The Volokh Conspiracy

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The Volokh Conspiracy

Rachel Maddow's Racist Smear of Second Circuit Nominee Steve Menashi

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Rachel Maddow launched a disgusting smear of my Scalia Law School colleague (on leave) and Second Circuit nominee Steve Menashi. Ed Whelan has the details:

In a 2010 law-review article titled "Ethnonationalism and Liberal Democracy," Second Circuit nominee Steven Menashi argues that "ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law."

Menashi's specific purpose in the article is to refute claims that "Israel's particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests." In fact, argues Menashi, "[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis." Further, the "idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of 'self-determination of peoples' espoused at the foundation of the League of Nations and the United Nations." Surveying the laws of European nations, he further explains that Israel's Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, "[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states."

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi's argument and tries to twist it into "a high-brow argument for racial purity." (Video at 9:00-9:36.) She falsely claims that Menashi argues "how definitely democracy can't work unless the country is defined by a unifying race." (Video at 6:57-7:10.)

But Menashi's argument about national identity is clearly not about "racial purity" or a "unifying race." Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for "racial purity." Menashi further states that it "is not even clear … that Israel's national identity can even be described as 'ethnic'" (in a narrow sense ofthat concept), as Israeli Jews come from "Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen."

OK, it's a smear. But why racist? Well, Maddow and her fellow-travelers are inclined to call any criticism of Rashdia Tlaib they deem unfair "racist" because Tlaib is a "woman of color" based on her parents' Middle Eastern origin. Steve's parents were victims of state antisemitism, his paternal grandparents like my wife's family refugees from Iraq, where his family had likely lived for 2,500 years (and how dare he think that there might be good reason for a nation-state for Jews to ensure they don't suffer the fate of his family in the future?) So by the logic that Maddow herself has adopted, Steve is a "person of color" and her smear "racist." But it's a despicable smear regardless.

UPDATE: An earlier version of this post suggested that both of Steve's parents were of Iraqi origin. His mom's family were rather refugees from the USSR. Regrets for the error.

FURTHER UPDATE: I have a busy schedule today, but found a few free moments to add this: Menashi's argument is a counter to those who argue that nationalism is inherently illiberal. He argues that multi-ethnic societies without a sense of shared national identity are prone to inter-ethnic conflict and a lack of social trust. The way to overcome this, he argues, is with liberal nationalism. This form of government will not just ensure everyone legal rights, but will provide a sense of national identity that will allow people to recognize that while their fellow citizens may be "different", they are part of the same national project/polity and thus can overcome those differences for the broader national good.

Is this right? It's highly debatable whether liberal nationalism "works" in this way. But there is nothing the least bit racist about arguing that nationalism, rather than being seen as inherently illiberal, can further liberal goals by creating a sense of national solidarity that would overcome particularist (racist, ethnocentric, chauvinistic) instincts.

I should also reiterate that this was published in 2010, well before the current Trump  related controversies over nationalism, and given the date, was not an related to the recent rise of Bannon-style conservatism, but was rather an explanation why Israeli nationalism doesn't render it illiberal.

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  1. > Well, Maddow and her compatriots call any criticism of Rashdia Tlaib they deem unfair “racist”

    Speaking of gross smears, that’s just cranky horse shit.

    Bernstein used to be a bit better than this.

    1. You’d have a better case if Tlaib herself didn’t encourage this:
      Rashida Tlaib
      @RashidaTlaib
      The hardest part of serving in Congress as a WOC & as a “first” is how people hear you differently. No matter how much we take on the hate & stay true to who we are through our experiences, our voices are shushed and reduced. We aren’t perfect, but neither is this institution.

        1. Or you’ll go away forever?

          It’s not even controversial that Bernstein is right that the squad and their supporters pull out the race card gratuitously, remember when they called Pelosi a racist?

          1. How DARE you assume I took EITHER side?
            Libertarians don’t take sides, from blind tribal loyalty.
            Because Left – Right = Zero.

            You cannot refute my linked comment.
            And FAILED to show why his quote was NOT lame.

            Or you’ll go away forever?

            whooooooooooosh

      1. I’m not reading that quote the way you do.

        Tlaib and the others are in fact part of a small minority in Congress, and one which, in the case of her and Omar, has not previously held Congressional seats.

        They are also, whether you care to admit it or not, the objects of an unusually high level of attack, some of which is certainly racially or religiously based, and some of which is coming from Trump and others on the right – your allies.

        Why is it wrong to say that in their view they are heard differently, and have to deal with a certain amount of hate? Are those statements obviously false?

        1. While there are certainly some racists who criticize Omar & Tlaib, Omar & Tlaib certainly label ALL criticism of themselves “racist” . . . . they do not treat ANY criticism of them as “worthy” of a straight answer.

          If you have any examples of Maddow saying a discouraging word about Omar or Tlaib, I’d love to hear about it – this business in Israel was clearly a stunt intended to be provocative, and yet, Rachel & her crew are backing them to the hilt.

          1. Netanyahu was following Trump’s demand/request, then reversed from worldwide outrage.

          2. Omar & Tlaib certainly label ALL criticism of themselves “racist” . . . . they do not treat ANY criticism of them as “worthy” of a straight answer.

            Maybe you could prove this rather than just asserting it.

            If you have any examples of Maddow saying a discouraging word about Omar or Tlaib, I’d love to hear about it

            No you wouldn’t. And why does it matter?

            – this business in Israel was clearly a stunt intended to be provocative, and yet, Rachel & her crew are backing them to the hilt.

            Yes, Trump’s actions were clearly a stunt meant to be provocative, meant to stir up his base with some more hatred – racial or other – directed against these women.

        2. They are also, whether you care to admit it or not, the objects of an unusually high level of attack, some of which is certainly racially or religiously based, and some of which is coming from Trump and others on the right – your allies.

          These people make their race, their religion, and their gender front and center of the objectives and justifications of their policies; necessarily, any objection to their policies involves arguments about their race, their religion, and their gender. Claiming “racism” is their way to kill off rational objections to their policies.

          And these people receive “unusually high levels of attack” because they are unusually awful. AOC, Omar, Tlaib, and Pressley are socialists, racists, bigots, and utterly ignorant. They were put in by a progressive machinery for their PR value. They are some of the worst representatives in my lifetime. I’m glad people are attacking them, and I hope they will be booted out of Congress and go back to bar tending.

    2. Nope, this is straight-up David at his usual hijinks. I suppose that, before, he used the VC more often to promote his “academic” work. I don’t think I’ve seen him do much of that since the move from WP.

  2. Maddow and her compatriots call any criticism of Rashdia Tlaib they deem unfair “racist” because Tlaib is a “woman of color” based on her parents’ Middle Eastern origin.

    Bullshit.

    Oh, and you might look up the word “compatriot.”

    Sample usage: David Bernstein is critical of his compatriot, Rachel Maddow.

    1. (laughing)
      (cheering)

      Haters be … haters.

  3. Funny how your racism detector is a lot more attuned when the victim is a fellow conservative.

    1. Your reading comprehension has failed you in this instance.

      1. Well, aren’t you precious?
        A disgrace to Volokh.

        Israel was not racist. But Trump’s demands are. Which is why Israel caved, Netanyahu having humiliated himself on the world stage..

      2. It is totally inoperative otherwise,

    2. Well, derpy, I’m guessing* he’s pointing out the inconsistency of Maddows’ bullshit, rather than saying he agrees with criticism of either person being ‘racism’. Kinda subtle, I know, against the backdrop of shameless double standards adopted by the progtards for, lo, these many years.

      *-trans: “100% sure”

      1. Behold the raging conservatard.

        Left – Right = Zero
        Two sides of the same authorian coin.
        As libertarians have known for over 50 years.

  4. There once were 150,000 Jews in Iraq. Now there are almost ten.

    1. Self-defense. Educate yourself. After providing a link.

      1. Who knew that Hihn is also a raging anti-Semite! The truth comes out.

  5. You’re both wrong. (All three?)

    The issue is not an ethno-centric nation, but how that nation treats other people. And that is where Israel fails, Massively. And where Americans are the worst informed in the world. And why ISIS style attacks will continue, as self defense.

    Google the “Rhineland Massacre,” aka the First Holocaust, where thousands of Jews were slaughtered by … Christian Crusaders, on their way to Jerusalem, mostly in Germany, some in France’ as “Christ killers.” The Crusaders continued to the Holy Land, where they killed and expelled more Jews.

    So how did the Jews get back in? Ummm, the Muslims allowed them back in. For this, they were rewarded … how? The Jews want MUSLIMS expelled from Jerusalem, have forced settlements on Muslim land, and have long maintained a military blockade of Gaza. A blockade is an act of war.

    That is why some Muslims reject Israel, on stolen land, by western nations seeking atonement for allowing the second holocaust … BUT mainstream Islam does support a two-state solution. You need not agree, but cannot deny the argument is legitimate. Israel ruled that land for fewer than 300 years, over 2,000 years ago, They lost it on their own. A civil war had created TWO Jewish Kingdoms, north and south, Israel and Judah. When Israel was invaded, Judah refused to assist their fellow Jews.

    Further history is found in the Old Testament. Jews acquired that land by committing mass genocide … against the Canaanites. So they never had any right to that land, even in antiquity.

    ISIS recruits, as Al Qaeda did, to defend against a “Judeo-Christian War Against Islam.” And point to news reports in the west, and Trump’s shameful actions re Jerusalem.

    We stuck our nose into a war that did not concern us, between China and Japan. Our famed “Flying Tigers” were shooting down Japanese war planes over China. And we suffered Pearl Harbor. (FDR had just moved our Pacific Fleet from San Diego to Pearl, much close to Japan.)

    Then we stuck our nose into another war which was none of our business, a 2,000 year war in the mideast. And we suffered 9/11.

    Yes, liberals falsely equate race with ethnicity. But that’s not even close to the moral atrocities, which can be easily confirmed, by those seeking truth and justice

    Why punish Islam for the sins of Germany? Instead of a desert, I’d have give them land in Germany. But it was Israel who demanded a return to their “homeland” — which they never had any right to. Jewish settlements in Gaza, maintained by force, and their military blockade, are condemned by virtually every other nation on earth, justifiably.

    So, how many will screech anti-semitic below this, in raging hatred … thereby proving my point. Make my day.

    1. I see The Daily Stormer is leaking again.

      Take a good look, folks. This is what modern “not anti-Semitic” looks like. Are you impressed by the victim blaming, the whataboutism, and preemptive “just proves my point” persecution complex?

      1. Called it! Canaanites were victims!

        Hate the message? But FAIL to refute a single word?
        Shoot the messenger.

    2. I do not concede that the creation of Israel was unjust, but let’s assume that for a moment.

      In the 70-some years since its creation, Israel has built a first-world economy and a representative democracy. Even Arabs vote and serve in the Knesset. Israel is a positive contribution to the world community.

      In the same time, what have the so-called Palestinians done? They’ve built a death cult. Rewarding them for that makes no sense.

      If you want to set aside historical wrongs, why not start with the Norman Conquest or Ceasar’s conquest of Gaul?

      1. Why not the extermination of Neanderthal man by Homo Sapiens? We are all guilty of that!

  6. Misusing a word in a headline just because you think your opponent misuses the word debases the language.
    It even debases *me* (which is no small feat): Henceforth, when you use “racist”, I have to spend time deciding whether you mean it in the standard sense or in the expanded, Maddow-Berstein sense.
    I think to save time I’ll just blanket assume the latter. Heck, maybe I’ll occasionally use the word in that sense myself (but *responsibly*, always appending a superscript “M-B” to flag the nonstandard usage – and because I kind of like the juxtaposition).

    1. Berstein -> Bernstein, sorry

  7. She’s called “mad cow” for a reason…

    1. So is Trump. And no worse than Carlson, Ingraham, Hannity Perino and Doobs
      .
      Plus you (by your own words)

  8. After his experience with Mexican judges, why would Pres. Trump try to put an Iraqi judge on an American court?

    This guy must be a clinger, young and politically reliable.

    1. This guy wouldn’t be just an Iraqi judge . . . he’d also be a Russian judge.

      That explains the Trump love.

      Carry on, clingers. For about another 18 months.

    2. Trump has never faces a Mexican judge in US court and no Iraqi judges have been nominated or even mentioned, All the judges under discussion are a Americans at leas to people that are not bigoted scum.

      1. Cherokees?

      2. Unless you consider Pres. Trump (author of the “Mexican judges” slur) to be bigoted scum, Nelson Kerr, your comment is inexplicable.

  9. “Menashi’s argument is a counter to those who argue that nationalism is inherently illiberal.”

    This is such a stupid fucking argument. Who cares whether nationalism is inherently illiberal, or not. The concept of “illiberal” is too vague to inform the discussion either way. And if nationalism is good but inconsistent with liberalism, then so be it. And if nationalism is consistent with liberalism, but still bad, so be it.

    Why do people talk in code? Whether Israel’s not-really “ethnonationalism” is a good or bad idea doesn’t have anything to do with rating it on a scale of liberal/illiberal.

    1. Or denying it was entirely racist. Demanded by Trump.

      That’s why Netanyahu caved under worldwide pressure, and reversed the denial.

  10. Zionism started in the 19th century when ethnonationalism was hip and progressive. This is when Americans cheered Hungarian ethnonationalist rebels, and the up-to-date liberals praised the Risorgimento (sp?) in Italy and even the unification of Germany.

    Sure, every ethnic German should be in the same state, just as every ethnic Italian should be in the same state. If it took a bit of international aggression to achieve these dreams, well, only the clingers and left-behinders would whine about it.

    Even after WWI, when maybe they had some reservations about the Germany thing, Woody Wilson and his supporters cheered (at least in theory) new ethno-states.

    Finally, the idea of *European* nationalism got Godwinned after WWII, but ethno-nationalism in the 3rd world was still cool and hip. Like for the Palestinians. But maybe not so much for the Jews any more…

  11. I just don’t play attention to anything anyone says is “racist” anymore. We used to have a common understanding of at least some kind of idea of what actual “racism” constituted. But, now looking at a colored person the wrong way, and them not liking it, is “racism”.

    1. Spoken like a man who does not see what is shown in his mirror.

      1. You sound like a racist to me.

        1. Is this how you want to spend the time remaining before you are replaced, Jimmy?

          1. I thought the whole replacement theory was “racist”…? Are you saying that is actually the plan?

        2. Jimmy DOES what he SAYS he opposes.
          And Trump does a LOT worse than “look” at black persons,

          1. Oh please do let us in on your little secret about what Trump does with black people…

            1. it’s no secret. And you’re about to lose, BIGLY

              Now Trump’s totally shameless lie about Charlottesville, sucking up to white supremacists and neo-nazies. Bad enough that he said both sides were to blame. But he also went full psycho, saying the counter-protesters charged the nazis, swinging clubs. UNDENIABLE proof of shameful President.

              The initial assault, Charlottesville– Nazis and white supremacists attacking peaceful protesters with clubs
              “Alt-Left” standing peacefully, no visible clubs or bats.
              Alt-Right Fascists/Racists crash into them en masse, swinging clubs.
              Fascists are carrying the same shields as cops in riot gear. The bastards CAME for violence.

              Shame on Trump and ANYONE who defends lies, hatred and bigotry.

              These are Racists and Jew-Haters.
              Ivanka and Jerod are Jewish.
              Trump threw his own daughter under a bus. SHAMEFUL.

              Left – Right = Zero
              Libertarians have said that for 50 years. A growing majority of Americans now agree.
              As the “traditional” left and right shrink toward extinction, roaring like dinosaurs, chirping like dodo birds.

              ==========
              Anything else?

              1. You mad dude?

  12. Man, what a whore Bernstein has become.

    I think this is his argument.
    1. Liberals (improperly!!!) call conservative people racist when those people do X, and this is wrong and unacceptable. I, of course, happily defend those people against accusations i think are wrong.
    2. Rachael Maddow just did X.
    3. So, by the standards of liberals, Maddow is a racist. And I’ll call her a racist and make it the main thrust of my post’s headline.

    What someone with actual integrity would have argued is:
    a. Liberals improperly call action X racist. I complain about this and defend those conservatives when this happens.
    b. Maddow just did X.
    c. Since I am not a whore, I will now defend Maddow just as much as I defend those conservatives, since it’s just as unfair to label her a racist as it was for the people on my side of the ideological spectrum.

    What is most disappointing about Bernstein’s actions is that he is a law professor. What everyone but he learned in law school is that each side of a dispute is equally entitled to a defense. His utter hypocrisy here makes me wonder if he skipped class each time this issue came up. Or, if–each time it was brought up when he was in class–he stuffed fingers into both ears and loudly hummed, “LA-LA-LA-LA” so that none of that wisdom could penetrate his brain pan.

    Just appalling

    1. Well thought and well-crafted. Left – Right does indeed = Zero.

    2. But consistent with Bernstein’s larger theme that liberals (aka radical left aka far left aka ultra left) victimize (a) those on the right, (b) Jews, and especially (c) Jews on the right. It’s not intellectual work so much as therapeutic work. It’s not difficult to read his posts about liberals as wanting a reassurance hug and/or someone to punch those meanies in the nose.

    3. The actions of certain law professors on this site inform my evaluation of students from their institutions, when I assist with the hiring process at my institution.

      Or, at least, they would. For whatever reason, GMU students never make the initial cut.

  13. An article describing a smear that refers to the supposed smearer as “Maddow and her fellow travelers” seems to lack a certain sense of irony. I enjoy reading The Volokh Conspiracy articles, regardless of which perspective they take (getting different perspectives is what I enjoy), but this one does not seem to meet the normal standards for the articles included.

    1. ^^This

  14. I’m willing to allow that Maddow’s charge that Menashi’s argument is for a kind of “racial purity” in Israel is simplistic, at best. It is true that Israel’s founding principles apparently open the door to all of the world’s Jews, regardless of race. (Setting aside for now, of course, the very disturbing issues with race that modern Israel is now grappling with, as with the Ethiopian Jews, whose difficulties in Israel you (for some reason!) gloss over.)

    That said, Maddow is certainly not wrong in pointing out that Israel’s version of ethnonationalism is incompatible with modern liberal democracies and their pluralistic ideals, and has more in common with modern regimes we would typically describe as “illiberal.” Menashi may make an interesting historical point about ethnonationalism, but it is not really an “argument” in favor of it in modern times – to cast it as such is to commit the genetic fallacy (which is, to be fair, one of your favorite fallacies, David).

    Personally, I do not really understand why Israel can’t be a special homeland for the Jews while abandoning the “sine qua non” of Jewish supremacy within Israel. It seems to me that this principle – that Israeli Jews can never be permitted to lose control of Israeli politics – is the ultimate source for all of Israel’s most illiberal tendencies (and the underlying cause of its long-simmering disputes with Israeli and Palestinian Arabs).

    1. I can’t imagine why Jews wouldn’t wanna lose political control of their safe house on the planet Earth, either.

      I hate that! Someone should do something about them!

  15. I can’t imagine why Jews wouldn’t wanna lose political control of their safe house on the planet Earth, either.

    I hate that! Someone should do something about them!

  16. We all understand the implications of the term “Cry wolf.”

    You can only wonder when “Cry racist” will be similarly understood.

Please to post comments

Free Speech

Calling Informants "Snitches" May Be a Federal Felony

That's so regardless of whether the statement is seen as a true threat or incitement—and it applies to any "harmful" speech "inten[ded] to retaliate" against anyone giving law enforcement "any truthful information" related to a federal crime.

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Title 18 U.S.C. § 1513(e) of the witness retaliation statute provides,

  • "Whoever knowingly,
  • "with the intent to retaliate,
  • "takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
  • "for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,
  • "shall be fined under this title or imprisoned not more than 10 years, or both."

This doesn't require any proof that the speech was a constitutionally unprotected "true threat" of violence or vandalism, or unprotected speech intended to and likely to incite imminent criminal conduct. It's enough if sharp criticism is intended to retaliate (i.e., is motivated by testimony or a report to the government), and if it "harms" people in a broad sense, including by making people not want to do business with them. Publicly condemning a local businessman for calling the police about someone's being an illegal alien—or for reporting on a person's technical violation of a federal gun law—could thus be a felony, if one intends that people shun him as a result.

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:

Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant's identity and called him—among other things—a "snitch." Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….

In 2015, D.B. agreed to work with law enforcement as a confidential informant against two brothers in the town of Steubenville, Ohio. These two brothers, Fred and David McShan, were suspected of running a drug-trafficking operation. D.B. wore audio and video surveillance equipment while performing controlled buys from the McShan brothers. As a result of D.B.'s assistance, law enforcement indicted the McShan brothers on multiple charges, including conspiracy to possess with intent to distribute heroin. D.B. also testified at the McShan brothers' trial.

The trial took place in Columbus, Ohio, 150 miles from Steubenville. D.B. testified in an open, public courtroom. A number of Steubenville residents attended the trial. During the trial, United States Marshals had to remove several of the McShan brothers' relatives and friends from the courtroom for recording witness testimony and taking pictures of witnesses, including D.B., on the stand. A jury found both brothers guilty and the district court sentenced Fred to 288 months in prison and David to 74 months in prison.

Several months after the trial, Steubenville residents began posting on the social-media website Facebook pictures of D.B. testifying at the trial. Among the people to do so was Joy Edwards, a sister of the McShan brothers. Over the course of several days, some of her online activity included:

  • Re-posting another user's photo of D.B. on the witness stand and calling him a "snitch" in the comments section
  • Commenting on her own post saying "f*** him," "Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!"
  • Re-posting another user's doctored photo of D.B. holding a t-shirt with a police badge on it
  • Re-posting another user's photo of D.B. with the caption "stop snitching" over it, to which Edwards added, "Snitch ass bitch"
  • Commenting on her own post in response to another user's question about the identity of D.B., saying, "This guy is snitching! He snitched on my brothers! And lied about everything!"
  • Re-posting another user's photo of D.B. with the caption "Snitching like a bitch"
  • Re-posting another user's picture featuring hands in police handcuffs with the caption "Man up … Shut your mouth. Take the charge and don't snitch."
  • "Liked" numerous other users' posts of similar material

Edwards did not capture any photos of D.B. at the trial, nor did she create any of the images herself. She primarily re-posted others' images and added her own captions. Her Facebook page was set to "Public," meaning that any one of her more than 600 Facebook friends could share her posts and anyone on Facebook could view them. These Facebook posts by Edwards and others revealed and broadcast D.B.'s name, nickname, location, family members, and his cooperation with law enforcement—in addition to generating numerous other derogatory comments by other persons in the Steubenville area….

Edwards waived her right to a trial by a jury. At the bench trial, … DEA Special Agent Heufelder testified that law enforcement considers the label "snitch" to be a threat to its informants. D.B. testified about how his life changed after the Facebook posts, including his increased difficulty in seeing his children, decreased employment opportunities in the area, and his fear for his safety and for the safety of his family….

The court upheld Edwards' conviction—not because her speech was a true threat or incitement (again, this statute doesn't require proof of that), but simply because it was intended to retaliate and was intended to and did cause "harm":

Intent. Intent may, and generally must, be proven with circumstantial evidence. There is no question that Edwards's posts were in response to D.B.'s testimony. She repeatedly referred to D.B. as a "snitch" and a "rat." When asked in the comments section by a friend who D.B. was [in context, the commenter was basically asking Edwards, "Why are you posting this?"], Edwards shot back that he "snitched on [her] brothers" and that she thought he lied about them. She also posted that "His bitch ass needs some WD40!"

The district court found credible the government witness's testimony about the increased risk of harm associated with the label "snitch." The trier of fact "is free to infer the intent to retaliate from the natural consequences likely to flow from the defendant's actions." Given the context of the Facebook posts, particularly the negative comments about D.B. that were generated by the posts, a rational trier of fact could easily conclude beyond a reasonable doubt that someone who continued to engage in that activity intended the foreseeable negative consequences. Indeed, the district court found that "there is no competing or other purpose for which Defendant's postings were made, other than to retaliate." …

Edwards complains everything she communicated online was both accurate and already public knowledge. Again, this has nothing to do with whether Edwards intended to retaliate against D.B by disseminating allegedly true and accurate information….

Causation. Edwards concedes D.B. suffered harm from the collective Facebook posts. But because numerous other people posted (often much worse) things about D.B., Edwards argues, her posts alone cannot be sufficient evidence to establish that she caused D.B.'s harm…. [But] there was evidence of close temporal proximity between Edwards' Facebook posts and the subsequent harm suffered by D.B., making it possible for a rational trier of fact to determine that § 1513(e)'s causation element was satisfied.

Although D.B. conceded that some Steubenville residents knew about his cooperation with the government before Edwards posted on Facebook, he also claimed that "[w]hen the photos got posted, that's when mostly the drama picked up." D.B. testified that he received "a lot of friend requests" from strangers on Facebook after Edwards posted, which caused him to feel "a little intimidated" and to doubt whether he "could safely return to Steubenville." He also feared for the safety of his family, especially given that his little sister received a threat after Edwards posted on Facebook in May of 2017. In light of these concerns, D.B. reduced the frequency of his family visits and refrained from living with family members in Steubenville….

Now it seems to me that, read as broadly as it is written, the statute violates the First Amendment. Cases such as NAACP v. Claiborne Hardware Co. (1982) make clear that speech intended to retaliate against people, and even harm them economically (and risk leading to violent attack against them), is constitutionally protected: There, it was speech by black activists retaliating against black citizens who refused to boycott white-owned businesses, but for First Amendment purposes retaliation for lawful (indeed, constitutionally protected) purchasing behavior can't be different from retaliation for passing information to the police.

The District Court had rejected the First Amendment argument, concluding that the statute is constitutional because "criminalizes speech only upon proof that the defendant intended to retaliate against a witness"; but I think that can't be right—an intent to retaliate doesn't strip otherwise constitutionally protected speech (again, speech that need not fall within any First Amendment exception, such as for true threats or for incitement) of constitutional protection.

Unfortunately, according to the Sixth Circuit, "Edwards abandoned her First Amendment overbreadth claim on appeal." As a result, the court declined to consider the First Amendment issue:

Nothing in this opinion should be construed to comment on whether § 1513(e) is overbroad or violative of the First Amendment. That issue was neither brought nor briefed before us.

I hope that, when the First Amendment question is squarely presented to an appellate court, it will recognize that the statute (at least unless it's sharply limited to threats, incitement, or nonspeech conduct) is unconstitutionally overbroad.

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  1. Laws like that are a perversion; you can’t change people’s instincts that easily, and snitches are almost universally disliked and untrusted, even by those for whom they snitch. Even snitches don’t like what they do; why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

    1. why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

      Because the lowest of thugs is generally not motivated by anything other than self-interest?

  2. But he is a snitch. Isn’t truth an absolute defense in free speech?

    1. Unfortunately, according to the Sixth Circuit, “Edwards abandoned her First Amendment overbreadth claim on appeal.” As a result, the court declined to consider the First Amendment issue

    2. My understanding is that truth only matters in libel, slander, defamation, and so on. Ask Chelsea Manning how much truth matters when the powers that be pull the national security chain, and ponder how much state power is invested in 50 years of the War on (Some) Drug (Users). I suspect that interfering with state thugs, no matter how truthful, runs into judges who believe first and foremost in preserving state authority.

