An extremely interesting post (Mchangama, as many of you know, is a historian of free speech, among other things):
[I]t's not surprising that a man in Douglass' position would appeal to free speech given the draconian censorship of abolitionist ideas in the South, the hostile mobs he often had to confront and more generally his membership of an unpopular minority that suffered pervasive stigma and discrimination. In such a vulnerable situation it's not hard to see how the right of free speech can be invoked as a shield against majoritarian intolerance and a precondition for speaking truth to power.
But as everyone who cares deeply about free speech knows all too well, the real test for free speech defenders is not whether you advocate free speech for yourself and the ideas you want to advance. The real test is whether you also defend the rights of those you most vehemently disagree with and are willing to take a stand for the right to express deeply unpopular ideas no matter how massive and vocal the public backlash.
A great topic to test Douglass' free speech philosophy and consistency is wartime restrictions. National security is and remains one of the essential drivers of censorship. As witnessed by World War I and the subsequent First Red Scare, such wartime restrictions can often extend beyond and outlive any genuine and pressing requirements, and end up targeting dissent and opposition alleged to threaten national unity.
Douglass lived through the American Civil War; a war fundamentally fought over the very question of slavery, which also animated Douglass' personal struggle. He therefore had a deeply personal stake in the outcome of the war and in supporting one side against the other, both when they faced off on the battlefield and when they clashed in the public square. So what does the record say? …
The crux of Plaintiffs' allegations is that the School District and its officials established a Muslim Prayer Room at one of its high schools, the Academy at Palumbo …. Plaintiffs claim that the room was restricted to Muslim students, and that they were unfairly disciplined by the Defendants for entering the Prayer Room because they are not Muslim….
The Supreme Court requires that the Establishment Clause be interpreted by "reference to historical practices and understandings." To prevail on an Establishment Clause claim, a plaintiff must show that the challenged government action "resemble[s] a traditional hallmark of religious establishment." The Third Circuit has identified six of these hallmarks:
"First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function."
To prevail on their Establishment Clause claim, Plaintiffs only need to show that SDP's Prayer/Quiet Room policy "resembles one" of these hallmarks.
Student Plaintiffs plausibly allege that Defendants … suspended them for entering the Muslim Prayer Room as non-Muslims. They also plausibly allege that they were suspended to pacify Palumbo students' outrage, thereby reinforcing the student body's perception that the Prayer Room was available to Muslim students only. In this respect, the defendants' actions resemble the fourth hallmark of religious establishment: "the government restrict[ing] political participation by dissenters."
The Plaintiffs also plausibly allege that Defendants … used public resources to create the Prayer Room and prevent non-Muslim students from accessing it. The room was on the grounds of a publicly funded school and was used during school hours. In this respect, Defendants' actions resemble the fifth hallmark of religious establishment: "the government provid[ing] financial support for the established church, often in a way that prefer[s] the established denomination over other churches."
Emphasizing the "profound impact" of Mexican-American labor leader and civil rights activist Cesar Chavez "on the people of Fresno" and concluding the renaming of a downtown thoroughfare in his honor would "provide a source of pride and community recognition," the Fresno City Council … adopted Resolution No. 2023-056, which facilitated the renaming of the "East Kings Canyon Road, East Ventura Avenue, and West California Avenue alignment" (collectively, the Alignment) to Cesar Chavez Boulevard.
Plaintiffs objected to the renaming and then sued, among other things arguing thus:
The operative complaint alleges the following. The Alignment is composed of three streets "decidedly historical to [City]'s rich history." East Ventura Avenue, which was named in 1873, "has always been the heart of [City's] Armenian Community" and "was known as Armenian Town." West California Avenue, which was named in 1881, is "the heart" of City's African-American community. East Kings Canyon Road, which "is over 70 years old," "has always been known to residents and tourists alike as the gateway to the Sierras and Kings Canyon National Park."
Cesar Chavez, who was "not a Fresno native and never lived in Fresno," "has never been integral to nor associated with any of these [three] historical streets." He was also a "divisive" and "objectionable political figure" who "alienated many farmers, packing houses and grocery stores and retaliated against those who did not join his union."
