 'final examination optional' pathway, for example."


From the University President and other officials:

We are writing to urge you, in these final weeks of the quarter, as assignments become due and exams are taken, to be especially responsive to the needs that your students, especially those who are members of the Black community, may have for accommodations as we conclude the school year. Accommodations might include extra time to finish assignments or providing a "final examination optional" pathway, for example.

Thanks to Prof. Glenn Reynolds (InstaPundit) and Jessica Custodio (Campus Reform) for the pointer.

Equity and Juries in Patent Law

A cert petition to watch at the Supreme Court


For those who are interested in equitable remedies or the Seventh Amendment, there's an interesting cert petition by Seth Waxman et al. in TCL Communication Technology v. Ericsson, Inc. (Hat tip to Andrew Hamm at SCOTUSBlog.) I've only glanced at it, and haven't read the opinion below. But it seems to call attention to a basic but unfortunately common mistake about remedies: thinking that monetary awards, or even backward-looking monetary awards, are necessarily legal. There's a rich history of monetary awards in equity, and one use of them is to complete a decree of specific performance. Failing to recognize that equity can "top off" its other remedies and award equitable compensation leads to errors about the Seventh Amendment, including the injection of juries into equitable decisionmaking. This one is worth keeping an eye on.

(Some leads for readers: The leading source on equitable compensation is Meagher, Gummow, and Lehane's treatise on equity. This equitable remedy is also discussed in my Oxford Handbook chapter on fiduciary remedies and in the "Equitable Compensation" chapter in the latest edition of Ames, Chafee, and Re on Remedies.)


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  1. Need to look more closely at the case, but the recurrent problem in patentdom is the ability to acquire injunctions by non practicing entities. The issue there is that of irreparable harm. If they aren’t a direct competitor, then they probably can only really incur monetary damages.

    The thing about injunctive relief is that injunctions were routinely utilized for economic advantage during litigation. Because of the royalty structure of many industries, halting production via injunction for alleged patent infringement, is often far costlier than they would get through court determined royalties. So plaintiffs would routinely obtain injunctions in order to halt production of major products containing arguably patented components or sub components. Inevitably that would result in significantly higher damages than would otherwise be warranted.

    The line between practicing and non practicing patent owners is because the practicing patent owner can claim permanent market loss as their irreparable injury. But the non practicing owner can not make that argument, and as a result, should be satisfied with actual damages (which typically means a reasonable royalty). We are talking hundreds of millions, if not billions of dollars here, hence a lot of pressure not to eliminate injunctive relief to non practicing patent owners.

  2. Very interesting. I’ve always been fascinated by the Seventh Amendment. A brief review of the cert petition makes it seem like this could be a cert worthy case. They did a good job of distinguishing between specific performance and the rule from Dairy Queen vs. Wood. Also since it’s the Federal Circuit…they’re probably wrong, at least as far as the Supreme Court is concerned.

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Powerpoint Slides and other resources for 100 Supreme Court cases.

Email me if you'd like access to our library, which is perfect for distance learning constitutional law class.


Randy Barnett and I prepared powerpoint slides for the 100 cases in our new supplement. The slides include photographs of the people and places involved, study guide questions, and brief summaries of the facts of the case. We plan to add multiple choice questions and a teacher's manual soon. These resources, along with our video library, will be super helpful for teaching constitutional law in a remote environment.

Here is a preview of our slides for Youngstown Sheet & Tube Co. v. Sawyer.

If anyone would like access to the entire library, please email me: josh-at-joshblackman-dotcom. We're happy to share. With so many classes going virtual this fall, these resources may be helpful to keep students engaged.

I've pasted below the list of all 100 cases, sorted chronologically, which you can peruse.

  • Jay and Marshall Courts: Chisholm v. Georgia (1793), Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), Barron v. City of Baltimore (1833)
  • Taney Court: Prigg v. Pennsylvania (1842), Dred Scott v. Sandford (1857), Ex Parte Merryman (1861)
  • Chase Court: United States v. Dewitt (1869), Hepburn v. Griswold (1870), Knox v. Lee (1871), The Slaughter-House Cases (1873), Bradwell v. Illinois (1873)
  • Waite Court: United States v. Cruikshank (1876), Strauder v. West Virginia (1880), The Civil Rights Cases (1883), Yick Wo v. Hopkins (1886)
  • Fuller Court: Hans v. State of Louisiana (1890), United States v. E.C. Knight (1895), Plessy v. Ferguson (1896), Champion v. Ames (1903), Lochner v. New York (1905), Muller v. Oregon (1908)
  • White Court: Buchanan v. Warley (1917), Hammer v. Dagenhart (1918), Schenck v. United States (1919), Debs v. United States (1919), Abrams v. United States (1919)
  • Taft Court: Pennsylvania Coal Co. v. Mahon (1922), Adkins v. Children's Hospital (1923), Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), Gitlow v. New York (1925), Buck v. Bell (1927)
  • Hughes Court: O'Gorman & Young, Inc v. Hartford Fire Insurance Co. (1931), Stromberg v. California (1931), Nebbia v. New York (1934), Schechter Poultry Corp v. United States (1935), West Coast Hotel v. Parrish (1937), NLRB v. Jones & Laughlin Steel Corp. (1937), United States v. Carolene Products (1938), United States v. Darby (1941)
  • Stone Court: Wickard v. Filburn (1942), Korematsu v. United States (1944)
  • Vinson Court: Youngstown Sheet & Tube Co. v. Sawyer (1952)
  • Warren Court: Brown v. Board of Education (1954), Bolling v. Sharpe (1954),
  • Williamson v. Lee Optical (1955), Cooper v. Aaron (1958), Sherbert v. Verner (1963), New York Times v. Sullivan (1964), Heart of Atlanta Motel v. United States (1946), Katzenbach v. McClung (1964), Griswold v. Connecticut (1965), Loving v. Virginia (1967), United States v. O'Brien (1968)
  • Burger Court: Roe v. Wade (1973), Frontiero v. Richardson (1973), Buckley v. Valeo (1976), Craig v. Boren (1976), Regents of the University of California v. Bakke (1978), Penn Central Transportation Company v. New York (1978), Cleburne v. Cleburne Living Center (1985)
  • Rehnquist Court: South Dakota v. Dole (1987), Morrison v. Olson (1988), Texas v. Johnson (1989), Employment Division v. Smith (1990), New York v. United States (1992), R.A.V. v. City of St. Paul (1992), Planned Parenthood v. Casey (1992), Church of the Lukumi Babalu Aye v. City of Hialeah (1993), United States v. Lopez (1995), Seminole Tribe of Florida v. Florida (1996), Romer v. Evans (1996), United States v. Virginia (1996), City of Boerne v. Flores (1997), Printz v. United States (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), Nevada Department of Human Resources v. Hibbs (2003), Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), McConnell v. Federal Election Commission (2003), Gonzales v. Raich (2005), Kelo v. City of New London (2005), McCreary County, Kentucky v. ACLU of Kentucky (2005), Van Orden v. Perry (2005).
  • Roberts Court: District of Columbia v. Heller (2008), Citizens United v. Federal Elections Commission (2010), United States v. Stevens (2010), McDonald v. City of Chicago (2010), Snyder v. Phelps (2011), Brown v. Entertainment Merchants Association (2011), NFIB v. Sebelius (2012), Fisher v. University of Texas at Austin I (2013), United States v. Windsor (2013), NLRB v. Noel Canning (2014), Burwell v. Hobby Lobby Stores (2014), Obergefell v. Hodges (2015), Fisher v. University of Texas at Austin II (2016), Whole Woman's Health v. Hellerstedt (2016).

Is "Defunding the Police" Libertarian?


I have become increasingly cognizant of a tendency of many libertarians to conflate "libertarian" with "antigovernment." There are a variety of groups and movements in the U.S. who hate "the government" for their own reasons, but aren't by any stretch of the imagination libertarian. If you hate the U.S. government because you think is it's controlled by "Zionists" who are trying to destroy European American culture by organizing an alliance of Third World immigrants and native African Americans, you will likely support dramatic cuts in government; but you are not libertarian, because if you thought "your people" were in control, you would happily have a massive, unlibertarian federal government.

Back when Ron Paul's presidential campaign was receiving support from various racist individuals and groups, his campaign's official position was that it welcomed support from *anyone* regardless of ideology, so long as they supported limiting the federal government. That's exactly the mentality I object to.

Libertarians hopping on the "defunding the police" bandwagon once again reminds me of the crucial but neglected distinction between being libertarian (or classical liberal) and being antigovernment. Protection of life, safety, and property is a legitimate function of government. Even Robert Nozick was fine with funding the "night watchman" of the night watchman state.

There are plenty of police reforms that could be enacted from a libertarian perspective that would improve matters. Qualified immunity reform is libertarian. Holding police accountable for misbehavior is libertarian. Reducing the power of police unions is libertarian. Getting rid of overtime and pension abuse is libertarian. Banning no-knock raids is libertarian. Reducing bloated police department bureaucracies is libertarian.

Broader reforms that would reduce the need for police and reduce police/civilian encounters are also libertarian. Getting rid of victimless crimes, especially the drug war, and certain categories of criminal business regulation that should be handled civilly is libertarian. Getting rid of taxes that lead to black markets that in turn lead to police/civilian encounters is libertarian. Abolishing laws that allow local governments to put people in jail for failure to pay civil fines is libertarian. Separating forensic science services from prosecutors' offices is libertarian. Holding prosecutors accountable for misconduct is libertarian. Finding alternatives to prison for certain categories of offenders is libertarian.

By contrast, "defunding the police," if that just means willy-nilly cuts, is not libertarian. This is true especially given that police departments will inevitably follow the "Washington Monument" strategy, in which bureaucracies respond to budget cuts by cutting what is most painful to the voting public. What is very likely to suffer is the legitimate function of the state in preserving people's lives, safety, and property from criminals, while not reforming the system at all nor doing anything about abusive police officers.

If defunding the police means getting rid of the police entirely, without any remote prospect of alternative means of protecting lives, safety, and property suddenly arising in its place (and in the current legal environment, the anarcho-capitalist dream of private protection services replacing police is impossible, even if it were somehow practical), is both crudely antigovernment and stupid.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. In my experience, “libertarianism” is whatever the person standing in front of you with a dog-eared copy of “The Fountainhead” says it is. And no two are the same. I chalk that up to the fact that, like “originalism,” it’s a bullshit philosophy that is rarely applied as described.

    1. Harsh, but I can see why you would think that. But there are nuts of all sorts in every political party, just look at the Republicans and Democrats. Hell, many of the Republicans I talk to lately seem the think these nationwide riots are a mass conspiracy funded by Gates or Soros or … Who the fuck knows, but it’s insanity is only exceeded by their frothing single minded support of President Trump. And the Democrats have their moments, though currently they pale next to this dumpster fire that used to be a democracy.

    2. And how does that make libertarianism different from any other of our favorite isms?
      Communism, socialism, populism, liberalism, constitutionalism, democracy-ism, authoritarianism, anarchism, plutocracy-ism, racism, etc. etc. They are all bullsh*t terms by the same measuring stick you’re using — they are defined by the person who professes to belong to whatever group. Come to think of it, Judaism seems to suffer the same problem, there are many varieties of that and you wonder what they have in common except a Jewish mother. Islamism has its problems too, and many of them don’t seem think much of each other. So, I don’t think we should put too much stock in trying to pin down exact definitions of any particular ism. I think we all know what they have in mind, broadly at least. And that’s enough for civil discussions, don’t you think?

  2. The police should take a week off as a trial run for defunding.

    1. Great idea, as long as they let people borrow all their weapons during the week off. I’m sure they’ll be returned in good order.

  3. Prof. Bernstein, thank you for pointing out this nuanced position. Even though Trump and his ignorant followers believe things are black and white, in real life they’re rarely – if ever – are.

    1. “Even though Trump and his ignorant followers believe things are black and white”

      Its not Trump nor his followers who want to abolish police.

  4. It is quite disorienting to agree with Professor Bernstein. But what he suggests is not only “libertarian.” It’s sensible policy.

    1. The Founding Fathers would agree with you about the sensibility of libertarian (classical liberal) policies.

  5. Just remember that the leaders of America’s largest cities could have shown leadership in curbing police violence and militarization decades ago.

  6. Police unions have contracts that prevent other remedies. Judges enforce those contracts with no regard to the hardships they cause the public. Elected leaders can’t fix ruinous pension systems and can’t fire abusive officers. Courts and prosecutors let police get away with murder (literally).

    A reformed police would be better than no police. Show how a few US cities succeeded in reforming their police.

    If reforms can’t happen or don’t happen, then disbanding the police is the only option left. Elected leaders can replace them with an entirely new agency with new rules.

    1. Also, defund the police is needed as a counterpoint to the let’s not do anything position.

      There’s a sizable crowd who likes the way things are: the police can do what they want. They’re only hurting people who are not like me. We need them to arrest people who (are not like me ) and want to own a gun. Or who leave their house without a mask. Or who say mean things to the very special diverse people who must be protected and celebrated.

      If no one is pushing for changes that are too extreme, you end up compromising on changes that don’t really change anything.

      1. I’ve seen no evidence – can you present any? e.g., polling – showing that most or many people believe the “police can do what they want.” Who says this? Anyone who does will be thoroughly and completely denounced by others.
        Professor Bernstein listed about 8-10 things that can be done to “change things”, to perhaps mitigate police misconduct and hold officers more accountable. You completely reject them out of hand. Over the decades cities and states have passed enormous reforms on law enforcement. Hiring more black and minority officers, training changes, community out reach. Enormous improvements have been made. This is not the 1960s or 1970s when police like those in Philadelphia or the South could literally act with impunity.
        Over the past two decades the violent crimes rates in America has dropped dramatically. Thousands of black men and women
        are alive today who were being killed before. Saved by, in part, the very police departments you wish to throw aside. Do you want to return to those days? I hope not.
        Yes, there clearly are abuses. The militarization of police departments is absurd. Reason magazine has documented where policies have gone wrong. But we need to view this in full, not in a one-sided “everything is corrupt let’s throw it out” view you have.

        1. A list of ideas that would improve things is not a list of actual policies that can actually be enacted and implemented. If a judge says it violates the union contract and can’t be implemented, then how does it get implemented?

          Disbanding them is a last resort option. Threatening it seriously might help overcome resistance to the other more measured reforms on Bernstein’s list.

    2. Reforms don’t happen because politicians don’t want them to happen. Certainly that is true in cities with “strong mayor” systems.

  7. My question is more pragmatic. So, after we defund the police and achieve the acme of social justice, are we supposed to haul the carcasses of the guys we shoot breaking into our home to the curb for the regular trash pick up day? Or will there be a number to call and Soylent Green stickers for body bag pick up, they way we do for grass clippings, leaves and tree branches? Or just Colt, Kimber and S&W branded wood chippers for recycling?