    3. +100

      This is what happens when you let lawyers run this country.

  3. Who says that Congress is dysfunctional? The people‘s representatives are always prepared to put partisanship aside and work together to enact laws like this one, which I had never heard of before, to strengthen the hand of law enforcement vis-a-vis the citizenry.

  4. One has to wonder why Edwards abandoned the First Amendment claim on appeal. The trial court rejected it

    The statute, consistent with [Virginia v. Black], criminalizes speech only upon proof that the defendant intended to retaliate against a witness. It is the scienter requirement of the statute that renders it constitutional.

    But Virginia was about cross-burning, threatening conduct with an expressive component, and held that

    Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

    and

    The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

    That would seem to be readily distinguishable from the retaliatory but non-threatening speech at issue here.

    1. Yes. If the statue from the OP required that the speech be intended as a threat to the witness, then it would be constitutional, just as cross-burning intended to convey a threat is.

  5. While Eugene Volokh struggles to strengthen a nearly non-existent distinction between “retaliation,” and “incitement,” I suggest he is turning a blind eye to weaponized publications on the internet. It could not be more obvious—as in this case—that many instances of weaponized internet publications—by which I mean publications which single out a particular named target, and encourage a targeted mass reaction—intend harm to the target. To anyone alarmed by that, Volokh’s habitual 1A fundamentalism leads him to reply, in effect, “So what, there has always been speech which intended harm, and that has been rightly protected by law.”

    At times, Volokh suggests that harsh criticism of public figures, for instance, is an example to prove the point. Such criticism has been intended to cost such people their jobs, their reputations, and the esteem of the public, amounting to great harm. And yet that criticism has been fully protected. So why not like protection for weaponized speech published on the internet?

    Two reasons why not:

    1. Before the internet, the targets of weaponized speech had to be at least noteworthy enough to warrant expensive ink-on-paper publication of charges against them. The issues particular to the target had to command attention among a public segment habituated to paying for publications, and judging their contents. The publisher had little chance of achieving lasting anonymity, and knew it.

    Today’s world-wide publication of weaponized speech is nothing like that. World-wide publication is available for free to anyone with a grudge, and access to a library keyboard. The intended audience can be homogeneous, and thanks to internet software, may be selectively assembled among individuals who are gullible, uncritical, and emotionally unstable. Practical anonymity for publishers is within reach. Weaponized publishing targets can be anyone, not typically just public figures, as in the past. Targets can be people with no connection at all to public life. They can be, by happenstance, the aggrieved publisher’s neighbors, his neighbor’s children, specific members of disfavored groups or races, or economic competitors of the weaponizer.

    2. The publishing era to which Volokh reaches for many of his precedents was an era of edited publications. Legal responsibility for defamation required private editors to know their contributors, and to guard against irresponsibility. Editors had to read every syllable prior to publishing. Publishing was expensive, and publishers typically had a reputation to defend, and money at stake. Almost everything which today leads to weaponized internet publication would, under that former regime, have been excluded from publication. Advocates who favor weaponized speech may see the change toward less practical restriction as a good one. They reckon without considering a growing public backlash.

    Whatever may be published under its auspices, with trivial exceptions, Facebook has nothing at stake, edits nothing, and publishes everything without ever reading it. That means every falsehood, deception, defamation, and scurrilous attack on a non-public person always gets published. Any correctives (which are rare) have to be applied after publication, after the damage is done, and, mostly, after correction will do any good.

    Volokh, along with a great many internet commenters, has not thought through the implications which new technology and changed business models have brought to the world of publishing. Customs and legal precedents tailored to fit bygone practices do not apply usefully to a new-made world which operates differently.

    Either the new-made publishing world must be remade to match previous customs and precedents, or the customs and precedents must be updated to match the new publishing reality—including the reality of abusively weaponized published speech.

    In a changed world, 1A fundamentalism, built to match a previous need, no longer matches today’s need. The profusion of cases Volokh cites in succession ought to suggest that to everyone.

    Make it a point to notice: few if any of those cases features a fact pattern which was even realistically possible in the world from which Volokh’s precedents derive. That suggests something about the relevance (or irrelevance) of the legal analyses and precedents Volokh urges.

    Without ongoing public support, a free press is a practical impossibility. Re-assertions of pro-free-press ideology—even ideology codified as law—cannot provide a practical substitute for the people’s needed organic support for press freedom.

    The internet has brought the question of press freedom near to a tipping point, which should not go ignored. Open calls for government censorship of the internet are common abroad, and increasingly common in America, including in congress, and on this blog. Indeed, most of the cases Volokh cites here provoke an array of comments, arguing pros and cons among rival schemes of government censorship, with little else suggested except to do nothing. So far, Volokh’s advocacy shows little sign that he understands the problem, or notices the danger such responses imply.

    1. So how is the Internet in that regard any different from, in their times, the telegraph, the radio, motion pictures, and television? Each in its turn Was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held at motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that mirror words allegedly did not. All new technology evolves and adjustmen was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held that motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that we are words allegedly did not. The Internet is just the latest in a long line of technological innovations that ultimately people accepted within the rubric of free speech and Free Press.

      1. Number 2, in that long line of innovation you mention, there were also innovations in publishing—radio and television, for instance, which you mentioned yourself. Contrary to what you seem to suggest, publishing companies which exploited newer media were treated alike with other means of publishing which preceded them, such as books, newspapers, magazines, pamphlets, etc. Especially with regard to the key question of liability for defamation, all publishers were treated generally alike—television news, alike with newspapers, enjoyed no freedom to defame.

        What is historically noteworthy about internet publishing companies, is that they have not been treated uniformly with their legacy predecessors. Instead, internet publishing companies have been specially privileged by government, notably with regard to immunity from defamation. That was an unwise government decision, and has had troublesome consequences.

        Three such consequences stand out:

        1. Giantism. Internet publishers, because they are free to publish contributions without reading them, are free from one of the principle constraints on growth which restrict legacy competitors. Editing is expensive and difficult. No-editing means less expense and difficulty. It frees an internet publishing company to grow without limit, buy up potential competitors, and eventually exploit network effects to occupy nearly the whole of the national business space for publishing. Thus has our society transitioned from a thriving market for a vast diversity of publications, to a distorted market comprising an ever-shrinking number of legacy publishers, struggling against internet giants numbering, at most, in the low double digits. Never since the printing press was invented has there been such a concentration of publishing power in so few hands.

        2. Quality of content. The need to read everything to prevent being sued for libel had a salutary extra effect on legacy media. It made it practical to compete on the basis of content quality, because doing so would not expose a publisher to an expense which his rivals would not also incur. The rivals, too, had to read everything. The notion of quality became diversified, and publications tailored for particular markets developed specialized expertise to serve unique audiences. Overall, the result came to be regarded as one of the principal ornaments of civilization. By contrast, internet publishers, who read little or none of their content, compete for advertising dollars on the basis of giant audiences, and software algorithms to segment the audiences, and little else. Internet publishers lack even the will to compete on the basis of quality. But the internet publishers’ outsized power in the advertising market does undermine revenue sources for legacy publishers who do strive for quality. Thus, the number of the latter dwindles continuously, and takes with it the special values they brought to publishing.

        3. Press freedom. Because they can defame without consequence, and because of monopolistic-seeming control of access to publication, internet publishers have come under assault like no previous publishers ever have. Their detractors have various complaints, but seem to agree that whatever should be done, it should be done by means of government controls on publishing. This nation has never seen as broad-based a demand that publishers be censored by government as the currently growing pro-censorship wave is poised to deliver against internet publishing.

    2. So your solution to the government prosecuting people for seemingly protected speech is to have the government prosecute Facebook too?

      1. No, it’s just his usual dumb pro-censorship screed based on his complete misunderstanding of the law, past and present,¹ his failure to grasp the concept of censorship, as well as his staggeringly stupid idea that Facebook should be broken up so that millions of newspaper editors (of which he used to be one) can have jobs. Combined with his weird idea that his pro-censorship position is some growing movement.

        ¹There’s only so many times one can explain to someone the difference between distribution and publishing before concluding that the ignorance is deliberate and willful.

        1. Once again, Nieporent is a guy who insists, straight faced, that private editing is censorship. If I am a publisher, and you offer me something to publish, and I decline to to publish it, Nieporent says I censored you.

  6. This strikes me as similar to the hostile environment theory of discrimination. Just like otherwise protected speech can be illegal if it creates a hostile work environment and forms the act of discrimination, protected speech can become illegal if it intended to retaliate against a witness.

    Presumably, if your wife testifies against you and you sleep with, or flirt with, another woman with intent to retaliate against there, the sex or flirtation is a crime.

    And if your priest testifies against you, and you retaliate against him by changing religions, your religious conversion becomes a crime. It really make you wonder how dumb you have to be to be a judge.

  7. At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant.

    Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

    At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

    The truth is an absolute defense to Defamation and this “victim” was a snitch.

    1. Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

      It looks like this defendant raised a somewhat technical defense, challenging whether the government could prove any marginal increase in “harm” to the informant based on the defendant’s actions. I could understand why the defense might have thought a judge would be more likely to ignore the defendant’s unsympathetic actions and focus closely on the elements of the statute.

      At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

      There is absolutely no possibility that a federal judge would allow a defense attorney to make this argument to the jury.

    2. The truth is an absolute defense to Defamation

      The prosecution wasn’t for defamation, so this is irrelevant.

  8. Do snitches on bitches have stars upon thars?

  9. “Now it seems to me that, read as broadly as it is written, the statute violates the First Amendment.”

    But is it applied that way? Seems to me that if it requires a finding of actual harm, and not just a theoretical one, that’s what takes it out of the protection of the First Amendment. (the old challenge of dividing speech into “speech” and “action”… which leads to a great deal of debate without much resolution, in most cases.)

Please to post comments

Immigration

Two Cheers for Pete Buttigieg's Proposal for "Place-Based Visas" for Immigrant Workers

The idea has some flaws, but would be a major improvement over the status quo. It also has much in common with a proposal for state-issued visas promoted by two Republican members of Congress in 2017.

|

Pete Buttigieg (Jeremy Hogan/Polaris/Newscom).

South Bend, Indiana Mayor and Democratic presidential candidate Pete Buttigieg recently put forward a proposal for "placed based visas" for immigrant workers, based in large part on a similar idea advanced by economists Adam Ozimek, Keenan  Fikri, and John Lettieri (Buttigieg refers to them as "community renewal visas"). Matthew Yglesias of Vox has a helpful summary of the plan, and some of its potential advantages:

Many struggling American communities are, among other things, losing people. Meanwhile, many millions more people would like to move to the United States of America than the country is prepared to allow in.

Three economists have called for leveraging the latter into a solution for the former, allowing both communities and immigrants to opt into a special program that would allow communities experiencing population loss to issue temporary visas to skilled foreigners that would allow them to live and work in places that want more workers.

The economists, John Lettieri, Kenan Fikri, and Adam Ozimek, call them "heartland visas" or "place-based visas" in their original policy proposal for the Economic Innovation Group think tank. The idea has spread: South Bend, Indiana, mayor and presidential candidate Pete Buttigieg's larger plan for rural America included them under the name Community Renewal Visas, and the US Conference of Mayors endorsed the concept in a resolution passed on a bipartisan basis earlier this summer….

Part of the tragedy of the situation is that in global terms, Akron is one of the very best places in the whole world to live. Declining Midwestern cities tend to have bad weather, but so do thriving Northeastern ones. And while the city's median household income of $36,000 is on the low side for the United States, it compares favorably to what you'd find in Poland, Hungary, Greece, Croatia, or Chile — to say nothing of India, Bangladesh, or Vietnam.

Lots of people, in other words, might jump at the chance to move to Akron if they were given the opportunity. And we know from the lottery for H1-B visas that American companies would like to import many more foreign-born workers with technical skills than they are currently allowed to hire.

Instead of giving work permits to skilled workers that tie them to a specific company, as the US does now, a new category of visas would tie them to a specific place.

A certain number of place-based visas would be allocated to a city — Akron, say — that wants to opt into the program. And then foreigners with skills who want to take a chance on Akron can apply for an Akron Visa. If you live in the specified city for a certain period of time — Buttigieg's implementation sets it at three years — you can convert to a regular green card. The lure of the permanent green card, among other things, is supposed to create a strong incentive to comply with the terms of the program.

The theory is that the presence of a pool of skilled workers in a given city would be a lure for companies to start investing there to hire them. This in turn would have a series of related benefits…

A reasonably large share of Akron visa holders would end up moving elsewhere after their initial three-year stint, especially at first. But it's also the case that people have a tendency to stick around a place once they've put some roots down there. And once an immigrant community is established somewhere, its very existence becomes a draw for other people with similar cultural roots.

Place-based visas would be a significant improvement over the current system of H-1B visas that tie immigrant workers to a specific employer.  They would enable workers to switch jobs (so long as they stayed in the same locality). That is good for both economic efficiency (enabling workers to go where they are likely to be more productive) and for avoiding mistreatment of workers by employers. In the H-1B system, workers who leave an abusive employer risk deportation. I also agree with many of the other points Yglesias makes in favor of this proposal.

The main shortcoming of the idea is that, by confining eligible workers to a single community, it severely limits their options. That's a flaw from the standpoint of both liberty and efficiency. In some smaller communities, they might even be limited to just one or a small handful of employers (depending on how many local businesses employ workers with their particular skills). Another limitation of Buttigieg's version of the plan is that it would be restricted to "counties that have lost prime-working-age population over the last 10 years, and smaller cities that are struggling to keep pace economically with larger cities." Other communities should also be allowed to participate.

These are the main reason why the plan deserves only two cheers, instead of three. On the other hand, the prospect of getting a green card within 3 years significantly mitigates these problems, as it makes the location restriction temporary and gives employers some incentive to avoid abusive behavior (lest the most productive workers leave as soon as their three year term is up).

The Buttigieg proposal for place-based visas has much in common with a proposal for state-based visas offered by Republican members of Congress Senator Ron Johnson and Rep. Ken Buck in 2017, which I analyzed here. The big advantage of the Johnson-Buck proposal over Buttigieg's is that a state-based visa gives immigrants far more options than one confined to a single city. On the other hand, their plan—unlike Buttigieg's—would not grant a green card after  three years. So the locational constraint would continue indefinitely. The Johnson-Buck plan provides for three year visas, which can be extended at the option of the state government in question.

There is, potentially, some conflict between giving immigrants a choice and promoting development of depressed communities, as many would prefer to move to areas with more vibrant economies, if given  the option. But immigrants have diverse preferences, and many might well be willing to move to less successful areas, so long as there are jobs available, and the cost of living is relatively low compared to the big cities of the East and West Coast. Even today, a good many immigrants do in fact move to less-affluent parts of the United States, as shown by such examples as the fact that immigrant doctors service many poor rural areas.

Many of the points I made in my assessment of the Johnson-Buck proposal apply to this one, as well:

For the last century or more, immigration policy has been dominated by the federal government. That's an inversion of what most of the Founding Fathers expected. James Madison and Thomas Jefferson, among many others, objected to the Alien Acts of 1798 in large part because the original meaning of the Constitution did not give Congress any general power to restrict immigration, but rather largely left the issue to the states.

We are unlikely to fully restore the original meaning of the Constitution. But [the Johnson-Buck proposal would move us some degree in that direction]….

If the bill passes, the guest workers admitted by the states would be among the biggest beneficiaries. Many thousands would get freedom and economic opportunity, and escape having to languish in poverty and oppression….  But American citizens also stand to gain, because immigrant workers make major contributions to the American economy. By channeling immigrants into legal employment, this program could also diminish deportations, which come at a high cost to taxpayers….

As with political decentralization on other issues, it could also help mitigate the poisonous partisan conflict created by federal control, where a single, one-size-fits all approach is imposed the entire country. Regional visa programs have worked well in Canada and Australia, two diverse federal democracies with histories and political traditions similar to our own….

Ultimately, decentralization of immigration policy to the state level is not as good as the even more complete decentralization that would occur if these decisions were made by individual workers and employers. Among other things, the latter are in an even better position to judge relevant economic needs than state officials are. But a state-based worker visa program would still be a major improvement over the status quo.

It is worth noting that Jason Kenney, the new United Conservative Party premier of Alberta (Canada's most conservative province) has recently proposed a plan somewhat similar to Buttigieg's in an attempt to attract immigrant workers to rural parts of his province, which currently suffer from declining population.

The above analysis assumes that the Buttigieg plan or the Johnson-Buck proposal would expand the total number of immigrants allowed in the US, without diminishing numbers admitted under other categories. The proposals are in fact currently structured that way. If they are altered to cut immigrant admissions elsewhere, that greatly reduces the good they might do (though it might still be net beneficial if community or state-based visas replace H-1B visas).

My post on the Johnson-Buck plan  describes some of the political obstacles it faces, many of which would also apply to the Buttigieg proposal. Those obstacles likely help account for its failure to get much traction in Congress. But the endorsement of  similar ideas by prominent liberal Democrats might increase the chance of building a bipartisan coalition over time.

It may well be too much to hope for. But perhaps at some point in the future, we could get a bipartisan proposal that combines the best features of both plans, while mitigating their respective downsides.

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  1. If the globalists (Somin and Soros, et al.) were candid they would simply say . . . “Americans will not vote for globalism, we must bring in more immigrates who will.”

    1. If people like you were candid – you would simply say “I hate brown people – keep them away from me” or “I hate America”.

      Both statements would be true.

      1. I don’t hate brown people, but I hate the system of government that inevitably results from brown people, who are genetically less intelligent and less able to care for themselves. Why are white nations obligated to turn themselves brown?

          1. Sorry the truth upsets you, but 85-90 IQ Hispanics vote for big government because they can’t make it any other way.

            1. If you shout “I am a Bigot,” you’ll never con any thinking person.
              (puke)

      2. That whole “you hate brown people” is such a chickenshit cop out. No one hates brown people, except your side, who’ll use these people to get political power while holding them down on the Dem plantation.

        1. RWH is so virulent I wonder if he’s a plant trying to poison the well on honest discussion of the real issues regarding unrestricted immigration not because of economic benefits, or of a love for huddled masses, two reasonable claims, but to grow “your” voter numbers.

    2. I accidentally flagged that comment

    3. Do you know how visas work? They don’t give people the ability to vote.

      1. Tell that to the state of California. We are already wallowing in the mud at the bottom of that particular slippery slope.

      2. No, but their “citizen” children will surely be voting in 18 years, and for Democrats. Tie the visas to sterilization, and I’ll be on board.

  2. I’d just point out that the reason these places have declining population is the lack of opportunity there.

    Of course a combination of a skill and place based visa could cause some some companies to open offices in these cities, since technology allows many jobs to be performed remotely.

  3. If a city can not support its existing population but some other location can deal with the influx why should anything be done to “fix” this situation? This simply sounds like a solution in search of a problem.

    1. Well, I assume that America has sunk costs of hundreds of billions (trillions??) in tons of cities–colleges, highways, sports stadiums, hospitals, etc etc. If we just let a crapload of unsuccessful towns turn into true ghost towns, then that is just lost money. But if this suggestion works, then these can be turned into economically viable communities again. Your approach seems to be, “Well, it will work. But so what. We owe nothing to these cities, they failed on their own, and they (and their residents) should suffer the consequences.”

      That seems to be a fairly selfish approach. One reason why it makes sense for America (writ large) to help out struggling communities is the comfort at knowing that, God forbid, if something untoward happens to me (cough, earthquake, cough), Americans will be equally willing to help out and bring back my area to economic viability.

      1. Equating help following a natural disaster with importing third worlders is a new one. I’m sure the people living in depressed areas are just DYING for that type of “help.”

      2. I’ve never understood the notion of labeling people who want to keep their own property as “selfish” rather than those who want to take other people’s property. Moreover, your argument conflates places and people; if a place turns into a ghost town, it means that their residents aren’t suffering the consequences because there aren’t any residents.

        Just as it doesn’t make sense to pour lots of investment into Kmart just because it is “struggling,” it doesn’t make sense to pour investment into a dying down. It’s not cruelty; it’s common sense. Let the investment be directed somewhere more productive instead of propping up a place that few value.

  4. Places that are suffering declining population are most often places where taxes are high and services suck (like Baltimore). Recipients of placed-based visas still need to have job before they come here – areas with declining populations also have higher than normal unemployment. More immigrants are not going to fix Baltimore’s problem, Chicago’s problem, or any other place suffering declining population. Lowering taxes, improving services (like education) and adopting business -friendly policies will fix the problem. Not to mention the fact that the real problem is mobility within the US. Baltimore has above average unemployment, Places in the Dakotas low unemployment (shale oil). Before we encourage immigrants, we should do all we can to encourage interstate migration. Bringing immigrants into a city with high unemployment is a recipe for disaster.

    1. Yeah, Employers should do job interviews in Mexico.

    2. I don’t think mobility matters. The US has extremely high internal mobility. Some of these places just suck to live in, whether it’s getting paid little but living somewhere you like or getting paid more and loving somewhere you hate. Sure, either is better than living in Bangladesh, but that’s not a choice most of us face. We should just let dying communities die, as sad as it can be.

  5. How about we tighten up the entire process for H1B visas, so that Americans can actually get the jobs? There is not a shortage of programmers (for example), there is a shortage of programmers willing to work for the wages offered.

    1. That’s a wage issue. Supply and Demand

      1. Sure. And as long as cheap foreign programmers (and other technical workers) can be imported, the wages stay depressed….

        Same as any other trade.

        1. Havent you heard? The labor market is immune from the laws of supply and demand

          1. I love sarcasm, but not where thinking would be better.

        2. If there’s a shortage because the wages are too low, then the wages will increase. I did say Supply and Demand. And wages,

          But thanks for sharing your feelings.

        3. So is there a shortage or not? If the wages are being pushed down then there isn’t a shortage. A shortage would increase wages.

  6. It actually sounds like a thoughtful plan.
    As long as the number of permits are limited and the rules carefully tailored to create a maximum net benefit for the Americans in the local community, it would probably help out quite a bit.

    My own suggestion was for companies who wanted to hire H1Bs in high housing cost areas, they would have to relocate at least 2x that amount of gross payroll to below average housing cost areas.

    It would partly mitigate the problem of tech companies bidding up the price of everything in one area. The prosperity would be more spread out in the country instead of concentrated in San Jose, Seattle and a few other places.

  7. Close, but no balloon. NO immigration proposal seeks the obvious. What does the labor market.

    Immigrating college graduates impresses the goobers, But we now have too many! Millions of college graduates work at non-college jobs. Not just humanities majors … plus we’re graduating too many. My wife had to leave the room, to hide her rage when our son’s girlfriend said she was seeking an associate degree in airline reservations, at a community college..

    Wife was 30 years at a major airline, in reservations. They were hiring at that time! When girlfriend she gets that degree, she will be more hirable than a high school grad … NO value to the employer … but subsidized by taxpayers.

    As for reducing immigration. Fine for the uninformed. Buy we’ve had a NEGATIVE replacement birthrate for about a decade. Without immigration, our population would be declining. If that sounds good, you just screwed your own children’s FICA tax rates, to finance YOUR retirement.

    1. This lie is really getting old. Low wage, low skill people cost the government way more than they produce. If you really think $9/hour laborers are going to keep our entitlement programs funded, you’re deluding yourself, as you’re not including the costs they and their low IQ children will place on to society.

      1. You’re bigoted rant has absolutely nothing to do with what I said.
        Plus, I peed my pants laughing, as your sneered that the wages distribution would be any different

        Even if you were correct, you just said NOBODY to offset your damage to your children and grandchildren is better than ANYBODY at even $6 per hour,

        And as for birth rates being a lie … would you believe Breitbart?
        https://www.breitbart.com/politics/2019/01/13/states-birth-rate-2017/

        Or should I have given you the Fox News Link?
        The Daily Caller link,

        1. I didn’t say that the birth rates is a lie. I said that the idea that third world immigrants were the “solution” to the problem of solvency of our public programs is a lie.

          If Americans aren’t having enough children, the solution is to change policies that cause or encourage that. Not to replace Americans with Hispanics and Muslims.

    2. Negative replacement rate, so what? Automation makes immigration obsolete.
      Social Security will die? Sure, but low wage immigrants is not going to save it. Payments will soon be subject to needs based testing.
      If you really want to solve the negative replacement rate, see what Hungary is doing. That will be more beneficial than continuing to import low IQ migrants.

  8. How utterly convenient. Let’s stick 3rd world immigrants, who’ll most certainly vote democrat, into right leaning states like Texas, Kansas, Nebraska or Indiana. I’m SURE there is no ulterior motive here…

    1. America’s fatal flaw was in the founders not putting their understanding of racial reality into the paper.

      1. I’ve never heard anyone defend slavery. How large is your Klavern? How could you swallow the dumbass lie that the only blacks here were slaves. And why do you despise the Will of Almighty God- given rights?

        Rights are innate, endowed by a Creator, not granted by government. Why not return to the country of your birth?

        Did you enjoy your march in Charlottesville?

        1. I’m not defending slavery.

    2. Visas don’t let people vote. Even if they implement it and include a “three years until green card” clause they still can’t vote after three years.

  9. The left sees the solution to be laws that won’t be enforced, but can be sold on the grounds that they will be enforced.

  10. The plan is dumb, though not because it involves immigrants, but because it involves government subsidization of failing communities, as we’ll certainly splurge on such projects and allocate extra funding for them. They’re not failing because there aren’t enough people around but because of a lack of opportunities or mismanagement. Putting a bunch of people there stresses the local decaying infrastructure until they can pay it back, if that ever happens. The towns can’t afford that and it will drag even more on local productivity, further decreasing wages.

    The market is already showing that they’re bad investments: companies could be marching in and buying everything but currently aren’t. Why should we fund it as a nation?

    1. “The plan is dumb . . . because it involves government subsidization of failing communities”

      Are you contending America should simply abandon its can’t-keep-up rural and southern stretches — and with them the substandard residents of those deplorable communities?

  11. Creating a special class of immigrant restricted as to where they can reside will be easily and successfully challenged in court. They will also successfully petition for voting rights. This plan is an epic lie. Did Shikha come up with this one?

  12. If you put immigrants into failing areas and things don’t improve they’ll move to where the economy is better. How do you keep them from moving?

    1. Well, I think that was addressed: “If you live in the specified city for a certain period of time — Buttigieg’s implementation sets it at three years — you can convert to a regular green card… A reasonably large share of Akron visa holders would end up moving elsewhere after their initial three-year stint, especially at first. But it’s also the case that people have a tendency to stick around a place once they’ve put some roots down there. And once an immigrant community is established somewhere, its very existence becomes a draw for other people with similar cultural roots.”

  13. “If you live in the specified city for a certain period of time — Buttigieg’s implementation sets it at three years …”

    And there it is. The location argument is a fig leaf for open borders. And the writer of this article approves of the fig leaf lie.