Plaintiff "is an unincorporated grass roots association with [more than 1,000] members who live, own, or operate a business on the historic … streets of [East] Kings Canyon Rd., [East] Ventura Ave., or [West] California Ave., and/or who reside or have businesses in the immediate vicinity of said streets." Plaintiff's members viewed the renaming of the Alignment as City's attempt to "erase or rewrite" "their personal or business history"; lamented "the enormous costs to each business or property owner, operator, tenant, and residents when the street name is changed"; and stressed only they were required to bear the "cultural and financial burden and impact in renaming [the Alignment]" and "propagate, echo, and spread … City's message [about Cesar Chavez]."
Section 338 was a part of the notorious Smoot-Hawley Tariff Act of 1930, which gravely exacerbated the Great Depression. In a previous post, I summarized the reasons why Section 338 tariffs are an illegal usurpation of congressional authority by the president.
As Philip Zelikow of the conservative Hoover Institution explained in a guest post here at the VC blog, last year, Section 338 was superseded by new legislation enacted in 1962 and 1974, and is therefore defunct. For that reason, it has not been used to impose tariffs since at least the 1940s.
In a more recent guest post, Georgetown University trade law specialist Peter Harrell explained why the then-planned Canada tariffs are illegal even if Section 338 is not defunct. Trump's tariffs don't meet various requirements for invoking the law. I expect there will be legal challenges to these tariffs, and those challenges will deserve to prevail.
This is the latest of a series of efforts by Trump to usurp congressional tariff authority and impose harmful and dangerous trade restrictions that damage the US economy and poison relations with key allies and trading partners, of which Canada is one of the most important. These usurpations include the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring, the Section 122 tariffs invalidated by the US Court of International Trade in April (the case has been appealed, and his massive new Section 301 tariffs imposed on the bogus pretext of combating "forced labor."
Courts should continue to strike down these power grabs. And, as I explained in my recent Dispatch article on the Section 301 tariffs, they should learn from previous mistakes, and refuse to stay injunctions imposed against illegal tariffs:
Judges can reduce the damage caused by illegal tariffs if they refuse to stay initial rulings blocking them.
The Federal Circuit's stay of the initial ruling against the IEEPA tariffs enabled the Trump administration to collect some $166 billion in illegal tariff payments, greatly increasing the harm caused by the policy. Much of the harm caused by illegal tariffs—including lost sales, investment opportunities, and higher prices paid by consumers—cannot be fixed by giving tariff refunds later. Neither can the damage to the U.S. economy. And, as the IEEPA experience shows, even the refunds themselves are not a given. Billions remained unpaid five months after the Supreme Court's decision, and the Trump administration is trying to avoid refunding some of the money.
I would add that Trump's ridiculous trade war with Canada has poisoned relations with one of America's closest and most important allies, and made traditionally friendly Canadian public opinion overwhelmingly hostile to the US. Damaging our economy and undermining our alliances isn't Making American Great Again. Very much the opposite. The main "winners" of this trade war will be America's adversaries, such as China, Russia, and Iran.
I recently attended a workshop about how law professor are using AI. One professor said that he has trained AI on his writing style by reviewing all of his past publications. Thus, any text generated by the AI will be in the same sort of style that the professor has--or perhaps had.
Law professors will often research in certain areas of the law, but across all categories, they write with a particular approach called a scholarly voice. Many junior professors struggle with developing their own voice. Indeed, I would wager that for most scholars, their voice changes over the years. For sure, my voice has changed substantially since I started teaching in 2012. And that's a good thing.
What does AI do to this process? Perhaps established professors have a corpus of writings to train AI, but newbies do not. How are developing writers supposed to build their own voice if AI has nothing to train on? I suppose the obvious reply is that junior scholars should not use AI. But I would wager that the youngest writers are likely the most tech savvy, and may have even started using this tech in the earliest years of their practice. Soon enough, all people on the hiring market will have come of age with AI in law school. And they will never have a chance to develop their own voice without a helpful agent to assist. Their entire body of work will be a byproduct of AI.
This fact will necessarily affect how law schools hire and grant tenure. Perhaps professors should be asked to describe exactly how they use AI in their scholarship. But I am not confident this inquiry will prove much. Ultimately, we should just presume that nearly everything written was aided by AI, unless a professor affirmatively states it was written old school. And with that presumption in place, I struggle to measure how much the professor actually brings to the scholarly inquiry. We will just end up rewarding whoever can coach their agents the best. Scholarly creativity will give way to law coding.