    1. The acme of social justice would be not disbanding the police force but repurposing it to go after peaceful citizens (for made-up crimes, like saying mean/insensitive things), while leaving real criminals roam free.

      1. I hear that in England the acme of social justice has been achieved.

    2. You’ll still pay protection money, you’ll just pay it to BLM or a BLM-approved gang affiliate.

      1. “Se vogliamo che tutto rimanga com’è bisogna che tutto cambi”
        — Il Gattopardo –

        1. Plus ca change, plus c’est la meme chose, n’est ce pas? I’m pretty sure I read that somewhere.

  8. Here’s one version of libertarianism worth pondering seriously:

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: June 5, 1916


6/5/1916: Justice Louis Brandeis takes the oath.

Justice Louis Brandeis


L.A. Politicians Planning Big Gift to Gun Industry, Private Security Companies

The likely unintentional result if the City of Los Angeles implements its plans to reduce the proposed police department budget (now $1.8B) by $100-150M.


See this story, and also this one:

Garcetti spoke of "reinvesting in black communities and communities of color."

The mayor proceeded to announce $250 million in cuts to the proposed budget and to reallocate those dollars to communities of color, "so we can invest in jobs, in education and healing." L.A. Police Commission President Eileen Decker then announced that $100 million-$150 million of those cuts would come from the police department budget.

I doubt this will on balance help black and Hispanic Angelenos, who are especially at risk of the violent crime that police are most needed to fight (much more so than of the violent crime that the police do indeed sometimes commit), see, e.g., these homicide statistics. But it surely will lead more people to conclude that, as police protection declines, self-protection becomes all the more valuable—as does private security, for the few rich enough to afford it.

UPDATE 9:35 pm: I should add that, if the politicians were to frame this as, "We're not going to increase the LAPD budget as much as we were planning to, but think instead about how better to spend the money to invest in things that we think can help prevent crime" (the original proposed budget apparently included a huge increase), the effect would be quite different. But they're deliberately framing it as cutting, because that gets them the anti-police message they want. Well, that message is likely to have other effects, too.

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  1. There is actually a poll that shows that 90% of blacks and Hispanics think that their neighborhoods need MORE police officers, not less.

    And many of them in the same poll are ALSO concerned about police misconduct, proving that ordinary people can hold more nuanced and balanced views than their educated betters. (Cue: Arthur Kirkland).

    As a small-l libertarian, I have long been concerned about police misconduct against all citizens, especially exacerbated by militarization, qualified immunity, civil forfeiture and unaccountable police unions.

    But I will observe that in the utopia that will come to be after the police are abolished, everyone will carry an AR15 as if it is a Gucci handbag and the rioters and looters will either be machine gunned or sold as slaves.

    1. The cost of private security is labor, but if it is volunteer, that disappears. I can see the Black & Hispanic men who want their families & businesses safe patrolling their neighborhoods.

      The question will be if it becomes a collective patrol, like the volunteer fire departments of today, or if they only protect the property of their members, like 300 years ago.

      The reason we went to municipal fire departments was that the competing fire departments would fight at fires and attempt to prevent each department from fighting fires of their customers.

      1. The *price* of volunteer labor may be zero, but the *cost* is quite high. Assume a 10 hour workday, counting commute and lunch, and 8 hours sleep, that leaves 6 hours for breakfast, dinner, and time with family. Assuming each neighborhood watch requires just one hour of each family’s time, that’s 1/6 of the time, and most families would find that a burden to repeat even once or twice a week, let alone every day.

        1. The price will be higher than that.

          What generally happens when vigilantes have to take over police functions is that they start dispensing justice too.

          They aren’t going to build their own jails, so that leads to 4 outcomes: fines (taxes), beatings, banning, and killings.

          It’s not a new phenomenon, and it’s why we decided police are the best solution to the problem a long time ago. It’s very imperfect but the alternative is worse, and it’s doesn’t lead to less violence or more equal justice.

          1. You mean the *cost* will be higher. The *price* can stay at zero for all that matters.

    2. They’re referring to “quality,” not “quantity.”

      1. That’s not what the poll asked. But you can certainly run your own poll.

        1. Don’t need to. They are not asking to have greater numbers of police abusing them. They’re referring to quality, not quantity.

  2. “for the few rich enough to afford it”

    Like Garcetti?

  3. Municipalities cannot afford the pensions anyway. With the unfunded municipal pension bubble ready to pop, seems inevitable to me that support for public unions wanes. Long term, I see this as a good thing for accountable government.

    1. The real question is not “whether” public support for public sector unions like the police decline, its whether Republicans will be smart enough to get ahead of this and lead the charge.

    2. What public authorities at all levels can “afford” can’t possibly have anything to do with decades of conservatives bashing against taxes, can it?

      I guess that’s another chicken that’s come home to roost: starve the state: Decades of bashing against taxes = not enough military forces to protect the common affairs of the bourgeoisie

      1. Martinned has got it! Our government is simply underfunded. If only we spent more, the government would have enough money to fix all these problems!

        I mean, we only spent $7.3 trillion on government at all levels last year. That’s only 34% of GDP. So there’s another two thirds of everything we earn that isn’t being used for the public good by government.

        We are off to an excellent start on remedying that this year though! We’ve plopped a whopping $8 trillion in extra spending on the pile so far, including the actions of the Fed. So spending at a 2/3 of GDP clip is already in the offing… and they claim they aren’t done yet. And that’s just at a federal level.

        Of course, those revised 2020 numbers also assume that GDP is unchanged. Normally you could project a 2% growth in GDP. But we’ve taken an entire quarter off. So I really don’t think you can count on growth this year.. maybe a contraction in GDP is in the offing.

        Plus, you have to think that several states are going to have to bump spending to handle this crisis….

        So we could be on track for spending at 70% of GDP or more this year.

        Would that do it? Could letting the government control 7 cents of every dollar we earn finally make the difference?

      2. “What public authorities at all levels can “afford” can’t possibly have anything to do with decades of conservatives bashing against taxes, can it? ”

        LA is a Democratic city with a Democratic dominated council and usually a Dem mayor. The last GOP mayor [after the 1992 riots] was a liberal businessman.

        No conservative has any influence whatsoever in it tax structure.

      3. LA is a progressive paradise, and like most Deep Blue progressive paradises, it becomes brutal and oppressive across the board.

        It’s not just police brutality either. It’s simple casual oppression. The city does very little to prevent graffiti vandalism of private property. But the private property owner must clean up the graffiti at her own cost or the city will fine her.

        This is just one of many many examples.

  4. I don’t understand ho wit’s even legal for the city govt. to reallocate funds in the budget to political organizations.

    1. What law would prevent it?

      1. You think politicians can spend money any way they choose, regardless of legislation authorizing expenditures? Like it’s a big, giant slush fund of some kind? That’s not how government works, or is supposed to work according to the law.

        1. What turnip truck did you just fall off?

          Governments at all levels make grants to all sorts of private entities many of which are obviously political some are the private arms of political groups or individual politicians.

  5. This combined with Minnesota’s “upcharging” for the Floyd case (an upcharging that practically guarantees an innocent verdict, while simultaneously discouraging police) means….We’re going to see the Freddie Grey situation again. But potentially nationwide.

    For those who need a reminder, Freddie Grey died while in police custody in Baltimore. So, the over-eager prosecutors there decided to charge everyone. They didn’t get a single guilty verdict.

    But the Baltimore PD took the message home quite well. Don’t take any risks. Don’t engage in any policing unless absolutely necessary. Don’t get out of your car and walk around the neighborhood. If you see something suspicious…don’t approach. Let it go.

    The result of course? A spike in Baltimore’s murder rate.

    1. You clearly don’t know about what you’re talking. First of all, it isn’t called “upcharging”, it’s called “over charging” IF you could even call it that in George Floyd’s case. Second, your ignorance is further illustrated by you saying this “upcharging practically guarantees an innocent verdict”. That is an extremely ignorant interpretation of what overcharging is. It’s actually the opposite. A prosecutor overcharges as a tactic to get a jury to “split the baby” and find the person guilty of a lesser included offense (i.e. charging someone with murder and the. Asking for a lesser included offense or manslaughter bc it’s easier to obtain). Finally, you may call yourself an armchair lawyer, but you don’t know a damn thing about it. In American courts, common law (i.e. case law) díctates anytime the facts presented via testimony and evidence support it, a lessor includes offense must be given by the judge. Therefore, your idiotic armchair opinion that “practically guarantees an innocent verdict” is based in 100% fiction. It doesn’t happen that way and never has. I GUARANTEE you, Derek Chauvin will be convicted of manslaughter, at best, but most likely he will be convicted of 3rd degree murder. In fact, the prosecutor should have filed 2nd degree or 1st degree murder charges in my opinion, and that wouldn’t even be overcharging it, Bc that is what that POS did. How do I know any of this? I’m a real trial lawyer for the past 18 years and was a prosecutor for the first 4.5 years. I’m also white, in case you want to know, and this issue isn’t about racism, even though that is what the media and the Dems want everyone to think. However, police kill more whites people every year by far, double the number of black people killed, and that should be obvious as to why, since the white population makes up the majority. This is ahí it abuse of power, police brutality, or simply put, “asshole cops”. Where people have their rights violated every day in America, but they don’t call it racism, they just call it what it is. That is the same thing you have here, but then the Dems wouldn’t be able to attack Trump if they called it what it really is. So instead, that is why all of these Democrat strongholds were looted and burned, and by whom? Why weren’t they stopped? It’s all a coordinated effort to create something out of nothing, bc the media and Dems will do anything to keep Trump out of office, including allowing the destruction of people’s businesses and violence upon violence. That is how a police precinct was able to be burned to the ground, and why all you hear from the media is blaming Trump and white people, and how bad black people have it. They are all playing the black communities again for fools, expecting them to roll out and vote Trump out of office. The. They will go back to doing nothing for the black people, just like the Dems never have and always do…amazing they have convinced this many people to buy their bull$hit for this long .

      1. Can you elaborate on the evidence you see that would provide probable cause for a first degree murder charge?

        (It is perhaps worth adding that the case law in Minnesota makes it clear that third degree murder is not a lesser included offense of second degree murder, at least on these facts.)

        1. Noscitur — After the guy in handcuffs loses consciousness, and the cop keeps his knee on the neck for almost 2 minutes more, what is that except action to make sure he dies? Tell me, what other explanation can you think of?

          1. He didn’t die of strangulation. He died of a heart attack.

            1. Armchair lawyer: I believe the coroner’s conclusion was that he died of asphyxiation.

          2. Stephen,

            He’s asking about first degree murder charge suggested by Ellzax, not the actual second degree murder charge issued. In Minneosta, that appears to require premeditation and an aggravating factor (such as the victim was a child, a cop, etc.), or murders the person during a sexual assault, burglary, etc. Your comment about “make sure he dies” doesn’t speak to any of those factors. (It may speak to second degree murder versus third degree murder.)

            1. Thanks for that NToJ. I do think the circumstances prove premeditation. That is what my question was about. Didn’t know about the aggravating factors part.

              1. Proving that the officer actually /intended/ George Floyd to die would be an awfully hard case to make, whereas it seems pretty obvious (to me at any rate) that he acted sadistically in a way that one could reasonably foresee might lead to death — and that did lead to death. I don’t know Minnesota’s law. In general terms that sounds like reckless disregard for human life, which would generally be manslaughter.

                But who knows? Maybe the cop was planning for qualified immunity to intervene, as it has so many times before.

      2. Calls someone ignorant. Thinks Chauvin woke up one day and said ‘yeah going kill me some black people, that will work out well for me!’

      3. Overcharge: Charge someone for a more serious offense than is warranted to attempt to get a plea bargain deal.

        Upcharge: Take the original, rational charges that were filed, then upgrade them for a higher charges due to zealotry from a new proescutor.

        Why the new charge is idiotic: Because the second degree murder charge is that Flynn was murdered while Chauvin was committing or attempting to commit a felony offense.

        What’s the felony offense? Restraining a criminal suspect. You can argue the technique was negligent or reckless. But the action of restraining itself “felony assault”? You really want to make that case? Have that on the record, restraining a resisting suspect is felony assault?

        1. Have you actually verified that “restraining a criminal suspect” IS the felony offense the second degree murder charge will be predicated on? Because I find that rather unlikely.

          Now, it’s likely that Chauvin’s defense will be that the predicate felony he actually is charged with was, instead, just him restraining a criminal suspect. By kneeling on said suspect’s neck for 8 1/2 minutes…

          I would gladly make the case that kneeling on a suspect’s neck for 8 1/2 minutes, including continuing to do so after they lose consciousness, was at best reckless.

          1. The argument being made is that restraining the criminal suspect is felony assault. They need the felony assault charge, so they can charge the other officers with aiding and abetting.


          2. The officer was barely “kneeling” on his head. Read the autospy. No facial trauma. If someone really kneeled on your head while you’re on asphalt, you’d have significant bruising or worse.

    2. So this ignorant lobsterman isn’t the only one who noticed the “upcharging” of what was a sketchy case to begin with….

      1. Look, if a mob of people have been burning buildings down and beating old ladies with 2×4 clubs for daring to stand in the way of their looting, I’m listening very closely when they start demanding harsher charges for all 4 suspects.

        If not for the sake of old ladies who are getting beaten by mobs, then for the fact that the mob knows my name, my face and can easily determine where I and my family reside.

        I can easily rationalize that choice by the fact that I have months to work out the details of a case, but rioters are looking for targets right now

  6. They should put up cameras and use face recognition technology to make policing more efficient.

    1. I totally agree! I Have been preaching that for years. Our US and state lawmakers have failed us. They have the technology, and as constituents we should all demand the police be monitored 24/7 with body cams, dash cams, booking cameras etc. They DO have it in many places, but not all. The cops don’t want it, though, and they have learned how to abuse it. This should be monitored by independent agencies, so the police Dept in question can’t hide or destroy or turn off the cameras. And YES, they DO that already. There is no excuse in this day and age why we don’t have mandatory surveillance of all police activity. It would also protect the police depts from frivolous lawsuits wherein people lie about what happened to them. The police should want it, but they don’t bc of shut head cops like D Chauvin. RIP George Floyd, and I hope Chauvin goes to prison for life, along with those other three assholes that didn’t do anything to help him. And yes, I’m white. This isn’t about racism, this is about police brutality and abuse of power, bc white people’s rights are violated every day in America also. They just don’t call it racism, they call it what it is, an abuse of power.

      1. Crime has been dropping for close to 40 years. Why should police brutality cases be any different? Local governments are afraid to generate accurate statistics, but they should not be.

    2. YAAAY Libertarianism!!!

  7. I don’t think the line between a billion-dollar budget and efficacy, or even just number of officers, is nearly as clear as all that.

