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Extortion and Super-Secret Prior Restraints

An Oklahoma case involving an employee’s allegations of food plant contamination—litigated under seal.

I just learned the details of this story—it happened last spring, but it was sealed until several days ago. I'd love to hear what you folks think about it.

The alleged extortion: Our tale begins April 24, 2017, with some texts that one Armando Acosta sent to his manager at Packers Sanitation Services, Inc. (apparently "the nation's largest cleaning contractor to the food industry"). Acosta worked for PSSI as a cleaner, and was assigned to a food processing plant owned by AdvancePierre Foods. AdvancePierre's plants are predominantly in Garfield County, Oklahoma, and AdvancePierre is apparently "one of the largest employers in the area."

Acosta's texts "claim[ed] that swabs he took from PSSI's customer's equipment tested positive for Listeria, as well as other bacteria." In copies of the texts attached to PSSI's court filings, Acosta said that he was going to take this information that day and the next to various businesses (presumably AdvancePierre's customers), as well as to the U.S. Department of Agriculture. And, in those texts, Acosta apparently sought $650,000 from PSSI as payment for his silence. (For the specifics about Acosta and what he allegedly did, I will generally rely on PSSI's factual claims in their court papers; I could not find Acosta myself and Acosta didn't file any papers.)

The big business deal: The next day, April 25, three things happened. First, Tyson Foods—the nation's leading meat processor—announced that it was buying AdvancePierre for about $3 billion.

The injunction: Second, PSSI petitioned the Garfield County trial court for a temporary restraining order that would temporarily bar Acosta from "[d]isclosing or using, directly or indirectly, any of the illegally obtained confidential and/or propriety information obtained from PSSI and/or AdvancePierre to any person and/or entity." Judge Jason Seigars granted the request that morning, ordering that Acosta be:

restrained [for two days] from interfering, in any respect, [with] PSSI's business relationships with AdvancePierre, and ... from contacting any governmental agency or media outlet regarding his allegations ....

Acosta didn't appear at the hearing, and indeed was only served with the petition on April 27 (though it may well be that the difficulty serving him was his own fault).

The legal theory behind the TRO was a bit complicated. The case was listed on the docket as involving libel, which is why I wrote about it in June as a libel case. Part of PSSI's argument was that Acosta "cannot be harmed if he is ordered to stop making false statements regarding PSSI and AdvancePierre." Another motion, filed the same day, stated that "Plaintiff and its customer avers, based on Plaintiff's customer's due diligence, as explained more fully in the Verified Petition, that the information Defendant seeks to disseminate is false." And PSSI said that, "AdvancePierre has mechanisms in place to test for the presence of bacteria and other contaminants—none of which have resulted in positive test results in the area where Employee illegally obtained his 'findings'"; in a further filing this year it added that "AdvancePierre likewise complied with its regular testing obligations after Defendant's threats and determined that no contamination existed within the facility."

But the main theory in the petition was not focused on falsity (unsurprising, since PSSI didn't have access to Acosta's claimed evidence). Indeed, according to PSSI's motion for the temporary restraining order,

As of the date of filing this Motion, PSSI is not aware of any basis in fact regarding Defendant's allegations regarding contamination of any equipment in AdvancePierre's Enid plant. However, in order to best protect its business interests and proprietary information, PSSI is assuming, for purposes of this Motion and its Petition only, Defendant's allegations concerning the contaminated equipment are true.

Rather, the focus of PSSI's claims was that Acosta's conduct constituted "breach of confidentiality" and "tortious interference with business contracts":

  1. Acosta had "illegally obtained confidential and/or proprietary information belonging to PSSI and/or its customers," "in violation of his job description" (which did not "include the taking of and/or the testing of samples from the customers' equipment and/or plants") "and [of] PSSI's Employee Handbook" (which required employees to keep "client-related information" confidential),
  2. Acosta's goal was extortion, and
  3. if Acosta were to release this information, "whether true or false," the release "could lead to the termination of vital business contracts with PSSI, irreparable defamatory harm, exposure to unwarranted government investigation, and the release of confidential and proprietary business information."

This was the basis for the judge's order forbidding Acosta from conveying the information to the media or to the government.

The sealing of the case: Finally, still on April 25, PSSI also moved to seal the case, arguing that

sealing of the requested filings is necessary in the interest of justice where dissemination of the information stolen by Defendant would harm the business practices of Plaintiff and its customer as well as cause unwarranted fear and concern amongst the general public.

The judge granted the motion the same day, providing that the petition and the motion for the TRO were to be sealed.

MORE »

“Fair Notice” Is More Than A Formal-Announcement Principle

When a criminal law is extremely broad but perfectly clear, in what sense does it violate rule-of-law principles?

In a previous post, I introduced the claim—drawn from a new article, Very Broad Laws—that extremely broad criminal statutes, no less than vague and ambiguous criminal statutes, are constitutionally problematic for depriving ordinary people of "fair notice" about how the legal system actually works. One common rejoinder goes like this. The reason that vagueness and ambiguity are (at least in their most severe forms) unacceptable is they make it impossible for people to know what the law requires of them. They truly deprive us of "fair notice." Breadth, on the other hand, does no such thing. Sure, an ordinary person (or a judge, or a law professor) may not like broad laws, and may think them unwise—but they don't put members of public in the same bind that indeterminate laws do.

This rejoinder rests on an overly-thin, overly-positivist conception of "fair notice." In fact, "fair notice"—as the Court uses the term, and as the rule-of-law principles underlying the term would independently suggest—is a normative concept. It is not a question of whether the law's requirements are formally announced in the codebooks. It is a question of whether people have a meaningful understanding of how the legal system works, and have an opportunity to plan their lives, and calibrate their conduct, accordingly.

Of course, this is not to say that the first issue (the formal announcement of law's requirements in codebooks) is irrelevant to second issue (whether people understand with sufficiently clarity how the legal system works). But the relationship is one of necessity, not sufficiency. Abstract clarity about a law's requirements is necessary to give people fair notice, which means that severe forms of linguistic indeterminacy, because they deprive people of even abstract clarity, is enough to doom the law constitutionally. But banishing linguistic indeterminacy—ensuring that the law is neither too vague nor too ambiguous—is not enough to ensure fair notice. At the risk of making all post sound like a formal-logic brain teaser, we could put articlute this point the other way around (as I do in the article itself) and say that linguistic indeterminacy is sufficient to trigger fair notice concerns, but it is not necessary to do so. Breadth can trigger fair notice concerns as well.