A federal judge on Friday dismissed major portions of a Ben & Jerry's lawsuit accusing its former parent Unilever of trying to silence the ice cream maker's social activism, dismantle its board and stop funding its namesake foundation…. Ben & Jerry's accused Unilever of violating the 2000 merger agreement by censoring its speech, which has included protests against the war in Gaza, and ousting a chief executive who supported the company's social activism. The alleged censorship also included an effort to suppress planned criticism of U.S. President Donald Trump as he began his second White House term….
Unilever denied censoring Ben & Jerry's and said the former chief executive voluntarily resigned.
Castel said the merger agreement's "plain meaning" did not afford Ben & Jerry's Class I directors and the Ben & Jerry's Foundation a right to sue on behalf of the company, including on the appointment and removal of directors.
There's also an accusation that Unilever "violat[ed] a 2022 settlement over the sale of Ben & Jerry's trademark rights in Israel, by failing to pay $2.5 million to Ben & Jerry's and $2 million to support Palestinian almond farmers"; the parties "agreed that claims over the missed payments could proceed for now."
Ben & Jerry's Homemade, Inc. ("Ben & Jerry's") was founded in 1978. In addition to its ice cream, it is well known for being "outspoken on—and often on the vanguard of—a variety of societal issues, including those involving human rights and social justice." The company has taken positions on issues ranging from Cold War spending (it launched the "Peace Pop" in 1988) to LGBTQ+ rights (it has offered benefits to employees' same sex partners since 1991). This action arises from the continued desire of the Ben & Jerry's Independent Board (the "Board") to identify the brand with its "social mission" amid pushback from the company's corporate parents, but the issues presented on this motion to dismiss largely turn on contract interpretation….
And here's the court's summary of the allegations in the Complaint:
Nobel Prize-winning economist F.A. Hayek and the great political philosopher John Stuart Mill both reached generally libertarian conclusions. But, as prominent Harvard law Porf. and political theorist Cass Sunstein points out in an excellent recent post, they did so for quite different reasons:
Mill was a romantic about choosers (about you and me, and what we know, and what we are capable of), while Hayek was not a romantic about choosers at all (not close). He was a romantic, or something like that, about undesigned orders and traditions, and a skeptic about planners.
Mill put a bright spotlight on individuals, their knowledge, their potential, and their agency. Hayek put a bright spotlight on markets and traditions, and on government planners and what they cannot know.
In sum, Mill emphasized the merits of individual freedom of choice, which he famously argued would enable each person to exercise control over his or her affairs, and result in valuable "experiments in living." By contrast, Hayek emphasized the defects of government planners, and their lack of knowledge.
As Sunstein notes, these two ideas are not inherently opposed. They can even be mutually reinforcing, in so far as they provide alternative justifications for the same conclusion. But there is a tension, in so far as Hayek also emphasized the value of "spontaneous order" and the traditions it generates, which he viewed as better guides to decision-making than the unaided reason of individuals. This contrasts with Mill's emphasis on individual autonomy and reasoning skills.
Moreover, if tradition is so valuable, as Hayek suggests, why not use government power to enforce it against people who go against it? And if individual reason and experimentation are so beneficial, as Mill argued, why not trust voters' judgements at the ballot box, and let them use those decisions to constrain individual choice?
I cannot resolve all tensions between these two perspectives. But the gap can be greatly reduced by recognizing that individuals make better decisions in some circumstances than in others. In particular, they do better when the "vote with their feet" than when the vote at the ballot box. And that divergence bolsters both Mill's confidence in individual autonomy, and Hayek's condemnation of planning and support for spontaneous order.
As I have explained previously (and more fully in my book book Free to Move: Foot Voting, Migration, and Political Freedom), people can vote with their feet by making choices in the private sector, by deciding with jurisdiction to live in within a federal system, and through international migration. What unites these three types of choices is that, in each case, the individual makes a decision that is highly likely to have a decisive impact. By contrast, when you vote at the ballot box, the odds that your vote will have a decisive effect on the outcome are infinitesimally small: usually one chance in a million or even less (perhaps 1 in 60 million in a US presidential election, though the exact figure varies by state).
As a result, foot voters have strong incentives to seek out relevant information and evaluate it objectively. As discussed in my book and elsewhere, historical and experimental evidence shows they often make good decisions even under bad conditions, as in the cases of people fleeing totalitarian regimes that censor information from the outside world, and poorly educated Blacks fleeing slavery and segregation. By contrast, a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation). In combination, these ensure they are often ignorant of very basic political information (such as what the three branches of government are or which officials are responsible for which issues) and often act as biased "political fans" in evaluating the information they do learn.