  8. Does anybody else have the sense that “right” and “left” are flipping? That the supposedly ‘liberal’ elite oligarchs who own much of the media want to become a more or less hereditary ruling class, guarding the institutional gateways to privilege? And looking down upon ‘petty bourgeoisie’ and traditional labor, but appealing to the ‘lumpenproletariat?’ That the tech elites are really the ‘right’?
    And suddenly we ‘small L libertarians’ , left as the advocates of traditionally ‘liberal’ views of rights, privileges, and the nature of humanity, that we are now the ‘left’? Is this whiplash, or our heads spinning? Does it change our message?

    1. The Left’s tactic of asking the Right for equal treatment works because the Right values fair treatment.

      The Right’s tactic of asking the Left for fair treatment doesn’t work because the Left doesn’t value fair treatment.

    2. I don’t have that sense at all, because it would require me to rely entirely on, and be very confident about, vague political definitions that aren’t really applicable to the overwhelming number of people I interact with. “Does anybody else have the sense that [what follows is a bunch of code words placed seemingly randomly]…” Naw, bro. I don’t even know what the words you use mean, so how could I comment on whether it describes a phenomenon that I also see?

      1. I should add that maybe it would help if you used less coded language, were more specific, and had examples to help illustrate the things you are trying to describe.

  9. It seems that this move in LA is just an example of how big city mayors are trying to escape their responsibility for failing to curb police violence and abuses for decades. The police are answerable to the mayor and if the modes of police behavior have not improved, the mayors must accept the blame. If the city police have become more militarized, the mayors are to blame.

    When city police become the first line of dealing with mental illness, despite lack of training, or become the de facto social workers for the homeless, that is not the fault of the police or their unions, the buck stops with the mayor.

    It may happen that big city mayors have been predominantly of one party, but this observation fits both right and left feet.

    Don’t be fooled by this political juke; it is a transparent doge to escape dodge to escape accountability.

    1. “Hmmmm…how can we maximize this situation? I know! Divert police money to social programs! It simultaneously gives a good feeling of kicking the police in the nuts, while lavishing money on voters, always a plus!”

      “But they want better policing in their crime-infested areas, not less.”

      “Doesn’t matter. By the time the upward crime statistics appear, the election will be over.”

      1. Krayt, as has said before by somebody, ordinary cops aren’t in the crime-prevention business, they are in the somebody-committed-a-crime business. Detectives are more useful against crime.

        I think in many jurisdictions it would save a lot of money, and deliver more security, to halve the beat cops, and double the detectives. For another big advance, ditch the militarized policing, and take half that money to hire more detectives.

        1. You have this exactly backwards. Detectives don’t prevent crimes, they investigate crimes. Beat cops do at least occasionally prevent crimes.

          1. Jailing criminals prevents crimes two ways—deterrence and incapacitation. That is what detectives do.

  10. Advocating police reform is one thing. But making Trump the candidate who doesn’t want to abolish the police is a rather bold strategy.

    1. How do you figure? Trump doesn’t mind the police as long as they don’t investigate him and his friends, and more generally do as he says.

      1. I think TwelveInchPianist’s point is that the left will allow Trump to pitch himself to the voters as “My adversaries are the ones who are talking about abolishing police departments — I’m the guy who will keep that from happening.” That’s a “rather bold strategy” as a jocular term for a “politically foolish strategy.”

  11. Given the amount of excessive force we have witnessed by police officers in response to peaceful protesters, reducing their budget just makes good sense.

    The police need to be reminded that they work for us and that they are public servants. The attitudes we see with so much excessive force are not those of public servants fulfilling their duty to protect and serve.

    For example, consider this video from Buffalo:

    We need some sort of balance with the police. I don’t think we have it. And withdrawing funding is one source of leverage we have to ensure good behavior.

    Police departments that do an excellent job and maintain excellent community relations deserve more funding. Those who do less well, deserve less funding. This is how any business in the private sector works. This is how the public sector should work also.

    1. “ Given the amount of excessive force we have witnessed by police officers in response to peaceful protesters, reducing their budget just makes good sense.”

      I think that you are delusional. And that is the problem. For the most part, the protesters go home at dusk and the domestic terrorists come out and start looting, burning, and attacking the police as well as a number of non police. Police are dying. Civilians are dying, at te hands of these domestic terrorists.

      Downtowns across the country have been looted and burned out. Even the flagship Macy’s in NYC. Police cars burned in numerous cities. All by your peaceful protesters. And a lot more Blacks murdered than the one who set this up. And you are buying into the fable that these are resulting from peaceful protests.

      The center of this terror campaign is a nationwide conspiracy that many have been expecting since last summer. So far it has been much better coordinated than the responses have been (except in places like Coeur d’Alene, where the appearance of large numbers of well armed citizenry appears to have turned away overflow “protesters” from nearby Spokane).

      1. “I think that you are delusional.”

        Delusional or gaslighted. The media ARE selling, hard, the idea that the riots and looting are just peaceful protest. Unfortunately, this is going to work on some people, who don’t regularly access a wide enough range of sources, critically enough, to be able to tell when they’re being fed BS.

      2. Why have people been expecting it since last summer? What, in your view, is the instigating event that occurred last summer?

    2. And yet, you look at public schools sometimes….

  12. “I should add that, if the politicians were to frame this as, “We’re not going to increase the LAPD budget as much as we were planning to, but think instead about how better to spend the money to invest in things that we think can help prevent crime” (the original proposed budget apparently included a huge increase), the effect would be quite different.”

    They said they’d invest the money diverted from the police into “jobs, education and healing.”

    education – doesn’t LA already have a whole school system?

    jobs – a new Civilian Conservation Corps? What are the specifics?

    healing – does this mean health-care reform, or a more hippie-ish, touchy-feely definition of healing?

    In short, other than a slogan for more spending, what do “jobs, education and healing” actually entail, and how do we measure success?

    1. It means “handing out contracts to cronies in the black community so I can protect both my standing and their standing”.

      It doesn’t really matter what the contracts are for as long as the money is funneled to the right sorts of people.

  13. Not sure I see why cutting dollars means reduced police efficiency. Maybe it just means the budget for militarized policing gets cut. In terms of expenditures, militarized policing has got to be the least efficient part of any police budget. Cutting it would likely increase budget efficiency. It would deliver useful reform (and widespread pubic relief) in any case.

    More generally, EV’s attempt to link surging gun sales with Democratic politicians is lame. Gun culture in America generates its own surges, all the time, over everything. There are folks around who apparently cannot think of any way to respond to events—policy events, natural events, civil restlessness, election results, economic downturns, whatever—except by purchasing guns and ammo.

    Except for occasional public forays to display guns in public—apparently with an eye to intimidate the unarmed—buying guns and ammo seems to be the principal method some folks use to relate to the world around them. In a world where there is so much they feel they cannot do, buying arms gives them something they can do. It’s apparently reassuring for them.

    It’s not good for the nation. Whether or not the folks buying all these arms become dangerous themselves, the guns will outlast them, and eventually be dispersed into other hands, with menacing figures undoubtedly among them.

    It feels like EV is cheering those reflexive gun buyers on. He seems to enjoy the intimidating implications for the future, or at least not worry about them. Which looks peculiar, given how much greater is EV’s personal agency and access to power, compared even to typical middle class Americans, let alone the apparently power-starved gun-surge guys.

    I have said before that I suspect EV lacks experience with deadly gun use, either as a participant or as a witness. To guide gun policy, that is the only kind of gun experience safe to rely upon. Without it, what takes over is too often a mishmash of empty rationalism, plus pop culture gun celebration, plus self-satisfied but also self-deceptive gun-range experience—all blurring together into poorly-founded dreams of private prowess and public efficacy.

    EV’s comments on guns come across as an uneasy hybrid of sound legal expertise, unrealistically benign assessments of gun culture implications, out-sized public influence, and outright gun romanticism. Say what you will, EV on guns is an American original, and an unsettling one.

    1. Not sure I see why cutting dollars means reduced police efficiency….

      Cutting budgets means less police officers and/or lower pay (which makes it harder to keep get or keep good police officers).

      Less police officers means longer response times, which means more unsolved crimes.

      1. Just out of curiosity: Do you think that logic also applies to other areas of government activity? (Say, the CDC?)

        1. “(Say, the CDC?)”

          Its budget has gone up every year for decades.

        2. Yes*

          *So, when large government organizations have their budget cut (like the CDC), it’s usually on a program specific basis. If, for example, some might think the CDC should focus on infection diseases, and was becomingly unfocused as an institute due to its research on everything (for example, domestic violence, which some might consider not the proper domain of the CDC).

          If people thought that, then by cutting the budget devoted to CDC domestic violence research, the upper management would have more time and attention for critical infectious disease research.

      2. “Cutting budgets means less police officers and/or lower pay (which makes it harder to keep get or keep good police officers).”

        No, it doesn’t mean that unless the cuts are to the personnel budget. And even if they are, that could mean a number of cuts that don’t include a reduction in force.

        1. Realistically, it does. That’s because personnel budgets regularly account for 80-95% of the entire police budget. In LA for example, the total police budget was 1.86 Billion. But Personnel costs accounted for 1.75 Billion of that. If you’re going to cut $150 million from the police budget, there is no physical way to do that without cutting personnel.

          Now, if you just slash salaries (as opposed to slashing the number of positions), you run into a series of different problems. Even if you could get that past the contracts with the union (and California state law that is very employee friendly), then you run into a different problem. Good police officers are in demand. If police see their salaries being slashed in one jurisdiction, they’ll think about moving to a jurisdiction that is willing to pay them what they’re worth. And it’s the good ones who will get the job offers. Leaving the “bad” ones behind.

          1. “Realistically” your aunt’s balls. What is far more likely is new or that vacant positions will go un-filled; programs, like outreach, will be reduced or cut; facility upgrades will be put off; new vehicle and equipment purchases will be delayed; and any other of numerous other decisions that do not include a reduction in the number of police.

            None of this is to say there *won’t* be a reduction in force. I don’t know what they’re planning. But I have plenty of experience in this area, and “cuts to their budget” does not “mean” a reduction in the number of police.

            1. When “vacant positions go unfilled”….that means less police officers.

              If you have “plenty of experience in this area”, I provided a helpful link to the City of LA’s budget. It outlined the exact numbers that go towards personnel expenses, as well as the rest of the police budget.

              Please tell me how you’re going to cut $150 million from that budget without hitting personnel?

              1. No, it doesn’t. In fact, departments keep positions vacant on purpose for various reasons. It might be time for you to consider that your speculations do not make up for your ignorance on the matter.

              2. Oh, and I already provided a few examples how. There are many ways to move money and priorities around that do not require terminating officers.

                1. Be specific. Very specific. What in that budget above would you cut and how, in order to save $150 Million?

                  Are you arguing that the department budgeted for a $150 million dollars worth of positions that they intended to keep vacant (and not spend the money on).

                  1. No, I’m not going to do that for many reasons, not the least of which is that I am not in charge of L.A.’s budget planning.

                    Yes, departments (not just PD) keep positions open. Among the reasons they do is for budgetary reasons. Have space for three Deputy Chiefs; use two; then use the money for the third at a later time for whatever need (possibly to help fund lower positions, among others). It is a common budgetary maneuver. It’s even possible, though incredibly unlikely, that 8% of their budget is vacant positions.

                    Of course, I listed other areas besides vacant positions that can be used to manage the proposed cuts. The fact you want to keep yanking that one thread is telling. For instance, it tells me I’m wasting my time here (which, tbh, I already knew).

                    You started this off by proclaiming that budget cuts “mean” reduction in force. I’ve explained why you are wrong to say that. And there’s no reason for me to keep banging my head against your wall.

                    1. You really, really, don’t get the SCALE of the budget cuts being proposed.

                      This isn’t a 1% or 2% reduction in the budget. This is on the order of an 8% cut, in a department that spends 94% of its budget on personnel. It’s a $150 million dollar cut. It’s huge.

                      Let’s start stripping all the “non-personnel” costs.

                      Wipe out the entire transportation equipment budget. That’s $10 Million. Wipe out all uniforms. That’s another $4 Million. Wipe out all office and administrative supplies. That’s $23 million. Wipe out every single firearm and ammunition acquisition. That’s $5 million. Wipe out all field equipment (like bulletproof vests) That’s $10 million.

                      OK, the Cops now have no new cars, no new bullets, no new uniforms, no new office equipment, and no bulletproof vests. You’ve saved $52 million. You need to save another ~$100 million. What are you going to cut next?

                      Unless you think the LAPD is “hiding” $100 million in vacant positions on its books somehow.

                    2. Armchair, this is about just one item on your budget list, the $10 million for transportation equipment. Does that include police cars? Wikipedia tells me there are 10,000 police officers in L.A. If you put two officers in each squad car, and run each car for 3 shifts, then one car serves the needs of six officers per day. Very roughly, obviously, that suggests about 1400 cars (You need more than 6 officers per week). But that assumes maximum efficiency, which probably is not even approached. When I look it up, the figure I find is 6,000 cars.

                      What do those cost, and how long do they last? My guess is about $40,000 per car, (because cop cars are beefed up when manufactured, and expensively equipped before seeing service). And two years max for service life, because police cars are in service 24/7, around the clock. And police departments don’t retain vehicles which break down. (Two years is the service life my own small town police force uses, by the way.)

                      Long story short, $10-million seems wildly unrealistic. Replacing half that fleet every year would run about $120-million, less whatever they get selling the used ones (probably one pittance per car). Is it possible you misunderstand the budget numbers? Or that the public budget numbers are unreliable?

  14. “LOS ANGELES – Masks. Hoodies. Sledgehammers. Crowbars. Baseball bats.

    “These are the descriptions Jewish business owners cited when talking about how their stores were looted and ransacked, and synagogues were vandalized with graffiti after peaceful protests spiraled out of control in Los Angeles beginning on Friday night and continuing into the weekend….

    “[Aryeh] Rosenfeld [owner of a lotted business] described the scene late Saturday night with people driving down the Fairfax district streets screaming, “effing Jews,” at them. He said when they saw a police car, they waved it down, hoping they would arrest a looter they had pinned down, but the cop said, “We can’t do anything, we have officers who need assistance.””

    It sounds like a round of budget-cutting is in order. /sarc

  15. This is nothing but political posturing. They had proposed adding 671 million to the LAPD budget which probably would have been pared down anyway. So Garcetti claims he is “cutting” 100-150 million so he can look woke. What a joke. Of course they probably will dole out some amount to the “black community” which will undoubtedly go to race hustlers and con men. New community services will sprout run by people getting 250k salaries and staffed by family and friends.

    1. “This is nothing but political posturing.”

      Exactly. Due to the virus shutdowns, muni income is cratering. Every part of the LA budget is going to be cut.

  16. Wow, who knew a maximum 8% cut to a $1.8 billion budget would have such consequences? I look forward to the rest of this series where you discuss the problems associated with cuts to social services, which occur far more regularly than cuts to police budgets.