A concrete example from last term will shore up the point. The Court's most recent addition to its "anti-breadth" canon, Marinello v. United States, centered on 26 USC § 7212(a), the so-called Omnibus Clause of the Internal Revenue Code, which criminalizes the act of "corruptly or by force or threat of force ... obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [taxes]." The dispute was over which kinds of "obstruction" or "impediment" qualify as predicate acts under the Omnibus Clause—in other words, at the level of actus reas, how far does the clause reach? According to the government, the answer was simple: the clause reaches all non-compliance with tax rules. And its legal argument was equally simple: "impediment" means "a thing that impedes," and there is no doubt that deliberate acts of non-compliance impede the overall administration of taxes.

No dice. Finding for petitioner, Justice Breyer reasoned that the government's construction of "impediment," despite adhering straightforwardly to the word's definition, simply encompassed too many cases of low-level—that is, culpable but, in the grander scheme of things, innocuous—violations. "Interpreted broadly," wrote Breyer, "the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant"—but these kinds of applications, plainly disproportionate as they are, would violate the "fair warning" principle that has long "led [the] Court ... to exercise interpretive restraint."

Importantly, however, the reason the government's construction flouted the "fair warning" principle was not that minor wrongdoing, like paying a babysitter without withholdings, is permissible; it plainly violates the tax code. Nor was the problem that a reasonable person could not be expected to know of the relevant law. Ignorance does not ordinarily excuse violations, and in any case, Justice Breyer explicitly acknowledged the possibility that someone who pays a babysitter without withholdings (or the equivalent) "may believe that, in doing so, he is running the risk of having violated an IRS rule." Rather, the infirmity of the government's view is that no one, having committed such a minor offense, "would believe he [could] fac[e] a potential felony prosecution for tax obstruction." In other words, the problem was the penalty's severity — or more exactly, the mismatch between the penalty's severity and the conduct's relative harmlessness.

This conclusion is important because it underscores that fair notice, in this context, is not about whether someone is literally on notice of the law's requirements. Putting aside the obvious issue that few people actually read laws, cases like Marinello point up the additional problem that even if one does consult the relevant law, there can still be a gap between the statute's clear language and reasonable expectations about the way it will be enforced; and when the gap is extreme, it should be resolved in favor of ordinary people, not in favor of the government. The whole point of the Marinello Court's analysis is that someone who fails to withhold from payments to a babysitter—even if he knows that doing so is wrong; indeed, even if he knows that doing so technically falls within the scope of 26 USC § 7212(a)—would never imagine being held criminally liable, down the line, for felony tax obstruction. And it is that variable, not the formal reach of tax law, that should drive the due process analysis.

"A Court Cannot Tell [Anyone] That He or She Cannot Be Rude, Insulting, or Boorish"

Words of wisdom from Rhode Island Judge Richard Licht.

The case in which this arose is Fuoco v. Polisena, decided Thursday. Eileen Fuoco, a former Johnston, R.I. city councilwoman sued Mayor Joseph Polisena for slander over some statements he made at a city council hearing; the jury awarded her $34,000 in damages, but the judge set the verdict aside, concluding that Fuoco hadn't proved the statements to be false statements of fact, or at least hadn't proved the statements were said with knowledge or recklessness of their falsehood. Here's part of the judge's summary:

The Meeting was more than robust, some might say it was raucous, and some might contend that Mayor Polisena's conduct lacked the civility one would hope to see at a public meeting. However, politics is not played by the Marquis of Queensbury rules. The heart of the American experience is free expression.

Plaintiff's position, and indeed this case in its entirety, evinces a concerning lack of veneration for the First Amendment. A Court cannot tell an elected official, a candidate for office, or a member of the public that he or she cannot be rude, insulting, or boorish. The Courts may not like what someone says or how it is said, but it is the duty of the Courts to protect the right of anyone to express oneself about a public official as long as the statements are not knowingly false or made with a reckless disregard for the truth.

The judge, by the way, knows something of political debate; he had been, in his day, a Rhode Island state senator and Lieutenant Governor. He also sits in the courthouse named after his uncle, Frank Licht, who had been Governor.

Advice to Entering Law Students

Some ideas that might help you make better use of the opportunities available to you.

Over the next couple weeks, many students will be starting law school. If you're one of them, you may want to think carefully about how best to use your time in law school to increase your odds of having a successful career. I agree with much of the advice on this score offered by prominent criminal lawyer and legal blogger Ken White. Here are a few additional suggestions that I think may be useful. I have deliberately tried to focus on points that I don't often see in other articles and blog posts devoted to this topic.

1. Think carefully about what kind of law you want to practice.

Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.

There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like.

Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to try. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.

2. Get to know as many of your classmates and professors as you reasonably can.

Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts. The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.

This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I am still going to suggest you do as I say, not as I actually did. You will be better off if you learn from my mistake than if you repeat it.

3. Think about whether what you plan to do is right and just.

Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of nearly every great injustice in our history, as well.

Robert Cover's classic book Justice Accused -a work that made a big impression on me when I was a law student - describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression.

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late, both for you and (more importantly) for the people harmed.

Can There Be Capitalism Without Racism?

A program at UC-Davis looks at the relationship between capitalism and racism.

The website Campus Reform points to a multi-year academic program, Racial Capitalism, hosted at the UC-Davis Humanities Institute that explores the links between racism and capitalism (tip to Glenn Reynolds). Among the questions that were asked at the event launching the program are:

  1. "Which came first, capitalism or racism?"
  2. "Can there be capitalism without racism?"
  3. "Is capitalism always racial?"

IMO, the answers to these questions are fairly obvious:

  1. Racism came first. Every inhabited continent had slaves, and ethnic out-groups were among the most likely to be enslaved. It is the abolition of slavery that is particularly Western, as Orlando Patterson explains his books Freedom and Slavery and Social Death.
  2. (and 3.) If there can be any economic system without racism (I suppose it depends on how high one's standards are), then capitalism is not always racist and there can be capitalism without racism. Capitalism is easier to square with a reduction in racism than most ideologies because (a) it is individualistic, (b) it is not built on envy for despised groups, and (c) in the United States at least, pro-capitalists tend to be less racist personally than anti-capitalists.

Indeed, in the general public it is the opposition to capitalism and the desire for redistribution that are positively associated with racism and intolerance.

I explore this relationship in "Redistribution and Racism, Tolerance and Capitalism," which analyzes data from 20 nationally representative surveys of the general public.