  14. Immigrants might be the best hope for many of America’s desolate backwaters, the rural and southern stretches hobbled by dying towns, declining industries, and the depleted human residue that remains after generations of bright flight remove the smart, ambitious young people from a community.

    Immigrants could bring entrepreneurship, optimism, drive, education, effort, tolerance, and marketable skills to communities ravaged by backwardness, addiction, indolence, ignorance, bigotry, economic inadequacy, and dependence.

    Bigotry and insularity trump reason and progress for most of the residents of the desolate communities, however, so the backwater voices reject the immigrants and immigration that could help them.

    The place-based visa seems worthy of consideration.

    1. Better those backwater towns die than turn into some third world shit hole supported by taxpayer dollars.

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Short Circuit: A Roundup of Recent Federal Court Decisions

A fake university, safe and sanitary conditions, and old school equal protection.

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

"We're not asking for the Wild West. We're asking for cookies." New Jersey is the only state that completely bans the sale of homemade food, and home bakers are suing over it. Read more about it in The New York Times.

New on the Short Circuit podcast: Three wise men or three stooges? Special guests Michael Kimberly of McDermott Will & Emery and Adam White of the Scalia Law School discuss the Supreme Court's three big admin law decisions from last term. Click here for iTunes.

  • Allegation: Upset at not getting a full scholarship, female student falsely accuses male Hofstra University tennis coach of sexual harassment. The school declines to interview relevant witnesses, among other procedural irregularities, and fires the coach. Second Circuit: Could be the school favors accusing females over accused males. The coach's suit should not have been dismissed.
  • In 2013, the feds create a fake university, the University of Northern New Jersey. The sting ends in 2016, having secured 22 arrests related to brokering fraudulent student visas. The feds revoke the visas of some 500 foreign students who "enrolled" at the school. (At oral argument, the feds say the students are innocent victims, but later, "for reasons known only to the Government," change their tune.) Third Circuit: The students' class action against the feds should not have been dismissed.
  • Allegation: Tired of hearing a prisoner complain about illness, prison physician assistant falsely claims prisoner harassed/stalked her, leading to prisoner's confinement in "The Yellow Room"—a cold room, kept constantly lit, with no bedding or toilet paper, in which prisoners are given only thin "paper like" garments to wear. Cruel and unusual punishment? Third Circuit:  Sounds like it; warmth and sleep are among "the minimal civilized measure of life's necessities."
  • Allegation: Pennsylvania inmate gets jumped by other inmates who break his jaw. What follows is a year of medical misadventure. Were prison officials deliberately indifferent to his suffering? District Court: Doesn't matter because he didn't exhaust his administrative remedies. Third Circuit: Yes, he did; prison officials just didn't respond to him. The case can go forward.
  • Texas' ban on public corporations owning liquor stores was written by a lobbyist for Texas liquor retailers who wanted to keep competitors out of the state. Does that mean the ban was intended to discriminate against interstate commerce? You might think so, but the Fifth Circuit isn't so sure and asks the district court to take a second look.
  • Mississippi man is convicted of murder in 2004 based largely on the dubious forensic testimony of Dr. Steven Hayne. Turns out lots of folks, including a justice on the Mississippi Supreme Court, think Dr. Hayne is a charlatan whose pseudoscientific methods have led to multiple false convictions. The man seeks habeas relief six months after the release of a deposition transcript of Dr. Hayne that tends to confirm these views. Fifth Circuit: Sorry, but you're required to file a habeas petition within a year of when a reasonable person would have discovered the facts justifying the petition, and people have been saying Dr. Hayne is a hack since way before that deposition transcript was released. So life in prison it is.
  • Allegation: Pretrial detainee is cuffed and shackled, but there's no seatbelt in the van taking him to Harris County, Tex. jail. He's thrown out of his seat by the deputy's sudden accelerating, braking, and swerving. He injures his back, he says, when the deputy hits a pothole or speedbump. Fifth Circuit: "This is not evidence of driving in a manner creating a substantial risk of serious harm."
  • Michigan man is convicted of murder based on the previously recorded testimony of a woman who refused to testify at trial. Shortly after the trial, and repeatedly over the following decade, the witness recants her testimony, claims she was pressured into it by a cop who threatened to have her kids taken away. Also, another eyewitness comes forward claiming she saw the actual killer but did not disclose this earlier because her father, a police officer, told her not to. Enough for a habeas petition? Sixth Circuit: It's certainly enough for the district court to hold an evidentiary hearing, which we now instruct it to do.
  • Grosse Pointe Farms, Mich. woman's estate sues an array of police officers, alleging the woman was murdered and officers told the murderer they would cover up the crime. Sixth Circuit: The estate has failed to make out a claim under the "state-created danger" doctrine (an offshoot of the Due Process Clause). And, adds Judge Murphy (in an all-judge concurrence), we might want to revisit whether the state-created danger doctrine is even a thing. It seems like the Equal Protection Clause might provide "a more plausible textual hook" for claims police denied someone the equal protection of the laws.
  • Man sues Memphis, Tenn. seeking injunction to let him protest on a privately owned street abutting Planned Parenthood clinic. And because he is likely to prevail, says Sixth Circuit, a preliminary injunction must issue; the street "looks and functions like a public street," so it is a traditional public forum.
  • "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear." So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.
  • Allegation: Illinois man wakes up to find the dead, bloody body of his son. Although the man speaks limited English, police interrogate him for hours with an untrained officer shoddily translating into Korean. The man's confusion (and lack of medication for high blood pressure and diabetes) is obvious. Still, based on the interrogation, he's held in pretrial detention for four years until a jury finally acquits him of the murder—which, it turns out, might have been a suicide. The man sues the officers involved. Seventh Circuit: To a jury this must go.
  • The downside of one of the more nauseating decisions this week? The Seventh Circuit had to explain that "the stench … was compounded as insects became drawn to the standing feces and urine." The upside? No qualified immunity for Lake County, Ill. jail officials who allegedly spent three days depriving pretrial detainees of enough water to drink, bathe, and flush the toilets.
  • The feds interrogate bank robber imprisoned at Pontiac, Ill. correctional facility. He admits to another robbery and accedes to a DNA swab. Bank robber: At the time of the interrogation, I'd been in solitary confinement for a prolonged period. My confession wasn't voluntary. Seventh Circuit: Conviction and sentence (an additional 18 years) affirmed.
  • Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?
  • Pursuant to a 1997 settlement agreement, Border Patrol must ensure "safe and sanitary" conditions for detained minors. Does that mean minors must have access to soap, towels, showers, dry clothing, and toothbrushes even though the agreement doesn't expressly mention them? District court: Yes. Yes, it does. Ninth Circuit: Because the district court is enforcing, rather than modifying, the 1997 agreement, we don't have jurisdiction to reconsider its order.
  • Boynton Beach, Fla. police beat up motorist (who clipped an officer who was on foot) and two passengers after a high-speed chase. Several officers neglect to mention the beating in their incident reports. But wait! It's all on video. A supervisor instructs them to change their reports, tells the FBI he doesn't remember telling anyone to change their reports. Eleventh Circuit: No need to disturb either the conviction of one of the officers for the beating or the supervisor's conviction for trying to mislead the FBI. But it could be their sentences (six months' probation for both of them) were infected by legal error, so the district court needs to take another look at those.
  • Minneapolis police obtain warrant, take drug dealer to hospital for anal cavity search. A doc involuntarily sedates the man, uses forceps to remove a baggie of cocaine. Minnesota Court of Appeals (over a dissent): Which was an unreasonable search. Suppress the evidence.
  • In 2014, Maryland decriminalized possession of less than 10 grams of marijuana, making it a civil offense. So if police come upon a legally parked vehicle, smell "fresh burnt" marijuana, and see a joint in the center console, they do not have probable cause to search the driver, says Maryland's high court. Concurrence: Don't drive stoned.
  • Maryland appellate court: A sexually invasive search to find drugs on the side of a highway requires exigent circumstances, and police convenience doesn't count. Conviction reversed.
  • And in other news, the North Carolina Court of Appeals has withdrawn last week's opinion holding that flipping off a cop gives the cop reasonable suspicion that crime is afoot. Will the panel reverse course? Will it leave the holding intact but further explain its reasoning? Stay tuned.

Earlier this year, Nevada legislators passed a bill that eliminates over $2 mil in funding over the next two years for K–12 scholarships for low-income families. (The scholarships are funded by private businesses that receive a tax credit for donations to scholarship organizations, which then disburse funds to needy families to send their children to private schools.) But the Nevada Constitution requires a two-thirds supermajority in each house of the legislature to pass a revenue-raising bill, which the bill is, so this week IJ filed suit on behalf of parents and students who lost their scholarships and won't be attending the schools of their choice this year. "The quality of school available to a child shouldn't be based on their ZIP code or their parents' income," said IJ Senior Attorney Tim Keller. Click here to read more.

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

  1. Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): …Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?

    Majority response to the dissent: No, we don’t do things that way.

    1. I don’t really blame the Circuit Courts for these decisions. The blame rests solely with the Supreme Court that, above all else, seeks to maintain the power of the government.

  2. “”May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear.” So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.”

    Blazing Saddles was a documentary?

    1. I’m almost more interested in the logic of shooting him rather than whether it was legal or not. What can that possibly be meant to achieve?

      1. Ken yee nae read, laddie? He was threatening someone with a deadly weapon. A life was at risk!

      2. I doubt that the higher cognitive functions were fully engaged. Which is both common and costly in scenarios involving firearms.

      3. A large percentage of cops are sociopaths who enjoy using force against people, the same way normal people enjoy going to the beach.

      4. Committing suicide is illegal. They were saving him from a felony charge. 🙂

    2. “Blazing Saddles was a documentary?”

      Clearly the Shelby County police could use a man like Dr. Samuel Johnson

  3. “Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity.”

    Tough but fair.

  4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

    Separate Q on the same case: If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

    1. I think the thing that gets lost regarding habeus petitions from state convictions is that at least by current law there is no constitutional right to it (I think that is a debatable position but that is what it has been for decades at least). So allowing it is merely by courtesy. Therefore, when it isn’t allowed the idea is that you really aren’t harmed by that because you have no right to it and you can’t be harmed by Congress’s decision not grant you the courtesy of possible relief.

    2. Generally speaking, no. You get one shot. That’s the catch-22.

    3. ” If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock”

      Ideally, your defense attorney would bring it up before your trial was even over. Remembering things like this while you’re being tried that affect your case is one of the reasons you get a lawyer for your trial.

    4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

      I agree. The case is an outrage. Man convicted based on BS testimony by a charlatan, then not allowed to file a habeas petition because of some dubious formalistic ruling about a time limit, so he gets to spend his life in prison for nothing.

      And why is the State of Mississippi fighting this anyway?

      1. And why is the State of Mississippi fighting this anyway?

        Because there’s some pretty compelling evidence of guilt — like the fact that the victim’s brother saw the defendant committing the murder.

        1. That’s about as disingenuous as it’s possible to be. The “victim’s brother” was three years old at the time of the death. He first allegedly told the story 2 months after the event. (And then his actual testimony was a year and a half later.) That’s not “pretty compelling” at all.

          Now, combined with a pathologist saying that the victim was suffocated in a manner consistent with the kid’s testimony, that’s a different story. Except that this pathologist had the slightly bad habit of making stuff up, which some people less charitable than I might call perjury. And without Haynes, you have a three year old who may have been coached.

          1. I knew you were misrepresenting the facts even before I looked them up to confirm, because if there really were compelling evidence other than Hayne’s testimony, that would be an independent reason to deny relief.

    5. If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

      Federal courts generally do not entertain successive habeas applications — that is, you need to present all of your claims for relief together if you want them to be considered. There is an exception that allows a successive claim if “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence”. However, the claimant trying to rely on that exception also needs to show that “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).

      1. IOW, there’s massive Catch-22, just as David says.

  5. Please let me know if I’ve got this wrong, but it sounds as though potentially-corrective elements such as habeas petitions are regarded more as added-value niceties than as being essential to the integrity of the system.
    Which would tend to support my previous comment. Because why fret over corrective measures if integrity and justice are not of paramount importance to begin with?

    1. You need to remember the structure of the country. The states have their own sovereignty as well. So federal intrusion on that is disfavored, and in some cases unconstitutional itself. As a matter of comity to another sovereign, the states, the federal government limits the intrusion it will make on that sovereignty. Punishment of crime is a key component of sovereignty. So it is allowed, but limited so as to not unduly infringe on state sovereignty.

      There is not a singular justice system. Each state, DC, territories, and the federal government all have their own justice system. Only the federal government has any role to play in the others, but as I said above limiting the intrusion is a major part of what role it will play. So, yes, there are other serious concerns that are taken into account to determine when the Federal government should and does intrude on another’s criminal justice system and therefor sovereignty. Because in that situation they aren’t an inherent part of the criminal justice system. They are just inserting themselves into it.

      1. “The states have their own sovereignty as well”

        So long as they abide by the Constitution, at least. When they choose to ignore limits in the Constitution, the feds can land troops. See, e.g., the period from 1861-1865, or when Eisenhower had to send federal troops to enforce school desegregation.

      2. But that does nothing to rebut arch1’s comment.

        You are making federal respect for Mississippi’s sovereignty more important than the integrity of the justice system.

        A bad idea, historically.

  6. I’m sorry, but I cannot agree to the court’s decision on the rectal search of the drug dealer. A warrant was obtained. It was performed in a private doctor’s office. What more could they want? You cannot have a situation in which sufficiently resisting a search means that no search can be performed.

    1. The warrant didn’t grant authority for an internal search, merely a search of his person. Basically, the cop didn’t ask for what he wanted to do, and ignored what was actually authorized because he was either incompetent or didn’t care m

      From the opinion, “The application “request[ed] a warrant to transport Brown to a medical facility and have the baggie removed” from Brown’s rectum. A judge signed a warrant and authorized a search “ON THE PERSON OF BROWN.””

      Whether they could have gotten the warrant they needed, and if so, whether it would have been valid, are separate questions. What the court makes clear though is that they didn’t get a warrant authorizing a body cavity search.

      You can see this problem all over the place, where “I have a warrant” is viewed as the ultimate authority, irrespective of what the warrant actually authorizes.

      1. I thought that yelling “Stop resisting!” was the ultimate authority.

      2. The first warrant said that, and the doctors didn’t think it enough, even though it was clearly the officer’s intent. So he got a second warrant that was more specific but still iffy on that level of intrusion.

        Nowhere can I find evidence the warrant judge considered and rejected it explicitely. This was just crossed communications and sloppy work by the judge.

  7. Your recitation of the facts is mistaken. The first warrant said “ON THE PERSON.” But then they got a second warrant that did (textually, anyway) permit this search.

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Free Speech

"Professor Exonerated for Quoting Iconic Black Writer at The New School"

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From the Foundation for Individual Rights in Education:

The New School has cleared a professor of charges of racial discrimination for quoting literary icon James Baldwin during a classroom discussion. The university reversed course late Wednesday after the Foundation for Individual Rights in Education intervened on behalf of professor academic freedom rights….

Sheck, a poet and novelist who is white, teaches a graduate course on "radical questioning" in writing. The course includes works by prominent African-American writers that examine racial discrimination. Sheck prefaces her course with a warning that active engagement with literature involves a sense of unease and unsettlement.

Early in the spring semester, Sheck assigned "The Creative Process," a 1962 essay in which Baldwin argues that Americans have "modified or suppressed and lied about all the darker forces in our history" and must commit to "a long look backward whence we came and an unflinching assessment of the record." In her graduate seminar, classroom discussion involved the Baldwin statement, "I am not your nigger," which was made during an appearance as a guest on The Dick Cavett Show. Sheck noted how the title of an Oscar-nominated 2016 documentary based on Baldwin's writings, "I Am Not Your Negro," intentionally altered Baldwin's words. She asked her students what this change may reveal about Americans' ability to reckon with what Baldwin identified as "the darker forces of history."

Months later, Sheck was summoned to a mandatory meeting with The New School's director of labor relations due to "student complaints made under the University's discrimination policy." She was not provided with any details about her allegedly discriminatory conduct.

On Aug. 7, FIRE publicly called on The New School to stand by its laudable "legacy of academic freedom, tolerance, and free intellectual exchange" and drop its investigation. FIRE's letter noted that Sheck's use of the Baldwin quote did not violate the university's racial discrimination policy and was clearly protected by her academic freedom rights. Further, The New School's own policies make clear it will not punish speech protected by the First Amendment and basic tenets of academic freedom.

I'm glad reason and academic freedom—here, the freedom to choose to talk about historical facts without expurgation and bowdlerization—prevailed, though it's unfortunate that the "investigation" (which left the prospect of possible discipline for "discrimination" hanging over Sheck for 1½ months) even took place.

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  1. Hey, now…We cannot have professors spreading knowledge around willy-nilly…..

  2. So many problems would be solved if people simply had thicker skins, but it doesn’t help having politicians eager to scratch those thin skin itches, or a government which makes those politicians inevitable.

  3. FIRE is one of the “conservative” organizations that all liberals should support (financially and otherwise). I know I do. I do not agree with each and every one of its cases. But in the vast majority of the ones I’ve heard about; they’re on the side of the angels.

  4. The Aug. 14 letter doesn’t sound as if the matter is really quite resolved.

    Yes, they determined that she did not violate any policies, but it does talk about some sort of followup with her from the Provost’s office.

    That doesn’t sound good.

    1. “We will not retaliate against you for using your academic freedom. We will assess you only for the quality of your work.”

      “James Baldwin said ‘I’m not your nigger.'”

      “The quality of your work just went down.”

      /paraphrased from Dilbert

  5. Sheck prefaces her course with a warning that active engagement with literature involves a sense of unease and unsettlement.

    It’s sad even this needs to be done, and as legal defense at that, in the land of free speech.

    Anti-harassment has grown from interceding in vile behavior to an observer-based law activation for any slight that will, in the accurate words of George Will, cause a modern, self-actualized, independently capable woman to “collapse like an antebellum belle into a pile of crinoline with a case of the vapors.”

    It breeds such hysterics precisely because of its political power to control others through government, something simultaneously ridiculius and dangerous to freedom.

    1. Indeed, the controlling memeplex has adopted not just that, but the additional meme that to even bring this up is itself actional harrassment.

      For those keeping historical score, the modern quasi-religion of anti-harassment has adopted not just “my religion is right”, but “to question it means you are hellbound and should be put in stocks.”

    2. “It’s sad even this needs to be done, and as legal defense at that, in the land of free speech.”

      It’s much sadder that it was done and wasn’t sufficient.

  6. Inmates running the asylum rarely turns out well. Giving the students more voice sounds like a good idea, but that pendulum has swung way too far.

  7. From the description, the course seems worthless so who cares who teaches it.

    Neither do I care if the left eats its own.

    1. Ideally, nobody would teach it.

      Agreed, in that FIRE should hold its fire for more worthy causes.

      1. On the other hand, FIRE work here just enrages the SJW even more, eggs them on, dares them to do even worse. That’s always fun AND educational.

        1. “FIRE work here just enrages the SJW”

          That appears to be the motivation of academics who support FIRE.

          Carry on, clingers.

    2. Not sure what you’re going on there.

      Isn’t “questioning” one important function of writing? I mean, yeah, the phrase “radical questioning” is a bit jargony, but that doesn’t mean the subject is worthless.

      1. Apparently “radical questioning” now means challenging a government censorship regime that isn’t supposed to exist in the United States.

        Carry on, ma’am.

  8. Hey, New School is doing better than Emory. Are they still having their farcical free speech symposia?

      1. Funny, they’re so interested in you.

          1. At least the rest of us did. 🙂

    1. Sadly, no. The building in which the scheduled symposia were to occur was viciously defaced with a chalk legend of “MAGA”.

      Administrators, faculty and students collapsed like an antebellum belle into a pile of crinoline with a case of the vapors at the sight. Maintenance staff called to deal with the mass swooning and to remove the potent graffito were also effected, though in their case the symptom seemed more like convulsive laughter.

  9. Waiting for the good reverend to come along and explain to Ms. Sheck that she’s a bitter clinger who deserves to be replaced.

  10. ” FIRE’s letter noted that Sheck’s use of the Baldwin quote did not violate the university’s racial discrimination policy and was clearly protected by her academic freedom rights.”

    What, exactly, are “clearly protected academic freedom rights”?

    1. Maybe something like: “to debate the quality of a writer’s work using direct quotes from the writer himself.”
      (I know this might be a difficult argument for you to follow, given that you think “liberal fascist” is an oxymoron. But, here it is again in living color.
      Do you want to open your eyes? We will try to speak slowly and use short words, so you can follow along.

      1. So, you have nothing? Why bother to comment, then?

        1. Actually, the “to debate the quality of a writer’s work using direct quotes from the writer himself.” seems pretty responsish to me.

          The rest was well-aimed and apparently necessary invective. You might have targeted the missing parenthesis, but you di’nt.

          1. “Actually, the “to debate the quality of a writer’s work using direct quotes from the writer himself.” seems pretty responsish to me.”

            Really? If this is a definition of “clearly protected” academic freedom rights, by what mechanism is it protected clearly? Where and how do this academic freedom rights arise, and what are their limits?

            1. Really? If this is a definition of “clearly protected” academic freedom rights, by what mechanism is it protected clearly? Where and how do this academic freedom rights arise, and what are their limits?

              Why don’t you google and find out, if you really want to know?

              1. I’m not the one who made the claim, so it’s not my responsibility to research it.

  11. I can at least understand when authorities censor stuff based on whether they (the authorities) believe the speech in question was accurate.

    But there’s a strain of thought – especially in universities – that truth is no defense.

    It started when professors would be censored, regardless of accuracy, for statements which offended the college’s donors. I imagine that still goes on.

    But now they have to worry about whether the remark (no matter how accurate) offends penniless SJWs.

  12. Nipping at the heels of our great liberal/libertarian institutiona…Biola…Liberty University…Sunday school classes at East Lake Baptist Church…

  13. I wonder, who exactly is it that is making these complaints?

    1. “unleash the students . . .”

    2. We might best simulate the administrative mindset by viewing each of those complainants as a teat, offering up that sweet, frothy gummint money. (Their public statements regarding their charges are always deceptively high-minded.)

      1. I actually think a better simulation would be Comrade Napoleon, with the students as Jessie’s puppies.

  14. “I’m glad reason and academic freedom—here, the freedom to choose to talk about historical facts without expurgation and bowdlerization—prevailed…”

    hmmm. Is it just me, or… no, it must be just me.

  15. FFS

    Really the N word hysteria is just absurd

  16. Does anyone know the position of the Volokh Conspiracy Board Of Censors on use of the word that precipitated investigation of Professor Sheck’s conduct? Is it always welcome, always forbidden, or dependent upon the political viewpoint of the speaker?

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Immigration

Why Governments Should Not Bar Entry Based on Political Views

Israel's decision to bar two US members of Congress from entering the country is part of a much broader problem. Many nations, including the US, have similar policies. Here's why such restrictions should be abolished.

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Rep. Ilhan Omar (D- Minnesota).

Israel's recent decision to bar US Representatives Ilhan Omar and Rashida Tlaib from entering the country, because of their support for the anti-Israel BDS movement, has attracted widespread controversy.  Critics argue that the Israeli decision is both unwise and unjust. The critics are right. But, lost in the much of the discussion, is the fact that entry restrictions based on political speech are far from unusual. Israel's policy is just one example of a much larger problem. If the Israeli action is unusual, it is mainly because of the high profile of Omar and Tlaib, and President Trump's norm-breaking decision to pressure a foreign government to bar entry to two prominent citizens of his own country.

The United States itself has a long history of barring entry to foreigners with views the federal government considers unusually odious, such as communists. Many European nations deny entry to far-right racists, such as the American white nationalist Richard Spencer.  Few of those who condemn Israel's decision or the long-time US policy of excluding communists also condemn entry restrictions that bar far-right nationalists—and vice versa.

But the truth is that all these policies do deserve condemnation, and virtually all should be repealed. And we should be willing to oppose them even when the people whose rights are restricted really do have odious views. I am no fan of Omar and Tlaib. The former has made anti-Semitic statements, and the BDS movement both advocate is itself heavily tainted by anti-Semitism, as shown by its use of classic anti-Semitic rhetoric – recently described by members of the German parliament as reminiscent of Nazi propaganda—and its targeting of Israel for sanctions, while ignoring the many nations with far worse human rights records. Communists and white nationalists are even more odious, in so far as many openly advocate policies that predictably lead to mass murder. Nonetheless their freedom of movement should not be restricted based on their views.

Freedom of speech is a fundamental human right. It necessarily includes the right to advocate  extreme, awful, and unjust ideas, as well as good and "mainstream" ones. One can argue that travel restrictions do not really undermine freedom of speech because they don't ban the speech itself, but only restrict those who express certain ideas from entering particular areas. But the same defense can be offered for any regulation that does not directly restrict speech, but "merely" bars advocates of certain views from engaging in other activities. A law that forbids critics of President Trump from driving cars or flying on planes is clearly an attack on freedom of speech, even though it does not regulate speech directly. The same goes for speech-based travel restrictions.

Another problem with speech restrictions is that it is extremely difficult to keep them limited. One reason why we need constitutional protections for free speech, is that government cannot be trusted to restrict only the genuinely awful speech, while leaving the rest alone. To the contrary, censors have strong incentives to target critics of the government more generally and also any expression that is widely unpopular, regardless of its true merits.

This danger applies to speech-based restrictions on international travel as well as to more conventional "internal" censorship. In the US, nineteenth and early twentieth century efforts to bar immigrants based on views that were supposedly inimical to American republican institutions were closely linked to racial, ethnic, and religious bigotry against Asian, Catholic, Eastern European, and Jewish immigrants. In the 1930s, concerns about their possible radical left-wing political views were one of the reasons cited for barring Jewish refugees from Nazi Germany.

Just last year, in the travel ban case, the US Supreme Court cited earlier decisions upholding laws barring entry to foreign communists as in order to uphold Donald Trump's policy of barring entry to citizens of several Muslim-majority nations—a policy clearly motivated by religious bigotry. For reasons explained in an amicus brief I coauthored in the travel ban case, I believe the earlier precedents were distinguishable, and did not actually require a decision in favor of the travel ban. But it is in the nature of dangerous precedents that their reach is often difficult to confine. The entire history of speech restrictions reinforces that lesson.

In my view, freedom of movement is an important human right, even when restrictions on it are unrelated to speech. There should be a strong (though not absolute) presumption against restrictions. But even those who don't place high value on freedom of movement, as such, should be troubled by the use of movement restrictions based on political views.

Some argue that governments have the right to restrict entry based on speech for much the same reasons as private homeowners have the right to exclude advocates of ideas they dislike from their property. I criticize this "house" analogy in detail here. For present purposes, I would emphasize that the house analogy would justify barring entry based on holding any views that the government happens to dislike, not just those that are especially odious. If a government wants to bar all conservatives from entering, all advocates of democracy, or all Zionists, the house analogy suggests they have every right to do so.