Once we recognize that individuals generally make much better decisions as foot voters than as ballot box voters, Hayek and Mill's perspectives are much easier to reconcile.
In the case of Hayek, this distinction can explain why he had respect for traditions developed through "spontaneous order," but was also highly critical of conservatives' support for the enforcement of tradition through state power, as in his famous essay "Why I am Not a Conservative." The answer is that traditions generated by individuals' foot voting choices are likely to have greater epistemic value than those imposed by force, whether by democratic governments or authoritarian ones.
Hayek was not actually an across-the-board fan of tradition. He was more than willing to reject traditions imposed and perpetuated by government coercion. For example, he rejected anti-sodomy laws and other restrictions on consensual sexual activity, even though they were longstanding traditions. The distinction between foot voting and ballot box voting decisions can help justify this stance.
The same goes for Mill's emphasis on individual autonomy. Foot voters are likely to make better choices than ballot box voters, and thus also create better "experiments in living." Mill, in fact, worried greatly about the problem of voter ignorance. In Considerations on Representative Government, he emphasized that voters have a duty to become well-informed, and advocated giving extra votes to more educated voters in order to improve the quality of decision-making.
But he failed to consider that even relatively more educated voters are still susceptible to rational ignorance (though they do, on average, know more than the less-educated) and still likely to act as biased "political fans." Any given set of people are likely to make better decisions when voting with their feet than at the ballot box. The superior incentives of foot voters justify granting them greater scope and autonomy, while tightly limiting the power of government to override their choices.
As I argue in Free to Move and other writings, these circumstances also justify decentralizing government power so as to give people more opportunities to vote with their feet in federal systems. This last is a point consonant with Hayek's advocacy of decentralized federalism in some of his early writings, including a 1939 article where he emphasized the importance of "do[ing] away with the impediments as to the movement of men, goods, and capital between the states."
In sum, incorporating the problem of voter ignorance and the informational advantages of foot voting bolster both Hayek's argument for liberty and Mill's. Liberty enables people to make better-informed decisions in the private sector, thus reinforcing Mill's emphasis on autonomy. Voter ignorance further reduces the quality of government planning, thereby bolstering Hayek's argument against the latter, while helping to explain why he supported some traditions, but not others.
The points covered here don't do away with all differences between Mill and Hayek. And, by themselves, they don't make a comprehensive case for a libertarian/classical liberal political system. But they do show how the superior decision-making of foot voters relative to ballot box voters bolster both Hayek and Mill's arguments, and make them mutually reinforcing.
8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a "record."
It's a project of Studium; Studium's Constitutional Law Advisory Board includes Prof. and National Constitution Center CEO Jeffrey Rosen, Prof. and former ACLU President Nadine Strossen, Prof. and former Chief Judge Diane Wood, Prof. and Judge Doug Ginsburg, and Prof. Adam White. Volume II is now out, and it contains these articles:
Sebastian Lewin, The Unassailable Theory of Liberty
Eileen Wang, ICWA's Dual Purpose After Haaland v. Brackeen: Reading Alito's Dissent Alongside Gorsuch's Concurrence
Steele Barhydt, On Tyranny
Anna Yuras & Piper Schmitz, Why Originalism Should Prevail as the Dominant Method of Interpretation
Benjamin Berer, Counterman v. Colorado: Why the Recklessness Standard Fails Victims of Online Threats
Morgan Cole, Loper Bright Enterprises v. Raimondo in the Upside Down: How a Fight Over Fishery Salaries Could Spark an Unintentional Sanctuary for Science
Adam Watson, A Campaign Finance System Which Doesn't Work
Michelle Wang & Colomba Joulin-Batejat, Burden and Constitutional Risk in Glossip v. Gross
Alison Gipstein & Hannah Lewis, Reassessing the Implications of Prior Restraint in the Digital Age as a Result of Ambiguity in New York Times Co. v. United States
Kalel Charalambides, Engel v. Vitale and the Illusion of Voluntary Prayer: Religious Neutrality, Psychological Pressure, and the Impact on Students from All Academic, Social, and Cognitive Backgrounds
Thomas Houghton & Evan Hernandez, The Alien Tort Statute and America's Betrayal of Universal Justice
Emma Di Domenico, A Patchwork System: Why Consumer DNA Databases Require a Federal Framework for Privacy and Protection Interests
Sophia O'Connor, Beyond Gideon: The Case for Counsel in Housing Court
8/22/1998: On August22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (2003).