Abstract

In debates over the roles of law and government in promoting the equality of income or in redistributing the fruits of capitalism, widely different motives are attributed to those who favor or oppose capitalism or income redistribution. According to one view, largely accepted in the academic social psychology literature (Jost et al., 2003), opposition to income redistribution and support for capitalism reflect an orientation toward social dominance, a desire to dominate other groups. According to another view that goes back at least to the nineteenth century origins of Marxism, anti-capitalism and a support for greater legal efforts to redistribute income reflect envy for the property of others and a frustration with one's lot in a capitalist system.

In this paper I expand and test the first (social dominance) thesis using twenty nationally representative General Social Surveys conducted by the National Opinion Research Center between 1977 and 2010, involving over 21,000 respondents. I first show that respondents who express traditionally racist views (on segregation, interracial marriage, and inborn racial abilities) tend to support greater income redistribution. Traditional racists also express less positive views toward free-market capitalism and its consequences, tending to want the government to guarantee jobs for everyone and to fix prices, wages, and profits. Next, I report a similar pattern for those who express intolerance for unpopular groups on the fifteen Stouffer tolerance questions (regarding racists, homosexuals, communists, extreme militarists, and atheists). Those who express less tolerance for unpopular groups tend to favor income redistribution and to be less supportive of capitalism and its discontents. Using full latent variable structural equation modeling shows similar results. The data are broadly inconsistent with the standard belief in the social psychology literature that pro-capitalist and anti-redistributionist views are positively associated with racism and intolerance.

I then explore an alternative hypothesis, showing that, compared to anti-redistributionists, strong redistributionists have much higher odds of reporting anger, sadness, loneliness, outrage, and other negative emotions. Similarly, anti-redistributionists had much higher odds of reporting being happy or at ease. Last, both redistributionists and anti-capitalists expressed lower overall happiness, less happy marriages, and lower satisfaction with their financial situations and with their jobs or housework. Further, in several General Social Surveys anti-redistributionists were generally more likely to report altruistic behavior than those who favored a stronger policy of government redistribution of income.

In addition, in a 1996 survey:

Not only do redistributionists report more anger, but they report that their anger lasts longer. Further, when asked about the last time they were angry, strong redistributionists were more than twice as likely as strong opponents of leveling to admit that they responded to their anger by plotting revenge.

The more interesting question (than whether you can have capitalism without racism) is whether you can have socialism without racism. The answer is yes, but the reason is an enlightening one.

In the long run, a robust socialism (that dominates most of the economy) tends to lead to the scapegoating of demonized out-groups, because there must be someone to blame for economic failure. Thus, the Soviet Union began with hating the Kulaks and the ownership class more generally, but once these were destroyed, they needed someone else to blame. Though it took many decades, the Soviet Union went beyond targeting "counter-revolutionaries" to add Jews to the list. So the demonized out-groups under socialism don't have to be defined by race or ethnicity; they could instead be defined by economic class, religion, or nationality. Accordingly, socialism doesn't have to be racist, but when it dominates the economy almost inevitably there must be some group to despise.

It would be good if the academy in general--and the UC-Davis Racial Capitalism program in particular--were ideologically diverse enough to reflect some of the substantial evidence from the last few decades on the relationship of capitalism and racism in the views of the general public, evidence that tends to point to a negative association between racism and support for capitalism.

Are Perceptions of Newsworthiness Contaminated by a Political Usefulness Bias?

Ha! Science now has a non-shocking answer that question: Yes, of course, they are.

Do individuals tend to rate a story as more "newsworthy" if it backs up their side of a controversial issue? UC-San Diego's Hal Pashler and I thought such a bias was likely. But to assess this question more objectively, we created six pairs of hypothetical news stories, each describing an event that seemed likely to encourage people to adopt attitudes on the opposite side of a particular controversial issue (e.g. affirmative action and gay marriage). Here's an example of one of the pairs:

*A story about a hearing held by the police board in your city at which citizens expressed concern that police tactics used in the African-American community are counterproductive.

*A story reporting an 18% increase in robberies over the last 5 years in the downtown area of your city.

In total, 569 subjects were asked to evaluate the importance of these stories (and a number of "filler" stories) "to the readership of a general-circulation newspaper." They were specifically asked to disregard how interesting they themselves happened to find the event. After rating the stories, they were asked to indicate their own personal attitudes to the underlying six issues.

How did it turn out? You can guess, can't you? For all six issues, subjects rated stories as possessing greater intrinsic newsworthiness when they offered ammunition for "their side" of a controversy.

The article is entitled "Perceptions of Newsworthiness Are Contaminated by a Political Usefulness Bias," and it was published a week or two ago in Royal Society Open Science.

Is the point obvious? Evidently not to everybody. When it is pointed out that news staffs at newspapers across the country tend to be monolithically left of center, the response is often that this is not a problem, since the job of a news reporter is simply to report the truth, and truth is just truth. Well, that's not quite true ... news reporters have to decide what stories are newsworthy (and what facts within stories are newsworthy).

Very Broad Laws Offend Due Process

Repurposing “fair notice” principles to tackle an important aspect of overcriminalization.

Many thanks to the editors for inviting me to discuss my new article, Very Broad Laws, in which I develop a due process argument against extreme breadth in criminal law; my goal is to lay the conceptual groundwork for a "void-for-breadth" doctrine, whereby courts can bring the hammer down on criminal statutes that are so porously drafted, they effectively sweep in large swaths of everyday conduct. These types of criminal statutes suffer the same essential infirmity, I suggest, as vague and ambiguous criminal statutes: they fail to give ordinary people "fair notice" of how the legal system is likely to respond to their conduct. This is a due process problem because it frustrates predictability. When people lack a meaningful sense of what conduct invites serious intrusion into their lives — either because criminal statutes fail to convey what conduct they prohibit, or because they sweep so broadly that no one has a clue what the "actual" prohibition is — the rule-of-law is undermined.

The problem has not been lost on courts, including the Supreme Court, but the judicial response has been treat breadth as a species of vagueness or ambiguity. This is conceptually unsound. And not surprisingly, it has produced doctrinal confusion. In response, I argue that judges should identify the proverbial spade for what it is, and attack the breadth problem directly. By enforcing constitutionally-derived limits on broad lawmaking, the hope is that courts can encourage narrower laws, just as constitutionally-derived limits on indeterminacy — the rule of lenity and the void-for-vagueness doctrine — have long encouraged more precise laws.