Can speech-based entry restrictions ever be justified? Perhaps in some extreme cases. I doubt that any right should ever be absolute. It is possible to imagine extreme circumstances where a speech-based restriction on entry is the only way to prevent some great harm, for example the takeover of the government by some oppressive political movement. For example, the Russian Provisional Government likely should have barred Lenin from reentering the country in 1917. Similar dangers can potentially justify more conventional "domestic" speech restrictions. For example, the Weimar Republic would have been justified in banning the Nazi Party, if that were the only way to keep them from coming to power.

But such situations are rare, and a well-designed constitutional system should at least require the government to provide strong evidence that such a grave threat really does exist, and speech restrictions are the only feasible way to deal with it. At any rate, Omar and Tlaib do not pose any such threat to Israel. The same goes for the overwhelming majority of other people whom the US, European states, and other governments have denied entry to because of their political views.

Obviously, restrictions on movement can also be justified in situations where the person in question plans to engage in terrorism, violence, or other comparable crime. But such constraints can be applied regardless of the individual's political views, and regardless of whether the movement in question is international or domestic. If, for example, US authorities had realized in advance that the perpetrator of the recent El Paso mass shooting was traveling to that city from Dallas for purposes of committing a horrible atrocity, they would have had every reason to stop him.

UPDATE: Since I put up this post, the Israeli government offered to let Rashida Tlaib enter for the "humanitarian" purpose of visiting her elderly grandmother, who lives on the West Bank, but only on condition that she give a written pledge that she will not "promote boycotts against Israel," while there. Tlaib, in turn, has refused these "oppressive" conditions, though she previously indicated she would "respect any restrictions and not promote boycotts against Israel during my visit." For a more detailed account of this episode, see here.

Allowing a person to enter on condition that they not express certain political views while in Israel is less objectionable than barring people with those views entirely. But it is still a restriction on both freedom of movement and freedom of speech, and still unjust except in the sorts of extreme circumstances described above.

The  Israeli government's willingness to let Tlaib enter so long as she refrains from expressing pro-boycott views also makes it even more clear that her speech is in fact the reason she was barred in the first place, not any kind of security risk. If the latter were the problem, presumably her keeping quiet about boycotts would not be enough to persuade them to admit her.

That conjecture is also supported by the fact that the Israelis initially decided to let her and Rep. Omar enter without speech-related conditions, but then changed their minds after Trump pressured the Israeli government to bar them. Again, if the Israeli government thought the two congresswomen posed a security threat, it's unlikely they would have ever decided to let them enter in the first place.

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  1. Shorter Ilya:

    Anyone from anywhere should be allowed into any country for any reason and never be required to leave.

    1. You say it like it is a bad thing.

      1. Yes, it is a bad thing to anyone who is not a complete moron.

        1. Complete morons banned.

        2. i wonder when obama denied entry to isreali kineset member ben ari in 2012, if everyone was so “distressed”. dont recall the outrage.

          1. You mean the guy so wrapped up in terrorist organizations he wasn’t allowed to run in Israel’s elections shortly thereafter?

            That only shows how unthreatening these Congresswomen are in comparison.

            1. That’s an interesting invention you’ve made up there, considering that Ben-Ari DID run in the elections “shortly thereafter”.

              I mean, maybe in your world he “wasn’t allowed to run”, but in this world – reality, he did run.

              So, other than being 100% wrong, did your fable have anything to add?

      2. You say it like it is a bad thing.

        Perhaps returning the favor and invading to end the dictatorships and insttute freedom is ok?

        I don’t address the practicle issues, just the moral ones.

    2. along with collecting benefits / welfare, etc while lambasting the country’s culture

    3. Want to see heads explode, invite Putin to address Congress.

    4. Libertarianism means submission to invasion by those who advocating your genocide.

  2. Some views, such as those that support Nazism, Racism and Socialism, have no place in decent society. It’s bad enough that extremists in extreme districts have chosen to elect people like Steve King and AOC to Congress. Good for Israel for keeping such odious views out of it’s country. Hopefully they would do the same for Steve King as well.

    1. Let’s not lump in AOC with a bigot like Steve King ffs.

      1. Why not, she’s a bigger racist that he is.

      2. She’s plenty bigoted and if we’re being realistic, her enmity toward others if far more likely to make it into law than King’s ever will.

    2. i would rather give them a megaphone and then provide counter speech.

  3. Depends on the country and the prospective visitor. Maybe it’s bad optics, but maybe there are more important things long term than optics.
    I can imagine a lot of Brits who would not have been enthused to let Charles Lindbergh into the UK in the 40’s, for example.
    Israel is a tiny besieged country.
    Don’t compare their political culture with ours.

  4. “For example, the Russian Provisional Government in 1917 arguably should have barred Lenin from reentering the country.”

    Yeah, arguably.

    I mean, sure, it’s not a great look for Israel. On the other hand, I’m not sure that the objective of the two reps wasn’t simply to agitate. Subsequent to the decision their official agenda was made public and they entitled it their visit to “Palestine”. And apparently their trip was being sponsored by a virulently anti-Semitic group that among other things still spreads the “blood libel” bullshit. It’s almost as if they were begging to be turned away.

    1. The fact is that had they gone there and done that, they would have had challengers pop up throughout their district saying This ain’t why we elected you. Both districts are overwhelmingly (maybe 90%) white/black/Hispanic not Arab or Somali. Those challengers – regardless of party – would have been very well-funded, screened for basic competence and interest in the issues that actually affect the district.

      And they would have obliterated those two at the next election. Tlaib ran unopposed (absent a last minute challenge from the Dem she beat in the primary). Omar beat two normal Dems in the primary and walked over what looks like the usual token sacrificial R in that district (and caliber of those candidates is usually more comparable to L’s or G’s).

      Now? They’re heroes. Standing up for free speech against a dictatorial and censorious Trump and Netanyahu. Just assured their re-election.

      1. this does show the consequences of partisan gerrymandering (and excessively large districts) though. With no competitive election districts – only extremists run, voter turnout drops, and the other party just abandons that district. And the result is that in much of the country, we don’t actually have even a two-party system. We have a one-party system with 90% of the incumbents decided long before the ‘election’.

        1. It’s much more self sorting of the electorate into where to live than gerrymandering. The Senate is almost as polarized and has a similar re-election rate (high 80s) as the House, and you cannot gerrymander a state.

      2. Those challengers – regardless of party – would have been very well-funded, screened for basic competence and interest in the issues that actually affect the district.

        I’m curious what evidence you rely on to claim that the DNC screens their political candidates for basic competence. The available evidence seems to point in exactly the opposite direction.

      3. “Just assured their re-election.”

        What do you think Trump’s motives were?

        Making these two and the third stooge the face of the Democratic party is part of the plan. Nancy is worn out as a boogie woman, these three will do in a pinch.

      4. The fact is that had they gone there and done that, they would have had challengers pop up throughout their district saying This ain’t why we elected you.

        Traveling to visit family isn’t perfectly acceptable for politicians.

        And their foreign policy view were precisely one of the reasons they were elected.

        Those challengers – regardless of party – would have been very well-funded, screened for basic competence

        They may not be policy wonks, a significant number of congress people aren’t, but I’ve never seen a lack of “basic competence”.

  5. “For example, the Russian Provisional Government in 1917 arguably should have barred Lenin from reentering the country.” Arguably?

    1. Sure. Likewise someone should have shot Hitler in 1922.

      Decisions are so easy with 20-20 hindsight.

      Meanwhile back in the real world, or rather the world of academic yapping, if the Russian Provisional Government had barred Lenin from re-entering the country, Prof Somin would have been front and center whining about politically motivated barriers to free movement.

    2. Wait, let’s look at this. In Ilya’s opinion, a speech based restriction is reasonable “to prevent some great harm, for example the takeover of the government by some oppressive political movement.”

      Now, let’s ask what the BDS movement demands.

      1. A right of return, that would end up installing Hamas or another anti-Jewish government, into a nation that contains millions of Jews.
      2. A demand that Israel remove any static defenses between itself and Gaza, while Gaza continues to launch dozens of assaults at civilian targets within Israel. Giving in to such a demand would result in mass casualties in Israel.

      Based on Ilya’s logic, restrictions against people who advocate such a policy are entirely logical.

  6. Among libertarianism’s fatal flaws is the counsel to hold one’s fire until the enemy actually does a bad thing. That is after you’ve seen the whites of his eyes, and when he’s sticking a knife between your ribs. No thanks, I’ll pass, because I’m a reformed libertarian who understands that ideas can kill you, and you shouldn’t tolerate such ideas, or the people who promote them.

    1. When Libertarians start talking about free movement of people etc… they start sounding like one world government advocates. Very communist of them.

  7. This is all good and reasonable thinking on the subject, and in principle I agree with Ilya. But, it turns out that Tlaib and Omar are being sponsored on this trip by a group that spreads old-timey blood libels against Jews, and they were also scheduled to meet with a terrorist-connected NGO while in Israel. The totality of the circumstances in this case justifies denying their visit.

  8. When did Somin start at the Volokh? I don’t see anything in the Volokh archives from 2009 about how Mike Savage (reaffired in 2011) or Mark Steyn were banned from England, and for less.

    1. But you see. Anyone who speaks negatively about any non-white group (or homosexual) is JUST LIKE Hitler, and therefore should not be tolerated. Anyone who hates whitey (including Jews, unless it’s Jews against Christians, in which case Jews are no longer white) is fair game.

      1. Reason is fine with YouTube dictating who can and cannot appear on their property, but Israel cannot do the same within their territory.

    2. Somin was one of the earliest bloggers at Volokh. His libertarian posts closely track two things: (1) DNC policy positions; and (2) whatever book he’s selling.

      Browsing the archives I did find this amusing article:

      http://volokh.com/2011/02/14/why-alien-invasions-of-earth-fail/

      I’m curious what libertarian principle distinguishes alien invasions across national borders (such borders enjoying a long history of legal support) from alien invasions across planetary borders (which, as far as I can tell, have no support in the common law).

    3. I also can’t help but notice that Somin didn’t say a word when Michael Ben-Ari was barred from entering the US during the Obama Administration. He couldn’t even be bothered to mention it here, even though it’s spent all day floating around the same media he’s linking.

  9. I’d be satisfied if each Member of Congress simply upheld her oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Some Members conveniently forget the portions of the First Amendment which protect hate speech, vast swaths of the Second Amendment, etc.

    Before condemning the policies of other governments, we might be wise to focus on our own government and the deplorable behavior our own elected representatives. Can we at least agree that we should condemn a Member of Congress who fails to adhere to her oath?

    1. Why pay for House members visiting foreign lands? What business do members of the House have to do with foreign policy anyway?
      That is solely in the hands of the president and, secondarily the senate, who approves treaties and ambassadorships.

  10. This is why people think that Libertarians are anarchist.

    It’s perfectly reasonable for Country A to refuse entry to politicians from Country B who have spoken quite strongly against Country A. Omar and Tlaib both promote boycott and divestment against Israel. Why in the world would they expect to be welcomed there?

    Trump can spout off on this all he wants, but this isn’t about Trump. It’s about Israel protecting itself.

    1. Israel doesn’t protect itself. Americans protect Israel.

      Currently, at least.

      1. Well no.

        Not a single US soldier has been assigned, wounded or killed protecting Israel. Israeli soldiers seem to do just fine on their own.

        Now talk about Iraq, Syria, Kuwait, Afghanistan, Lebanon, Yemen, Saudi Arabia…

        1. The US has given quite a sum of money to Israel for defense (and asks that they pay it back to our defense contractors.)

          You’re oblivious if you think just because soldiers aren’t there that America doesn’t pay for some of Israel’s defense. Hell, even the threat of hard power on behalf of Israel is payment enough.

          1. Weapons.

            Yup Israel buys those f-35s with money given near all spent inside US and tests them out against Iranian air defense. First to go up in battle. You go inside Lockheed-Martin, Raytheon and McDonnell -Douglas and you will find Israelis. Raphael’s Trophy system is being adapted by the US for tank defense.

            The technology is shared. Israel is the tip of the spear.

            1. Echo, you are a clueless idiot who knows nothing about defense.

              You think it’s a soldier with a sidearm that protects Israel?!?

              No.

              It’s the entire defense-intelligence-economic-law enforcement-diplomatic establishment that protects Israel and our allies and ourselves.

              Does a solider with a sidearm:

              Monitor international money transfers?
              Intercept communications?
              Establish covert human assets?
              Provide satellite coverage?
              Analyze signals intelligence?
              Build allied networks to share information?
              Secure the oceans?
              Develop secure global platforms (e.g. secure transportation, communication, economic, financial, supply, etc. systems )?

              These are the things (and many others), which establish a more secure world.

              Not a soldier with a sidearm.

              1. Does Israel do every single one of those?

                Yup it excels at all of them.

                Sidearms I did not mention. You did.

              2. Yet, ultimately, it’s an 18 year old male with a rifle on the street corner that wins a war or not, no matter how long the logistics chain behind him.

                1. In Israel that includes 18 year old females.

                  1. I’m not sure why you felt the need to add that, but that’s not entirely accurate either. Not in combat brigades. There are some women acting as border guards for Israel with countries that have signed peace treaties with Israel.

                    1. Only because the female soldiers deserve at least a mention for the service.

                      They are no less valuable.

  11. What does it mean to be sovereign, if you can’t make decisions like “who is invited in?”

  12. The thing is this banning is partly if not largely a protective measure. It doesn’t honestly abridge speech but does disallow a platform and in that regard is a non-issue because no country is obliged to provide anyone with a platform.

    Moreover it protects the guest potential speaker as well as the potential hosts. I can’t imagine Omar and Tlaib receiving a wonderfully warm welcome as they arrive in Israel and I can certainly see violence breaking out depending on the individuals in attendance by the “welcoming” committee however unofficial that committee may be.

    In another sense they’re just focusing the BDS movement back in upon itself and in standing with the Old Testament; turnabout is fair play.

    1. Actually it is a consequence of their prior speech.

  13. These two should be expelled from Congress under Art. 1 Sec. 5 of the U.S. Constitution.

    1. No, repeal the 14th Amendment and strip them of citizenship.

    2. How about we just expel you instead?

  14. So much for the cure to bad speech is more bad speech.

    Buncha statists up in here.

    1. “So much for the cure to bad speech is more bad speech.”

      Please explain for us how anybody’s speech is being suppressed here. Thanks.

      1. State action from both US and Israel based on speech.

        1. “State action from both US and Israel based on speech.”

          The US didn’t do any “action”. A Trump tweet stating the obvious is not a US action based on speech.

      2. You don’t understand how a comment like, “Strip them of their citizenship [for the things they have said].” is seen by everyone but you–if this remedy were actually enacted–as suppressing their speech??? The mind boggles.

        1. “You don’t understand how a comment like, “Strip them of their citizenship [for the things they have said].” is seen by everyone but you–if this remedy were actually enacted–as suppressing their speech??? The mind boggles.”

          Change the subject much? This isn’t about “send them home”. The key phrase in your non-response is “if this remedy were actually enacted”. News flash, it wasn’t. It won’t be. If anything this story is the opposite – it’s not “send them home”, but “keep them home”.

          And at this point, given the folks they were planning to hang with in Palestine, you have a hard time denying that they’re both anti-Semitic as can be. Apparently you and Sarcastro are fine with racism and hate as long as it’s the right flavor of racism and hate.

    2. Like Israel, the US has restricted entry to foreigners that actively campaign to overthrow the government for centuries. Almost every government has.

      But shouldn’t you be happy? After all, you’ve campaigned for this – government action in response to hate speech! Aren’t you happy to see your vision of government upheld?

  15. What is funny is watching the Left squirm with its Jew hating ways when those are put right in its face. The best the media can come up with is “Israel enacting Trump’s Muslim Ban” which doesn’t even really make sense. Well it does if you are a leftie journo who doesn’t want to cover the fact that these two Congresswomen have sordid pasts involving a decent amount of Jew hatin’.

    1. Israel is not all Jews.

      1. Did you forget the part where they recently affirmed their existence as a Jewish ethnic state?

        1. Superstition-infused right-wingery is the bestest right-wingery of all!

          Not much of a shelf life, though . . .

          1. Resentment infused guilt and grievance left wingery is the bestest left wingery of all!

            Not much of a shelf life though…….

            Cuz people grow up. Haha.

        2. …what are all these Jews doing outside of Israel then? And how dare some of them disapprove of Israel’s policies?

          Crazy anti-Jew Jews.

          1. Sarcastro

            Holding our ground.

          2. I am as pro Israel as can be. I understand why the Israeli government is no going to allow some platform for a few grandstanding Congress critters.

            They have all the free speech they wish.

          3. “…what are all these Jews doing outside of Israel then? And how dare some of them disapprove of Israel’s policies?”

            The group that was sponsoring the trip to “Palestine” for these two innocent victims is known for, among other things, publishing screeds in which they complain because the Jewish-controlled media is causing white supremacists to have a bad reputation.

            So there actually IS some white supremacy you support, it’s just got to have a heavy dollop of anti-Semitism mixed in.

            1. If the guy who offer Trayvon can be a white Hispanic why can’t Israel be white Semites???

            2. That group has hosted quite a few member of congress, Democrats and Republicans alike, on the West Bank. Why is it uniquely a problem when it offers to host Omar and Tlaib?

              1. IN 2016, Reps. MATT CARTWRIGHT (D-Pa.), DAN KILDEE (D-Mich.), MARK POCAN (D-Wis.), LUIS GUTIERREZ (D-Ill.) and HANK JOHNSON (D-Ga.) all went on a five-day trip to Israel and the West Bank sponsored by the group [Miftah].

                I’m not sure you want to cite precedence of a guy that called Jews “termites”, a guy that funds and sponsors forums by openly anti-Semitic groups, a guy that called Hamas “Palestinian patriots”, or two guys that take money from Holocaust denier organizations.

                But in case you were serious, let me point out that Republicans did criticize those men and their comments at the time. Also, they actually met with Israeli government officials, and did NOT go into Gaza. All differences from the Anti-Semetic Duo’s plans.

          4. They are free to advocate anything. Expecting entry as a government official to tear at another country is…odd?

  16. Israel acted at the Trump Administration’s request. I think it’s that request which requires the most scrutiny from an American point of view. This is not simply a matter of a private citizen being barred based on point of view. Here an American President asked a foreign government to stymie a Congressional investigation in further of Congress’ investigative powers. That’s an act of war on Congress’ inherent constitutional investigational powers, its powers to regulate foreign commerce, its control of appropriations to foreign countries, and its substantial role in other foreign affairs matters.

    This is a frontal attack on the powers and prerogatives of Congress. It doesn’t matter whether you agree or disagree with the political views of these particular members.

    1. If this is enacted a Muslim ban why wouldn’t we let them leave the country then not let them back in. I think that would be a more effective ban. Plus these two whiners are annoying. No one is going to care if they never come back.

    2. Their visit was not in furtherance of a Congressional investigation. It had no connection to any of their Congressional duties. It was a visit set up and sponsored by a BDS supporting group. They had no visits or meeting set up with Israeli political leaders, but were meeting with terrorist associated Palestinians.

      They had a chance to be a part of a real Congressional group examining ME issues that visited Israel, but refused to do so citing their opposition to meeting Israeli politicians.

      They had repeatedly called for a boycott of Israel. Now, Israel boycotted them

      1. Who gets to determine legitimacy of Congressional purpose?

        1. Who cares? What part of foreign nation is sovereign don’t you get?

        2. I said nothing about legitimacy. Their trip had NO Congressional purpose so no one has anything to determine.

          But you knew that didn’t you? Just a desperate attempt on your part to give some sort of credence to these two women.

          1. Congress is a political body, Trump’s tantrum seems strong evidence that the visits had a political nature, hence I see a pretty clear argument for a “congressional purpose”.

        3. Whose “congressional purpose”?

          How self important can these “congresspeople” get?

          Haha

      2. Absolutely correct Goju. And you can add, as one of the commenters above noted, that the group that was paying for their trip has espoused blood libels in the past. And, oh yeah, their official requests were not to visit Israel, but to visit the non-existent country of “Palestine.”

        1. Just as Congress has the power to decide whether, for purposes of international commerce regulation and the like, Jerusalem is part of Israel or an international city, it also has the power to decide whether a state called Palestine exists or not.

          Here again, the fact that one strongly, zealously opposes something as a personal or political matter, even thinks anyone who supports it crazy, doesn’t make it irrational as a constitutional matter. Congress and its members have the right to investigate the possibility of taking a different, even the opposite position, on any issue.

          1. Individual members of Congress have no investigatory power. None, zip, nada.

            These two are just citizens outside the walls of Congress..

            1. Bob, if what you say is true, that would put them in a different status than the many other members of congress who have been hosted in Israel, in accordance with an agreement with the U.S. On what basis do you suggest that different, and lesser, status is justified?

    3. Trump controls Israel is a new take on the Dual-Loyalty thing, I must admit.

      Netanyahu had already said that they were considering banning the two anti-Semites in accordance with Israeli law, unless they would pledge to behave. As it turns out, the anti-Semites never intended to behave, because Omar offered to behave, but when the invitation to a well-behaved familial visit was extended, she refused.

    4. Nothing in Article 1, Sections 8, 9 and 10 give Congress any of the powers you attribute to them.
      Only the senate has any control over foreign policy in that they provide consent for treaties and ambassadorial appointments the president proposes.
      Even aid to foreign countries is allocated to the State Department, not individual countries.
      Members of the House have no business in foreign policy.

  17. Y’all want to criminalize Flag Burning as well 1A bedamned?

    1. What does this have to do with anything?

      1. Using the state against dissenting views.

        1. What about banning a foreign official entry because they want to come in and burn a flag?

    2. Burning is not speech. IDK if the Supreme Court said it was, calling a dog’s tail a leg doesn’t make it one.

      1. Money is speech but expressive action is not. Gotcha.

    3. Some of us are old enough to remember when the Obama administration pressured a Florida resident not to burn a copy of the Koran. Foreign governments exerted significant pressure on the US government to prohibit this man from engaging in protected speech.

      There is also significant pressure from the UN and various other countries for the US to pass laws banning “hate speech.”

      1. Pure tu quoque is never a good sign for your argument.

    4. I don’t think Israel has a 1A.
      We should not expect other countries to adhere to our Constitution, but to decide for themselves.
      Not to mention that our 1A doesn’t protect someone, who openly urges others to take up arms and commit violence.
      The 1A is not an absolute.

  18. Try getting into any any Mideast country with an Israeli stamp on your passport, Forget about it

    1. Hmmm…I got into Jordan (twice), Egypt (twice), and Syria (once). No problem at all. But I do get your point . . . having the Israeli stamp can and does DQ you from getting into some of the Middle East countries. And even the risk of getting turned back at the border/airport is enough of a disincentive. Just correcting your comment that (1) ALL Mid East countries reject passports with an Israeli stamp, and (2) Even those ‘no stamp’ countries often just wave you though with a smile and a friendly wave.

  19. The USA has a long proud history of denying admission to bad people.

  20. How dare those Israelis imagine it’s their country or jurisdiction! Ilya should decide such things.

    1. Ilya must be planning a road show in Saudi Arabia.

    2. Hank. I think you (accidentally? intentionally??) mis-read what Ilya wrote. No one is claiming that Israel had no legal right to do this. I think his point was, “It was a bad decision. It’s a bad decision when America does it. Countries should, generally, NOT be doing this.” Given this premise, why on earth should Ilya (And me. And you.) *not* give an opinion about the wisdom of this action? When a country decided to outlaw abortion (or to drastically liberalize abortion rights) or the same with the death penalty, do you feel like your voice has no right to be heard? That seems like an oddly insular attitude to take about world events.

      It’s perfectly valid to point out that the OP is not a resident or citizen of the country in question. But I think we’re all better off hearing thoughtful takes on the actions taken by other countries . . . even thoughtful takes I quite disagree with.

      1. Link to any contemporaneous condemnations?

        Was Somin authoring these sorts of opinions in 2012 when it was Obama blocking the entry of an Israeli?

        1. Jews doing something is always different.

  21. I created an account, logged in and have gone out of my way to type this.

    Ilya Somin is a tedious read. I get it. Orange Man Bad. He will figure out how to make the legal case against Trump, or preferred Trump actions, just give him a second. No matter how common sensical, or ancient the practice, like saying keeping people who wish your country conquered, out, Ilya will be along to explain how Trumps presence in favor of it, whatever it is, means it must be argued against. Just give me the general topic, and I will tell you which way the Ilya column will break down, with near perfect accuracy.

    1. Man, you must feel like a perfect idiot to read that Ilya also made it clear that he disapproved of this back when each and every former USA president was in office. But, I guess “Hoover and . . ., and Reagan, and HW Bush, and Clinton, and W. Bush, and Obama, and Trump did this unwise action.” does not mesh as well with your reflexive defense of [as you call him] Orange Man.

      To me, it makes much more sense for a blogger to post about noteworthy items. Man bites dog. Not so many articles about dogs biting people. Just like Fox News, over 8 years, never once started off a newscast with “Hey, President Obama just did this amazing thing.”

    2. You needn’t have bothered. Your ignorant, moronic comment just joins the chorus of useless douchebaggery that is the comment section of this blog.

      1. Tell me, do you see any connection between what you posted, and how it applies to your own comment?

  22. I think Israel should allow anyone to enter in an individual capacity, but not necessarily in an official capacity.

    1. Would have been downright tricky to annex the Sudetenland in an individual capacity.

  23. You know how people have friends who encourage them to keep on their diets?

    Netanyahu is being that kind of friend to these Congresswomen.

    They believe in boycotting Israel, but they almost slipped up and visited the country, which would presumably have involved putting money into Israel’s economy. Thus cheating on their boycott “diet.”

    Netahyahu simply reminded them of their boycott pledge and held them to it.

    1. Bibi is a mensch.

  24. Freedom of speech is a fundamental human right.

    You are seriously going to argue that the Israeli government has a legal and moral obligation to let hostile foreign politicians into the country for photo ops and propaganda?

    As US citizens, Tlaib and Omar have a right to free speech in the US; they don’t have a right to speak or travel anywhere else. That’s both true under US law, under international law, and the universal declaration on human rights.

    I suggest you review your first your law texts if you are confused on these points.

    1. But you tube can block Project Veritas because muh private property.

    2. I see no problem with the assertion that freedom of speech is a fundamental human right. it just means that nobody should interfere with anyone’s freedom of speech, and that doing so would be a moral wrong and, in a just world, punishable.

      It’s true that we do not live in a just world and that freedom of speech is not a legal right everywhere in the world.

      1. I see no problem with the assertion that freedom of speech is a fundamental human right. it just means that nobody should interfere with anyone’s freedom of speech,

        No, that’s not what it means. What freedom of speech means (at least to libertarians and liberals) is that it is impermissible for the state to prevent people from expressing their opinions.

        It is certainly permissible for me to prevent you from speaking on my private property or using my private publishing platforms.

        and that doing so would be a moral wrong and, in a just world, punishable.

        Free speech isn’t about morality, free speech is about liberty. Using the law to impose your views of morality onto others is about the most illiberal thing that you can be do.