A few days ago, I had the honor of giving the keynote speech at the Libertarian Futurist Society's annual Prometheus Awards ceremony. My talk was on the topic of "Libertarianism and Science Fiction." It explains why libertarian ideas are much more prevalent in science fiction and fantasy than in other fiction genres, why it matters, and a few lessons libertarians may be able to draw from this. I also presented the Prometheus Hall of Fame Award to Aldous Huxley's classic work, Brave New World. The award was accepted by a representative of the Huxley estate and two of the author's grandchildren.
See here for a more detailed description of the awards and the various winners.
I addressed the issues covered in the talk in greater detail in a 2011 article on "Libertarianism and Science Fiction." The talk in some ways updates the analysis; but much more can be said. When and if time allows, I would like to revisit this theme. I have previously written various other articles and book chapters about political themes in science fiction and fantasy, most recently here.
Below is the video of the awards ceremony. My talk goes from about 1:30 to 14:40.
An excerpt from today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards (read this post for more on the facts and on a separate fraud claim):
Creamer [the target of a Project Veritas undercover investigation] brought those claims under the provisions of the federal and D.C. wiretapping laws that make it unlawful to secretly record a conversation with another "for the purpose of committing any crim[e] or tor[t]." The jury agreed with Creamer that Maass [a Project Veritas employee who, under false pretenses, applied for and got an internship at Cramer's Democracy Partners organization -EV] violated these provisions because she was a fiduciary of Democracy Partners and surreptitiously recorded her conversations with Democracy Partners staff in order to breach her fiduciary duty—which is a tort in D.C….
A fiduciary is an agent who exercises delegated power on a principal's behalf. "[P]ower" means the actual or apparent authority to take actions that "affect the legal rights and duties" of the principal. This requirement separates the fiduciary relationship from the ordinary contractual arrangement. "[L]awyers, trust companies, realtors, or the like," are common examples of fiduciaries because the decisions they make often carry legal consequences for the other party…. Courts thus recognize that the fiduciary relationship is a "special confidential relationship" that "transcends" an arms-length business transaction.
In our view, no reasonable jury could find that Maass was a fiduciary of Democracy Partners because the evidence failed to show Maass was an agent with any degree of delegated power to act on Democracy Partners' behalf. To explain why, we ignore Maass's title as an unpaid intern and focus solely on "the facts of [her] relationship" with Democracy Partners—most relevantly, the "promises made, the type of services or advice given and the legitimate expectations of the parties."
From today's long decision in Democracy Partners, LLC v. O'Keefe by D.C. Circuit Judge Karen LeCraft Henderson, joined by Judge Harry Edwards:
James O'Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news "almost exclusively [through] undercover journalism" … [including] "open and secret audiovisual recording" ….
In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to find leads on a potential story about voter fraud schemes in the Wisconsin elections. Acting undercover, Hartsock infiltrated an election-watch party at a Milwaukee bar, where he met Scott Foval, a Democratic political consultant.
Using a fake name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a "progressive philanthropist [with] a deep disdain for voter ID laws." Hartsock told Foval that he was working on a "surrogate voter scheme[]," in which his client planned to open a shell company in Wisconsin, hire out-of-state voters and illegal immigrants and issue them employer-IDs that would allow them to vote fraudulently in Wisconsin's elections.
Foval thought Hartsock's scheme was "brilliant" and volunteered "all this advice" on "how to pull it off." He advised Hartsock to transport fraudulent voters to polling places with rentals or auctioned-off cars and he recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock's unnamed client (who did not, in fact, exist) was receiving advice on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Shooting the wrong man (tragedy) and free speech dying in the library (comedy).
Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there's a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Second Circuit (over a dissent): Joining every other court that has considered the question, no.
Man videorecords Waterbury, Conn. police station from public sidewalk, declines to show ID to officers. He's arrested. (Prosecution is dropped over two years later.) Second Circuit: It was dusk and he didn't answer officers' questions, so there's no 4A violation. And while it's now clearly established that recording the police is 1A protected, qualified immunity. Concurrence: He wasn't recording the police! Read More