    1. Otis,
      Have you ever run a business with a 90% labor expense. And 8% cut invariably leads to at least that large a layoff. As the cops get paid much more than admins, that means that the overall layoffs will be ~10% or about 500 people.
      May not be a big deal to you but your job is not on the line

      1. I’m not repeating my responses to Armchair. You can just look up a couple threads and read it yourself.

  17. That’s been politician-speak for as long as I’ve been following politics. Not increasing the budget as much as you had at one time planned to increase the budget = “budget cuts”.

  18. I want to foreground this:
    I think that you are delusional. And that is the problem. For the most part, the protesters go home at dusk and the domestic terrorists come out and start looting, burning, and attacking the police as well as a number of non police. Police are dying. Civilians are dying, at te hands of these domestic terrorists.

    So despite the countless videos of police beating or hurting innocents, the we should not believe our lying eyes, but rather Bruce’s evidenceless invocation of terrorism.

    1. I must have watched over 300 Twitter videos over the last week, almost all raw videos posted by bystanders.

      The vast majority of protestors have been peaceful.

      There are certainly some videos where police are unquestionably beating or hurting innocents, including one here in Austin, where a cop fired a rubber round and hit the head of a bystander who was just standing there observing the scene.

      There are far more videos where the rioters have been physically pushing, throwing rocks, provoking confrontation and progressing to rioting, looting and burning thereafter. As just one example of the famous St. John of the Photo Op church:

      Fire set at historic St. John’s church during protests of George Floyd’s death

      This happened the night before, which is why Trump chose it for his photo op. No one on the left seems to care that a church was set on fire!

      On the same night the protestors were aggressively trying to rush the White House perimeter. Watching the live feeds from the scene, I actually got a little anxious that they might succeed and bloodshed would certainly result.

      The First Amendment protects peaceable assembly. It does not protect fighting words, physical confrontations and street fighting. And a huge amount of that has been committed.

      1. Your anecdotal survey is 1) unreliable, and 2) doesn’t matter.

        In protests about police brutality, the police being brutal is rather a big deal, regardless of some arbitrary baselines you set based on all the time you spent on twitter.

        No one on the left seems to care that a church was set on fire!
        Because 1) there is no sign of what happened, and 2) it did not actually burn down. Attempts don’t carry the same weight. But you have a narrative to push so your weighting is different. Fine for you, not very convincing for the public.

        The First Amendment protects peaceable assembly. It does not protect fighting words, physical confrontations and street fighting. And a huge amount of that has been committed.
        Street fighting? Fighting words?!! You do realize what you are defending, as responses to that, right?

        1. Are you saying that it’s OK to set the church on fire because it didn’t burn down?

          It did not burn down because the fire department got to it in time!


  19. Call it “often libertarian,” or a “Ted Cruz-class libertarian,” but it’s still just an authoritarian right-winger in faux libertarian drag.

  20. “The Los Angeles Police Department is launching an investigation into officers who were caught on camera using batons on protesters and officers who were photographed hitting a homeless man in the face, according to department spokesman Joshua Rubenstein.” — The Washington Post.

    “Make sure those officers get a raise!” — an “often libertarian” blog.

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Oral Dissents at the Supreme Court: They Can Still Happen


In most years, the Supreme Court Justices go on the bench to announce their opinions in person, with the authors of each majority opinion reading a brief summary. A few times a year, dissenting Justices who feel strongly enough will also read a summary of their dissents, which can often add drama and draw public attention.

As Josh noted on May 24, this Spring the Court is obviously not meeting in person to announce opinions, so the Justices aren't reading aloud from their opinions, either; Josh regretted that. An AP story today discusses the matter as well, quoting several experts who view the practice as valuable.

I just wanted to mention that there's no reason why such reading of dissents—or, for those Justices who want to, majority opinions—couldn't continue this year via streaming audio. The Justices' May oral arguments were made available to the public via what was essentially a conference call streamed and archived by C-SPAN.

Precisely the same technology could be used for Justices who want to read opinion summaries. A Justice who wants to do this could just alert the Chief and the other Justices, and ask that such a call be set up; the other Justices would be welcome to be on the call, though there's no reason why they should all feel obligated. (Presumably the majority opinion author might feel obligated to read the summary of the majority, and maybe some others might feel that they ought to listen in, but it would be a very slight burden on most of the colleagues.)

In principle, I suppose a Justice could just unilaterally ask the administrative people to arrange this, though I would think such a move would be seen as uncollegial. But if the Justice asks the others, I expect that rejecting such a reasonable request—which is very much in keeping with the tradition of oral dissents—would be seen as uncollegial, too. And of course several Justices might want to do this, each for a different case.

So we might yet hear oral dissents, likely with accompanying oral summaries of the majority (and maybe even the very rare oral concurrence). If we don't, that would be just the choice of the dissenters, not some inherent limitation stemming from the technology, court rules, or tradition.

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  1. Asking the Court’s press officer to post a PDF statement might work just as well. Presumably within the remit of justices individually, and the Court already publishes their speeches when requested.

    Mr. D.

  2. This is a new environment, and bad things could happen. Since they are present when opinions are read from the bench, should Justices be virtually present when individual Justices read their opinions online? Will the temptation on them to succumb to political pressure by not “showing up“ for opinion reading be great? Will such reading of opinions, especially dissents, be seen (and used by politicians) as simple preening by Justices, eroding their authority? If any of these is true, we risk frittering away years of accumulated capital, whether of comity among Justices or the authority Americans have been willing to grant the Court.

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Gun Sales Surge


… at least judging by federal background check data—the blue line is for 2020, and the others are for 2016 (green), 2017 (orange), 2018 (grey), and 2019 (yellow).

Of course, this doesn't include illegal gun sales, and gun sales by non-firearms-dealers in those states that don't require background checks in such situations.

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  1. If you are waiting for an emergency to buy guns then you shouldn’t own them in the first place.

    (speaking as a gun owner)

    1. Dang, I actually mostly agree with regexp on something.

      But as a practical matter, people do tend to procrastinate about many many contingencies that don’t seem to be a concern in the current moment.

      Buying a fire extinguisher.
      Sufficient life insurance.
      Making a will.
      …. there’s a long list of things that should be done when they are not yet needed.

      1. You really don’t want to have to rely upon a gun that you haven’t put a few boxes of ammo through. Yes, it helps to practice with a fire extinguisher too, but I did pretty good with one the first time on a working fire.

        1. I agree in general, and in fact am a firearms instructor.

          But if you look at the data around Defensive Gun Use, most do not involve shooting the firearm. The presence of it is sufficient to cause the criminal to seek greener pastures elsewhere.

    2. I think these sorts of trends mostly indicate people with a longstanding desire to have a gun finally moving on that desire, and people getting a second or third gun.

      1. Many gun retailers report that about 40% of buyers are FIRST TIME BUYERS. IOW, they finally wised up to the fact that when the SHTF and seconds count, cops are minutes/hours/days/infinity away. That means about 2 million new gun owners. And no telling how many people that bought into the anti-gun lies that “buying a gun is easier than buying a Big Mac”. In the slave states like CA, NY and New Germany they found out that the government takes 6-9 months (if ever) to approve their “privilege” of owning a gun. And with the Kung Flu closing various govt. approval agencies, that permission is on hold until further notice, riots or no riots. Maybe they will wise up, but I doubt it. And there are 16 million + people with concealed carry licenses/permits in the various states. And in many of them, they don’t have to submit to a NICS “background check” and don’t count in the “new gun sales” statistic.

    3. Maybe they just got mugged by reality and changed their minds.

    4. Yeah, those are the idiots who paid $900 for a Glock off Armslist.

  2. “illegal gun sales”

    No gun is illegal.

    1. Undocumented guns.

      1. “Non-citizen” guns

        1. Alien (ray) guns.

  3. Uh huh. I bet it charts pretty well against people buying toilet paper. Coming out of the CoronaVirus pandemic we’ll have a lot of folk with a bright shinny new gun and mountains of t-paper piled up in their closet. Of course the latter they’ll eventually use, so at least there’s that.

    Moral of the story? In times of upheaval people make silly decisions.

    1. Storal of the mory: especially politicians.

    2. Our TP stash is finally starting to get low; We didn’t go hog wild, and the stocking up we did was several weeks ahead of the rush. (Which we could see coming.) Thanks for reminding me, I need to get some more soon.

  4. Can only say my Ruger stock is ringing the register.

  5. If BLM really mattered they’d be a nutrition group.

  6. Well, gun sales surged 3-4 months ago anyway.

    1. Martinned: The surge continues — gun sales were 44% above the March average in March, 33% above the April average in April, and 50% above the May average. (They were also 21-23% above the monthly averages in January and February, so maybe there’s a broader growth trend, but March, April, and May have all seen a surge even compared to earlier in the year.)

    2. Gun sales surged when Covid started and many sneering Euros asked if it was because the new buyers wanted to shoot at the virus.

      But of course, gun sales surged because of the possibility of civil unrest and social breakdown.

      And guess what happened!

      1. Huh? You think George Floyd got killed because of Covid???

        1. No, but the riots probably happened because of it, or rather, because the lockdowns had everybody on edge already.

  7. The liberal theme now seems to be “REVOLUTION!!!!” Just because their fellow travelers who are in charge of city police departments are tolerating looting and violence does NOT mean John Q. Public is going to do the same. So be careful what you wish for liberals, you might just get it all and some you don’t want.

  8. “non-firearms-dealers”

    Such a clunky phrase. How about just “private citizens”?

    1. The original jack burton: I agree that “non-firearms-dealers” is a clunky phrase, but “private citizens” wouldn’t be clear to many readers. “Private citizen” is generally used as an antonym to “government employee,” but of course under this definition federal firearms licensees are private citizens, too.

      1. Perhaps simply “private sellers”.

        1. Again, “private sellers” means a good deal to people in the know, but my sense is that many people who don’t follow this subject might be confused by this sense of “private.”

          1. Undocumented firearms dealers?

          2. Excellent revolvers and their automatics have gotten substantially better.

            1. Dunno why this ended up here. Apologies, was attempting to respond to the poster with Ruger stock.

  9. According to the last DoJ NIJ Bureau of Justice statistics survey of prison inmates who carried or used a gun in the crime for which they were imprisoned, 91% acquired their guns from grey or black market sources, only 9% from retail sources (gun stores, pawn shops, gun shows, flea markets). Forty years ago, first armed and dangerous inmate survey, the proportions were about 20% retail sources, 80% grey or black market. 2004 survey 25% were from drug/street criminals (man you can’t get those dudes to demand Rx from their customers, but they’re gonna run UBCs on buyers?)

    I grew up under local option alcohol prohibition 1953-1968; good source for guns in the neighborhood was bootleg joints.

    Gun control is not about cracking down on criminals. It is about cracking down on legal gun ownership. It does have the effect of encouraging panic buying.

    1. I grew up under local option alcohol prohibition 1953-1968; good source for guns in the neighborhood was bootleg joints.

      After the first felony, the second one is free…

    2. While the bad guys got their guns from the grey/black market most of the time, the grey/black market is quite closely tied to the above board market.
      Gun owners can be a careless lot. Every week in my small town there is reporting of someone having their gun stolen when left in their car. That in fact is the scenario of the McMichael father-son duo who felt the need to hunt down a jogger whom they felt had taken a gun from their unlocked vehicle some days earlier. And he was a former LEO. Really the only reason that someone should loose their right to poses firearms is to be so incompetent as to loose a firearm.

      1. I don’t see why someone should lose the right to possess a gun just because someone stole one from them. Should a person lose the right to own a chainsaw if someone steals it from them? A lawnmower?

  10. My local “Mom & Pop” Gun store sold out a complete shipment (16) of higher end AR’s in 2 business days. The handgun cases are about 60% empty now. Some Taurus revolvers and some Uberti Single Action Army replicas are left. I only saw two guns in the “Used” case. Note: this is in Illinois, where it now takes 4 to 5 months to even get a FOID card, required to buy any gun or ammunition. According to the owner, about 70% of the customers are first time buyers and most are from Chicago/Cook County.

    So, one pragmatic question. When the left finally “defunds the police”, are we supposed to haul the carcass of the guys we shot breaking into our home out to the curb on the regular trash pick up day? Or will there be a special number to call for body pick up and Soylent Green stickers, they way we do for grass clippings, leaves and tree branches?

    1. Don’t be silly when the police are not funded crime will just disappear. We will all get together, crack open a Coca-Cola, and sit around in a circle.

      No, seriously, this is what some people think will ACTUALLY happen.

  11. I am just surprised that the spike isn’t even greater. Probably an artifact of limited supply. Expect to have June really set records.

    Was in a sporting goods store a couple days ago in Kallispell, MT. They might have been a little light on AR-15 type long guns. But they still had a good selection of handguns. Saw a Glock 40 that really tempted me, but luckily gave it a pass (already have a G20 and some holsters work for both).

    1. If you were professional enough you probably would have bought it.

      1. The difference between a G20 and a G40 is mostly a couple inches longer barrel. (Plus the G40 is setup for easy installation of optics, such as red dot sights). Hard to conceal a G20. Much harder to conceal a G40. And really not overly easy to draw quickly from a regular holster. About the easiest seems to be a guide holster for chest carry. It is mostly a hunting gun, used in particular for brown and black bear hunting.

        So, no, you probably not going to shoot yourself with your own G40.

  12. Every time a state “closes the gun show loophole”, background checks rise. I’d guess the majority of sales still happen, just through a dealer instead of face-to-face.

    Then again many state CHLs and LTC licenses are “skip NICS” licenses, so purchases by holders of those (who likely already own one or more firearms) don’t show up in the numbers.

  13. Maybe it’s because 80% lowers and frames, err paperweights – yeah paperweights, have been scarce for the last few months and people resorted to buying guns instead.

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"'Only the Cops Need Guns' Simply Could Not Live Forever Alongside, 'The Cops Are Racist and Will Kill You'"


An interesting short article by Charles C.W. Cooke, editor of the National Review (though of course, as he notes, there are plenty of good arguments for being able to effectively defend yourself even if the cops aren't racist and will kill you).

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  1. Only the cops, who should be defunded, should have guns to kill you with after we take your guns. Yay.

    1. Do you really think this post is a good look?

  2. An effective demonstration, yet again, that conservatives are dishonest debaters.

    1. You win the debate with your detailed exposition!

    2. I think we’re all indebted to Snorkle Johnson for clearly stating what needed to be said. I’m particularly glad that these lovely children were here today to hear that speech. Not only was it authentic frontier gibberish, it expressed a courage little seen in this day and age.

    3. Spoken like a true master debater.

  3. and also, some would say we have reached the proverbial cartridge box with police brutality. Another reason for the 2A.

    People should be thankful that the law allows them to be their own first responder… Unless you think that the police unions are giving up their cushy no-accountability contracts without a fight. (Maybe not a direct fight, but one where they let crime spiral perhaps).