For a concrete example of what I have in mind, consider Yates v. United States, the well-publicized "fish case" from 2015. After a wayward boat captain instructed his crew to throw some undersized snapper back into the ocean, in order to avoid being sanctioned by federal fishing and wildlife authorities for non-regulation catch, an entrepreneurial prosecutor decided to charge him under the obstruction of justice provision of Sarbanes-Oxley (Sec. 1519), a statute that carries a maximum sentence of twenty years, and that criminalizes the destruction or concealment of "record[s], document[s], or tangible object[s]" in order to obstruct a federal investigation.

The boat captain appealed his conviction on the theory that fish are not "tangible objects," and a majority of the Court agreed. Although fish are certainly objects, and it would be hard, abiding the normal parameters of English, to call them intangible, the Court reasoned that "ambiguity ... should be resolved in favor of lenity," not "reading [Sec. 1519] expansively to create a coverall spoliation-of-evidence statute." In dissent, Justice Kagan pounced on this conflation of breadth and ambiguity. "Even in its most robust form," she wrote,"[the] rule [of lenity] only kicks in when, after all legitimate tools of interpretation have been exhausted, a reasonable doubt persists regarding whether Congress has made the defendant's conduct a federal crime." But here, "[n]o such doubt lingers." Although "the [Court] points to the breadth of [Sec. 1519] as [if] breadth were equivalent to ambiguity, ... [i]t is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward 'object' meaning object [and including fish]. Lenity offers no proper refuge from that straightforward (even though capacious) construction."

My article (1) defends Justice Kagan's analytic position in Yates, while (2) embracing with the majority's overall perception of the case. The Yates Court was right, in other words, to discern a problem here. But the problem is not one of ambiguity. In fact, it is not a linguistic problem at all. It is a normative problem — a concern about the unpalatable results that follow from reading criminal statutes in wooden, but linguistically viable, ways.

Yates is far from the only example of this pattern. Others recent cases in which the majority reins in an alarmingly broad criminal statute by pretending that the problem is linguistic — over vociferous dissenting opinions — include: Marinello v. United States (rejecting an extremely broad theory of tax obstruction), Bond v. United States (invalidating a prosecution for garden-variety assault under a federal statute criminalizing the use of "chemical weapons"), and Morales v. Chicago (striking down an ordinance criminalizing public association with known gang members). Nor is the phenomenon limited to the Supreme Court. On the contrary, the pattern is traceable in lower federal courts and state jurisdictions alike.

In the article itself, I explore these examples in more detail. (And I'll provide more color in subsequent posts.) In each case, however, the same core point holds true. The court would have been on sturdier footing, both conceptually and doctrinally, if it had acknowledged the normative problem — that extremely broad criminal laws subvert due process — and fashioned remedies accordingly. Generally speaking, those remedies fall into two categories. The first, which enjoys favor among courts as well as numerous scholars, is to constrain the operation of broad laws through extra-textual limiting principles. I refer to this as the "rule of narrowness." The second is to limit legislative authority to enact very broad laws in the first place — by striking down statutes (or portions of statutes) as unconstitutionally broad. This, I call the "void-for-breadth" doctrine.

Ultimately, each tool has virtues and drawbacks. The first is nimbler. It leaves the overall statutory scheme intact, while still allowing judges to push back against overzealous, unfair, or otherwise-unreasonable enforcement decisions. The second is stronger medicine — in some cases, overly so — but it also attacks the problem at its root, responding to the reality that lawmakers often have an incentive to write broad laws. In other words, because legislatures frequently want criminal statutes to be broadly drafted and enforced, it stands to reason that limits on legislative authority, above and beyond constraints on enforcement power, would be necessary to corral the problem.

Ultimately, I argue that both tools should be available, just as courts have long taken a dual approach to linguistic indeterminacy, using the rule of lenity to dispel ambiguity, and the void-for-vagueness doctrine to curb amorphousness. Which anti-breadth tool should be used in which contexts is a complex question, but I close by suggesting that it roughly tracks a dichotomy (delineated in the article) between two different modes of breadth.

In one mode, the problem is essentially one of disproportionality: relatively minor violations triggering extremely draconian penalties. In that case, the proper remedy will typically be the rule of narrowness. In the other mode, the problem is, so to speak, the criminalization of everyday life: even if the relationship between conduct and penalty is not terribly asymmetrical, the statute simply criminalizes too much. In this case, by contrast, the proper remedy will usually be the void-for-breadth doctrine.

Prof. Kiel Brennan-Marquez Guest-Blogging About Very Broad Laws

I'm delighted to report that Prof. Kiel Brennan-Marquez (University of Connecticut School of Law) has agreed to guest-blog about his new article, Very Broad Laws; I saw it on SSRN, and thought our readers would find it very interesting. Here's the abstract:

Very broad laws offend due process. Like linguistic indeterminacy, extreme breadth deprives ordinary people of fair notice about how the legal system is likely to respond to their conduct. Accordingly, the Fifth and Fourteenth Amendments, echoing ancient rule-of-law principles, limit legislative authority to enact broad laws. The limits are forgiving. Just as it would be unwise (and perhaps impossible) to banish all vagueness and ambiguity from law, so legislators have considerable latitude to draft broadly. But limits do exist — and they should be enforced.

The problem has not been lost on courts. But their response, to date, has been to treat breadth as a species of linguistic indeterminacy, confusing analogy for identity. This strategy has caused doctrine to stagnate; it should be abandoned.

Instead, courts should distinguish indeterminacy and breadth as phenomena, and they should combat the latter directly, with tools forged in the image of the rule of lenity, on the one hand, and the void-for-vagueness doctrine, on the other. Using the first, the "rule of narrowness," courts can fashion extra-textual limits to curb the reach of broad statutes, allowing them to survive in modified form. Using the second, the "void-for-breadth" doctrine, courts can invalidate statutes (or parts of statutes) as facially overbroad.

I much look forward to Prof. Brennan-Marquez's visit.

"Some Friendly Advice To New Law Students"

Excellent advice from Ken White (Popehat), an experienced and successful practicing lawyer; many thanks to him for allowing me to reprint it:

Across America, law students are starting their first year. Some are attending elite law schools on a traditional track; some are taking classes at night and working during the day. Many of them are freaked out right about now.

I have some words of encouragement.

1. Take all the clinics, practicums, and internships that you can. Nothing beats seeing how law is actually practiced. It helps you get a practical grip on what you might like to do, and helps you see how what you're learning applies to an actual legal career. Plus it's a crucial way to meet people and open doors.