  25. Everyone has and is entitled to an opinion. Even Omar has. Israel is entitled to protect its sovereignty anyway it deems appropriate–it, too, has a right to an opinion.

    What Omars agenda is wouldn’t be particularly subtle or hard to predict: she’d go there and pretend to see things that she doesn’t see, then lie about them. And then insist that people believe her because she is, after all, a US Congressman. That’s a no-win situation for Israel. As long as they’re going to enter a no-win situation, might as well make it a no-lose one: they’re just not playing her game.

    Ilya has a right to his opinions, too. They just don’t typically coincide with those of people whose judgments I share. While I would prefer he restrict his writings to law rather than politics, he, too, has First Amendment rights….

    1. While I would prefer he restrict his writings to law rather than politics, he, too, has First Amendment rights….

      Somin has progressed from legal analysis, via political advocacy, to straight out hair-on-fire nuttiness.

      1. I think the date on his visa stamp for entry into the straight out hair-on-fire nuttiness territory is quite old.

  26. All the time I have posted on this blog I have supported a powerful legislature, one that actually makes the tough calls on the big social issues, and one that has power to investigate, deliberate, and make bold changes when it thinks it needs to. This is because in my view it is the legislature, not the executive and not the judiciary, that is specially charged with this power. I’m not going to do so here.

    It simply doesn’t matter what I personally think about an issue. Congress and its members must have power to consider and investigate complete reversals of long-standing US policies on issues.

    Just as I think the judiciary has no business overturning the legislature just because they disagree with it, so I think the executive cannot impede individuals members of the legislature from communicating and investigating just he disagrees with them. I see the two issues as similar.

    I’ve defended sodomy laws, Obamacare, all sorts of things because I think denigrating the legislative power just because another branch disagrees with its decisions destroys democracy and leads to tyranny. I’m willing to defend support for Palestinians vis-a-vis Israelis on the same grounds. Once again, this is about the fact that a republican form of governmnent is the best bulwark of liberty and requires a legislature and legislators who are empowered to consider a very wide range of policy options, including ones I may vehemently disagree with. It just doesn’t matter what I personally think.

    1. Sorry, I’m not going to stop doing so here.

    2. Just as I think the judiciary has no business overturning the legislature just because they disagree with it, so I think the executive cannot impede individuals members of the legislature from communicating and investigating just he disagrees with them. I see the two issues as similar.

      And where did that happen? Not in this space-time continuum.

      Trump tweeted his opinion; he didn’t interfere with anyone’s travel plans.

      Netanyahu complied with Israeli law by excluding people who publicly advocated BDS.

      1. Israel was prepared to admit them up to the moment Trump says he wanted them excluded.

        If Don Corleone had tweeted they ought to be dead and they were killed, would you say that he had merely expressed an opinion and had nothing to do with it?

        1. Israel was prepared to admit them up to the moment Trump says he wanted them excluded.

          Israel would have admitted them only in order to curry diplomatic favor with the US in the first place; without their status, they would have been rejected without even a second thought.

          As long as Trump doesn’t make any binding commitments, he has the power to speak on behalf of the US in diplomatic situations. In this case he said “heck, if I were you I wouldn’t let these racist, socialist pricks into my country either”, signaling that there was no diplomatic reason for Israel to make an exemption.

          I still don’t see where you think the will of the legislature was subverted by the executive branch in either country.

          1. . . . without their status, they would have been rejected without even a second thought.

            That puts it in a nutshell. But not the nutshell you seem to think it belongs in. Trump doesn’t get a power to deny their status to members of congress. It is their election which gives them that status. It is not within Trump’s legitimate power to take it away.

            All the blather about anti-semitism and hostility to Israel is completely beside the point. This is about the U.S. system of government, and Trump’s abuse of it.

            1. Trump does not HAVE the power to “deny their status”. Nor did he attempt to do anything like that. He performed no official acts, ordered nothing, and did not in any way use the powers of the US government, much less abuse them.

              Israel chose to follow their laws and deny entry to two enemies that want to destroy their nation. If Trump’s personal opinions played a part in the decision not to grant a special exemption to Omar, only the Israelis know for sure. But Tlaib WAS offered an exemption – the one she asked for – and then refused to accept exactly what she asked for.

              This was never an honest attempt to visit Israel. It was a PR performance in anti-Semetic bigotry. And now that all the facts are out there, anyone still trying to defend the two bigoted anti-Semites is revealing a lot more about their own beliefs than anything Trump has done.

              1. Toranth, thanks for more beside-the-point blather. Trump said he contacted someone in Israel (whom he refused to name), prior to Israel doing a 180 on its previously-negotiated policy of allowing admittance to all members of congress. All reported in today’s NYT.

                1. Yes, and that is perfectly ok. Trump has the right and the authority to do so.

                2. Again, how is this abusing the power of the government?

                  You have failed to state any way that Trump used the power of the government to do ANYTHING.

                  All you done is “blather” about Trump, while ignoring that the entity acting here is ISRAEL. Can you even comprehend the idea that Trump does not control Israel?

                  1. Apparently Netanyahu can’t comprehend the idea that Trump does not control Israel. But still beside the point. The point is, Trump has no legitimate power to control the congress. If two members of congress want to avail themselves of a travel opportunity which the state department negotiated, and which many other members of congress have used, no power granted by the constitution gives Trump the power to interfere with that.

                    I know you don’t like it Toranth, but Tlaib and Omar were trying to conduct the official business of the United States. They were elected to do that. There was an agreement in place between Israel and the United States to let them do that. Israel was ready to honor the agreement. Trump stepped in because he wanted to thwart these two members of congress. Netanyahu stupidly gave in to Trump. Trump’s ability to make that happen does not make it a legitimate use of his power.

                    1. You still have failed to name the power that the president has supposedly abused. Heck, even Somin isn’t arguing abuse of power, he is arguing that what Netanyahu did was a bad idea.

                      There was an agreement in place between Israel and the United States to let them do that.

                      Was it a treaty ratified by Congress? No. Therefore, it was within the power of the president to change that agreement, just like the president could legitimately cancel Pelosi’s airplane trip. And agreements like that change all the time when conditions change; in this case, we have two socialist representatives calling for the destruction of Israel; it would be diplomatically unwise to exert pressure on Israel to let them into the country. Of course, the power to make the decision was Netanyahu’s alone.

                      Apparently Netanyahu can’t comprehend the idea that Trump does not control Israel. But still beside the point.

                      So you are saying that because Netanyahu did what Netanyahu wanted to do all along, Trump controls Israel? In your absurd reality, “go ahead, make your own decision, we won’t punish you either way” is “controlling Israel”?

                      We were “controlling Israel” when we had a agreement in place that said, effectively, “we will punish you unless you let every member of Congress enter Israel”. We stopped controlling them when Trump ended that pressure. And he stopped it for good cause: trying to force Israel to let in the likes of Omar and Tlaib against Israel’s wishes would be unconscionable.

                      You really are the good little leftist imperialist who thinks the US should use its military and diplomatic might to force other countries to our will, aren’t you?

                    2. Um, no, things Congressmen do as individuals, like visit their family, does not become “the official business of the United States”.

                      The sovereign state of Israel obeying its own laws to ban the presence of hostile foreigners does not rely on any power of the US Government. Trying to claim that Trump controls Netanyahu and Israel is absurd.

            2. Trump didn’t take anything away from them. He did not interfere in their freedom of movement or their freedom of speech.

        2. If Don Corleone had tweeted they ought to be dead and they were killed, would you say that he had merely expressed an opinion and had nothing to do with it?

          I would say that it wasn’t an abuse of executive power, since Don Corleone is not part of the executive branch, and since Tweeting does not constitute use of executive powers.

        3. “Israel was prepared to admit them up to the moment Trump says he wanted them excluded.”

          Israel was prepared to admit them until Israel received a copy of their agenda and saw that they were visiting “Palestine” and were going to be hosted by and chumming around with a group that is flagrantly anti-Semitic. It’s debatable whether Trump had any influence on the decision at all.

          I know you think the world revolves around Trump, but in reality he’s just a blowhard huckster with a Twitter account and a lot of free time on his hands…….

      2. “Netanyahu complied with Israeli law by excluding people who publicly advocated BDS.”

        Except he also said they’d let Tlaib in later to see her grandmother.

        1. Netanyahu can make humanitarian exceptions (in this case with conditions), another power granted to him by the legislature.

          Again, where is the abuse of power you see?

          1. Right in front of you.

            1. Wait, it is an abuse of power NOT to grant special exceptions to people that want to kill you, just because they want the special privilege?

              Is that seriously the argument you are going for?

            2. You haven’t named any power he has supposedly abused. Not even Somin has.

      3. “Just as I think the judiciary has no business overturning the legislature just because they disagree with it…”

        How about overturning executive decisions? Is that all right with you?

    3. “Just as I think the judiciary has no business overturning the legislature just because they disagree with it, so I think the executive cannot impede individuals members of the legislature from communicating and investigating just he disagrees with them. I see the two issues as similar. ”

      You need to work out some details… like, for example, how your opinion handles the difference between “the legislature” and “individual legislators”.

      Yes, Trump trying to keep one of his critics from seeing her grandmother is more than a little bit of a dick move. It is also not in any way surprising. Soon enough, he won’t be President and he will have a chance to be on the receiving end of having chosen to make so many enemies. Putin can only help him win one more election, at most.

  27. did a child write this article?

    1. Yes. He writes a number of articles.

  28. Ilya, you must be the most self-defeating, almost ideologically suicidal ‘libertarian’ I’ve ever encountered.

    You not only want a sort of welfare state to allow entry to anyone who wants to enter, making it into a magnet for people who WANT it to be a welfare state. You deny that countries are not even entitled to bar entry to their outright enemies!

    These demands guarantee that the US will continue evolving away from libertarianism! Is this deliberate? You’ve got some sort of ideological death wish?

    The only step left down this road is to assert that it’s immoral to refuse entry to armies!

    1. I’ve met people like him before. They basically think that it’s their moral duty to convince all 7 billion people in the world of the virtues of libertarianism, and if they fail to do so, that the ideology deserves to die.

      That’s why they don’t see it as suicidal.

    2. “You not only want a sort of welfare state to allow entry to anyone who wants to enter, making it into a magnet for people who WANT it to be a welfare state.”

      Whereas the kind of libertarian state you want is one where the government gets to tell you what to do and where to do it. That’s not evolving away from libertarianism… that’s already at the destination of “not libertarian”.

      1. Libertarianism was a feasible goal back in the 70’s, or at least I thought it was. I don’t think it’s even on the table at this point, the left has gone so nuts, the welfare state has become so expansive, and the leadership on the right have given up even pretending to care about limited government.

        At this point I just want to save the country of my birth from destruction, not perfect it. But that doesn’t mean we have to take affirmative actions to make libertarianism even less plausible.

        “Whereas the kind of libertarian state you want is one where the government gets to tell you what to do and where to do it.”

        You’re going to have to clarify what you mean by that. What I want is the kind of libertarian state where, if you’re already a citizen, the government stays out of your face, but if you’re not a citizen, find someplace else to live.

        A kind of libertarian nationalism. Somin wants a government that runs on universal utilitarian principles, where the interests of non-citizens count as much in determining government policy as the interest of citizens.

        Screw that, if government is to have any justification for existing, it is the benefit of its citizens, and the interests of non-citizens should at most be a side constraint.

        1. You want a libertarian government that gets to tell you what you to do and when to do it.

          No, thanks.

          1. Nope, I’m a citizen. I want a libertarian government that distinguishes between citizens and non-citizens. I wish people who aren’t citizens of America all the best… and for them to experience it somewhere else.

  29. Iran could have barred Khomeini. Might have been a good choice.

  30. ” its targeting of Israel for sanctions, while ignoring the many nations with far worse human rights records”

    How many of the worse human-rights records countries are run by democratically-elected governments, and how many by dictators? I don’t imagine there is much effect in trying to appeal to the population of a dictatorship to change the national policy. One might wish that, say, North Korea would undergo a substantial regime change, but one definitely won’t achieve it by boycotting North Korea.

    1. How many of the worse human-rights records countries are run by democratically-elected governments, and how many by dictators? I don’t imagine there is much effect in trying to appeal to the population of a dictatorship to change the national policy.

      Listen: it’s not our business how other countries conduct their affairs. It’s not our business to democratize the world, or to prevent genocides, or to prevent wars, or to adjudicate conflicts. If you want to do any of those things, you can personally go over wherever you want to go, join whatever group you want to join, and put your life and your money on the line; do not force others to do it for you.

      Israel is not our business, The Palestinians are not our business. There shouldn’t be any “congressional delegations” to the Palestinians at all. Tlaib is abusing her power but getting involved in the conflict in the first place. She arguably is violating her oath of citizenship because she swore that she had left all allegiances behind, yet obviously is violating that.

      Trump, OTOH, didn’t “abuse his power” by removing diplomatic pressure from Israel; he acted within the bounds of executive power, and furthermore did the right thing.

      You are the kind of person who proclaims good intentions by sticking his nose into other country’s business, and then when millions die (as they do over and over again when the US gets involved) says “oh, how awful, no one could have seen that coming”. You’re utterly reprehensible.

  31. I mean, since it’s well known they basically just are showing up for a photo op to be used to hurt Israel’s economy, I don’t know why Israel should allow them. If we knew that a foreign politician was visiting the States with the stated goal of damaging our international standing and economy then I’d like the State Department to think long and hard about approving that visa/passport.

    1. I also think if they’d refused access to Richard Spenser or Stephen Miller this blog would not have been written, even though the likelihood of those people tangibly harming Israel is far less than the Omar and Tlaib.

    2. ” I don’t know why Israel should allow them. ”

      Because when you try to hide things from your critics, it kind of suggests that your critics are pointing at things you need to hide.

  32. “anti-Israel BDS movement”

    I greatly wish that Reason hadn’t invited this cabal of Zionists into its group blog.

    1. If BDS isn’t anti-Israeli, then what is the purpose of the movement?

  33. It turns out that Tlaib also sent a request to Israel to see her grandmother promising to not advocate a boycott. Israel granted the request on the condition she not advocate a boycott. She then refused the visa because of the restriction.

    Bad faith request. Some people just hate Jews more than they love their grandmothers.

    1. ” Israel granted the request on the condition she not advocate a boycott. She then refused the visa because of the restriction.”

      It’s worse than that. Her letter requesting to be allowed to visit her grandmother is online. In the letter she promises to refrain from talking boycott during her visit. It wasn’t something that was a condition of Israel granting her visit, it was volunteered by her in the request to go.

      Israel granted her request, and she immediately made a huge production of not going because of oppression. These two never intended to go in the first place. The provocation of picking Mitfah as a sponsor, the “Palestine” thing, the phony offer to avoid boycott discussion while she was there. This was just elaborate political theater, and a whole bunch of people just took the bait.

    2. Why is this even a story given what we now know?
      …Ilya?…care to weigh in…?

      1. Don’t disturb Ilya; he is wallowing in self-righteous indignation and TDS. It makes him feel good and it improves his standing within his academic community.

    3. She then refused the visa because of the restriction.

      Incorrect, she refused because instead of accepting her promise they demanded a written pledge.

      Her making the promise, and them accepting, is a sign of mutual respect.

      Them refusing the promise and instead demanding her to sign away a right is a depend of subordination and shows a basic lack of respect.

      She was entirely right in refusing their demand.

      1. So she was perfectly willing to do what she offered (and what they asked) but she wasn’t willing to put it in writing?

        If that’s true, it’s even more evidence that she was never honest about her intentions. Honest people don’t have a problem with leaving evidence of their sworn statements.

  34. This is a pretty lame essay. Should gubmints generally live & let live? Sure. In the normal course of events, and all else being equal- gubmint *should* allow people to travel freely regardless of political thoughts.

    But that ideal isn’t a suicide pact- to coin a phrase.

    The itinerary of the innocent, totally-blameless anti-Semites in question specifically calls Israel “Palestine” and there is not a single meeting with any Israeli official. It is designed to eat photo ops and propaganda to help destroy Israel.

    No gubmint is obliged to allow foreigners to enter its territory specifically for the purpose of fomenting unrest and rebellion. To state that they should is to explain why they shouldn’t. A little common sense goes a long way. It pains me that so many legal professionals go out of their way to deny the wisdom of common sense.

    It certainly doesn’t paint such people as geniuses.

  35. I suspect that President Trump wants to bait the Democrats into defending and highlighting their most controversial members (and cities).

    “These Congresswomen are persecuted minorities who simply speak the truth to power!”

    “Baltimore is a fine city and there are fewer rats than Trump claims!”

    1. Going by the evidence, I’d say Trump is a master baiter.

  36. Representatives Ilhan Omar and Rashida Tlaib won the day and Trump and Netanyahu got pawned. The banning certainly looked suspicious after their visit was approved in July. Omar and Talib got more free publicity for themselves and their issue. Trump looked petty and vindictive, while Bibi looked like he was afraid of two women. The only reason they were banned is that Bibi is in a fight for his political life. Bibi should wonder if he might be banned from entering the US if Trump loses his reelection.

    BDS=Bibi Derangement Syndrome

    1. while Bibi looked like he was afraid of two women.

      What a sexist thing to say. In fact, Omar and Tlaib are US representatives, very powerful positions; the fact that they are women doesn’t diminish that power (neither does the fact that their are incompetent and evil). Any individual, institution, or nation should be afraid of them because their position grants them enormous power.

  37. “There will be peace when the Arabs love their children more than they hate the Jews”

    Golda Meir

  38. So, I believe in freedom and minding my own business and I end up surrounded by millions of Moslems that don’t, and can’t, share my political views because of their religion, what can go right?

  39. her speech is one issue.. but in actively and vigourously promoting certain types of activity directly offensive and harmful to the Israeli, or any other, government is a different issue.
    She is a rabble rouser, holds many values antithetical to our Constitution and life as it is here in the US< and in Israel as well.

    In some very real ways, she poses a threat to Israel as she foments acitivy that is harmful to that nation,and ours.
    If ideas were all she had, and those ideas were not as harmful as they are, it would be a different story.

    But she actively promotes damage. I'd not let her into my home, but would consider meeting her on outside neutral ground but on condition she be able to willingly listen to rational discourse in response to her ideas.

    1. Tionico, have you noticed that you are talking about an elected member of congress, but positing that she should be under your control in the practice of her office? Where on earth do you get the notion you should have that power, or that Trump should have it?

      1. Tionico, have you noticed that you are talking about an elected member of congress, but positing that she should be under your control in the practice of her office?

        Where did he “posit that she should be under his personal control”?

        You’re misrepresenting valid criticism of two representatives as trying to interfere in their official duties; that’s not just absurd, it is the kind of chilling arguments totalitarians engage in.

  40. her speech is one issue.. but in actively and vigourously promoting

    …so promoting is speech.?

  41. What this thread is about is that right wingers are dismayed that Omar and Tlaib legitimately enjoy the powers of elected office. Right wingers want to find some way to take those powers away from them. Problem is, the only way to do that without violating the principles of American government is to beat them in an election—which right wingers are not currently able to accomplish.

    At the least, right wingers will have to wait for an election. Not quick enough, they say, let’s overthrow the system which gave these women power, and take it away from them.

    1. What this thread is about is that right wingers are dismayed that Omar and Tlaib legitimately enjoy the powers of elected office. Right wingers want to find some way to take those powers away from them.

      They are legislators; their official powers are to legislate in Congress. What other “legitimate powers” do you believe they have and how have they been taken away?

      1. He can’t actually name any, as you’ve noticed.
        That’s why he’s trying to claim racism or sexism or “overthrow” of Congress or something (he’s not exactly sure what, it seems, since he keeps changing).

Please to post comments

Today Is the 95th Anniversary of Playwright Robert Bolt's Birth

His stage and screen plays are worth taking a look at.

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Bolt's best known play, A Man for All Seasons, contains a few lines that all lawyers and supporters of the rule of law can appreciate, particularly in these polarized times. The context is this: One of the play's villains, Richard Rich, who will eventually perjure himself in order to send Sir Thomas More to his death, has just left the More home. More's wife Alice, daughter Margaret, and future son-in-law, William Roper, urge him to arrest Rich, saying that he is a bad and dangerous man. More declines to do so, saying that Rich has broken no law. His exasperated wife explodes:

ALICE: While you talk, he's gone!

MORE: And go he should, if he was the Devil himself, until he broke the law.

ROPER: So now you'd give the Devil benefit of law!

MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER: I'd cut down every law in England to do that!

MORE: Oh? And when the last law was down, and the Devil turned round on you–where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast–man's laws, not God's–and if you cut them down–and you're just the man to do it–d'you really think you could stand upright in the winds that would blow then? Yes. I'd give the Devil benefit of law, for my own safety's sake.

The words are pure poetry for lawyers (though they are, of course, Bolt's and not those of More himself).

Bolt seems to have had a subtle understanding of human nature and of the role of law and social custom in regulating that nature. He wrote the screenplay for Lawrence of Arabia too. In it, Prince Faisal is heard to say almost offhandedly:

With Major Lawrence, mercy is a passion. With me, it is merely good manners. You may judge which motive is the more reliable.

Maybe I'm wrong, but it seems to me that many people would think that the answer is obviously that passion is the more reliable motive. But Bolt uses Faisal's comment to foreshadow what was to come. After Lawrence is put through several horrific experiences, his passion begins to push him in other directions and his commitment to mercy evaporates.

Are "good manners" really the more reliable motive? Well … that's the term Faisal uses. But if one substitutes "what our social customs require" maybe one gets a little closer to whatever bit of wisdom Bolt's Faisal character is trying to convey. Faisal doesn't claim that adherence to custom will always prove to be the more reliable motive. He merely expresses—presciently as it turns out—his doubts about Lawrence's passion. Likely Faisal had seen before that an unbridled passion to do what's right has a disturbing tendency to morph—often unnoticed—into something quite different. We should all be on the lookout for that tendency.

By the way, Bolt also wrote much else, including the screenplay for Doctor Zhivago.

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

  1. “Will no one rid me of this troublesome sex plane and temple priest?” — Many billionaires, powerful people, and two presidents

    1. I would rather trust (more than one who is passionate *or* merely polite-per-current-customs) someone whose mercy is based on valuing human well being in light of reason and evidence.

  2. Robert Shaw’s best role, even though he only has a few minutes of screen-time and looks nothing at all like his character (Henry VIII).

    https://www.youtube.com/watch?v=GVbpq-GeFlk&t=6s

    1. Henry VIII wasn’t always a fat slob, but I don’t know whether he was at the time of the play’s action or not.

      1. Henry was alleged to be a good looking, sporty, fellow until after his jousting accident in 1536. So Shaw’s physique would be reasonable for the play’s action from 1529 to 1532.

      2. He was never trim and wiry like Robert Shaw, though.

        1. I’m not sure that trim and wiry are the first two adjectives I’d use to describe Robert Shaw.

          https://c8.alamy.com/comp/HEHEP3/lotte-lenya-robert-shaw-james-bond-from-russia-with-love-1963-HEHEP3.jpg

          Well built would seem to cover it.

    2. He is great in AMFAS, but then again, he was almost always great.

      cf. Jaws, Taking of Pelham 123, The Sting, Battle of the Bulge.

      1. The Sheriff of Nottingham in Robin and Marian.

      2. His “USS Indianapolis ” monologue in Jaws gives me chills every time I watch it.

      3. I thought he was kind of lame in JAWS. But JAWS has long been close to top of my list of overrated movies. Ooooh, a big shark. Yikes! And a bunch of totally one-dimensional characters, and a stock cliche plot (venal government official ignores danger, people get killed).

        You left out a much better movie with Robert Shaw: BLACK SUNDAY. Here, this clip shows why it’s such a goddamm fantastic thriller:

        https://www.youtube.com/embed/waoazjmeomQ?start=170&end=188

      4. Also excellent in Young Winston

        1. My list was not intended to be exclusive 😉

          Shaw is one of the greatest supporting actors ever. Up there with Claude Rains, Robert Duvall and the lesser-known Cyril Cusack.

          1. Other amazing supporting actors most people have not heard of but you should look them all up, include: Francis L. Sullivan, Flora Robson, and Nicholas Worth.

  3. The “real” Sir Thomas More (or “St. Thomas More”, as the Catholics call him) executed several men for translating the bible and approved of the burning of “heretics” at the stake. He said of Martin Luther “He speaks as though he rested on the bosom of Christ, yet all the time is closed up tightly in the anus of Satan”, which wasn’t very nice. He was hostile to the enclosure movement, which increased the efficiency of English agriculture, claiming that “sheep were eating up men,” displaying a typical aristocratic hostility towards free markets.

    1. “which wasn’t very nice”

      But accurate, see Luther’s views on Jews.

      The enclosure movement was a disaster for farmers in England except for a few wealthy, politically powerful landowners. It was hardly “free market” because it was mainly accomplished by force and uncompensated seizure.

      1. Well, burning people isn’t very nice either, even if they are Protestants. And Jews got to vote a lot earlier in Protestant America and Great Britain than they did in Catholic Europe.

        As far as enclosure goes, I just happened to be reading a book on the Renaissance, which said that it affected only 3 percent of English farmland. Furthermore, Robert C. Allen, in his excellent book, “The British Industrial Revolution in Global Perspective,” argued that enclosure was an important factor in improving the efficiency of British agriculture, helping to create a high-wage economy, which was in turn an important factor in setting the stage for the industrial revolution. Because wages were high, it made sense to spend money on expensive machinery.

        1. You have to enclose the village to save it, I guess.

          Enclosure was still wrong. Small farmers had rights even if they were inefficient.

    2. He said of Martin Luther “He speaks as though he rested on the bosom of Christ, yet all the time is closed up tightly in the anus of Satan”

      I have nothing to add. I just wanted to quote its awseomeness.

  4. The trilogy by Hilary Mantel involving the same cast of characters casts an entirely different light on More and Cromwell, with Richard Rich being merely Cromwell’s agent and More a religious fanatic.

    Worthwhile studying both views.

    1. “More a religious fanatic”

      Yes, Saint Thomas More, Martyr of the Catholic Church, who was killed because he would not acknowledge the Church of England and prosecuted heretics, was a “religious fanatic”.

      The author was hardly a genius at figuring this out.

    2. Mantel has explicitly stated she wrote her books to destroy the reputation of Thomas More. Cromwell was a man few contemporaries found pleasant, a thug and a man who could be counted on to provide a false confession when needed, and contra Ms Mantel he was noted by contemporaries for keeping his daughters illiterate.

      1. I think it says a lot about our time that we have reached a level of revisionism that makes More the villain and Cromwell the hero.

        1. Or perhaps both More and Cromwell were villains and it was villain vs villain, and only modern tribalism drives the need to make one of them out to be a hero.

          1. Henry VIII’s marriage to Anne Boleyn was either valid or not.

            If not valid, then the law requiring people to attest to its validity on pain of treason, was an unjust law.

            If it was an unjust law, there was nothing villainous about defying it.

            1. And if More had died a natural death, he’d probably be remembered primarily as “that Renaissance humanist who wrote Utopia.”