  4. Pick 1:
    * The police are racist and oppressive and will kill you.
    * Only the police should have guns.

    * Trump and his government are authoritarian dictators who will unleash government aggression upon peaceful citizens.
    * Only the government should have guns.

    1. *The police are not racist but they are still oppressive and will kill you, your dog, and your neighbor.

  5. Some key statistics on racism in the United States.

    1. In 2016, there were 776 inter-racial (White-black) homicides. Of these…
    a. Blacks committed 533 of them
    b. Whites committed 243 of them.

    2. Excluding homicide, between 2012 and 2015, African Americans were responsible for 85% of inter-racial (White-black) violent crimes.

    3. In terms of police, a cop is 1750% more likely to be killed by an African American, than an unarmed African American is to be killed by a cop

    1. When 10% of the population is black and 50% is white, in round numbers, it only makes sense that 80% of black perpetrators have white victims, or that 80% of inter-racial crime is black on white. 50:50 would imply one heck of a lot of white racists.

      Your third point is meaningless. The two are unrelated.

      1. You fail to account for absolute numbers, see my response below.

    2. Heck, let’s put some actual numbers at work. Assume 80 whites and 20 blacks. I’m ignoring other races because you did, even though you also specified “inter-racial”, which makes your data suspect right from the start, but let’s ignore the impication that Asians, Hispanics, and all other races have no involvement in crime whatsoever.

      Black criminal picks a random victim. He’s got 80 whites and 19 blacks to choose from. Guess which statistic he bumps up?

      White criminal picks a random victim. He’s got 79 whites and 20 blacks to choose from. Guess which statistic he bumps up?

      You really need to cherry pick a lot better if you want to make blacks look the uber criminals you imply.

      1. So a few points.

        1) I put inter-racial, but then specified just the two races above, for the purpose of this argument.

        2) What you’re critically missing in your analysis here is that since there are more white people overall, there should be more white criminals overall. So, let’s use your 80/20 example. And assume a 4% criminal rate for each population.

        Black criminal 1 has a has an 80 whites and 19 blacks to choose from. (0.8 whites killed, 0.19 blacks killed)

        White criminal 1 has 79 whites and 20 blacks to choose from
        White criminal 2 has 79 whites and 20 blacks to choose from
        White criminal 3 has 79 whites and 20 blacks to choose from
        White criminal 4 has 79 whites and 20 blacks to choose from

        Total killed: 2.36 whites, 0.8 blacks.

        See where you made your error? Of course, if for whatever reason, whites had a murdering criminal population that was much lower as a percentage than the black murdering criminal population. Would you like to make that argument?

        Point 3: If we’re worried about racism, then perhaps the number of people actually killed by people of the other race is going to play a role.

        1. You have contradicted your own claims 1 and 2; blacks have not killed more whites than whites killed blacks.

          You haven’t explained claim 3 at all.

          1. So, I presented the statistics if everything was equal. You would expect equal numbers on both sides.

            The statistics in truth are not equal. The truth is, more white people have been killed by black people, than the other way around. That’s just facts. White people are disproportionatly the victims of African Americans, compared to the opposite.

            It is the reverse of what you would expect if there was widespread racism by white people against blacks.

  6. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

    John Ehrlichmann, explaining the war on drugs.

    I mean, in a fantasy world, this point is correct.

    But this isn’t a fantasy world. This is the real world. In the real world, white people with guns occupy government buildings and intimidate politicians and the police let them be. Black people with guns? Well, they defend their homes when the police bust into the wrong address without announcing themselves and get lit up.

    What BS. The system protects itself.

    1. You comment reads like a Homey the Clown mad at “the man” skit.

      If you think that whites are in charge of “the system” and “the system” give whites a free pass when it comes to guns, well, that’s just not the reality today, especially when you look at the localities and states with the highest level of gun control, and which take the opportunity to punish gun owners (like having a delayed flight in NY with a gun in your luggage).

      I won’t deny the racist roots of much of this country’s history of gun control though. Nothing like some gun control to keep the black man down.

      1. The Congress on Racial Equality’s amicus in the Heller case on the racist roots of gun control is a good read on the subject.

    2. Well this statement is pure racism. I can show you black people at 2a protests at court houses. I can link you stories of white people killed by cops.

      You’re a racist.

  7. Do people end up successfully using their gun on cops, even as a deterrent?

    1. Well, the police are certainly deterred from something. That’s why they execute search warrants as if they’re doing it in Sadr City. (With similar success in terms of bodycount and popularity.)

    2. In the first 4 months of 2020, 16 law officers were feloniously with firearms.

      So, yes, people do end up “successfully” using their guns on cops.

      1. Sorry, I guess it should be did anyone successfully *defend themselves* from police brutality with a gun?

        That wouldn’t work, seems to me.

        Which makes the quote in the OP not a contradiction at all.

        1. “That wouldn’t work, seems to me.”

          It might work. Depends if the “brutality” was legally justified.

          If you have police abusing their authority on (and off) the clock, and trusting in their firearms to keep them safe… Well, a few people who are willing to take the consequences for their actions might make police think twice about abusing their authority.

          1. It hasn’t worked, is my point.

            Your scenario is just incorrect at to human nature; a few good guys with guns willing to kill cops are not going to be presented as such, and are not going to make cops thing twice.
            Just like shooting a member of a street gang doesn’t make that street game think twice.

        2. Yes. Usually by the cop seeing the gun and backing down before it escalates to brutality. The Black Panther’s started with Cop Watching in the 1960s. This also directly led to California adopting it’s “gun control” measures, further supporting the argument that gun control laws are for disarming people, not protecting them.

          1. I am aware of the Black Panthers and the racial component to early gun control.

            I’m also not at all clear that the movement ever really successfully defended itself.

            1. Uh… Ever heard of Tupac?

              He famously saw two grown white men beating up a black kid in Atlanta. So he jumped out of his vehicle and confronted them with a gun. After they drew guns on him, he shot them.

              They were police. Two off duty police officers.

              He was charged.

              And the charges were dropped.

              You could make the point that successfully using force against the police is exceedingly rare.. but you certainly can’t run around claiming “never”. In this day and age, with cameras everywhere, the likelihood of success has increased significantly. (although I’ll still argue that it is quite small)

              1. I mean, sure. I do not mean the superlative, because that’s never true.

                But that changes nothing of my thesis.

                Tupac story is cool.

            2. “I’m also not at all clear that the movement ever really successfully defended itself.”

              Did you read any of these when they were discussed here?

              “Negroes With Guns” Robert F Williams, Wayne Staue Univ Press, 1998
              “A Man Called White” Walter White, Arno Press and the NYT, 1969
              “Negroes and the Gun”, Nicholas Johnson, Prometheus, 2014
              “The Deacons of Defense”, Lance Hill, UNC Press, 2004

    3. Isn’t a better measure of whether we have a problem with white cops and black men the number of unarmed black men killed by white cops? And we have that number, do we not?

      At least, the WaPo claimed they did. They reported a total of fourteen (yes 14) unarmed black men killed by white cops in 2019. A total of 14. Try male, black, unarmed as filters at the link below. Replicate my number.

      Whatever our societal problems with race are (and we have them), the problem is not white cops just killing unarmed black men at a high number. The data simply don’t show that problem.

      1. More blacks have been killed during the riots–excuse me, peaceful protests–in 2020 than were killed by police in all of 2019.

      2. I mean, the issue is more with cops killing people in general. The racial disparity is just icing on the cake.

        1. As people keep pointing out, once you adjust for racial disparities in crime rates, the racial disparity in being shot by cops is the opposite of what’s claimed: They’re actually more likely to shoot whites.

          1. 1) So what? The issue is the police, not their victims

            2) Stats about crime rates misses out on the potential for disparate enforcement.

            3) Your analogy between crime prevalence and police brutality is required for your conclusion, but not supported by any evidence other than your own logic.
            What about the seriousness of the crime? The proportionality of response?

            4) Not to mention profiling.

            1. You’ve missed the point.

              “Because racism” is the distraction. It is the canard that they use every single time this comes up. This is how they get everyone diverted away from actually fixing the problem with the criminal justice system.

              If you say “we must fix institutionalized racism and racist police!”… what happens?

              A whole lot of nothing, that’s what. Police, prosecutors and judges are going to argue “I’m not a racist!”. You are going to shout “Yes you are!”. Sensitivity training all around. Hire more people who have dark skin. Yada-yada.

              Now, what if you frame the problem thus:

              Police are abusing their power and harming people. How can we fix that?

              Now you have a real problem that can actually be addressed. It doesn’t matter if they are doing it for the reason of racism, or because they are sociopaths, or for no particular reason at all. You just address the actual problem… the conduct that is harming people.


              Well, welcome to libertarian mainstreet.

              Unions are a problem. Can’t fire bad cops. Can’t demote them.

              The war on drugs is huge. Bad missions lead to bad outcomes.

              Tactics designed for stopping a shooter from harming people are being used to serve routine warrants. Reining this in would make a massive difference in the level of violence visited upon people.

              Prosecutors protect the police when they do the wrong thing. That needs to stop.

              Judges do even more to protect the police than prosecutors do.

              Beyond those basics of accountability and mission: There’s loads to be done in criminal justice reform. Forensics is completely corrupt because the incentives for the crime lab are all wrong. Prosecutors using mandatory minimum sentences and massive overcharging to get guilty pleas is wrong. Judges allowing this is wrong. Legislators allowing draconian sentences to continue is wrong.

              Every single one of those very libertarian ideas would disproportionately benefit the black community – yet not one of those ideas has any directive about race or racism.

              In fact, if properly implemented, those types of reforms would completely solve the “racist cops are killing us” problem, without any need of ever designing a program around preventing people from being racist.

              But not only are we not going to follow that path – one that has been laid out for decades – we are not going to be allowed to even discuss that path. Because it is racist to discuss anything other than institutionalized racism.

              So congratulations, folks. We’ll take another bite at this apple and come away with some fired up voters for the fall…. .and not much else.

              1. I’m defiantly not a libertarian, but I and most on the left agree about reforming police unions and stopping the war on drugs. So then who is in favor of these things?
                I have discussed the issues of bad forensic science in previous threads.

                Do you think BLM would disagree if these reforms were put into place in a widespread way?

                Methinks your allies are not who you think they are.

            2. “1) So what? The issue is the police, not their victims”

              Right, too many of the police being unnecessarily violent, NOT the police being “racist”.

              “2) Stats about crime rates misses out on the potential for disparate enforcement.”

              Disparate enforcement can’t be messing with victimization surveys. And those agree with the crime rate numbers. So unless blacks themselves are conspiring to report that they’re being victimized by their fellow blacks in line with the crime statistics, you just have to admit the crime statistics are real.

              “3) Your analogy between crime prevalence and police brutality is required for your conclusion, but not supported by any evidence other than your own logic.
              What about the seriousness of the crime? The proportionality of response?”

              See point 2.

              “4) Not to mention profiling.”

              See point 2. Any response that starts from the premise that the crime statistics aren’t real is starting off wrong.

              1. First, I continue to challenge the statistics, because it’s pretty easy to see where a sample bias can easily come in with victim surveys that have a racial component.

                Second, neither my point 3 nor my point 4 have anything to do with the numbers being wrong, they have to do with the results of such surveys not capturing aspects of disparate enforcement.

    4. Although not common, there are some cases where private citizens fired upon police officers thinking they were being attacked by criminals. Here in Central Texas, there was once such case where a homeowner killed a cop in no-knock raid and the jury acquitted him.

      In the ongoing Breonna Taylor no-knock case, her boyfriend fired on the police, and charges have been dropped.

      1. But, how’d that turn out in terms of having a gun being helpful?

        I am quite unconvinced concerns about police have any kind of connection with buying a gun.

        Arsenal-type militiamen excepted.

        1. As a general rule, firing on cops is not terribly prudential even if legally justified, because the cops will do their damnedest to see to it you don’t survive to have the case legally reviewed.

          In cases where the cops are trying to extra-judicially execute you, you still have a better chance of survival if you resist.

          1. But there’s a lot of police malfeasance that’s not quite judicial execution (even if the outcome is often the same). Having a gun will actively hurt in that case.

            And you don’t know which is which.

            Thus, I do not think it follows that police will kill you implies anything about gun ownership to address it.

            Generalized unrest seems more the driver of gun sales. That and the left getting into guns.

            And no, I don’t mean Antifa.

            1. I don’t generally recommend responding to police malfeasance by shooting at police. Like I said, it’s not prudential even when it’s justified, unless they’re trying to kill you on the spot.

              But “having a gun” and “using a gun” are two different things. And, no, “having a gun” does not make the situation worse for you, unless you’re having it illegally.

  8. 1. Like I said the other day: if cops don’t know how to use their guns, or are prone to abusing them, they should have their guns taken away too.

    2. It takes a special kind of crazy person to think that the solution to the problem of “The Cops Are Racist and Will Kill You” is to shoot at the police.

    3. The reverse is also true. If all those conservatives really believe that everything is fine and dandy, why are they buying guns? And, more revealingly perhaps, why were they buying guns when Obama was elected?

    1. 1) You can’t pass a law to un-invent something.

      2) Talk to the Black Panthers, Weather Underground, Branch Davidians, etc. etc.

      3) Reports are that guns are being bought mostly by first time buyers, somewhat panicked over the state of things.
      3a) People buying guns during the Obama gun sales surge were
      buying guns that he wanted to ban, presuming that they
      would, like previous bans, be grandfathered in.

    2. “more revealingly”

      Do they teach mindreading in law school in the Netherlands? Or just stereotyping?

  9. Edit. Feloniuously killed.

  10. Arm yourself against the police? Are you serious?

    As bad as things are now, a black person is about 786 times more likely to be killed if the police see he has a gun.

    1. I would like to see a source for that statistic.

      1. Good point. If that 786 times figure was true, a black person with a gun would have a 212% probability of getting killed, and that can’t be right.

    2. re: “Arm yourself against the police?”

      That’s not what the article says at all. It’s not even anything the article implies.

  11. Will the law and order/”come and take it” people finally figure out who is going to be coming and taking it? I wonder….

      1. So you better be demanding law enforcement officers scrupulously uphold civil rights.

        1. We have been. Strenuously. Read all of the posts from conservatives on use decrying qualified immunity. But what we won’t sign on to is making it a BLM issue, as though inappropriate police action against whites is okay.

          1. I actually agree a little on BLM. If George Floyd was white, would BLM care about his death at all? But they’re right when they’re right, despite the selectivity. Whenever BLM starts demanding more than what every individual deserves, the answer should change.

            Similarly, why wasn’t the NRA out there making a big issue on the Philando Castile killing? They should have been.

            1. Regarding Floyd, that’s fine, but it’s clearly being presented as a problem only for blacks. Until that changes, I won’t support it.