2. Are you going to law school to become a professor? Good for you! Otherwise I strongly advise approaching it not as about academic excellence, but about training to be of service. Lawyers represent clients. Clients benefit from you knowing what you're doing. Clients benefit from practical excellence, not academic excellence. Academic excellence is a nice by-product of taking subjects seriously as you master them, but it's not an end in and of itself for a lawyer. You're training to do a good job for people who need help — whether you're going to be a civil litigator or a criminal lawyer or an in-house counsel guiding your company the right way. Some schools — particularly elite ones — encourage a contrived disdain for nuts and bolts of practice in favor of theory. Theory is nice — it's helpful to know the why, and to be conversant with theoretical arguments to back up your practical arguments — but a lawyer who can critique a rule of evidence, but not apply it, is not a lawyer who will be of service to a client.

3. Would you like to take some very specialized courses on some fun and esoteric issues? Fine. But don't neglect the building blocks, tedious as you may find them. I really didn't want to take Corporations and found it dull, but I use that knowledge all the time in civil and criminal litigation. I fled from Secured Transactions but soon learned that I would have benefited tremendously from it. Law and legal norms are everywhere and interdependent, and the theory that you can get by in your specialized area without all of the basics is usually wrong. ("But what are the basics?" is a subject for another post.)

4. Write every day — an assignment, a blog post, a substantive email. Speak every week — a debate, a podcast, an oral argument. Writing and speaking comfortably and effectively will always be useful no matter how you practice.

5. Resist excellence narratives that focus on the right background, the right school, the right job. The best lawyers are not the ones who went straight from Ivy to Ivy to Biglaw. The best lawyers are the ones who are serious, dedicated, and passionate about their craft. The best lawyers I've had the pleasure to work with have often been second-career lawyers, lawyers from schools that were not "top tier," lawyers who took a different path. But they were serious about being lawyers. Don't rest on your laurels just because you went Harvard to Yale, and don't sell yourself short just because you came to law after another career and you're going to a less "prestigious" law school. You can be excellent, but only if you work at it.

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The Most Cited Legal Academics 2013-17 (Updated)

A new report on the academic influence of law faculties and tallies of legal citations by specialty.

As Eugene noted, there is a new, updated study of law school "scholarly impact" by Gregory Sisk, et al. This study looks to measure the impact that different schools' law faculties have upon legal scholarship by looking at citation counts. (VCU isn't ranked, but as Ilya noted, it would apparently do quite well.)

In light of the new study, Brian Leiter has posted updated lists of the most cited legal scholars over the 2013-2017 period. Here are the top ten:

Rank

Name

School

Citations

Area(s)

Age in 2018

1

Cass Sunstein

Harvard University

4900

Constitutional, Administrative, and Environmental Law, Behavioral Law & Economics

64

2

Erwin Chemerinsky

University of California, Berkeley

2570

Constitutional Law, Civil Procedure

65

3

Eric Posner

University of Chicago

2330

Law & Economics, International Law, Commercial Law, Contracts

53

4

Mark Lemley

Stanford University

2180

Intellectual Property and Cyberlaw

52

5

Richard Epstein

New York University, University of Chicago

2165

Constitutional Law, Torts, Law & Economics

75

6

William Eskridge, Jr.

Yale University

2160

Constitutional Law, Legislation

67

7

Akhil Amar

Yale University

1600

Constitutional Law

60

8

Thomas Merrill

Columbia University

1595

Administrative, Constitutional, and Property Law

69

9

Mark Tushnet

Harvard University

1590

Constitutional Law, Legal History

72

10

Jack M. Balkin

Yale University

1580

Constitutional Law, Cyberlaw

62

In addition, Leiter has started to post lists of the most cited law faculty by subject area. Here are the fields he's tallied thus far:

In addition, Rick Hasen has posted the most cited legal scholars in Election Law over the same period at his Election Law Blog.

Leiter has announced he will post additional subjects in the coming days, and I will update this post as his rankings appear.

Opening a File After A Hash Was Made and Matched to Known Image of Child Pornography is Not a "Search," Fifth Circuit Rules

An interesting case applying the private search reconstruction doctrine.

The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a "search" for the government to then open the file to confirm it is child pornography? Held, per Judge James Ho: No, it is not a search under the private search reconstruction doctrine.

First, some background. The private search reconstruction doctrine lets the government recreate a private search as long as it doesn't exceed the private search. The idea is that the private search already frustrated any reasonable expectation of privacy. Merely recreating what the private party did is within the private search and is not a new government search. But in the case of computers, that raises difficult issues: What is merely a recreation of a prior private search, and what exceeds the search?

In Reddick, the Fifth Circuit holds that actually opening a file that had matched to a known image of child pornography was not a search because "the government effectively learned nothing from [the agent's] viewing of the files that it had not already learned from the private search." Here's the analysis:

When Reddick uploaded files to SkyDrive, Microsoft's PhotoDNA program automatically reviewed the hash values of those files and compared them against an existing database of known child pornography hash values. In other words, his "package" (that is, his set of computer files) was inspected and deemed suspicious by a private actor. Accordingly, whatever expectation of privacy Reddick might have had in the hash values of his files was frustrated by Microsoft's private search.

When Detective Ilse first received Reddick's files, he already knew that their hash values matched the hash values of child pornography images known to NCMEC. As our court has previously noted, hash value comparison "allows law enforcement to identify child pornography with almost absolute certainty," since hash values are "specific to the makeup of a particular image's data." United States v. Larman, 547 F. App'x 475, 477 (5th Cir. 2013) (unpublished). See also United States v. Sosa-Pintor, 2018 WL 3409657, at *1 (5th Cir. July 11, 2018) (unpublished) (describing a file's hash value as its "unique digital fingerprint").

Accordingly, when Detective Ilse opened the files, there was no "significant expansion of the search that had been conducted previously by a private party" sufficient to constitute "a separate search." Walter v. United States, 447 U.S. 649, 657 (1980). His visual review of the suspect images—a step which merely dispelled any residual doubt about the contents of the files— was akin to the government agents' decision to conduct chemical tests on the white powder in Jacobsen. "A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy." 466 U.S. at 123. This principle readily applies here— opening the file merely confirmed that the flagged file was indeed child pornography, as suspected. As in Jacobsen, "the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband." Id. at 125.