            2. “If it was an unjust law, there was nothing villainous about defying it.”

              As if that were the only thing More ever did that might be considered villainous. Did you miss the part above about him prosecuting heretics?

              1. He only burned four. How many heretics did Janet Reno burn?

            3. If not valid, then the law requiring people to attest to its validity on pain of treason, was an unjust law.

              This is also true if the marriage was valid.

              1. Where’s Pollock to point out that I never denied that?

          2. (1) Both More and Cromwell did their share of morally-ugly deeds and both a lot of positive good as well. Making either out to be a saint is a bit of a reach. To be fair to the Catholic Church, burning Protestant heretics used to be a lot less controversial than it is today, with all this darn political correctness….

            (2) I don’t think Ms Mantel hides any of Cromwell’s actions as Henry’s pit bull, but she does put the best possible gloss on them. Her portrayal of More is acerbic, but likewise factual. Bolt’s play was pure hagiography, but that’s OK too.

            (3) One of my architecture professors recommended A Man For All Seasons from the perspective of finding (aesthetic) freedom by following (aesthetic) constrains

            1. More was well within the moral frame of his time, by the standards of the 15th century, he was pretty restrained.

              Cromwell was considered brutal during his lifetime.

              1. (1) So More’s murders were moral, frame-wise, but Cromwell’s weren’t? Good to know…….

                (2) I don’t doubt Cromwell was considered brutal during his lifetime, as he was brutal and had a lot of very prominent enemies. But look hard enough and you can find people who considered More brutal. You just need to canvas his victims. They were maybe a little less prominent than Cromwell’s enemies, one example being Thomas Howard, 3rd Duke of Norfolk.

                (3) As the King’s top enforcer, Cromwell was pretty restrained by the standards of the 15th century too…..

                (4) Actually, Cromwell was also “well within the moral frame of his time” – right up to the point he married Henry to a women the king found ugly. Then he suddenly wasn’t. Hans Holbein was to blame, his portrait of the lady in question being too generous. This cost Cromwell his head, but that was well within the moral frame of the time too…..

                1. Cromwell’s fabrication of Anne Boleyn’s adultery after arranging her marriage is rather spectacularly unwholesome. There is no way to call that moral.

                  1. I don’t disagree in the slightest, particularly because there were multiple victims aside from Anne herself. To fabricate her adultery he needed to fabricate her co-adulterers, and Cromwell created several. Both More and Cromwell used the laws of England to protect what they were pledged to protect, Church and King respectively. But neither were particularly bloody-minded and their tally of victims was small compared to figures with similar authority in other countries.

            2. Both More and Cromwell did their share of morally-ugly deeds and both a lot of positive good as well.

              Could you provide some specifics about the “positive good?”

              1. I presume I’m not tasked to speak for More, so will restrict myself to Cromwell. The most expeditious thing is to cut&paste from Wikipedia (how did we get along before Wiki ?!?) :

                Geoffrey Elton, however, in The Tudor Revolution (1953), featured him as the central figure in the Tudor revolution in government, the presiding genius, much more so than the king, in handling the break with Rome and in creating the laws and administrative procedures that reshaped post-Reformation England. Elton wrote that Cromwell had been responsible for translating royal supremacy into parliamentary terms, creating powerful new organs of government to take charge of Church lands, and largely removing the medieval features of central government.

                In short, a central figure in the transition of England from a medieval to modern state……

            3. People overlook the fact that it wasn’t just the Catholic Church that punished heretics.

              Heresy was understood by just about everybody at the time to be a very serious crime. One of the problems, though, was that local prince/potentate types liked to use heresy charges as an easy means to eliminate rivals and enemies.

              The main point of the Inquisition was to put an end to that practice, and set up a fair (by the standards of the day) means of adjudicating heresy charges.

              1. Not to quibble, but I’m pretty certain the main point of the Inquisition was strangling the Reformation (like a baby in its crib). Like the poor, there are always heretics among you. But pre-Reformation the Church did not feel the need to launch a world-wide multi-organization concentrated campaign to ensure heretics were processed in an even regulatory manner.

                1. My understanding was that it started in France in the 12th century in response to the Waldensians and Cathars (who were proto-Protestants).

                  One thing I left out in my post above was that the Church wanted to reserve to itself the decision-making authority on what constituted heresy. That is what drove the process. But that process was, by the standards of the day, remarkably fair.

                  It is difficult for us to see it that way today, because we have a hard time accepting the notion that heresy is a crime deserving of serious punishment. In the Middle Ages and early Renaissance, though, it was a given.

                  1. Right you are. There was a large expansion of the Inquisition in response to the Reformation, but it’s start was much earlier as you say.

          3. Now that is a sane position.

  5. True story*: Bolt wrote the script of that Star Trek episode where Spock says that the needs of the many outweigh the needs of the few or the one.

    *Not really.

  6. Bolt also wrote the screenplay for Smokey and the Bandit.

    1. They also brought him in to spiff up the dialogue in Piranha and Airport ’77.

  7. I forget who said it, but it was something like “if you find yourself beheading more than one wife, maybe the problem is with you.”

  8. Longtime Conspiracy readers will note that I periodically quote from this passage. Another:

    “The law is not a light for you or any man to see by. The law is not an instrument of any kind…The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely.”

  9. “Likely Faisal had seen before that an unbridled passion to do what’s right has a disturbing tendency to morph—often unnoticed—into something quite different. We should all be on the lookout for that tendency.”
    a la Daenerys Targaryen, I suppose.

  10. Overall, Somin is right. There is a need for radical freedom of movement.
    But he’s wrong in this instance, because the role of any republic is to protect the rights of its citizens. If someone inside or outside the country seeks to destroy the country (which is what BDS is all about in relation to Israel), then that republic has a duty to not aid such enemy in any way, including not letting them into the country.

  11. Yes. I’d give the Devil benefit of law, for my own safety’s sake.

    It’s worth noting that, after this ringing defence of law, the very next scene is Cromwell meeting Rich in a tavern and buying him. Which in time brings More to trial and conviction on perjured evidence supplied by Rich. Bolt would not have juxtaposed those two scenes without it being a deliberate attempt to show the contrast between More’s high minded defense of the rule of law, and the practical reality.

    My own favorite exchange from the play is this one, from the trial, after Rich has given his perjured evidence and is beginnibg to leave the court. :

    More : There is one question I would like to ask the witness. That’s a chain of office you’re wearing. May I see it? The Red Dragon. What’s this ?

    Cromwell : Sir Richard is appointed Attorney General for Wales.

    More : For Wales. Why Richard, it profits a man nothing to give his soul for the whole world. But for Wales.

    Wales of course is a very beautiful country, with wonderful people and the best national anthem in the world – by an enormous distance. So it is a little unkind to dismiss it in this way.

    Nevertheless, in More’s time, Wales was hardly the jewel of the King’s Dominions and the force and wit of More’s gentle rebuke is overwhelming.

    1. Azerbaijan’s is fantastic. Scotland doesn’t have a national anthem but one of the three often used is Highland Cathedral, which is a great song on the pipes. The USSR anthem is good too, when not played slowly.

      Honestly, most anthems are pretty boring.

      1. You’re right that it does matter how they’re played. For Land of My Fathers it has to be the full crowd singing it at top volume before a rugby international. And since it’s Wales, everyone in the crowd can sing. In tune.

        https://www.youtube.com/watch?v=AM4mIlYKG9s

    2. I am partial to Jerusalem myself (as unofficial anthems go), but Men of Harlech is great too.

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Free Speech

Florida Senate Member Gets Restraining Order Against Critic

Fortunately, the Florida Court of Appeal has just reversed.

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From Logue v. Book, handed down today (by Judge Mark Klingensmith and Melanie May, with Judge Cory Ciklin dissenting without opinion):

[Sen. Lauren Frances Book] is a public advocate for child abuse victims and promotes strict policies related to sex offenders. [Derek Warren Logue] is an outspoken opponent of sex offender laws. {In 2001, an Alabama court convicted [Logue] of improper relations with a minor.} [Book] filed for an injunction alleging [Logue] was harassing and cyberstalking her. The trial court held a hearing and took testimony from the parties and witnesses, after which the court entered the injunction….

In support of her request for an injunction, [Book] alleged three instances of offending conduct: (1) [Logue]'s protest at the end of a children's march in Tallahassee; (2) his appearance and conduct at a New York film festival; and (3) his social media postings on his website, blog, and other social media platforms…. [Book] expressed her fear of [Logue] and testified to her contact with law enforcement to ensure her safety and that of her young children.

The First Instance—The Tallahassee Protest

Testimony revealed [Logue] protested, and encouraged others to join his protest, against the children's march in Tallahassee. He stood at the side of the road, across the street from the State Capitol, holding a three-by-three-foot handwritten sign protesting [Book]'s advocacy of sex offender registration laws. His protest included a diorama of a homeless camp and a commode chair bearing the title, "King Ron's Throne[,]" {a reference to Book's father[, a powerful Florida lobbyist -EV]}. Law enforcement had been notified of the protest in advance, and there were no untoward incidents reported regarding [Logue's] conduct.

The Second Instance—The Film Festival

[Book] was scheduled to attend a film festival in New York for the screening of a documentary about sex offenders in which both she and [Logue] appeared. She knew [Logue] would attend the film festival and arranged for security to be in place. [Logue] sat three rows behind her during the documentary.

When the documentary concluded, [Book] walked to the front of the theater to take questions. When [Logue] took the microphone, he asked [Book]: "how can you sit there and talk about how people on the registry don't deserve a second chance when your father … is a convicted criminal and he got a second chance?" A law enforcement officer in attendance testified that [Logue] asked the question in a loud, aggressive manner and pointed his finger at [Book] as he asked it. However, other witnesses also said [Logue] never left his seat in the theatre before he asked this question, nor did he attempt to approach [Book] at any time.

[Book] responded. She was then immediately escorted away from the stage by security, and the microphone was taken from [Logue].

The Third Instance—The Website and Social Media

Testimony and evidence established [Logue] maintained a website and other profiles on social media platforms professing his opposition to sex offender legislation. [Logue] posted [Book]'s home address and pictures of her home on his website. On his other social media platforms, [Logue] also posted a video of a song containing an obscene title and lyrics, as well as a cartoon depicting a tombstone with an obscene reference to [Book]. {A secretary for [Book]'s father also testified to an anonymous phone message she received indicating that [Book] and her father were in danger.} [Logue] "tweeted" that the song perfectly depicted [Book]. However, [Logue] neither directly communicated with [Book] about these posts, nor sent them to her or any of her associates by email, text, or otherwise.

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  1. “loud, aggressive manner and pointed his finger ”

    A court actually considered this probative evidence. Amazing.

    1. If you want a good laugh, you should read Lauren Book’s closing brief in the original case. It is amazing that a judge took it seriously but then Davis Letterman had a restraining order against him by a woman who claimed the comedian was sending her subliminal messages.

      And for the record, the only person who thought I was loud and pointing aggressively was Lauren Book. I was the third out of five people who asked her questions, I asked my one question and sat down after I got her snide remark, which, by the way, was a personal attack about my record, which she gets wrong all the time.

      PS: She’s obviously paranoid. She has claimed within the past year that she was the target of both the MAGA Bomber and Epstein.

      1. Are you: Derek Warren Logue?

        I think your past – a conviction for improper relations with a minor – colors my perception of your comments.

        There is a real, and meaningful difference between whether you ‘can’ do something as opposed to whether you ‘should’ do something. Clearly, this distinction is lost upon you.

        1. For example, you shouldn’t allude to the death of your opponent when there are kids involved, and I think you know this. If that cartoon is still up, you should take it down.

          1. Yes, I am Derek Logue. And welcome to the First Amendment, Atlas_shrugged.

            By the way, arch1, you aren’t getting the entire picture anyways. First off, I did not make a video about her, I posted the video of a song called “You are a C*nt” by Kat McSnatch, a person with no ties to me whatsoever, in response to other comments made between me and fellow Twitter folks after Lauren Book called the registration office claiming I called her a c*unt in hope they would arrest me. So I did not make the video nor was the song about her. I did make THIS video about Lauren and her dad, though:

            https://www.liveleak.com/view?t=uDwrL_1526695160

            The only thing I’m guilty of is not watching that Kat McSnatch video in its entirety before posting it because I merely declared I found the official Lauren Boo theme song.

            This same Lauren Book loves to make outlandish claims. Just within the past year, she claims to have been targeted by Jeffrey Epstein AND the MAGA Bomber.

            Perhaps instead of being one-sided and hating on me because of a record, you should look at the Book family and see why they deserve the contempt I have for them.

  2. “Perhaps thought should be given to whether the law should provide some protection for those at which social media directs its attention,”

    Perhaps thougth should be given to your removal from the court.

    1. This is your cue to go on social media and tell the world where the disssenting judge lives, where he eats lunch and where he will be speaking next month, so that you can voice your civic concerns that obsessed male a-holes are not being given free rein to harass public officials.

      1. He held a sign in public, asked a question at a public meeting without approaching her and made posts on his own website.

        She was not harassed. Not one bit.

        Not a fan of free speech or petitioning the government for redress of grievances are you.

        1. That’s what I find so concerning about this case. She had a chance to put forth the most egregious examples, and they turn out to be fairly mundane political actions. Yes, they personally attack her father’s history. However, that’s politics. This is essentially stating that supporting some political opinions is illegal. The judge involved should be censured.

        2. It’s clear Lauren Book doesn’t think that anyone guilty of a sexual offense against a child is entitled to an opinion regarding any sex offender legislation; that they should just sit down, shut up, and take it. She’s a victim. She’s totally unwilling to take an objective view of any issue surrounding child sexual abuse or sex offender legislation. She and her father are on a relentless and PERSONAL CRUSADE to absolutely destroy those on the FLA registry by a thousand legislative cuts. Shame on her and her father for using public office to settle a private score!

      2. Scott, I love the First Amendment, and if you abnd Lauren hate it so much, North Korea might take you both. For once, Florida judges actually remembered they still have to abide by the US Constitution. No hanging chads here, bro.

      3. You obviously have no respect for the First Amendment or for the rights of registered citizens to seek redress of wrongs from the government. More people need to hold politicians’ feet to the fire over these cruel AND SCIENTIFICALLY PROVEN INEFFECTIVE laws.

    2. 100% agree with BfO on this one.

      That sentence simply cannot be said by a state judge.

      1. Oh no, now you’ve radicalized me through social media.

    3. “the law should provide some protection for those at which social media directs its attention, and others are motivated to act”

      What a stupid sentence, both in content and structure.

  3. “Perhaps thought should be given to whether the law should provide some protection for those at which social media directs its attention…”

    Thought has been given. The proposal is rejected. The same proposal has been made at every innovation in communication. In their respective days, that charge was levied against television, comic books, radio, romance novels, newspapers and the printing press. The hyperbolic fears have never turned out to be warranted. The current social media frenzy is no different.

    1. I have to disagree. Actual harassment has occurred.
      For example, recall the attacks received by the Covington school children. Doxxing does have a lot a problems for private people.

      On the other hand, she is a public official with public contact information. That doesn’t apply. Persuading people to petition a government official is a first amendment right.

  4. “We live in times where violence occurs all too frequently”

    Violence is at near-historic lows, both in this country and world wide. This sort of irresponsible fear mongering is why so few people realize that.

    1. In my lifetime and circumstances, 1964-1976 were particularly dangerous; today is relatively peaceful.

      But am wary of those who exaggerate danger to justify some clamp down or ban.

  5. For two years, I have had to put up with this blatant abuse of power from the Book Crime Family. Today I have been vindicated by the appeals courts.

    I have protested Lauren Book and her powerful lobbyist father because they are responsible for the unique homeless registrant crisis in Miami, starting with the law named after Lauren Book that forced registrants to live under the Julia Tuttle Causeway in Miami.

    From day 1, I have received harassment froma person living in Ft. Lauderdale. She repeatedly called my registration office in an attempt to get me arrested over my peaceful demonstration. She also lied in court about the nature of my protests and referred to me and all of my supporters as pedophiles. She has called me and my supporters monsters, creeping crud, ticking time bombs, and incurable. Yet, I was never given the same level of consideration for protection because I’m a registered citizen.

    It is amazing that I found even this small measure of justice in a state that proudly proclaims it is “scorched earth for sex offenders.” There will be protests, AND lawsuits. I endured a lot of pain and suffering due to Lauren Book’s blatant abuse of the law. Bu I won’t allow the Books to silence me any more.

    1. She also lied in court … and referred to me and all of my supporters as pedophiles.

      I mean, you did rape a child. “Pedophile” seems fair, if not generous.

      1. Was rape involved? His web site claims that he kissed an underage girl (when he was 28, so a large age difference). ED states she was 11.

        Not that kissing an 11 year old when you’re 28 is anywhere near reasonable, but it’s significantly less bad than raping her.

      2. Unless you are a licensed psychologist and have evaluated me in person, then you cannot make that assessment.

        It also does not detract from the fact Lauren Book is a pathological liar.

    2. Look, I will support your right to petition the government and attempt to stop the unreasonable restrictions that make life and reform essentially impossible. The scarlet letter regulations are put on people far too quickly and have too far reaching implications, which make it essentially impossible to live.

      However, given the details of your crimes, do not expect me to like you. Improper activities with an 11 year old are not something that people forget lightly.

  6. Book is a Democrat Party “Millennial” woman. The only thing that is surprising is that she’s married to a man, as opposed to being a bitter single feminist or “married” to a woman.

    1. “Millennials” are so damn scary.

      1. Not scary. More pathetic. The only thing scary is that they have votes.

        1. Yes, I can see how that scares you in particular.

          1. People who think socialism is a great thing and who ardently support homosexual “marriage” because they have “gay friends whose relationships are just as good as your and mine?”

            Yes.

  7. Other than the PI it doesn’t seem like much of a case for a protective order.

  8. Generation Snowflake (she’s 34) is now old enough to get elected to office.
    This won’t turn out well.

    1. Lauren Book ran unopposed in FL Dist 32 after the district was gerrymandered so she would have no competition. Her daddy is the most powerful lobbyist in Florida despite past convictions for fraud and illegal campaign contributions. As a freshman senator, she was made Pro Tempore, a position generally reserved for veteran legislators. She sat on the Senate Appropriations committee so she can give her Lauren’s Kids charity millions while still acting as CEO of said charity. Her only accomplishments involve sex offense legislation because that is literally all she does.

      Oh, but she’s about to risk all of this by trying to pass a bill blocking any abortion restriction bills from being considered without 50% of the legislature being women. I’m sure the Republicans will stop mollycoddling her now. Guess we’re about to find out just how “untouchable” she really is.

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Free Speech

Restraining Order Issued to Ban Unwanted Contact with Mayor by City Commission Candidate

... vacated by the Michigan Court of Appeals.

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From Berryman v. Mackey, decided earlier this year by the Michigan Court of Appeals, the factual background:

This case arises from an acrimonious relationship between petitioner—the former mayor of Adrian, Michigan—and respondent. Respondent is active in publicly commenting on and writing about the political landscape in Adrian, and, at the time of the events giving rise to the PPO [personal protection order], he was a candidate for the Adrian City Commission. Over 30 years earlier, in 1986, respondent was convicted of breaking into petitioner's flower shop in Adrian and sentenced to 6½ to 10 years' imprisonment. In the spring of 2017, respondent began writing a series of articles on an online blog—exposingadrian.com—that were critical of the way Adrian public officials governed the city.

On July 6, 2017, petitioner petitioned the trial court for an ex parte PPO against respondent. According to petitioner, this filing was prompted by a verbal exchange between petitioner and respondent at a city commission meeting and a later email that respondent sent to city officials on July 5, 2017. The relevant verbal exchange took place at a public meeting of the Adrian City Commission on June 19, 2017, after respondent commented on issues before the commission during the public comment portion of the meeting. Petitioner initiated the following verbal exchange:

[Petitioner]. Mr. Mackey, let me just, while you're there, ask you, are you the same Shane Mackey that robbed my flower shop back in 1986?

[Respondent]. I certainly am. [Petitioner]. Are you? [Respondent]. Yes, I am.

[Petitioner]. Okay. And then you wonder why —

[Respondent]. I'm also the same Shane Mackey who you put in prison because you conspired with Judge Glaser as a young teenager for stealing teddy bears out of your store. And then I went to law school, and here I am.

[Petitioner]. Okay. I just wanted to make sure that you're the same one that spent time in prison for that.

[Respondent]. I'm sorry?

[Petitioner]. You make those kind of accusations towards this commission, and yet—and yet, you took your time —

[Respondent]. I was 19 years old. I'm 51 now. What else you got? [Petitioner]. Yeah.

[Respondent]. What else you got? Because you're already dirty, so go ahead and get it out there. Because you're already dirty in this selection process.

[Petitioner]. Because you're the one that continues to bring—to bring up things about this city commission and —

[Respondent]. Such as, [s]uch as you're into the law [sic], such as your criminal college deal?

[Petitioner]. I just —

[Respondent]. Follow the law, that's all I'm asking for. Because I did enough time in jail because of you, sir, because you broke the law.

[Petitioner]. Because you broke—[b]ecause you broke into my store. [Respondent].   And the guidelines were probation, and I went to prison because you  had talked to Judge Glaser, that's what happened.   And that's why I went to law school, because of you, sir, because you're a corrupt, dirty, crooked politician. You're a career politician. And so I'm here, I'm going to be a thorn in your side, and I'm not going away.

And quite frankly, let me just say this: I've invested quite a bit of money into this community. And do you know why people don't invest downtown? Because it only works for three groups of people: Westfalls, Hickmans and Kapnicks are the only ones getting money out of you guys. I would gladly invest downtown, but I can't. You know why? Because you're crooked. You're  crooked.

The sales pitch you gave tonight, it was pathetic, it's disingenuous. You  sat there for seven years, and oh, suddenly, it's all about safety and saving the babies from bricks falling out of the sky, isn't it? Quite frankly, when I talked to your counsel about liability, do you know what she said to me? We have insurance. You have insurance. So who cares at all?

Anything else? Any other questions? [Petitioner]. No, you answered it. [Respondent]. Thank you. Have a good night.

Following this exchange, respondent sent an email to the Adrian city attorney on July 5, 2017, criticizing petitioner and the city commission for not adhering to rules of parliamentary procedure during its meetings. Petitioner and other members of the city commission were copied on this correspondence.

On July 7, 2017, the trial court granted petitioner's July 6 request for an ex parte PPO against respondent. After the court issued the PPO, respondent sent an email to the Adrian city attorney and the Adrian chief of police on July 8, 2017, advising them of his political campaign schedule, and asking that petitioner be informed of the schedule so that the two would not cross paths…. [The order was later modified, and t]he modified PPO prohibited respondent from directly contacting or confronting petitioner, but otherwise permitted him to "confront [petitioner] in the context of public speech and/or debate" and allowed him to contact petitioner by phone, if necessary, as part of the "political process." …

In Michigan, PPOs are generally issued based on a finding that the defendant committed "stalking," defined as:

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  1. The quoted passage of verbal exchange suggests to me that respondent is, in fact, likely to be a threat to petitioner. The guy who complains that you conspired with the court to throw him in prison, when all he did was burglarize your store, is not a stable person.

    1. We know nothing of what happened at that trial. The burglar may well think he got railroaded, that the shop owner knew the judge beforehand, that the sentence was too long and evidence was handled unfairly. The young age of both makes me wonder how a 21 year old could open a business, and the 10 year sentence seems rather long for a simple burglary, especially if it was his first offense.

      Something tells me there is more to the background than a simple burglary.

      1. I think that this small town has a lot of history, as it were, that came out in that little exchange.

      2. His statement that “the guidelines were probation”, if accurate, certainly points to something unusual having happened.

    2. IIUC you are making the claim that Progressives are not stable people?

      1. Why do you bother with IIUC? YDNUC.

    3. 10 years for a non-violent burglary is a miscarriage of justice. Time served for the average rape is 5 years.

      1. Just to be clear–it looks like the sentence was 6-10, which means he probably did 3, or thereabouts before getting parole; on the high side, but not bad, depending on criminal history and facts of case.
        Back when I was doing crim law, business burglary in my jurisdiction was 2-8 years.

        1. He claims that the guidelines were probation, getting 6-10 when expecting probation is a huge difference.

          I don’t know the scenario, I wonder if there was a guilty plea where probation was expected and instead he got 6-10 or something of the sort.

          Of course, I’m assuming his statement that the guidelines were probation is accurate.

    4. James Pollock

      Of course you would say that, because youre not a reasonable person. Youre a creepy communist who would probably love it if corrupt public officials could shut up their crtitics.

      1. If you had the remotest grip on reality, I might care what your opinion is.

        1. Read the court’s opinion, then. They agree with me; you’re not a reasonable person.

    5. Well the courts have ruled, and determined that your position is unreasonable.

      Nobody here is surprised.

      1. Yeah, and previously the courts ruled, and found that it was.

        So that obviously answers the question.

  2. This shows how dangerous these broadly worded harassment statutes are.

  3. the commentary, that “I will remain a thorn in your side,” … was the most concerning thing that I heard … and … I do believe was something that a reasonable person could feel threatened by.

    In what universe is a journalist saying “be a thorn in the side” of a politician a threat?

    The trial court granting this protective order certainly goes a long way to proving Mr. Mackey’s theory of corruption in Adrian, MI.

  4. The fact that this mayor was able to get such a broad restraining order tends to support the candidate’s contention that he’s corrupt and this place runs on a good ole boy basis.

  5. “I’ve already told you that that was the most concerning thing that I heard in terms of the statements made; and that, to me, I do believe was something that a reasonable person could feel threatened by.”

    How on earth would a judge know how a reasonable person would feel in a given situation?

    1. I think you are talking about this judge in particular. There are judges who are reasonable people, believe it or not.

      1. A judge may be a reasonable person as an individual but judges are not qualified to make the factual determination of what a “reasonable person” generally feels. Those determinations are supposed to be reserved to the jury.

        Which, by the way, highlights one of the big problems with these injunctions. They are issued and the damage done long before the person being sanctioned has anything approaching due process. (You could argue that in this case due process was met by the evidentiary hearing following the motion to rescind. I would argue that’s too little too late, especially since the trial court still got it laughably wrong even after the evidentiary hearing.)

        1. Those determinations are supposed to be reserved to the jury.

          Not all cases are heard by a jury, nor is there a constitutional requirement that a jury decide factual issues in all cases.

          The defect of ex parte injunction hearings is supposed to be cured by the judge exercising restraint and not take the allegations at face value. Clearly the judge failed in this case to protect the Mr. Mackey’s interests (and IMO many judges fail in this, but unfortunately there doesn’t appear to be a procedural cure).

        2. “A judge may be a reasonable person as an individual but judges are not qualified to make the factual determination of what a ‘reasonable person’ generally feels.”

          Why not? If you get six or twelve of them together, have you not a jury?