              The NRA doesn’t take a side in ANY shooting, whether police involved, concealed carrier involved, or anything else. Whether or not they should have is up for debate, but there is no racial angle that the race-baiters like to claim there is.

    1. Likewise, I wonder if the gun law people will ever learn that it’s not middle- aged rural white guys who generally serve time on a gun charge. If you want more young minority men in prison, gun laws will make that happen

      1. Because otherwise the police would let them walk around unmolested? How is that working out for you?

        1. Police are mean so imprisoning young minority men on gun charges is irrelevant?

        2. Most gun ban and gun control advocates don’t care that they will end up putting more minorities behind bars. The best way to imprison more minorities? Pass more gun laws!

          Washington Post: Shaneen Allen, race and gun control

          The nation’s top gun-enforcement agency overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial drug sting operations, a USA TODAY investigation shows.

          The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.

          At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.

  12. Because shootouts with the police always go well for everyone, including innocent bystanders!

  13. What makes you think it is only conservatives buying guns?

    1. “What makes you think it is only conservatives buying guns?”

      Usually people turn conservative after buying a gun and discovering their new found self sufficiency.

      1. You have an extensive well designed survey to prove that I suppose.

      2. And because their liberal acquaintances will go all Church Lady and rebuke them for their sinful gun possession the next time CNN has a dramatic shooting story and the Dems spot an opportunity to divide Americans.

        “You don’t want to be like them do you? You need to donate to keep the NRA from giving every kindergartener in America a machine gun! Send the money now or all the children will die!”

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Free Speech

"Statement on Campus Censorship During Nationwide Protests"

From the Foundation for Individual Rights in Education.


Like our fellow Americans, we at FIRE have been gripped by the aftermath of George Floyd's killing in Minneapolis and the subsequent protests and disturbances in our cities. Those engaged in peaceful protest are exercising one of our nation's bedrock civil liberties, with people around the country gathering to protest Floyd's killing and discuss police brutality, racial inequality, and other important issues.

America's colleges are playing host to these same discussions. As a nonpartisan civil liberties organization committed to defending the free speech rights of college students and faculty members, FIRE is here to hold universities accountable to their moral and constitutional obligations, which in times of crisis are at their most, not least, important. Yet during this volatile time, FIRE has already seen a troubling number of institutions abandon these obligations, choosing to investigate and punish controversial speech.

Public universities are government agencies, legally required to uphold the First Amendment rights of students and faculty. While private institutions are usually not similarly bound by law, the vast majority of them promise free expression to students and faculty, and are therefore bound morally and contractually to honor those promises. These guarantees mean nothing, nor will they long endure or be respected, if they protect only those whose opinions happen to be in favor on a particular campus.

George Floyd's death and the subsequent reaction has provoked a wide variety of responses in college communities, including some that many find deeply offensive or that involve the use of racial slurs. But while the level of passion with which these issues have been argued in recent days may have changed, the underlying First Amendment principles have not. The overwhelming majority of such expression, whether it supports or criticizes peaceful protests, police tactics, or violent disturbances, is protected — either by the First Amendment, by universities' own promises of free expression, or both. FIRE will continue to defend speakers' right to exercise their expressive rights regardless of viewpoint. Universities committed to free expression must do so as well.

While college restrictions on speech appear thus far to be broadly aimed at silencing racially offensive or insensitive expression online, views falling on all sides of the current national debate, in a wide variety of situations, have been impacted. Temple University has flatly said it will punish "[s]tudents who share messages of hate." The University of DelawareClemson UniversityValdosta State University, and Framingham State University have all announced (in some cases multiple) investigations into racially offensive student social media posts. Northwestern University and the University of Alabama at Birmingham are facing calls to punish or fire professors for their seeming support of rioting or property damage. This list is hardly exhaustive.

Read More

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Can someone point me to FIRE’s coverage of Jerry Falwell’s most recent censorship spree at Liberty University?

    (Or do right-wing organizations provide free passes to certain educational institutions, revealing a partisan and paltry nature?)

    1. FIRE asks private universities to honor their published policies, the issue being when they don’t. Now if you can articulate how this purported censorship spree violated a published university policy or statement of values, I suggest you send copies of both to

    2. The good Reverend got owned.

      1. He has no substance to own.

    3. You always bring this up and ignore the same thing every time. FIRE is about the 1A and avoiding censorship. A private university that promises to censor, is not subject to the 1A or avoiding censorship. Private entities must be allowed to censor to preserve their own association and speech rights.

      Nonetheless, FIRE has gone after Liberty in the past. You know this because people have told you about it.

      1. “You always bring this up and ignore the same thing every time.”

        One might say that Arthur clings to the idea that FIRE gives right wing schools free passes.

        1. The evil isn’t private people or groups censoring. It’s government-mandated censoring.

          Indeed, the bulkhead undergirding his temerity on clingers relies on private individuals playing a game of social ostracism of individuals burbling disfavored speech. He likes the right that private citizens and organizations play in this free speech way, so why it bothers him with private universities is puzzling.

    4. “(Or do right-wing organizations provide free passes to certain educational institutions, revealing a partisan and paltry nature?)”

      Well, let’s look at their 10 worst universities for free speech.

      Yup. Liberty’s there.

  2. Funny you should mention them, since they are FIRE’s poster child of the difference between universities that claim they support freedom of speech versus those that explicitly do not.

    1. Interesting post. I bet the good rev didn’t look at it.

      1. I was looking for FIRE’s expression of outrage with respect to Liberty’s recent aggressive censorship. There is a reason no one has pointed toward it yet.

        Continue with the cherry-picked ankle-nipping at your betters, FIRE and Conspiracy fans.

        1. Since you haven’t read the linked-to article, I will read it back to you.

          “Based on [Liberty University’s] clearly enunciated policies and the contract, time and time again I have used Liberty University as an example of a university that no one could attend not knowing that they were giving up an extraordinary number of rights. It is not plausible to think that anyone could read the contract that Liberty University requires applicants to sign and say “Gosh, I had no idea the university Jerry Falwell founded was so restrictive!”

          “It is Liberty University’s right to form a community around its stated beliefs and values—even if those values do not include free speech. Likewise, students have the right to agree not to engage in certain behaviors or express certain opinions in order to attend this very restrictive religious college. That is how freedom of association works—indeed, that is how freedom of association should work.”

  3. The issue I don’t understand is the “media” exemption to curfews and such.

    It was explained to me that the journalist is using the First Amendment rights that *everyone* possesses — so how can the government discriminate between citizen-journalists and licensed-journalists?

    On the other hand, do not forget that Mumia Abu-Jamal was a “licensed journalist” when he murdered a police officer.

    1. Excuse me, what is a “licensed journalist”? Never heard of a journalist needing a license. And I am not sure a 39 year old murder case is relevant today. If it is then you know why people are protesting.

      1. State-issued press credentials are required.

        1. State-issued press credentials? Are you talking TASS or Pravda or some other Russian news agency?

        2. Given many live stream or take videos to post later, the line between credentialed journalist and hoi polloi citizen is very transparent now.

  4. <>

    Footnote: hate of Trump excepted.

  5. Temple University has flatly said it will punish “[s]tudents who share messages of hate.” Footnote: Hate of Trump excepted.

    1. If accurate, that indicates just another test FIRE will flunk.

    2. One wonders if Liberty has been consistent about this policy. If, say, a student expresses hatred of abortion doctors. Or of Nancy Pelosi.

      (Note: I do *not* know the actual answer to this…for all I know, Liberty has a perfect record of doling out identical punishment for saying/writing, “I hate Trump’ vs. I hate abortionists’ vs. I hate Satan’ vs. I hate Muslims’ vs. I hate Hillary Clinton.” I suspect that Liberty is not consistent, but I’ll be perfectly happy if my guess turns out to be incorrect.)

  6. Where is the outrage anent the following:

    (1) the cold-blooded murder of an octogenarian white couple, Paul and Lidia Marino, by negro Sheldon Francis while the Marinos were visiting the grave of their son in early May;

    (2) the cold-blooded murder of 59 year-old Leslie Baker, who was white, while she was parked in her driveway in suburban Dallas, by a 16 year old negro youth. This on the same day as George Floyd was murdered;

    (3) the cold-blooded murder of 35 year-old Kevin Humes, a white man, of Georgia, by a 15 year old negro youth, on May 18;

    (4) the cold-blooded murder of Cody Holte, a Grand Forks, SD police officer, by Salamah Pendleton, a negro, brandishing an AK-47, on May 27, while Holte was assisting other officers serving an eviction notice;

    (5) the brutal, sub-human, murder of white, 80 year-old Rosalie Cook, by negro Randy Lewis, in Houston. Lewis, who has been a career criminal and a model exemplar of black social dysfunction, stabbed the 80 year old grandmother.

    How many riots ensued the foregoing barbaric murders?

    Did any of the aforementioned white lives matter?

    Do we not understand that blacks are just far more likely to commit crimes of inter-racial violence than whites?

    1. Riots are about the abuse of governmental power. But you knew that and just wanted to posts some white victimhood.

      Also…negro? Where are you posting from, 1970?

      1. Riots are about mob violence, the desecration of private property, and the initiation of aggression. But you knew that and just wanted to post some racist grievance mongering and signal your genuflection to the poor, saintly negro.

        What is wrong with the use of the word negro? Does it offend you?

        1. Conspicuously absent from Sarcastro’s post was an answer to my questions.

        2. Very well, these PROTESTS are about the abuse of government power in killing black people. That’s what makes them different from what your dumb post listed.

          Negro doesn’t offend me, just makes me draw some conclusions about you.

      2. Also…negro? Where are you posting from, 1970?

        Actually, one assumes he’s posting from a year or more in the future, when the trials have taken place and the alleged killers convicted.

        I guess the racial terminology just circled back around again.

        1. Does not your point apply to the alleged murderer of George Floyd, who, by the way, is a felon who mercilessly beat a woman in connection with a home invasion?

          Note, once again, no riots ensued the murders of the aforementioned white people.

          Stop with the special pleading for Africans.

          1. This ‘he was no angel’ BS doesn’t fly anymore with the public at large. Sorry.

            Fuck you.

    2. The outrage is the same as the outrage for crimes committed by other common criminals. Bluntly put, those crimes are tragic for the families involved but they are statistically routine. Crimes committed by those with a special duty to protect the rest of us, however, are deserving of outrage.

      If you want to make a valid comparison, find examples of white victims of police abuse.

      1. And you don’t even have to look far. The “liberal” mainstream media spent about 35 minutes straight this morning, showing two cops (part of a long line of other law enforcement) violently shoving backwards a 75-year-old WHITE man, where the victim fell backwards to the ground, where his head smashed into the ground, where blood was pooling by his head, and where none of the cops stopped to aid him. (It does appear in the video that one cop called this in, and–hopefully–this call included a request for medical care.)

  7. Keep flailing, clingers.

    It’s stuff like this that costs right-wingers the respect of mainstream academia.

    1. Are you afraid of the truth, Rev?

      We know that mainstream academia is afraid of the truth.

      1. Keep whining about Harvard, Yale, Berkeley, Princeton, Columbia, and Williams.

        Continue to prefer Hillsdale, Grove City, Liberty, Regent, Wheaton, and Ouachita Baptist.

        The consequences have been and will be predictable.

      2. We know that mainstream academia is afraid of the truth.

        Spoken like every fringe element everywhere, from people with a new theory of gravity to white supremacists to Nature’s 4 Day Timecube.

  8. I remember when the ACLU would also put out statements like this. Looked on their website and could find nothing…

  9. I have suggested that the Compelling Interest doctrine gives a state leeway on at least some First Amendment issues to address a riot – in particular, the police don’t have to give religious worshipers the sane leniencies that they give rioters.

    But that said, this only applies to dealing with an actual riot. States can’t proactively restrain speech because they fear the possibility of a future riot. The compelling interest doctrine indeed applies to some preventative measures. Vaccines are an example. But a state’s ability to apply prior restraints on speech to address future issues is more limited.

    1. The Supreme Court has used terms like “imminent lawless action.” (Brandenberg v. Ohio) And this was limited to things like threats and incitement to violence.

  10. I’ve been experimenting with the Volokh “Hate Speech is Protected Speech” video and the results are interesting. Some social media platforms deem it misinformation while others do not: many purportedly informed individuals (including academics, journalists, and elected representatives) either consider the video obsolete, misleading, “dangerous,” or “wrong-headed.” Many of the individuals are reacting to fear that police will not intervene to prevent violence — which is a reasonable fear, given statements by many government officials: when your business is burned because you expressed dislike of a [white] governor, for example, it’s reasonable to stop uttering your dislike. I’m intrigued by the “wrong-headed” response as it brings to mind events of the late 60s and early 70s, when ostensibly gentle “whitecapping” efforts were used to interfere with speech rights (and contracting rights).

    1. Back in the late ’60’s, there were enough people who had fought a man named Hitler a quarter century earlier, and hence had a healthy cynicism of governmental control of speech.

    2. If you cause them any difficulties, they can always call Processor Volokh, who will gladly defend their right as private parties to censor his video on their platforms.

Please to post comments

Right of Access

Pseudonymous Federal Litigation Requires Court Permission


A reminder yesterday from Judge James S. Gwin (N.D. Ohio) in Doe v. Doe, a slander lawsuit stemming from allegations of sexual abuse at Oberlin College—the plaintiff is seeking to litigate the case under a pseudonym, but that requires court permission, and requires the plaintiff to clear a fairly high bar:

On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain
County Court of Common Pleas. On May 8, 2020, Defendant removed the case to this Court.

Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. {Fed. R. Civ. P. 10(a); see Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("As a general matter, a complaint must state the names of all parties.").}

Only in limited circumstances may a court permit the parties to proceed pseudonymously. Id.

Unless the parties seek this permission, however, federal courts lack jurisdiction over the unnamed parties. Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); see also Citizens for a Strong Ohio v. Marsh, 123 F. App'x 630, 637 (6th Cir. 2005) (citing Nat'l Commodity, 866 F.2d at 1245). Here, neither party has requested permission to proceed under pseudonyms.

The Court hereby ORDERS both parties to file briefing on whether they can proceed
anonymously. Both parties' briefs are due within seven calendar days.

Whether the plaintiff can succeed in litigating the case pseudonymously is an interesting question: Courts have generally been open to allowing sealing by plaintiffs who allege sexual assault, and by plaintiffs who sue universities alleging wrongful expulsion based on third parties' allegations of sexual assault; but I haven't seen much discussion of whether libel plaintiffs could sue their accusers pseudonymously, whether over accusations of sexual assault or of other serious misconduct. In any event, though, the court is right that this can't be done as a matter of course, but requires the court's permission.

There are often anonymous Doe defendants, simply because the plaintiff doesn't know their identities (but is often busily trying to discover them).  That, though, raises a separate set of questions.