Significantly, there is no allegation that Detective Ilse conducted a search of any of Mr. Reddick's files other than those flagged as child pornography. Contrast a Tenth Circuit decision authored by then-Judge Gorsuch. See United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). In Ackerman, an investigator conducted a search of an email and three attachments whose hash values did not correspond to known child pornography images. 831 F.3d at 1306. The Tenth Circuit reversed the district court's denial of a motion to suppress accordingly. Id. at 1309. Here, by contrast, Detective Ilse reviewed only those files whose hash values corresponded to the hash values of known child pornography images, as ascertained by the PhotoDNA program. So his review did not sweep in any "(presumptively) private correspondence that could have contained much besides potential contraband." Id. at 1307.

Interesting case.

It seems to me that there are two different questions potentially at work here. One question is whether opening a file after a private party has run a hash on the file exceeds the scope of the private party search for any kind of file. A second question is whether there are special rules for opening images of child pornography under the contraband search cases of Jacobsen and Illinois v. Caballes. On my initial read, I see Reddick as more about the second question than the first.

With that said, I have to think more about whether Reddick is a persuasive application of those cases. Here's why I'm not sure. The key to the contraband search cases of Jacobsen and Caballes is that the field testing and dog sniffing revealed nothing other than the presence or absence of contraband. The drug field testing in Jacobsen either returned positive or negative. The well-trained drug-sniffing dog in Caballes either alerted to the presence of drugs or didn't. It was a binary situation in which the only information learned was the presence or absence of contraband.

When a government agent opens a file, though, is more learned than whether the image is child pornography? I gather the opener of the file sees the full image, and then, after seeing the image, makes a judgement about whether the file is child pornography. The ultimate goal is to confirm that the image is child pornography. But more is learned than that; it's arguably less like using a drug-sniffing dog to alert for drugs than it is actually opening the trunk of the car and seeing the drugs. That latter act would be a search, even if the goal is just to confirm that a dog's alert for drugs was correct and to actually find the contraband.

I suppose this hinges on what the baseline knowledge should be for a opening a file. It's an interesting question. If it is known that a particular hash value corresponds with a particular known image, how do you model what is learned by opening a file that matched that hash? Do you say that the opener of the file already has the knowledge of what that particular image looks like, and that opening the file to see that it is that image really just confirms that it's a match and doesn't tell the agent anything else? Or do you model the agent's knowledge as just being that a file matched with some known image, and that opening the file thus gives the opener more information about what the file looks like? And in trying to answer that, do you consider just the individual opener's knowledge, or do you impose some sort of collective knowledge doctrine under which you consider the knowledge set of some broader group? I'm not sure.

It occurs to me that a related (but perhaps stronger) way for the court to have reached the same result would have been to rely on what some have called the single-purpose container doctrine. This doctrine goes back to a footnote in Arkansas v. Sanders, in which the Supreme Court stated that "some containers (for example a kit of burglar tools or a gun case), by their very nature, cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance." In Robbins v. California, the Court explained that for this doctrine to apply, "a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer."

It seems at least plausible that this could apply to opening a file with a known hash. If you know that a particular image has a particular hash, and you then have a file with that hash, then the information you have before you open the file "clearly announce[s] its contents . . . by its distinctive configuration" so that "its contents are obvious to an observer." The contents "can be inferred by [the file's] outward appearance," at least if you take "appearance" to include the hash value of the file. Notably, though, this approach would be broader than just child pornography. It would apply to opening any files with known hashes.

Finally, I gather that Reddick does not implicate the existing circuit split on how the private search reconstruction doctrine applies to computer searches. The existing split is on how to measure how much is "searched" when a private party accesses a computer: Does the private party access search the entire computer, or just the file, or the folder, or what was actually observed? In this case, however, there was apparently just one file at issue.

Anyway, it's a fascinating case. And it was a very well-written opinion from Judge Ho, I thought, at least after you ignore the extraneous citations to legal scholarship.

Short Circuit: A Roundup of Recent Federal Court Decisions

MacGyver, Rumpelstiltskin, and a whole bunch of attorneys behaving badly.

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

The Texas gov't lied to Patricia Mosley. She followed the instructions of an administrative law judge and appealed an adverse decision in court (instead of before an administrative agency). But Texas officials say the judge and the regulation the judge relied upon (which had been on the books for 14 years) were wrong—and that Patricia Mosley should have known. An appeals court agreed and tossed her case. We say the Texas Supreme Court should reconsider. Read more here.