  6. The court missed the opportunity to explain the meaning and origin of the phrase “thorn in the side/flesh.”

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Free Speech

Redacting Children's Names from Libel Lawsuits Over Child Abuse Allegations

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From Day v. Dodge, a decision handed down earlier this year by New London County (Conn.) Superior Court Judge Kimberly A. Knox, but just posted on Westlaw a few days ago:

With regard to the Defendant's Motion to File Documents Under Seal, dated December 3rd, 2018, the court notes the following: That the plaintiffs … brought this action seeking money damages alleging defamation, invasion of privacy by false light, violation of the Right of Fair Procedure in contravention of Connecticut General Statutes Section 33-1056, intentional infliction of emotional distress, and reckless infliction of emotional distress against the defendants with regard to allegations stemming from a report made by the individual defendants that the plaintiff, Mr. Day, had assaulted his minor child during a camping excursion….

In this case, the court finds that the subject document, which is [a responsive pleading in support of the Defendant's] Special Motion to Dismiss, is a judicial document as defined by Rosatto vs. Bridgeport Roman Catholic, at 92 Conn. 1 at 44. In that case, the Supreme Court held that judicial documents are those filed with the court upon which the court could reasonably rely on in the performance of its adjudicatory function, including discovery-related motions and their associated exhibits….

The next issue before the court is the identity of the interest to be preserved by the request to seal. In this case, … the plaintiffs' claims arise out of the individual defendant's reporting of an allegedly unfounded suspicion that the plaintiff Day abused a minor son during a camping trip. As such, the defendants' claimed request in the motion to seal is to preserve the plaintiffs' minor son's anonymity. This is the sole interest to be preserved by sealing the document at issue. That interest must be balanced against the presumption that all materials filed with the court shall be available to the public unless there is an interest which is determined to override the public's interest in viewing the materials at issue.

In addition, the court must decide if the proposed order is necessary to preserve the overriding interest claimed by the moving party. As I noted previously, this case does present a challenging issue. On the one hand, the defendant seeks to preserve the anonymity of the minor child.

However, by virtue of the allegations of the complaint, complete anonymity cannot be achieved. The complaint itself refers to the plaintiffs' minor child, refers to the child as the plaintiffs' younger son, and provides his age. In deciding whether or not the proposed order to seal the documents is necessary, the court must determine whether or not there are reasonable alternatives to sealing documents which would preserve the interest of protecting the anonymity of the minor child.

In this case, the court finds there is a reasonable alternative, which is to redact the name of the subject minor child. To the same extent as the complaint, the minor child's name is then removed from these public records.

For these reasons, the Motion to Seal is denied, but the subject minor child's name is ordered redacted from the pleadings.

Seems plausible to me, at least on quick review. Maximally protecting the child's privacy, by making it impossible to identify the child, would interfere too much with the openness of court proceedings: It would require redacting the plaintiffs' names, or redacting the nature of the allegation against the plaintiffs which led to the lawsuit. But omitting the child's name would at least mean that a Google search for the child's name won't come up with any court documents that might get posted on the Internet—protecting the child's privacy to some extent, likely with little lost to public understanding of the litigation.

If there is to be some redaction of court documents for privacy reasons, First Amendment law and the common-law right of access require the redaction to be narrowly tailored, and this at least seems like a reasonable attempt at such narrow tailoring.

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  1. Title… Invisible Ink? 🙂

    1. Sorry, fixed.

      1. No apologies necessary! Just having a giggle at your expense 🙂 🙂 🙂

  2. I would ask how useful such a redaction actually is. Once the parent is identified I would think it fairly easy for anyone who actually wanted to go to the effort to identify the child. And once that premise is accepted it is not much further to say “useless redactions won’t be ordered”, much like documents mistakenly filed not-under-seal can generally not be recovered.

    1. It’s true that the court document with the name redacted won’t show up on a Google search of the child’s name. But any other document that identifies the child by name and refers to the court case will.

      The net effect of redacting the child’s name is effectively nil.

  3. Volokh’s analysis (“Maximally protecting…would interfere too much”) seems beside the point.

    I read the Court here as deciding that because the complaint already reveals information, there is no point in redacting anything that’s not redacted in the complaint. i.e. there is no way to unring a bell.

    These are different.

    (And it’s not true there is no way to unring a bell.) Of course the complaint could be retroactively sealed with a redacted version. Whether this is effective depends on a lot of things. Should we fault the Court here for not engaging in that analysis and considering such sealing? Or do we pretend such an argument is deemed waived because the movant didn’t seek it?

  4. Redacting the name of a child victimized by sexual abuse in criminal cases is a very common practice. It cannot completely protect the child’s privacy, but it does help. It might be next to impossible to obscure the child’s identity in an incest case, for example; but It does prevent the casual on-line queries. There is simply no need to victimize an already victimized child.

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Immigration

The Trump Administration's New "Public Charge" Rule is a Plan to Cut Immigration, not Reduce Burdens on the Welfare State

Helpful analyses by David Bier of the Cato Institute and Reason's Shikha Dalmia explain why.

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The Trump administration's new "public charge" rule for immigrants is an  attempt to massively cut legal immigration, under the guise of constraining welfare spending. I was thinking of writing a more detailed post on this subject. But David Bier of the Cato Institute has already published an excellent analysis that I cannot hope to improve on. Reason's Shikha Dalmia has helpfully expanded on  Bier's analysis (see also her discussion of an earlier version of the proposal). As they explain, the new rule would massively cut legal immigration, including by excluding large numbers of people who are net-positive fiscal contributors to the treasury. It does not exclude people based on actual use of welfare benefits, but merely based on a skewed bureaucratic determination that they are likely to use them for over 12 months during a 3 year period. In addition, the rule would cruelly separate large numbers of American citizens from parents, children, and other relatives.

As Shikha notes, this rule is also a massive executive power grab (unilaterally imposing a major change in immigration policy, unauthorized by Congress), of a sort that Republicans would surely have condemned had a Democratic administration done it. The rule is also, of course, just the latest front in the Trump administration's longstanding effort to cut legal immigration as much as it possibly can—a record that gives the lie to oft-heard claims that the administration only objects to illegal immigration.

I would add that the administration's plan to massively restrict immigration based on bureaucratic determinations about potential future welfare usage is based on reasoning similar to that of early 20th century eugenics advocates, who argued that we must use the power of  the state to preclude people from having children, if government experts determined that they were likely to become dependent on welfare.

As Justice Oliver Wendell Holmes put it in Buck v. Bell (the notorious 1927 Supreme Court decision upholding mandatory sterilization laws for those deemed mentally unfit), many  advocated such measures in order to prevent "those who already sap the strength of the State" from having "socially inadequate offspring" who are likely to become a fiscal burden. For many potential immigrants being forcibly condemned to a lifetime of poverty and oppression in Third World societies (and separated from close family members in the US, to boot), is an imposition comparable in magnitude to the mandatory sterilization once defended by Holmes and others.

As Bier and Dalmia explain, empirical evidence cuts against claims that immigration is straining the welfare state. But  to the extent that this is a genuine problem, the proper solution is not migration restrictions, but limitations on the actual welfare benefits themselves. The latter is far more just and humane than the former, and does not require relying on dubious predictions by government bureaucrats.

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

  1. “unilaterally imposing a major change in immigration policy, unauthorized by Congress”

    More a matter of implementing a policy already in the law, which has recently been ignored. The current interpretation of this prohibition on immigrants likely to become public charges only dates back about 20 years, after all.

    “I would add that the administration’s plan to massively restrict immigration based on bureaucratic determinations about potential future welfare usage is based on reasoning similar to that of early 20th century eugenics advocates, who argued that we must use the power of the state to preclude people from having children, if government experts determined that they were likely to become dependent on welfare.”

    You’re really unhinged at this point, aren’t you?

    1. Is Ilya talking about DACA?

    2. Unfortunately I believe he is unhinged. As soon as one saw that he was referencing Reason’s Shikha Dalmia, one knew exactly the extent of the male bovine excrement within the article.

  2. Oh look, it’s Ilya Somin, launching another bromide on Trump Administration policy initiatives regarding illegal immigration.

    *Yawn*

    1. Um, no. Not sure whether you’re dumb or just stupid. The entire point of Prof. Somin’s post is that this policy initiative is about legal immigration, thus giving the lie to the claim that Trump is just about fighting illegal immigration.

      1. Who ever said that he was just concerned about fighting illegal immigration? I suppose you think that means he shouldn’t be concerned about keeping people with contagious diseases out of the country, or refusing entry to terrorists, either?

        This is one of the left’s stupider lines: “If your only objection is to illegal immigration, just repeal all the immigration laws! Problem solved!” The whole POINT of fighting illegal immigration is so that the law’s restrictions on who can enter can be effective, so obviously you have to care that those restrictions get enforced.

        1. Ladies and gentlemen, I give you Brett Bellmore, the living personification of the “I’m not touching you” game.

        2. Who ever said that he was just concerned about fighting illegal immigration?

          The people who pretend that it’s about something other than racism. (“Oh, no, we don’t hate them; we just support the rule of law and think people shouldn’t benefit from lawbreaking.”)

          1. Look, I’m perfectly happy to have all the English literate, law abiding entrepreneurs Nigeria can send us. And those engineers from Chad? Send more, please. Mexican software engineers, too, can’t get enough of them.

            And, Scandinavian criminals with Ebola? Don’t need any of those, thanks.

            It’s not my fault that objective, race blind criteria for who would make a desirable immigrant happens to produce a racially disparate outcome. Racially disparate outcomes are the natural result of any policy that ISN’T racially discriminatory, in a world where the underlying facts don’t happen to line up the way you’d like.

            And the world didn’t consult with you before being the way it is.

  3. To amplify, the statute in question, as quoted in the Cato paper you yourself link to, says, ““Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.””

    That’s the actual policy enacted by Congress, and it’s pretty explicit. Trump’s proposed policy seems perfectly consistent with the statute, no matter what you might think of it’s merits as a policy.

    1. Meaningless emotional derangement says you’re wrong.

      That’s the doctrine a California judge will use to justify a national injunction against this new policy that precisely mirrors the text of the law. The judge won’t use those words exactly, but it will be derangement just the same.

  4. Reducing immigration is a good thing.

    1. Reducing ILLEGAL immigration to zero would be a very good thing.
      But we need at least 3-4 million legal immigrants a year for a healthy economy.

      1. Depends, we could try to spur Americans to have kids themselves. Japan is doing fine, with like zero immigration.

        The biggest problem with replacement rate birth rates, is that people (and governments) are used to property tax values going up. The reason they are not still cratered from 2009, is that Hispanics are buying houses now in record numbers now that loan standards are lowered again (although not to the pre-2009 level).

        1. Actually, no. Japan is *not* doing well. They’ve got a much bigger problem with their labor force aging out than we do.

          1. Nothing automation can’t fix.

          2. You have presumed that a reduced labor force is anathema to a growing economy. Japan is in the best position of all nations to become the global economic leader of the late 21st/22nd centuries.

            1. Japan IS betting on automation fixing the problem. They’re going all in on it.

              If it works, it’s got one huge advantage over massive immigration, for solving the birth dearth: Japan will still be Japan, not some other country that happens to be in the same place, and with the same name, which appears to be the fate most of Europe have chosen.

              1. The Japanese are willing to make a trade-off: Japan for the Japanese and a slightly lower GDP due to a stagnant or slightly declining population.

                1. You’re ignoring some other troubling tradeoffs Japan has been willing to make, but which would (or should) be anathema to the US. To make up for the demographic problem, Japan has turned to massive debt spending and has a government debt:GDP ratio double that of even the profligate United States. Without those measures, the decline would be even worse.

                  1. NToJ, I wonder if you realize that you’re advocating for the need for more people to buy more stuff to fluff up GDP, which is exactly the most cogent critique of capitalism that Marxism ever produced.

                    1. Curing the demographic shit bomb is not about importing consumers. Exports and net exports increase a country’s GDP, too. You can have a thriving and growing GDP built on little other than foreign consumers. Exports factor in to total production, and domestic income earned on foreign sales. So no matter how you calculate GDP, it includes money you make selling goods to foreigners. The “fluff” argument is a non-sequitur, and makes me think you don’t realize what we’re actually talking about. Maybe that should have been more apparent to you, when you ended a sentence praising a Marxist argument.

                      The strategy of curing the demographic shitbomb is to import humans to do the work. It is a biological fact that humans begin their lives with negative commercial productivity, they generally grow towards a peak, and then diminish afterwards towards zero or negative productivity. A country made up exclusively of people under the age of 2 or over the age of 100 will have a negative GDP, not for a lack of consumers, but because of a lack of producers.

                      I’m not advocating for Japan’s profligate debt-financed spending. I’m not even advocating for or against Japan’s strategy, at all. I’m just pointing out that the decision for Japan was not merely between “slightly lower GDP” or cultural identity. Other sacrifices were made to ensure the “slightly” part.

                    2. NToJ, I wonder if you realize that you’re now also advocating for the return of women to their historical primary role as homemaker, because women are net consumers of taxpayer funds over their lives. From a pure utilitarian perspective, a society comprised only of women taxpayers would also have negative GDP. Most men are active contributors to society from maturity until old age, women, even working women, are a net drain for most of theirs. Only that women are necessary for the continuance of the human race are they a positive, from the utilitarian perspective you’re implicitly advocating.

                      I also question your a priori assumption that increasing population = increasing GDP when it can also happen through technological innovation, and further that GDP growth is also necessary, as society can maintain a high standard of living.

                      Japan wants to stay Japanese, why does that bother you so much?

                    3. women are net consumers of taxpayer funds over their lives. From a pure utilitarian perspective, a society comprised only of women taxpayers would also have negative GDP. Most men are active contributors to society from maturity until old age, women, even working women, are a net drain for most of theirs.

                      What in the world are you babbling about?

                    4. It’s pretty simple. Women, as a class, take more by a large margin than they pay in. This gets larger when you include tax expenditures, not just straight gov’t welfare benefits or entitlements. Moreover, women live longer, collecting more, than men who either work themselves to death or die young working in more dangerous occupations.

                      So in short, the typical woman does not pay into the society anything near the value of her labor output.

                      This excludes childbirth, of course, because without it, we would cease to exist.

                      Link to SOME of the research on this: Research shows disparity between taxes paid by women and men

                    5. @mad,

                      “I wonder if you realize that you’re now also advocating for the return of women to their historical primary role as homemaker…”

                      If you want this discussion to continue (and I can understand why you wouldn’t), you need to stop changing the subject.

                      For the second time, I’m not advocating for anything. I’m responding to your point about your naive understanding of the Japanese immigration tradeoff.

                      “I also question your a priori assumption that increasing population = increasing GDP…”

                      Importantly I never said that. It’s implicit in what I said that nakedly “increasing population” would not increase GDP, as the example of the society with children and the very elderly should have indicated. Further, when I said that curing the demographic shitbomb required importing “humans to do the work” that should have suggested to you that I was talking about humans who are in productive years of their lives.

                      Technology can improve output. We all agree about that. There yet remain jobs that technology requires people of a certain age to perform. Think construction.

                      Japan should do what the Japanese want to do. It bothers me not that Japan has a different strategy than I would. But I’m entitled to disagree with their strategy, and select a different one for the United States. Does that bother you?

                    6. @mad

                      “This excludes childbirth, of course, because without it, we would cease to exist.”

                      It excludes everything women (and men) do at home, that increases value for other people as well, but which is a non-taxable event.

                    7. Hmm, clearly that fact that Japan wants to be Japanese bothers you, because you’re so strongly saying they are wrong for doing so (the “demographic shit bomb” as you repeatedly call it). To your question, because you want America to accept large numbers of immigrants on the materially unsupported premise that they are essential for an economy, it does bother me (at least enough to respond to you) because you’re so blithely dismissing an example of a people who decided not to do what you advocate.

                      As for changing the question, no really, I’m asking you to understand the fundamentals of what you’re advocating. In fairness, you’re close in that you admit that it’s a trade-off. But your assumptions are ones that not everyone shares, for example that GDP growth is essential and only achievable through increased demand for products created by an an increased supply of people. At least you’re backtracking now and saying it can come from innovation too.

                      Yes, yes, there are some jobs that only people can do. Sure. No one is saying the Japanese people are going to disappear, though.

                      Finally, saying that home labor is unpaid is a fallacy, because there a market for it; nannies, cleaners, surrogate motherhood. Due to opportunity costs and low incomes, most people just do it themselves.

                    8. @mad,

                      “because you’re so strongly saying they are wrong for doing so (the “demographic shit bomb” as you repeatedly call it)…”

                      You’re misinterpreting what I’m saying. The demographic shitbomb is the problem they’re trying to address. That demographic shitbomb is itself a function of private decisions by Japanese to not have children. I have no problem with those decisions. People are free to do whatever they want. I happen to think people should be having fewer children. So good on them.

                      “…because you’re so blithely dismissing an example of a people who decided not to do what you advocate.”

                      I’m not blithely dismissing them. I’m just pointing out that Japanese economic growth has been fed in large part by massive government debt expenditures. I am weary of doubling or tripling America’s debt, if the alternative is importing competitive workers.

                      “Finally, saying that home labor is unpaid is a fallacy…”

                      There’s no benefit to engaging you in some semantic thought experiment. People who “do it themselves” are not paid, are still performing work that benefits people. Avoidance of the opportunity costs is the payment, it just isn’t reflected in GDP. I’m open to criticisms of GDP as a measure of productivity, but that’s neither here nor there because I’m disinterested in engaging with you on your strange non-sequitur re: what you think I’m advocating for about women. You’re wrong about that, too.

                  1. I read as far as I could stand into this.

                    It is incoherent. Complete nonsense.

              2. That would indeed be a “huge advantage” — from the perspective of someone who thinks being around people who don’t look like him is a bad thing.

                1. The deep-seated racism of folks like David Nieporent is quite a thing to behold. They are constantly projecting their preoccupation with skin color onto others, ignoring the simplest of issues economic and legal that even a 3rd grader can understand.

                  1. Do you talk like this in real life?

                2. I thought diversity was valuable? How do we get that value if we throw every country in a blender?

        2. I work for a Japanese company. They do not have -zero- immigration. Walking through our Japanese offices you will see dozens of nationalities. And Japan recently announced plans to increase immigration especially for lower skilled positions.

          Immigration is an absolute requirement for a healthy and growing economy.

          1. regexp, they have close to zero permanent immigration. They have a limited guest worker program, and those are not a pipeline to permanent residency or citizenship. To become a citizen, you have to pass a Japanese fluency test at a level that is very difficult for those who didn’t grow up speaking it.

            Immigration is not a absolute requirement for a healthy and growing economy. What makes you believe it is? And if it is, what happens to the place where people leave, are they destined to have an stagnant economy?

            1. “They have a limited guest worker program, and those are not a pipeline to permanent residency or citizenship.”

              Right, they have foreign workers competing with domestic workers. That’s immigration.

              “Immigration is not a absolute requirement for a healthy and growing economy. What makes you believe it is?”

              A labor pool sufficient to meet demand, is. Immigration–including illegal immigration–is just a symptom of competing demands for labor in two different places. Whether it’s me leaving my law firm to work across the street, or me moving to London to join a law firm there, that’s just labor competition. And labor competition is a necessary component to a healthy and growing economy.

              The better question is what makes you think Americans will be more productive if they never have to compete with anyone else, again?

              “…what happens to the place where people leave…”

              They have to pay their workers more to retain them. If they’re unwilling to do that, it simply reflects that the person who moved is more valuable to the place where they moved, than he is to the place he moved from. Which means the transaction isn’t zero sum; the receiving country is better off than the losing country is hurt.

              1. No, the Japanese guest worker programs are for roles that DON’T compete with native citizens (deliberately, by policy design), and they are NOT allowed to transition to permanent residents or citizenship. Thus, that is not immigration. You think the guest workers in Qatar are immigrants too? Think again.

                You’re also focusing on the supply side and neglecting the demand side. Supply doesn’t create it’s own demand, and lack of supply doesn’t always increase demand because people find alternate means or similar goods. In this case, for the Japanese, they are using automation.

                1. “No, the Japanese guest worker programs are for roles that DON’T compete with native citizens (deliberately, by policy design)…”

                  We must be talking past each other re: the definition of “compete”. The Japanese guest worker program brings in foreign workers to take on, for example, hotel, nursing home, and food-processing plant jobs. These are jobs that, without the foreign labor, will have to be performed by domestic people. The purpose of bringing in the outsiders is that they are willing to perform the work for cheaper than domestic workers. We call this competition.

                  “In this case, for the Japanese, they are using automation.”

                  You may not be aware of this, but they are also using foreign workers. The number of foreign workers in Japan has roughly tripled in the last 10 years, with most of the growth in the last 4 years. With the overall population shrinking, if this trend continues it will not be long before Japan has the same percentage of foreign workers as many European countries.

                  1. No, I am quite aware that the Japanese are allowing some foreign workers in, temporarily, without a chance of citizenship or permanent residency. They also took in about 10 refugees too. We are talking past each other, to the extent that you think that a guest worker program is immigration. It’s not.

                    Here’s where we are talking past each other. I’m not going to claim that the labor market is frictionless is Japan, but if there was domestic labor available for the going market wages for elder care in Japan, then they would be competing with domestic labor. There is not even a supply of domestic workers for elder care. Because of limited resources (both personal and taxpayer) labor in Japan finds a higher more valuable use for their labor elsewhere, furthermore, there will not be an market response to pay higher wages because of limited resources, thus limited quantities of foreign labor are brought in where there isn’t domestic labor. That is not competition…that’s outsourcing.

                    1. “Because of limited resources (both personal and taxpayer) labor in Japan finds a higher more valuable use for their labor elsewhere…”

                      Because they’re not willing to perform the work for the pay offered. Whether we call this an absence of “domestic labor” is irrelevant. There is domestic labor, just not sufficient numbers of people willing to do it at the price the market will bear.

                      We agree that there is a different kind of pressure in Japan, in that because of its age problem, there are jobs that need to be done, but just not enough people to do them. But Japan cannot solve that problem today except by importing the labor. Maybe in the future automation will sufficiently decrease the number of jobs that need to be done, but that isn’t where Japan is at, today. Which is why, predictably, they’re looking to import labor. Because that’s the only other solution, short of letting the elderly die in the street, or having the government pay, or mandate higher pay, for elder care, construction, etc.

      2. “we need at least 3-4 million legal immigrants a year for a healthy economy”

        The peak year for new permanent residents was 1.9 million in 1991, next highest 1.283 million in 1907.

        1. You left out the first part. If illegal immigration were reduced to zero we would need more legal immigration to make up the deficit now provided by illegal immigrants.

        2. I’m not an expert on labor markets.
          It just struck me that allowing about a 1% population rise via healthy, legal, adult immigration–with whatever screening process you want to impose–would be good for the overall health of the economy.

      3. Do you have any actual data to back that up? Here are the immigration numbers from 1830. I challenge you to find a correlation between healthy economies and immigration exceeding 3 – 4 million legal immigrants each year.

        https://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/table01.xls

        1. I’m interested to hear what the point is you think posting a link to that chart, and your specific reference to 1830, is making?

          As an aside, the US had more than 2 million slaves in 1830.

          1. I think he made a typo, the chart goes back to 1820.

            The point, the same one I made, is that we have never had 3-4 million immigrants so [contra Smooth] we certainly don’t need that many for a healthy economy.

      4. Smooth:

        That’s a reasonable position to stake out. Would you then agree that 6-8 million would be suboptimal? And much higher numbers potentially harmful?

        1. Also your position is the one Trump has elucidated, calling for immigration in “higher numbers than ever before.”

      5. If the purpose of immigration is to ensure a healthy economy, would it be prudent to ensure that the “3-4 million legal immigrants” are net economic contributors, rather than net economic drains?

        1. Immigrants are net economic contributors, especially in comparison to native borns.

          1. NToJ, you’re missing a whole ton of negative externialities. To start, reduced wages for citizens. It was found, for example, that the mass influx of low-skilled Cuban workers to Florida in the 1980s from the Mariel boatlift “caused the average wage of the least-skilled Miamians to drop dramatically, by 10 to 30%.” What has this done nationwide? Difficult to quantify exactly, but don’t complain about 30 years of stagnating wages and incomes when simultaneously advocating for 3-4 million immigrants a year.

            And not to mention an increased crime rate. Also, while this maby be conflating illegal and legal immigration, the U.S. Sentencing Commission reports that noncitizens (about 7% of the population), receive 22% of federal murder convictions, 18% of fraud convictions, 33% of money laundering convictions, and 29% of drug trafficking convictions.

            1. He meant they are net economic contributors to wealthy employers.

              That’s true, because our interventionist mass immigration policy is just another wealth redistribution scheme. It redistributes $500 billion from the pockets of poorer Americans to wealthier Americans. It also socializes $50 billion in taxpayer burden of immigrants while privatizing the gains.

              https://www.politico.com/magazine/story/2016/09/trump-clinton-immigration-economy-unemployment-jobs-214216

            2. “To start, reduced wages for citizens.”

              What makes you think I’m missing this externality?

              “…the U.S. Sentencing Commission reports that noncitizens (about 7% of the population), receive 22% of federal murder convictions, 18% of fraud convictions, 33% of money laundering convictions, and 29% of drug trafficking convictions.”

              What’s your source? I went to the US Sentencing Commission’s Interactive Sourcebook of Federal Sentencing Statistics and found this. It has murder at 10%, not 22%. It will also show that non-citizens are generally underrepresented in violent crimes (like assault, robber, auto theft, burglary).

              You’re absolutely correct re: drug offenses. For example, despite making up only ~7% of the population, non-citizens account for 60.8% of “Drugs – Simple Possession” crimes at the federal level. Do you suppose this is because non-citizens are that much more likely to possess drugs than citizens?

              1. Link

                Nice to know you’re comfortable making your fellow citizens worse off through the importation of non-citizens. Mask is off I suppose.

                1. Here’s the data. The article you rely on, and which was relying on a Tucker Carlson graph, was for 2016. It’s an outlier year, and the data sets are tiny (around a dozen a year).

                  “Nice to know you’re comfortable making your fellow citizens worse off through the importation of non-citizens. Mask is off I suppose.”

                  The people who hire immigrants are citizens too. The people who enjoy the benefit of their labor are citizens, often the same citizens who are having their wages depressed. I’m not going to apologize for supporting competition, and I’m not going to be convinced to turn into a socialist just because competition is harming native workers. Capitalism is premised on competition that is going to be potentially ruinous for the loser. That’s cruel and unfortunate, but also necessary in a world with finite resources.

                  In any event, one solution for the depressed wages is to tax the net economic benefits enjoyed by competitive foreign labor, and reinvest some of the money into the domestic losers. Most economists view this as more efficient than banning labor markets. So do you support taxation to accomplish this? What about raising the minimum wage? If you are opposed to raising the minimum wage, would you like to borrow my mask?

    2. Or, hear me out: keep allowing immigration, and deport a whole bunch of useless native born people instead.

      1. Nieporent:

        Sure, why not? Just take life liberty and property from people with impunity.

        Hear this one out, if people disagree about stuff so vehemently and seem to have contempt for one another, why continue having them impose their views on each other?

        Instead, just agree to disagree. Dissolve the federal government and let states govern their own affairs.