UPDATE: For an interesting example of a court order allowing a plaintiff to proceed pseudonymously, check out Judge Lawrence O'Neill's decision in Publius v. Boyer-Vine (a First Amendment case where I was one of the lawyers representing the plaintiff):

After considering the unique facts of this case—namely, the careful steps that Publius has taken to safeguard his anonymity since he began blogging, and Publius' thus far undisputed assertion that the addresses and phone numbers of the legislators were already publicly available when he posted them—it becomes clear that Plaintiffs filed this request to focus the Court's attention on the merits of their case. Publius has demonstrated a compelling need for anonymity, that Defendant is not prejudiced by this anonymity, and that the public's interest would be best served by allowing him to remain anonymous. The Court finds that Publius has satisfied the "high bar for proceeding under a pseudonym" and that deviating from its normal practice for this "rare exception" is warranted.

Courts are indeed more open to plaintiff pseudonymity in cases where plaintiffs are challenging government action using primarily legal rather than fact-intensive arguments, and their precise identity is not particularly important—though of course even there court permission is required, and is not categorically granted.

FURTHER UPDATE: I've revised the title of the post to make clear that this is the rule in federal cases; as commenter orin ed deniro noted, this might not be the rule in state courts. (The right of access to court records stems from both the First Amendment, which in principle applies equally in state and federal courts, and from common-law principles, statutes, and court rules, which may vary by jurisdiction. The restrictions on pseudonymous litigation might also have a First Amendment open-courts component, but my sense is that they are more of a common-law/rules/statute matter, and thus likely to vary a good deal more from court system to court system.)

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  1. Does Ohio have different standards for anonymous litigation? If so, should the court treat the case differently because it was removed? In particular, should the PLAINTIFF’s desire to remain anonymous be treated differently because is was not “he” who chose the federal forum?

    Not suggesting answers, just pondernig

    1. Paul: I much appreciate the question, but I’m inclined to say that public access to federal court records is a matter of procedure that should be governed by federal rules. (Compare the recent D. Vt. case that held the same as to outright sealing, and my argument to that effect in an earlier case before the same judge.) I realize the substance/procedure line is often hard to draw, but I think that the contents of publicly available court records is a quintessential procedural matter, and that the public’s right to supervise the actions of federal courts applies regardless of where the cases originated.

      For the benefit of our other readers — I know Paul, who has litigated these questions extensively, knows this well — a bit of background: There is both a First Amendment and a common-law right of access to court records. The common-law right can naturally vary from jurisdiction to jurisdiction (and can be modified by statutes in some jurisdictions, though the First Amendment right applies in all jurisdictions.

      But sometimes the common-law right provides more protection than the First Amendment right even when it comes to outright sealing. And it may well provide more when it comes to pseudonymity — it’s possible that states might, for instance, authorize a great deal of pseudonymity (e.g., I believe all Delaware family court cases are routinely litigated under pseudonyms). That’s why it’s important to know whether federal or state pseudonymity rules apply to cases removed from state court to federal court.

      1. Hmmmm….

        In Massachusetts, access to District Court records (the juicy stuff that student journalists want to see) is totally at the discretion of the Clerk Magistrate. I was unable to get a few for this reason.

        1. It’s certainly not supposed to be, as a general matter, see the Uniform Rules on Public Access to Court Records:

          Publicly available court records in the custody of a Clerk and located in a courthouse shall be available to any member of the public for inspection and/or copying during the regular business hours of the court, consistent with these rules. Electronic court records may be made available in part or in their entirety at the courthouse consistent with Rule 2, as compiled data consistent with Rule 3, or by remote access consistent with Rule 5….

          [Note:] Court records in the custody of a Clerk shall be available for public access during normal business hours consistent with these rules, unless otherwise prohibited by law or court order. A judge has the authority to impound an otherwise public court record. See Trial Court Rule VIII, Uniform Rules on Impoundment Procedure (as amended effective October 1, 2015).

          I can’t speak to what happened in the few cases where you tried to get particular records (perhaps they fit within some exception, or perhaps the clerk’s office erred).

        2. Uh huh. Whatever you say, Dr. Ed.

      2. Certainly, under Erie, this is procedural, but it does have substantive implications nevertheless. And I am thinking of a line of cases that I had occasion to cite a few times maybe 30 years ago (I don’t have the briefs readily accessible) suggesting that federal court is not the place to try out adventurous theories of state law, leading to an approach of construing against the party that chose the federal forum.

  2. oops, typo

  3. Has Prof. Volokh ever been an advocate for a pseudonymous litigant?

    I do not know, but I might be willing to wager.

    1. Indeed — and, as the case I’m writing about suggested, it took a court order to make that happen. See Publius v. Boyer-Vine; I wrote about the merits aspect of the case here.

      1. An ombudsman could improve this blog.

  4. As I recall, he has on a number of occasions suggested sympathy for Dendrite line of cases, which are to a significant the product of my litigation endeavors; the standards set there erect protections for the ability of defendants who have been sued over their speech to remain anonymous unless the plaintiff can show both an evidentiary and legal basis for suing.

  5. First, Burton Hall is a student dorm at Oberlin — saying she lives in room 134 pretty much identifies her. It gets better — Room 117 of Burton Hall is the “Disability Solidarity Wing” — see:

    Hence it is possible that Room 134 is also part of this wing, and hence identifies her as a student with a disability (which can include a psych disability). That raises lots of interesting possibilities, doesn’t it??? (And is mental health a reason for courts to grant anonymity in litigation?)

    Second, this is Oberlin — Oberlin — and the fact that he isn’t suing the school appears to mean that he didn’t get ground up in their Kangaroo Kort system. Remember that most of these Korts act on third-party reporting, so her telling others he raped her would be enough for Oberlin to boot him. (Yes, it is that bad in academia today.)

    Third, between the tort claim limits on suits against public universities and state “charity” protection limits on suits against private ones, I’m surprised we haven’t seen more of these suits — if nothing more for the “pound of flesh” and forcing the accuser to declare personal bankruptcy. (And even then, a lot of parents have shifted stocks to their children for favorable tax status.)

    But the thing that strikes me the most here is that a woman accused a man of rape and Oberlin — Oberlin — didn’t believe her? Wow….

    1. There is one other possibility that I’ve seen happen — he really did rape her, but his parents are either rich enough and/or powerful enough to make it go away. For example, AJ Baker, the adult son of MA Governor Charlie Baker, was accused of sexually assaulting a woman on a Jet Blue flight coming back from DC — notwithstanding the witnesses, maybe he was innocent but nothing has yet come of it, nearly two years later.

      I also heard that a $30,000-$40,000 donation to the university could make certain paperwork go away, and I heard enough from a couple of women whom I trusted to be inclined to believe this to be true.

      So that’s the other side of anonymity — yes, daddy’s lawyer may make junior untouchable, but a string of cases might get noticed.

  6. Sorry to disturb Dr. Ed’s rant, but from what I see in the case file, you can’t draw any conclusions about what Oberlin might or might not have done in the case, because the litigation arises out of an “investigation” conducted in February of this year about statements that defendant Doe allegedly made in late 2019. Because Oberlin is shut down because of the pandemic, I don;t think we can draw any conclusions about what may eventually occur in the college;s procedures. But this certainly explains why Oberlin has not bee sued

    Going to the first comment I posted, there has been a motion to remand, and there is a fascinating interplay between the removal issues and the anonymity issues.

    Many of the papers are available for free download on Court Listener.

    1. Actually, we were *both* wrong, Oberlin *is* being sued — see PageID #51 on Courtlistner:

      “Plaintiff’s lawsuit was brought shortly after Jane Doe initiated an internal sexual assault complaint against him with Oberlin College’s Title IX office, the adjudication of which is on-going.

      At the same time that he sued Jane Doe, Plaintiff also filed suit against Oberlin and a number of Oberlin administrators in a case that was also removed to federal court and promptly dismissed as premature and without proper legal basis. See Doe v. Oberlin College, et al., 1:20-cv-00669-DAP. Plaintiff filed an unsuccessful motion to reconsider that dismissal and has now appealed that dismissal to the Sixth Circuit Court of Appeals”

      1. Anyway, the two points in my ‘rant’:

        1: I’d be more worried about the physical address of someone appearing in a court record than her name — he knows who she is, he may not know where she lives…. And yes, I’ve been involved in hiding a few young ladies from guys I can’t believe they ever chose to date in the first place.

        2: Just about every institution of higher education has adopted some form of a “sentence first, verdict second” approach to charges of sexual assault. Pasted below is a copy of Oberlin’s policy — I couldn’t believe they wouldn’t have one.

        An educated guess here is that a strategy of aggressive litigation “discouraged” Oberlin from imposing an interim sanction, but the Wuhan Shutdown didn’t/wouldn’t stop them from doing that.

        Interim Suspension: If a student’s conduct poses an immediate and serious risk to the community, the President may immediately suspend the student from the academic enrollment or the community until a meeting can be had with the Vice President and Dean of Students.

  7. I routinely bring lawsuits captioned “Jane Roe v. The Regents of the University of California” in Superior Court for the County of wherever the UC campus that Roe attended is, that contain this paragraph under PARTIES: “Petitioner uses the pseudonym ‘Jane Roe, in this Petition in order to preserve her privacy in a matter of sensitive and highly personal nature that outweighs the public’s interest in knowing her identity. Use of the pseudonym ‘Jane Roe’ herein does not prejudice Respondent, because she will identify herself to Respondent The Regents of the University of California upon request.” The Regents or the Court have never raised any objection.

    1. orin ed deniro: Interesting. The leading California decision on plaintiff pseudonymity, Doe v. Lincoln Unified School Dist. (Cal. Ct. App. 2010), does take a more pro-pseudonymity tone than the federal decisions I’ve seen, though it favorably cites the Ninth Circuit’s standard. But it sounds like, as a matter of procedure, California courts don’t require prior permission for pseudonymity, while federal courts do. (I wonder also whether the Regents have their own reasons not to object to pseudonymity, whether stemming from FERPA or from a broader sense of their obligations to students, even ones who are suing them.)

      Have you filed similar pseudonymous cases in federal court?

      1. FERPA doesn’t apply to the *student’s* release of personal information….

        1. But orin ed deniro was describing a situation where the student was filing pseudonymously, and noting that the UC doesn’t object to that. Perhaps UC’s view is that the university’s insisting on the student identifying himself or herself in the pleadings might violate FERPA, or perhaps broader FERPA principles even if not the technical requirements of the statute instead. (I’m only speculating here, since we’re discussing UC’s practice, as described by the commenter, rather than a specific argument that the UC has made.)

          1. There may also be a California state statute which applies, but the US Dept of Education explicitly states that FERPA-protected information may be released “[t]o comply with a judicial order or lawfully issued subpoena.

            My speculation is UC doesn’t object because (a) they want the case settled as quickly and quietly as possible, and (b) it wouldn’t look good if some intrepid journalist (or student journalist) were to find and write about their objection. Bad press is really the only thing that terrifies administrators — bad press is what gets them fired….

            Maybe they also don’t want to be a-holes as well, but I’m way to cynical to think any college administrator to be that altruistic.

  8. I recently successfully litigated a case for an anonymous plaintiff. In Wisconsin, open records requests, by statute, cannot be denied because the requester refuses to identify themselves. The Madison School District refused to provide records to my client because they refused to identify themselves. We sued and moved the court immediately for leave to proceed anonymously. The court granted the motion, agreeing with us that if record custodians can deny a request and force the requester to identify themselves in court before getting the records, the statutory right to request records anonymously is meaningless.

    After that motion (and being served with discovery requests), the district capitulated and turned over the records.

    1. 🙂

      And people wonder why I am so cynical….

  9. @Eugene Volokh asked, “Have you filed similar pseudonymous cases in federal court?” The Regents as an arm of the state can’t be sued in Federal court without their consent, (See Justice Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states) and I never wanted to delay the litigation to obtain The Regents’ consent.

    @ Dr. Ed observed, “Maybe they also don’t want to be a-holes as well, but I’m way to (sic) cynical to think any college administrator to be that altruistic.” I could not agree with you more.

  10. So did this case start with plaintiff’s asking the state court for anonymity and having it authorized in the state court, or did they mistakenly start out anonymously filing suit in state court anonymously? Did the defense attorney overlook this requirement when filing the removal?

    1. James Pollock: Good question; I checked the state court docket and saw that the plaintiff filed an “EXPARTE MOTION TO PROCEED UNDER PSEUDONYMS/MOTION TO RESTRICT PUBLIC ACCESS TO COURT RECORD AND CASE DOCUMENTS AND/OR MOTION TO FILE VERIFIED COMPLAINT AND ALL CASE DOCUMENTS BEARING THE PARTIES’ IDENTIFYING INFORMATION UNDER SEAL FILED” — but as best I can tell, the state court didn’t rule on it before the defendant removed the case to federal court.

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Today in Supreme Court History

Today in Supreme Court History: June 4, 1923


6/4/1923: Meyer v. Nebraska decided.


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  1. Facts of the case
    Nebraska passed a law prohibiting teaching grade school children any language other than English. Meyer, who taught German in a Lutheran school, was convicted under this law.

    The Court declared the Nebraska law unconstitutional, reasoning it violated the liberty protected by Due Process Clause of the Fourteenth Amendment. Liberty, the Court explained, means more than freedom from bodily restraint. It also includes the right of a teacher to teach German to a student, and the right of parents to control the upbringing of their child as they see fit. While the state has a legitimate interest in encouraging the growth of a population that can engage in discussions of civic matters, the means it chose to pursue this objective was excessive.

    You know there are a lot of mouth-breathers who even today disagree with this decision.

    1. Some of those same mouth-breathers “even today disagree with” the Lochner decision.

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Facebook Art Being Passed Around


Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer:

UPDATE: Commenter ConservativeBoy on InstaPundit adds: "June called April and asked for her Covid-19 back."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Professor, hate to put you on the spot, but do you think the grand-jury clause of the Fifth Amendment ought to be incorporated against the states? I ask because these cops are being brought trial without a grand jury, from what I understand.

    The Supreme Court doesn’t think a grand jury is needed – neither does the Minnesota constitution.

    In fact, I guess you could say the grand jury clause is the red-headed stepchild of the Bill of Rights and plenty of people want it to go away.

    The chance of that clause being incorporated is probably between nil and zilch, but on the theoretical level, what do The Experts think?

    1. I’ll go further — this case reminds me of the infamous Scottsboro Boys and the related litigation that I believe went to SCOTUS at least twice. Teenagers (aged 13-19 when the age of majority was 21), they were falsely accused of raping two White teenaged women for which they were repeatedly sentenced to death.

      While the technical issue was the all-White jury, all of those proceedings were conducted under circumstances as stressful as today, memory is that it took the state militia to prevent the defendants from being summarily lynched.