  • "Rumpelstiltskin could spin straw into gold. Rumpelstiltskin, Inc. thought it could do the same for garbage, spinning it into tax credits. The Commissioner of the Internal Revenue Service disagreed. So did the Tax Court. So do we." So writes Chief Judge Garland of the D.C. Circuit.
  • In 2008, the Supreme Court held that Gitmo detainees are entitled to meaningful judicial review of the legality of their detention, but since then the D.C. Circuit has rejected every habeas petition it has considered on the merits. So we should probably take one of these petitions en banc, writes Judge Tatel, to examine whether we're adhering to the Supreme Court's instructions.
  • Husband (American) and wife (Panamanian) have seven kids. Yikes! Wife has affair (with another Panamanian) resulting in eighth child; the child is born in Panama and is raised as part of the family (which relocates to the U.S.). Is the father the American, in which case the now-former child is an American, or is the father the Panamanian, in which case the now-former child is not an American and can be deported (for a pair of drug convictions)? Second Circuit: Nothing in the statute says you need to be a biological parent to be a parent; American citizenship was acquired at birth, so no deporting him. Concurrence: Moreover, the gov't detaining him for almost two years while we sorted this out on grounds that require "no grand innovation of law" is troubling.
  • Police locate car that had been carjacked at gunpoint; the driver leads them on extended high-speed chase through Newark, N.J. He crashes. Driver: I don't deny threatening to kill the officers, but they never shouted any commands at me; they just opened fire. (He's struck at least 16 times. He lives. He didn't have a gun.) Third Circuit: Qualified immunity.
  • Four homeless alcoholics challenge a law making it a crime for a "habitual drunkard" to possess an alcoholic beverage. Fourth Circuit: Although the government cannot punish people for what they are, as opposed to what they do, this is not such a case. The state labels people "habitual drunkards" in civil proceedings, not criminal ones, and the criminal prohibition focuses on the conduct of possessing a beverage. It is irrelevant that the prohibited conduct is compelled by addiction, as otherwise much of our criminal law would be called into question. Concurrence: The majority's conclusion is compelled by circuit precedent, but in my view this statute impermissibly criminalizes otherwise legal conduct by persons suffering from a disease.
  • Allegation: University of South Carolina student group obtains pre-approval from school officials to hold event and then displays posters with words and ideas that caused controversies on other campuses. Other students complain. (One complainant's friend was "violently triggered" by a swastika and feels unsafe on campus.) Officials summon the group to a 45-minute meeting, where it must "answer for and explain each poster that was subject to a complaint." No further action is taken. Fourth Circuit: No First Amendment problem here.
  • Former Marine shoots three Baton Rouge, La. officers dead before being killed himself. An officer grievously injured in the shooting sues Black Lives Matter activists for inciting the shooter. District court: "Plaintiff's Counsel has utterly failed to state a plausible claim." Fifth Circuit: Affirmed. (More on the shooting here.)
  • Texas law requires public universities to permit individuals with concealed carry permits to carry concealed handguns on campus, and the University of Texas at Austin bars professors from barring handguns from their classrooms. Three professors: Which violates the First, Second, and Fourteenth Amendments. Fifth Circuit: It does not.
  • Supreme Court: Life sentences for juveniles violate the Eighth Amendment. Michigan: Okay, we'll resentence all these prisoners, but we're taking away the good time credits that they earned while serving their life sentences. Sixth Circuit: Which has the effect of increasing the punishment attached to their convictions, and so violates the Ex Post Facto Clause.
  • Allegation: Woman is arrested for disregarding jury duty summons, though as a noncitizen she is ineligible to serve. She pulls away from a Lake County, Ill. officer as he handcuffs her and gets charged with resisting arrest as well. She's re-arrested for failing to appear in court on that charge. She declines food, water. Jail staff know immediately she has mental health needs but do not summon medical help. Rather, doctors see her on their routine scheduled visits the following week; she's diagnosed as psychotic, but no further steps are taken. She's transferred to the hospital two weeks into the hunger strike; it's too late; she dies. Seventh Circuit: Some claims against the medical staff should not have been dismissed, but no suing jail officials.
  • A poop emoji in a published opinion? What the deuce? The Seventh Circuit upholds sanctions against Cook County, Ill. corrections officer who threatened (via Facebook post) fellow officers not to testify against her in her discrimination suit against the county—and Judge Sykes reprints the threat word for emoji.
  • Three women driving in Chicago get embroiled in road rage melee with off-duty cop. (Women arrested, charged, and acquitted of battery of a police officer.) One required surgery from the incident. Jury: Now-former cop is liable for $260k for excessive force. District court: Strike that. Plaintiffs' attorneys' contumacious conduct at trial (for instance, repeatedly questioning witnesses about inadmissible topics and leaking info to the media (and then lying about it to the judge)) and plaintiffs' own bad faith conduct merit dismissal of the claim. Seventh Circuit: Affirmed. (Click here for a news story.)
  • Debt collector files lawsuit against debtor on behalf of creditor in appropriate court. While the lawsuit pends, the Seventh Circuit decides a different court is appropriate for such suits and makes the change retroactive. The debtor then sues the creditor and debt collector for filing in the wrong venue, settling with the creditor but winning $200 in damages plus $70k in attorney's fees from the debt collector. Seventh Circuit: Reversed. The settlement moots the debtor's claim against the debt collector.
  • Ten Sleep, Wyo. cattle rancher tells his investment broker to close an account. Instead, the broker does some unauthorized trading and loses $2 mil. The broker obfuscates, then resigns from his firm; the firm seeks to recover the $2 mil from the rancher, first from the rancher's other account at the firm (which has a positive balance less than $2 mil) and then sues for the rest. District court: The rancher got defrauded. But he didn't pay sufficiently close attention to his account statements, so he gets reduced damages. Seventh Circuit: He gets full damages. Fraud victims are expected to take reasonable steps only after they become aware of the fraud; they are not required to take precautions that, with the benefit of hindsight, would have avoided the fraud or ended it sooner.
  • If you live in Naperville, Ill. and want electricity, you have no choice but to buy it from the city, which has smart meters that collect energy consumption data every 15 minutes and store them for up to three years. Concerned residents: The data reveal when people are home or away, their sleeping routines, and more. Seventh Circuit: No Fourth Amendment problem here. The gov't has a significant interest in providing effective utility services, and the risk of the data being used for law enforcement purposes is minimal.
  • Cameron, Mo. prison officers put Ecclesiastical Denzel Washington, an asthmatic inmate, in cell with cigarette smoker, causing asthma attacks. (A rule against smoking in cells is not enforced.) Officers also take away a mask prescribed by medical staff to help Ecclesiastical's breathing. (The warden says he doesn't need it because smoking isn't allowed, and if he witnesses any, he can snitch.) Jury: Pay him $40k in compensatory damages; several prison officials must also pay $71k to him in punitive damages. Eighth Circuit: No need to pay the $71k. (Click here for some journalism.)
  • SWAT visits home of Hot Springs, Ark. homeschooling family after 16-year-old (with history of unsubstantiated allegations) accuses his parents of neglect, abuse. His siblings deny the accusations; health officials find them to be happy, healthy. Nonetheless, they're removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Eighth Circuit: The parents can sue the police. (More on the case here.)
  • At immigration hearing in 2009, ICE lawyer presents DHS form dated January 13, 2000, purportedly signed by immigrant. Yikes! DHS didn't exist in 2000. The form is forged; a judge relies on it to deny permanent residency status to immigrant, who has U.S.-citizen wife and children and is entitled to said status. (The lawyer is jailed for 30 days, prohibited from practicing law for 10 years.) Ninth Circuit: The immigrant can sue the now-former ICE lawyer.
  • Man stands on public sidewalk at least 50 feet from Calexico, Calif. border crossing and snaps a few photos of inspection area; officers handcuff him, threaten to smash his camera when he doesn't delete the photos. Ultimately, he's detained 20 minutes; his camera is returned with nearly all of the photos deleted. Ninth Circuit: Could be a First Amendment violation; this should not have been dismissed.
  • Man confesses to shooting, killing Millard County, Utah officer during traffic stop. He recants, says passenger in his vehicle shot the officer. (It turns out the passenger was the officer's brother.) A state court acquits the man of murder, but a federal jury convicts him of the same. (The brother isn't charged; he dies of an overdose.) Tenth Circuit: Conviction affirmed. No error to withhold evidence of the state court acquittal from the federal jury.
  • Lawyer attaches a smoking gun email to his complaint, refers to it as an "unofficial version." Turns out the email was altered to add critical text. Lawyer refuses to withdraw the complaint or otherwise correct the issue. District Court: That's sanctionable. Case dismissed with prejudice, attorney's fees awarded. Tenth Circuit: Submitting an altered document is deceitful, and refusing to retract the manipulation is doubly so. Affirmed.
  • In which Judge Rosenbaum of the Eleventh Circuit invokes '80s action hero and unconventional problem solver MacGyver in dispute over how tort damages award (arising from doctor causing severe brain damage to infant during delivery, during which the doctor took an eight-minute phone call from his stockbroker) is to be paid.