      Above and beyond Eddy’s comment, I believe it is fair to say that the 2nd Degree Murder charge is political, and that is what the Grand Jury was intended to prevent. Sure the prosecutor can indict a ham sandwich, but he can’t indict the entire hog without eyebrows being raised….

      1. I’m reading through the autopsy and it seems the most generous you can be going strictly by the known facts was that George Floyd was ‘murdered’ by the police in the same way you’d murder someone by shoving them against a wall. There is no physical evidence of neck injury or compression and you usually can’t talk when you’re actually being seriously choked to death so its probably safe to say a normal person would have survived the encounter.

        I’d like to get more insight into the behavior of the officers beyond the restraints throughout the entire episode but the full video itself is surprisingly hard to find and whats available is extremely biased accounts. I’m guessing very few people on either side have seen the whole thing all the way through.

        1. It was the kneeling on the neck, when the man wasn’t resisting arrest, that led to the death, which I presume was unintentional. The soft tissue of the neck doesn’t provide much in the way of evidence, so I don’t believe the second autopsy that showed it was neck compression that killed him….you can’t come to that conclusion without looking at the video and having pre-conceived notions. The family, that paid for an independent autopsy, got what they paid for.

          If pressure on the neck led to death on a routine basis, you wouldn’t see chokes in Judo, Jujitsu, or MMA. That said, fellows in those activities can tap out, and if they don’t, they die. This guy tried in his own way to tap out, by saying he couldn’t breath. A good choke can knock you out in less than 10 seconds by constricting the arteries. A poor one held for 8 minutes with someone else kneeling on your back simultaneously will kill a man, especially one with serious pre-existing medical conditions who was also on drugs at the time.

        2. Most of Minnesota has banned the knee-on-neck, and the (troubled) Minneapolis PD restricts it to specially trained officers, and we don’t know if this one was. Second, they had reasonable cause to suspect that he was on drugs — the 911 call, the witnesses statements, the other officer’s statement at the scene. And third, what training did the officers have in either psych or drug psychosis, the latter being a very real possiblity here.

          That being said, it appears that he was high as a kite on multiple things (not a good combination) and as best I can tell, the 4-ANPP is both a precursor to Fentaynl *and* a contaminant to it, so he could have gotten a dirty batch and heaven knows what that’s going to do. Fentaynl can cause hallucinations, Meth is particularly notorious for doing so, and #5 are the active compounds of marijauna.

          The amphetamine in his urine was (likely) from the meth, which breaks down to amphetamine in the body (but for some reason is faster acting). Fentaynl *may* break down into morphine, I don’t know. But in any case, it’s additional evidence of *some* drug use.

          So you have a 6′ 4″, 223 lb man who likely is psychotic and I don’t think it is going to take much to convince the 140 lb female juror of self defense.

          1. There are good counter-arguments to this, specifically the amount of time the officer spent with the on the neck, the fact he was already in custody at the time, and the fact that he wasn’t exhibiting any signs of psychosis (this was an issue in the Rodney King case, where the lawyers for the cops said he “charged” the officers and “looked like he was on PCP”; whatever you think of that in the King case, Floyd doesn’t fit those facts).

            Look, at the end of the day, a jury that wants to let cops off will let cops off. But it’s perfectly clear to me that the cop who did this is guilty of some degree of homicide, with the only issue being which one.

            It will be a tougher case against the other three officers.

      2. The only people who make a point of capitalizing the word “white” are white supremacists. Or, to be exceptionally and overly generous, nihilistic trolls who couldn’t care less if they’re indistinguishable from white supremacists.

    2. Second Degree Murder is certainly an infamous crime as that term is defined by the Fifth Amendment. (“[W]e cannot doubt that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.” Mackin v. U.S. (1886) 117 U.S. 348, 352).

      There is also no reason to think that the right to a grand jury indictment is not a fundamental right. After all, being accused of a felony can result in the loss of liberty if you are imprisoned awaiting trial. Even if you are eventually acquitted, you will not get the days of your life back that you spent in jail waiting for trial. Having a grand jury approve the decision that can (and in the case of murder likely will) inflict such a loss of liberty is fundamental.

      I also don’t think we should think that a right to a grand jury indictment is any less important against state authorities than federal authority. The potential for abuse of criminal justice processes exists equally in both cases, and legal history before and after the Civil War shows that we should not necessarily expect the political processes of states to restrain such abuses at the state or county level. For example, it was state and county governments that turned the machinery of the criminal justice system to the task of continuing de facto peonage (involuntary servitude in payment of debt) even after the passage of the 14th Amendment. As a general matter, history shows that the importance of protections against abuse of the criminal justice process does not vary based on the identity (state or federal) of the government doing the abusing.

      Selective incorporation has never been very logically persuasive, although I do recognize that there was widespread judicial opposition to taking the 14th Amendment seriously after the Civil War that made total incorporation a practical impossibility. So, we should be glad that we have had selective incorporation which allowed us to incremental progress to the present day, where we are on the cusp of total incorporation.

      All that said, this particular case seems like one of the least sympathetic to bring such a challenge. Here, evidence sufficient for a grand jury to find probable cause was captured on video and most of us have seen it. Using this case, of all cases, to incorporate the grand jury clause would raise racial tensions. Millions of people, including countless racial minorities, have been convicted of felonies by state governments without the benefit of indictment by grand jury. Why this case, of all cases?

      1. “Why this case, of all cases?”

        We don’t have to worry about that – there’s no way the Supreme Court would take this case if it was looking for a vehicle to incorporate the Grand Jury clause (if it ever chose to do that).

        It would pick a case which is (a) lesser known and (b) with at least some potential for sympathy with the defendant.

        But that all assumes it’s going to incorporate the clause in the first place, and if you’ll pardon the mixed metaphor, that’s a hot potato they won’t want to touch with a ten foot pole.

        1. You know what, I think I’ll attribute that last remark to Sam Goldwyn, unless he objects…

          …hearing no objection, the quote belongs to Sam Goldwyn.


          1. Yogi Berra and Casey Stengel might ask you to look it up.

        2. My guess is it will be this case because of other factors — first, he has (via the union) virtually unlimited legal resources. (If it came to it, I have no doubt that cop unions nationally would contribute, they kinda would have to.)

          Second, do you honestly believe that a highly political AG, personally prosecuting the case, isn’t going to give other cause(s) for appeal?

          And third, I keep coming back to the Scottsboro Boys case(s) and the concept of what constitutes a fair trial. This man may be guilty but I doubt he is going to get a fair trial, starting with where would you ever find objective jurors….

          1. Unlimited resources doesn’t get you a free pass to SCOTUS. The Rodney King cops raised the separate sovereigns double jeopardy issue in their cert petition- the Court granted the petition on another issue, the sentencing guidelines, and denied cert on separate sovereigns. They only heard separate sovereigns this year. And I’d say that’s directly analogous to your grand jury indictment issue in many ways.

      2. In the above comment, “even after the passage of the 14th Amendment” should refer to the 13th Amendment instead. I cited the wrong amendment because I had incorporation on my mind.

    3. Personally, I think the grand jury clause is obsolete and the constitution should probably be amended to remove it.

      Why? Because grand juries today are not what they were when the relevant amendment was written.

      Back then, a grand jury could start it’s own cases/investigations. It could take testimony from any witnesses the grand jury chose to hear, not just those selected by a government prosecutor.

      Grand juries were neutered because they frequently turned their power on government officials.

      If SCOTUS is going to incorporate the grand jury clause against the states, they should also at the same time declare that the neutered grand juries that exist under modern practice don’t satisfy the clause.

      1. Totally agree on that last paragraph. As long as we’re adding to our wish list.

      2. There’s also a separate issue with grand juries, which is the notion of grand jury secrecy, where if a “no true bill” is issued, it is never revealed and the testimony is kept secret, is really kind of at odds with our notions of a public justice system.

        I am no fan of prosecutors, but at least when a prosecutor makes a decision not to prosecute in a case the public cares about, he or she has got to face the public and explain the decision. Which acts on a check on prosecutorial power. And vice-versa- prosecutors also have to defend their decision to prosecute questionable cases.

        Grand juries have few checks at all on why they act the way they do.

        1. The Grand Jury Clause simply interposes the grand jury as a shield between a suspect in an infamous crime and bringing him to trial.

          The grand-jury secrecy stuff is arguably for the benefit of prosecutors, and in any case isn’t required by the Grand Jury Clause. See how quickly the veil of secrecy is lifted if the prosecutor wants to prosecute someone for perjury before the grand jury.

          1. Grand juries would actually be worse without secrecy.

            1. Broadening the rules for releasing transcripts can avoid this sort of heads-I-win-tails-you-lose dilemma.

              Confidentiality in the general run of cases, release the transcripts when there’s an important public interest (eg, a hot-button case where the jury is accused of a cover-up).

              1. In fact, if there’s an indictment does the defendant get to see the transcripts? I’d certainly hope so.

                1. If an indictment is returned and it goes to trial, the Jencks Act kicks in, as does Brady where the material is exculpatory.

  2. Eugene, please post lewd anime characters! ~uwu~

  3. Betting on the next Event:

    a) asteroid strike
    b) earthquake
    c) hurricane
    d) tsunami
    e) tornado (Line not available in Philly)
    f) 2 or more of the above

    FWIW, my power is out till at least tomorrow due to freakish windstorm that created a power outage for 350k people in SE PA

    1. c) Hurricane
      The South will flood again!

    2. g) Second term for Trump.

      (re ‘B’…there are thousands of quakes per day. I assume, for your comedic purposes; you are talking about a quake significant enough to cause great damage, yes?)

      1. It’s preventing Trump’s re-election that is the goal.

        On a more serious note, the East is overdue for a major earthquake.
        There was a 6-6.3 one off Cape Ann (MA/NH border) in 1755, and geological evidence of earlier ones.

    3. FWIW, my power is out till at least tomorrow due to freakish windstorm that created a power outage for 350k people in SE PA

      That was *our* rain, damn it, and we needed it!!! 🙂

      And after the hail, the next Biblical plague was Locusts.

      1. Here in NM, we had moths in plague quantities a couple of weeks ago, and hail the other day.

    4. What? No zombie apocalypse?

    5. I was promised a zombie apocalypse by countless media. Don’t make this more fake news — demand zombies today!

  4. Well the riots are pretty much the result of the Covid lockdown so I guess we can’t be too surprised.

  5. Ha ha ha.

    If you were seriously affected by Covid, or seriously affected by someone you knew beaten by the police because they were black, this would be about as funny as Buchenwald survivors drinking Diet Coke.

    1. I can’t understand how the stock market is still pumping. Unemployment is through the roof and those jobs won’t likely come back for several months, if not years. And that is assuming that Kung Flu is a nothingburger and we don’t get a second wave with an added lock down.

    2. People die every day in more tragic circumstances and nobody cares. Likewise very few if anybody on any side cares about George Floyd, otherwise they’d seek to understand the actual circumstances of his death and the true wider context rather than running with a BS narrative for personal and political ends. This is above all a political clash with a healthy dose of quasireligious hysteria. Why should Volokh take this any more seriously then everybody else?

      1. Houston’s beaner gungrabbing democrat sheriff had two poor white people murdered in a fake drug raid by his scumbag cops. The national media will never let normies hear that story because it goes against the narrative. If blacks had a lick of sense, they’d use white victims of police brutality to advance the cause of reigning in out of control cops. #PoorWhiteLivesDontMatter

      2. Why should Volokh take this any more seriously then everybody else?

        What makes you think he takes the death of George Floyd seriously?

      3. “People die every day in more tragic circumstances and nobody cares.”

        Other than “tsk, that is very bad, I hope they prosecute”, why should I care about what happened in a city I have never visited to a person I never knew existed killed by a cop I also don’t know.

        I didn’t hear about “Raven Gant [who] was fatally shot in an apparent domestic dispute in north Minneapolis Thanksgiving night [2019]”. She is just as dead as Floyd.

    1. He was a good boy just trying to get his life back on track. He loved Jesus and his momma. #BlackLivesMatter

      1. As I understand it, 3.4-ANPP is both a Fentanyl precursor and a contaminant. These are not USP-quality drugs being sold on the street, something people tend to overlook.

        He well could have been having hallucinations.

        1. Will we get a second riot when the cops are acquitted? I need to get some new Air Jordans!

          1. Thanks to the BabylonBee

            “Nike has released a commemorative shoe to honor those looting and burning down buildings across the country.

            The Nike Loot Force One comes packed with features the company says will help people loot safely and efficiently. From cushioned soles to make sure you make it through shattered windows without getting your feet cut to a detachable swoosh that can be thrown at business owners or police officers like a Batarang, the shoe is the ideal footwear for those looking to incite violent riots and also coincidentally get some free stuff.”


      2. You forgot to include that he was a “gentle giant” somewhere in that description.

    2. Thank you for the factual information NEWS.

  6. It isn’t “riot season.” It’s “protest season”. Have Profs. Reynolds and Volokh ever heard of the 1st Amendment? If not, it’s a definite must read.

    1. They started reading it, but didn’t get all the way through.

    2. Did someone miss the adjective “peacably”?

      1. I wouldn’t say they miss it, Bob….

      2. Nope.

        Protestors being peaceable didn’t stop Barr and Trump from using tear gas against them.

        And please don’t repeat any of the Barr lies that I’m sure you have ready at hand, and don’t come up with some of your own either.

        1. Protestors being peaceable didn’t stop Barr and Trump from using tear gas against them.

          Sure, under the new bespoke definition of “tear gas” some wokester dreamed up as anything that makes you cry.

          By that standard, you post tear gas here on a daily basis.

          1. Fuck you, LoB. It’s the CDC’s definition, but of course you eat up Trump’s BS as usual. Open wider. He’s got plenty more for you to swallow. Does it really taste that good?

            And so what? By all (non-Barr) accounts Monday’s protestors were calm and peaceful, exercising an explicit Constitutional right. To disperse them forcibly, whatever the means, violates that right.

            If I make you cry, I’m delighted. You and your fellow Trumpists are destroying this country.

            1. Fuck you . . . If I make you cry, I’m delighted.

              Yup, yup — got it. Clearly aggression and bullying are still peachy keen, as long as it’s against the right… er, correct group of people. It’s all so transparent after a while.

              I’d suggest trying to get out a bit more regularly for fresh air, but I have my doubts that the past few months have had any measurable influence on the clearly charming specimen of humanity you are.

          2. Go. Argue the semantics of what’s technically tear gas. See where that gets you with anyone who does not already agree with you.

            1. See where that gets you with anyone who does not already agree with you.

              Interestingly enough, the opposite is also true: the new made-up definition goes nowhere with anyone who is not already looking for every conceivable excuse to play Orange Man Bad.

  7. All I can say about this post is that it’s yet more evidence that Eugene’s professed concern for the First Amendment rings hollow indeed.

    It seems to be nothing but a cudgel against his ideological foes.

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