James Jenkins runs a home-based business publishing rare, out-of-print books, primarily 18th-century Gothic novels, horror novels, and works by early LGBT authors. This summer, he got a letter from the U.S. Copyright Office demanding free copies of virtually every book in his catalog on pain of fines that could reach $100k. Which is a problem! James prints books on demand and has no inventory lying around; complying would seriously damage his business. It's true the law entitles the Copyright Office to free books, but the requirement is a relic of the old copyright system and no longer serves any purpose. So this week, James teamed up with IJ and challenged the constitutionality of the requirement. Read more here.

Visitors Wearing "Abolish ICE" T-Shirts Barred from Statue of Liberty

Unconstitutional viewpoint-discrimination, and the Park Service has acknowledged it was a mistake.

Gothamist (Jake Offenhartz) reports:

A pair of New Yorkers hoping to pay a visit to the Statue of Liberty last month say they were ordered by federal employees to change out of their "Abolish ICE" t-shirts before approaching the monument. When the couple refused, security guards escorted them out of line for their pre-paid tour—a decision that the National Park Service now admits was a "misstep," and one that qualifies as illegal viewpoint discrimination, according to the NYCLU [New York Civil Liberties Union]....

According to [one of the visitors], the ... security guards cited "what happened on July 4th" as a justification for the ejection—presumably referring to Therese Patricia Okoumou, who was arrested after she scaled the Statue of Liberty and refused to leave until "all the children have been released." Earlier in the day, Okoumou had participated in a demonstration in which a dozen protesters unfurled an "Abolish ICE" banner on the statue's observation deck....

The Gothamist reports that the National Park Service "acknowledged that blocking access to the Statue of Liberty over a political t-shirt is a form of viewpoint discrimination, according to the NYCLU," and that the Service "told Gothamist that 'this never should've happened,' adding that 'it's pretty clear from our standpoint that we don't restrict free speech.' ... 'It was certainly a misstep on our part and we're happy that the couple has elected to take up our invitation to come back' ...."

"Sex Pigs Halt Traffic After Laser Attack on Pokémon Teens"

I agree with Glenn Reynolds (InstaPundit) -- this is indeed the best headline I've seen all the week.

See the whole story from The Local (Sweden) here; the story is from a couple of years ago, but the subject matter is evergreen, as we say in the media biz.

"Islamic Fundamentalist Fervor Seems to Have Intensified, Such That Evangelical Christians May Now Be at Special Risk in Indonesia"

This leads to a rare potential victory for someone who illegally came to the U.S. from Indonesia, and who is seeking to reopen his asylum case.

From Sihotang v. Sessions, decided Wednesday by the First Circuit (in an opinion by Judge Bruce Selya, joined by Judges Rogeriee Thompson and William Kayatta:

Motions to reopen—especially untimely motions to reopen—are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb. This does not mean, though, that the mountaintop is entirely beyond reach....

The petitioner, Indra Sihotang, is an Indonesian national and an evangelical Christian. In his homeland, approximately eighty-seven percent of the population is Muslim.

The petitioner, then 36 years of age, entered the United States on a bogus crewmember's visa in 2003 and overstayed. On March 26, 2004, federal authorities instituted removal proceedings against him ... After conceding removability, the petitioner cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (another form of withholding of removal).

During his November 2006 removal hearing before an immigration judge (IJ), the petitioner testified that he had experienced persecution in Indonesia on account of his faith. He described three sets of incidents, which he attributed to his religious identity:

  • In 1992, the petitioner and his brother were assaulted while riding on a motor bike in Jakarta. They sustained serious injuries and received medical attention at a nearby hospital. The petitioner ascribed this assault to the Christian cross emblazoned on the T-shirt he was wearing.
  • In 2002, Muslimextremists committed a series of high-profile attacks on Indonesian churches.
  • Later that year, a group of Muslimextremists, using a megaphone, succeeded in disbanding a religious prayer meeting hosted by the petitioner at his home in Jakarta.

Despite the petitioner's testimony and his documentary submissions, the IJ denied the petitioner's application for relief, but granted him a two-month voluntary departure window "for humanitarian reasons." The BIA dismissed the petitioner's appeal on May 14, 2008. The petitioner did not seek judicial review of that dismissal.

Notwithstanding the expiration of the voluntary departure period, federal authorities allowed the petitioner to remain in the United States under an order of supervision for almost ten years. [Footnote: This order of supervision arose out of Operation Indonesian Surrender, a humanitarian program initiated by Immigration and Customs Enforcement (ICE). Under the program, Indonesian nationals subject to final orders of removal could make themselves known to ICE and, in ICE's discretion, receive temporary stays of removal, accompanied by renewable orders of supervision.] During that interval, the petitioner married an Indonesian Christian with ethnic Chinese heritage (an ethnicity strongly associated with Christianity in Indonesia). They have four American-born children, one of whom has Down syndrome. The petitioner abided by the terms of his supervision, worked regularly, and was the family's sole source of income. In addition, he provided his disabled son with daily physical therapy.

The world turned upside-down for the petitioner and his family on September 7, 2017. At that time, the petitioner went to an ICE field office in New York for the purpose of renewing his supervision paperwork (as he had done on several prior occasions). This time, he was taken into custody by ICE officers.

On October 12, 2017—while still in custody—the petitioner moved to reopen his removal proceedings. Because the petitioner's motion was not filed within 90 days of the final administrative decision in the initial removal proceeding, the BIA deemed the motion time-barred. Seeking to avoid this temporal barrier, the petitioner averred that country conditions in Indonesia had changed materially since the time of his merits hearing.

In support, he submitted new evidence in the form of published news articles and country conditions reports. He also submitted a detailed 66-page affidavit signed by Dr. Jeffrey A. Winters, an academician specializing in Indonesian political economy, labor, and human rights.

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