      2. Point: Replacement theory is garbage.

        Counterpoint: “deport a whole bunch of useless native born people instead.”
        “Amen”

        1. I’m not sure what this latest “replacement theory” talking point is, except that it apparently originated from the wacko mass shooter (not the attacks on ICE, though there have been 4 of those in a month and 2 in TX just yesterday – you might have missed it in the media).

          But anyone who didn’t notice the plot to replace American voters with new voters more amenable to “progressive” anti-American agenda, just hasn’t been paying attention or is lying because they’re in on it. I mean, they’ve announced their intentions in countless op-eds.

  5. “the proper solution is not migration restrictions, but limitations on the actual welfare benefits themselves.”

    It would be interesting–not particularly pleasant, but interesting–to live in ImpossibleLand, the libertarian paradise, where borders are open but individuals who can’t get jobs beg in the street until they starve to death. Also, drugs are legal, but those who overdose are allowed to die and their corpses rot until the nearest landowner determines that the smell is reducing his property value, and dumps the body somewhere. There is, however, no possibility of any actually existing society organizing itself on such principles.

    1. Where is the record of that happening in the US when we did have open borders (the first immigration legislation wasn’t passed until the 1880s and that was only against the Chinese – most of it didn’t start to kick in until the 1920s), all drugs were legal (prior to the 1910s), and there were no government welfare handouts (prior to the mid 1930s)?

      1. Huh? The “Old Poor Law” was enacted in 1601, formalizing earlier practices.

      2. incorrect, the first immigration legislation was passed by the first congress in 1790, it said

        “provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were “free White persons of good character”.”

        than it progressively got harder in 1795

        The 1795 Act differed from the 1790 Act by increasing the period of required residence from two to five years in the United States, by introducing the Declaration of Intention requirement, or “first papers”, which created a two-step naturalization process, and by omitting the term “natural born.” The Act specified that naturalized citizenship was reserved only for “free white person[s].” It also changed the requirement in the 1790 Act of “good character” to read “good moral character.”

        1798 got even harder

        “increased the period necessary for immigrants to become naturalized citizens in the United States from 5 to 14 years”

        then the 1802 one added a few other provisions

        The United States Congress passed the Naturalization Law of 1802 on April 14, 1802.[1] The 1802 act replaced the Naturalization Act of 1798, and provided:

        The “free white” requirement remained in place
        The alien had to declare, at least three years in advance, his intent to become a U.S. citizen.
        The previous 14-year residency requirement was reduced to 5 years.
        Resident children of naturalized citizens were to be considered citizens
        Children born abroad of US citizens were to be considered citizens
        Former British soldiers during the “late war” were barred unless the state legislature made an exception for them

  6. It must be wonderful, Ilya, to be able to read Trump’s mind, from a distance, no less, to determine the motivation of this policy, other than as it stands at face value.

    At face value, by the way, it is perfectly consistent with the law. He is simply enforcing it.

    1. Would that a lot more laws get rejected because of the smarmy real reasons behind legislation, rational basis through strict scrutiny be damned.

      1. And who is to determine what the “real reasons” might be? Ilya? The media? Some administrative soothsayer? Perhaps a government commission? Ha!

        Progressives always seem to know the “real reasons” Republicans, conservatives, or Trump and his minions do or say anything. It’s racism, bigotry, anti-immigration, white supremacy, all of the above. Right?

        1. Would one argue most laws are self-serving to powerful interests? That’s why governments exist around the world and are lousy witj corruption — corruption is the goal and originator of the government impulse, not an unfortunate side effect.

          This country tries a novel approach to tamp that down, but is still behind many if not most laws, and intregral to the final forms of almost all.

          I have no magic way to determine this, but am fine complaining about its pervasiveness.

          And my point is not as far from you as you may think. My point is the left is just being fair weather friends to the principle that laws or regulations (or presidential orders) should be rejected by courts for impermissible “real, behind the scenes reasons”, and will conveniently start giving it very low weight the next time they have the presidency.

    2. “It must be wonderful, Ilya, to be able to read Trump’s mind, from a distance, no less, to determine the motivation of this policy, other than as it stands at face value.”

      Because it’s not at all like Trump and his policy staff have ever said they’d like to cut back on legal immigration. Where could that crazy idea have come from?

      1. That the administration would want to cut back on legal immigration is immaterial to this matter; the immigration topic is not one-dimensional. The law says, and many people support, that someone who is likely to become a public charge is not eligible ti immigrate. Why not just say his motive is to enforce the law, and to make immigration legal and rational again?

        1. Re-read the text I quoted, please.

          Speaking personally, I don’t believe that Trump’s motive is to “enforce the law”. If this newly announced policy is to “enforce the law”, WTH was he doing before the new policy?

  7. Welfare should be reserved for American farmers and oil/coal companies.

    1. If it weren’t for the left being batshit crazy and Jimmy Carter being a complete asshole, oil and coal power plants would’ve been almost entirely replaced by nuke/nat gas plants at this point in time. As for farming subsidies, that bipartisan knot is going to be a bitch and a half to solve.

      1. Portland General Electric took their one nuclear plant offline and decommissioned it because they couldn’t keep it running. The Washington Public Power Supply System had plans to build 5 nuclear plants, but only completed one before defaulting on the bonds used to finance the project. One of the remaining four was later completed and brought online.
        Say, when will the nuclear-waste containment facility be completed? We’ve only been accumulating radioactive waste for 70 or 80 years now…
        Japan invested heavy in nuclear power plants… want to buy some prime waterfront property at Fukushima? TEPCO is a really motivated seller… I bet you can get a GREAT price.

        1. I’d go for some of that, if I lived in Japan. Since, you know, the radiation level isn’t significantly above normal background levels in many places people live without hysteria, and was only locally dangerous even during the incident.

          Yes, it’s true, nuclear power was kind of stillborn in the US, or maybe infanticide would be a better term. One of the few cases of regulatory capture I know of where regulation of an industry was captured by people who wanted the industry to die, rather than by the industry itself.

          1. “Since, you know, the radiation level isn’t significantly above normal background levels in many places people live without hysteria”

            The background radiation is high enough to destroy the electronics of the robots they keep sending in the explore the ruins.

            1. Nobody is saying they want to live in the ruins of the power plant.

              1. … Except Brett.

    2. Don’t forget the banks and Wall Street.

  8. “Helpful analyses by … Reason’s Shikha Dalmia”

    Possible but highly, highly unlikely. Even more unhinged on immigration and Trump than Somin.

    1. Once one saw the reference to Shikha, one knew that ignorance would abound in the article!

  9. Sounds like Trump is shoring up his base for re-election. Hope he doesn’t cave to the gun ban lobby either.

  10. What’s the point of them coming here if they need public assistance?
    Don’t want to be separated? Stay in your country.

    1. Agreed. Financially, it would be cheaper to send $ and other types of aid directly to the poor huddled masses yearning to breathe free in 3rd worldistan than to allow them to come to the West. However, that inevitably wrecks their economy and creates dependency.

      1. Investment, not aid. Any society that requires outside assistance to continue its existence should be allowed to go extinct.

      2. ” Financially, it would be cheaper to send $ and other types of aid directly to the poor huddled masses yearning to breathe free in 3rd worldistan”

        The jobs have been flowing that direction for several decades. Don’t believe it? Pop down to WalMart and pick up some American-made Nike shoes and an American-made Iphone so you can make some calls while you watch your American-made flat-panel television.

        1. Your geographic definition of the 3rd world, where the immigrants are coming from, is *way* off base, if that’s where you think the iphone is made, or a flat panel television.

          1. “Your geographic definition of the 3rd world”

            So terribly sorry. Mind providing a map with the current location of 3rd-worldistan on it?

            1. Ask, and ye shall recieve : Collective name for most of the nations of Africa, Asia, Latin America, and the Middle East, many of which share a colonial past and are variously termed as developing, less developed, or least developed countries. Sweden, Finland and a few European countries are are included in the archaic meaning of the term, but only because they were non-aligned during the Cold War

              I added the “-stan” and an insult, but the 3rd World is commonly (sorry, but it’s common knowledge) also the parts of the world with Islam.

              1. “Ask, and ye shall recieve :”

                I asked for a map with 3rd-worldistan on it, and you provided a map that does not have 3rd-worldistan on it.

                Want to try again, or admit you’re all hot air?

  11. Since Professor Somin, who is an intellectually honest libertarian after all, suggests limitations on welfare benefits as a solution, I respectfully request that he presents his proposals for these limitations. These, of course, would include the costs of education for the children, health benefits, etc. They must be able to survive injunctions by Hawaiian Federal Judges and the entire 9th. In case such limitations are actually imposed, I am certain that Professor Somin would be eager to defend them in court.

  12. “the proper solution is not migration restrictions, but limitations on the actual welfare benefits themselves” which will never happen because political hacks have figured out that giving away free stuff = votes.

    1. By “will never happen” you mean “are already law”, presumably.

  13. “a record that gives the lie to oft-heard claims that the administration only objects to illegal immigration.”

    Doesn’t have to be a lie. Just that they are *also* trying their best to reduce legal immigration as well. After all, if you can make all immigration illegal, then all immigration is objected to quite legally.

    1. I’ll come out and say it. I don’t care about “legal” versus “illegal.” I don’t want any 85 IQ mestizos or jihadist Muslims immigrating here, whether they’re doing so legally or not.

      1. Decent folk don’t want you near them, either, but there you are.

        1. RestoreWH is a Russian troll. Not sure if it’s a ‘bot or not. I would not take its posts seriously. No one else does, after all.

          1. Right, everyone who doesn’t buy into your globalist, one world government, “Diversity is our strength” mantra is a Russian troll. Keep on believing that.

          2. ” I would not take its posts seriously.”

            Have no fear on that account.

          3. Sounds like you are describing the good Rev AK.

      2. Serious question for RWH.

        Would you be cool with a DNA test for South Americans or Mexicans, like Israel does to Russians seeking to emigrate to prove Jewishness? If they showed that they were, what, 90% white (Spanish) they would be allowed to emigrate?

        1. I’d rather just do an IQ test, but if that wasn’t available, then yes. There’s a reason that Cuban immigrants have been very successful here, while others have not. We got mostly Criollos.

          1. Cuban immigrants, the first wave, were successful because they were the capital and bourgeoisie class prior to the Revolution, regardless of racial status. They just started another business in Florida. They weren’t, also, the type of people who would accommodate themselves to a Marxist dictatorship, like later Cuban immigrants; those are the types of personalities you don’t want in a capitalist society.

            1. Agreed. I should have specified Cubans from the first wave, not the Mariel boatlift types. I agree that personalities and culture matters as well. There’s a reason why the lily white Argentina is a mess. But while white Catholics can assimilate into the white Protestant culture (ours), non-whites have a much harder time with it.

    2. The persons authorized to speak for the administration have been quite open that they’d really like to cut off immigration to just rich white people who bring their money with them.

      This approach is neither practical nor popular (to the wider population… I imagine it has some popularity among rich white people.)

      1. Sounds good to me. We don’t need more people.

        1. “Sounds good to me.”

          That is why it will fail.

  14. “I am in favor of allowing in immigrants who will be a taxpayer burden” said no winning politician ever.

    Democrats will be forced to defend their lawsuits allowing immigrants to be on welfare, GOP will win by a landslide.

  15. You are absolutely insane. We’ve been fed the lie for years that all immigrants, legal and illegal, are net boons to the economy and government budgets, and now we’re being told that we shouldn’t exclude people who will be permanent welfare cases? Were you lying then, or lying now?

    1. To quote somebody, “Embrace the healing power of ‘and’.”

  16. When I learned in 1950 that the population of our country was about 150 million – I thought, about enough. Today we have over twice that many . . . people are living in shacks and defecating in the streets. At any rate, will Somin be offering free public use of his lawn and indoor toilet facilities? If not, his agenda is suspect.

    1. WJack,
      …and when you learned that, in 1930, the population was 30 million less than in 1950, and there still were people living in shacks and defecating in the streets . . . did you think that this fact supported or weakened your argument?

      1. Except there weren’t. Even during the depression, there was basically no crime that wasn’t attributable to Prohibition/the Mafia. Why is that?

        1. “Why is that?”

          Active revisionism?

  17. 8 USC §1182 Inadmissible aliens.

    (4) Public charge
    (A) In general
    Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
    (B) Factors to be taken into account
    (i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-
    (I) age;
    (II) health;
    (III) family status;
    (IV) assets, resources, and financial status; and
    (V) education and skills.

    1. So with limited legal immigration slots, we’re going to prefer people who won’t go on welfare? If that is unfair, then the current policy is unfair to productive immigrants who are being denied because too many future welfare recipients arrived ahead of them.

      I haven’t taken a poll, but this new policy likely has huge majority support in the US. Fringe ideologues and deranged Trump haters won’t like it. The rest of the country will strongly approve.

      1. “So with limited legal immigration slots, we’re going to prefer people who won’t go on welfare?”

        Wouldn’t it be easier to just say that recent immigrants aren’t eligible for welfare? Oh, wait… we already do that.

        1. No, but their “citizen” thuglets are eligible.

        2. If they’re likely to have kids what difference does it make? Their kids will be citizens eligible for welfare. If you’re likely to have kids who are going to use welfare programs, we shouldn’t let you in.

          1. “Their kids will be citizens eligible for welfare.”

            So are yours. Get out.

            1. Our kids have higher average IQs than these third world invaders, so they’re much less likely to use welfare.

              1. YOUR kids won’t, unless they’re adopted.

    2. Gee, that statute really cuts across Prof. Somin’s contention that this is an “executive power grab” and “unauthorized by Congress.”

      The only reasonable conclusion is that President Trump enacted this statute unilaterally.

    3. The fact that Ilya claims that the regulation violates the statute, but doesn’t show the legal analysis, is an embarrassment to him, and frankly to the Conspiracy.

  18. Not to mention the traffic in nearly every urban area has become intolerable. And our infrastructure is crumbling. Why do we need tens of millions more people, especially low IQ, uneducated ones?

    1. They’re needed to do the jobs Americans won’t. Like voting Democratic.

      1. Pretty much.

    2. “Not to mention the traffic in nearly every urban area has become intolerable.”

      Nobody goes there anymore. It’s too crowded.

      1. A funny line, but not applicable here.

  19. “The Trump Administration’s New ‘Public Charge’ Rule is a Plan to Cut Immigration”

    Well,duh.

    1. Well, other than the fact that it isn’t a new rule, and it likely won’t cut the total number of legal immigrants to the US… duh.

      1. “likely won’t cut the total number of legal immigrants to the US”

        Trump is incompetent, water still wet. Details at 11.

        1. Attacking Somin’s strawman doesn’t make your point valid, JP.

          1. You’re under the impression I’m quoting Somin?

            1. You are using Somin’s magical claim that the purpose of this enforcement is to reduce the number of legal immigrants allowed into the country – his strawman.

              It is possibly you independently came up with the same strawman, and used in it in the comments of a post featuring Somin’s, but in that case it makes you look bad for both attacking your strawman as if it were a serious argument AND not having read Somin’s post that you are commenting on.

              1. Interesting claim, in that I’m quoting you. I suppose I made YOU up, too?

    2. The Trump Administration’s New ‘Public Charge’ Rule is a Plan to Cut Immigration

      Gallup reports that 150 million people worldwide would migrate to the U.S. if they were able to. U.S. law provided in 2016 for an annual limit of 675,000 permanent immigrants. Is this an argument that from the 150 million there cannot be found 675,000 annually who meet the requirements?

  20. Another rousing meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies And Practices.

    Carry on, clingers. Until you are replaced. By your betters.

    1. So you’re admitting that your primary purpose in importing Latin American mestizos is to replace us electorally?

      1. So, the mestizos are your betters? Interesting admission.

        1. Given that they’re short, generally physically unattractive, genetically unintelligent, genetically prone to violence and alcoholism, that would be a weird admission.

          1. Could we have a contest between Kirkland and RWH where they try to come up with the strongest insults they can think of against the racial groups they hate?

          2. “that would be a weird admission.”

            That’s what I said, although I used “interesting” rather than “weird”.

            So the short, unattractive and unintelligent folks are nevertheless better than you, by your admission. Must be true. Ouch.

    2. Carry on, clingers. Until you are replaced. By your betters.

      Standard Nazi fare from Rev. Arthur L. Kirkland: dividing people into Untermensch/Ubermensch, population replacement and ethnic cleansing, etc.

      1. Also like the Klan. They dream of a nation cleansed of people who aren’t like them. Same obsessed hatred, same evil, their slurs sound different but communicate the same vain malevolence.

        In the end they are predictable, thoughtless, and dull. Mentally healthy people can’t really engage. And with the news media providing a sort of reinforcing therapy-in-reverse, there’s little hope for a return to balance. It’s sad how many people are lost this way.

  21. I think a key difficulty with Professor Somin’s argument is that the rule appears to track the language of the statute pretty closely, right down to determining if immigrants are likely to be public charges as distinct from whether that actually are. For this reason, any objection to the rule would seem to be an objection to the statute.

    Courts have regularly struck down restrictions on the use of abortion for eugenics purposes as unconstitutional. In the abortion context, “eugenics is immoral” seems to be yet another morality argument of the sort the court’s have a long history of finding insufficient to justify restrictions on freedom of choice.

    Once again, why should immigration be any different? Morality has its place, yes, but it doesn’t, indeed constitutionally can’t, prevent people from making the choices they feel they need to make to get ahead in life. Nations have never been regarded as any different in this respect in their choices regarding foreigners.

    1. I have some issues with your phrasing. I presume the constitution to be a moral document in the sense that it can legitimately be enforced.

      If the Constitution were immoral, people shouldn’t be swearing or affirming allegiance to it – they should be overthrowing it. For instance, if I actually believed the Constitution legalized eugenic abortions, I would think it was an immoral document which needed replacement with another Constitution.

      As it happens, I don’t think the Constitution legalizes any kind of abortion – that’s just something some (male) judges concocted because they felt like it.

      1. In general, although I wouldn’t say the Constitution is equivalent to a generic command to “go forth and be moral,” it does reflect a perfectly legitimate moral vision when legitimately interpreted.

        1. I wouldn’t go that far, because the powers it does give Congress could easily be used in a constitutional manner that was immoral.

          But it’s certainly more consistent with moral governance than unlimited government would be.

          1. “But it’s certainly more consistent with moral governance than unlimited government would be”

            Meh.
            Most religions claim to be arbiters of moral choice, and also most of them command complete and total obedience to a deity of unlimited power that… coincidentally… has established a framework of people to carry out divine goals, here on Earth. Death to the unbelievers!

            1. That’s a particularly stupid misunderstanding of the idea of free will found in Judaism, Islam, and Christianity.

              1. Let me apologize and rephrase that as plumb ignorant, and not stupid.

                1. You reserve “stupid” for yourself, then. Fair enough.

                  1. For myself, no, my initial take may still be correct, in that stupid and ignorant do have a lot of overlap (which would entail you). However, I was giving you the benefit of the doubt. Maybe nobody has ever explained, your you’ve never read, the paradox of free will.

                    1. “stupid and ignorant do have a lot of overlap”

                      By which you mean none at all.

                      Ignorance can be corrected by education. Stupid is forever.

  22. I would add that the administration’s plan to massively restrict immigration based on bureaucratic determinations about potential future welfare usage is based on reasoning similar to that of early 20th century eugenics advocates, who argued that we must use the power of the state to preclude people from having children, if government experts determined that they were likely to become dependent on welfare.

    Somin’s contemptible views and statements make even Trump look like a decent human being in comparison.

    1. Part of his derangement is that he’s losing the capacity to be charitable with people who disagree with him. This is a natural consequence of thinking your own views are so self-evidently true that even people who claim to disagree with you actually agree with you about what’s the right thing to do, and are consciously choosing to do the wrong thing.

      1. ” This is a natural consequence of thinking your own views are so self-evidently true that even people who claim to disagree with you actually agree with you about what’s the right thing to do, and are consciously choosing to do the wrong thing”

        You know that reference about the splinter in my eye vs. the beam in yours? Seems applicable.

      2. Isn’t that par for the course for liberals?

        1. You mean too quote the Bible at someone while just upthread disparaging out of ignorance Biblical religions?

          Yep, pretty much.

          1. Assuming you meant to point this at me, and not the Russians, yep. Pretty much.

            1. You’re on fire…how many more inane things can you shit out in one comment thread, only time can tell.

              1. Your record is safe.

  23. Every nation limits it’s immigration and is vigilant about illegal immigration so it seems specious that the authors would cast an interest in reducing illegal immigration as a covert interest. But to suggest that financial concerns are insignificant while pointing to contrived data is also problematic.

    But their term “straining the welfare state” is also an exaggeration (linked to a WP article behind a paywall) followed by their solution, the 100% non-viable “cutting benefits” (it would have already been done if it could have been done), yields a net Gary Johnson.

    There is no logic to open borders it can only be explained using misleading arguments and unfounded evidence.

    1. There’s is no logic to your delusional fantasy that open borders have any relevance at hrhere.evan efr r

      If you also believe the “alt-left” started the violence and murder in Charlottesville, then you most certainly have a gold medal, personally signed by Donald Trump.,

      https://reason.com/2019/08/13/the-trump-administrations-new-public-charge-rule-is-a-plan-to-cut-immigration-not-reduce-burdens-on-the-welfare-state/#comments

  24. Wow! This is THE most insightful report I’ve seen, and I read a lot of news and commentary sites.

    Can Ilya win a Pulitzer, if published from this site?

    1. Duranty got a Pulitzer, so the standards aren’t that high.

  25. Shikha Dalmia? Seriously?

    I knew things were getting worse with Ilya and his posts but I didn’t realize he was scraping the bottom of the barrel for Progressive fanatics like Shikha to support his worthless contentions.

    Truly sad.

  26. “For many potential immigrants being forcibly condemned to a lifetime of poverty and oppression in Third World societies (and separated from close family members in the US, to boot), is an imposition comparable in magnitude to the mandatory sterilization once defended by Holmes and others.”

    Oh come on now. They are nothing alike. I generally agree with you that legal immigration should be much, much, easier, and not subject to central planners’ ideas of how many of people of just what kinds would be best for the country.

    But stuff like this is just ludicrous and you lose anybody with a shred of rationality by making that comparison.

  27. ” For many potential immigrants being forcibly condemned to a lifetime of poverty and oppression in Third World societies (and separated from close family members in the US, to boot), is an imposition comparable in magnitude to the mandatory sterilization once defended by Holmes and others.”

    So …. a few billion people have a right to come in, and we can do nothing about it?

    1. Wrong! We can also, in addition to letting them come to the U.S. in unprecedented numbers, start wars of liberation (like we did in Iraq and Afghanistan) in those 3rd World countries. I am sure, like when we took Paris, the people will throw flowers at our soldiers’ feet (rather than shoot at them like in Somalia) when we come to set up stable democracies in tribal backwaters.

      Colonialism is cool again!

      1. You forgot to put “stable democracies” in scare quotes.

      2. Colonialism only works if you accept that you are leading a less advanced people. You must rule them for their benefit. If you think you’re going to set up a Western style democracy among a group of 80 IQ jihadist savages, you’re going to be sorely disappointed.

      3. I thought my comment was over-the-top hyperbole, especially given away by the point about flowers vs. bullets, but then I forgot that this is the internet and there are likely people thinking we can set up stable democracies in shithole countries.

        1. Yes, I saw the hyperbole. But it’s not just on the Internet. Bush thought we could nation build, and thought so sincerely.

          1. It was a defining characteristic of the neocons. Back in the day, Reagan had it, too.

    2. They are also owed US government benefits.

      I wonder if he thinks they should get benefit checks retroactive to their birth. Or retroactive to whenever they had a hardship in their homeland. Or just whatever arbitrary number anyone wants. Why not?

  28. a record that gives the lie to oft-heard claims that the administration only objects to illegal immigration.

    This argument is disingenuous. The distinction between legal and illegal immigration is not just a matter of legal formalities — filling out the forms and waiting in line at the U.S. consulate. It is also a matter of the United States, as a sovereign power, having control over who may immigrate, based on some consistent criterion.

    Congress sets the rules of what the immigration policy is, and the Executive is supposed to carry it out. Congress enacted a rule that anyone who “at the time of application for admission or adjustment of status, is likely at any time to become a public charge” is not admissible. The proposed rules simply carry out that mandate.

    If you simply ignore Congress’ mandate in the interests of open borders (wink, wink) then you have eviscerated the whole distinction between legal and illegal immigration. Perhaps Prof. Somin considers that positive. I don’t.

  29. Could someone clearly present the reasons why there should be no restriction on immigrants who would be unable or unwilling to support themselves, assuming that a reasonable test could be found to identify such people?

    Is it the principal objection that the new rules are too inclusive, in that they apply to people who really are self-supporting?

    How would the new rules reduce legal immigration? Why from among those wishing to immigrate to the U.S. would there would not be enough of qualified people to supply the number permitted to immigrate annually?

    Why would the proposed restrictions fall more heavily on certain races or religions or ethnic groups?

    1. I think the principle reason is just that it wouldn’t personally hurt the people making the argument, and the psychic benefits from knowing those people were permitted to come here would far exceed the damage to their countrymen, to the extent that matters at all.

      Open borders advocates seem positively proud to put no more value on the welfare of their fellow citizens, than they do anonymous people thousands of miles away. But somehow we fellow citizens are supposed to care about their opinions anyway.

      1. Exactly. It’s the same reason they support silly rules like “assault weapons bans” and “transgenders in bathroom” laws. They support these things precisely BECAUSE you don’t.

    2. Why would the proposed restrictions fall more heavily on certain races or religions or ethnic groups?

      Is there an implicit assumption, on the part of those claiming that this rule is racist, that certain races are inherently more likely to be excluded by the rule because they have lower ability or are less industrious?

    3. One argument seems to be that the new rules will “shift legal immigration away from Latin America and towards Europe in particular.” Is this the foundation of the charge of racism? Let’s stipulate that the new rules disfavor those without education, skills and/or a willingness to work, since it is more difficult for those people to support themselves without public assistance. Are there insufficient numbers of people with these qualities who want to emigrate from Latin America?

      Furthermore, if it is true that the education, skill and/or diligence standards in Europe are higher than those in Latin America is this because of racial differences or cultural differences? The person who asserts the former is a racist. The argument must be that the exclusion of immigrants who appear to lack the ability and willingness to support themselves without government assistance, in favor of those not so lacking, is a subterfuge since such criteria should have no bearing on qualification for immigration. But this is not true, and even if it were doesn’t a person who charges that this is racial discrimination have to assert that these differences between people have a racial foundation?

      Aren’t there plenty of potential immigrants from all races and cultures?

  30. Democrats buy votes by promising free stuff to the have nots. It’s no surprise they want to import more “have nots.”

    1. “Democrats buy votes by promising free stuff to the have nots.”

      So do Republicans. This is not exactly a revelation or recent development.

  31. “The Trump Administration’s New “Public Charge” Rule is a Plan to Cut ILLEGAL Immigration…”

    Fixed it for you. You’re welcome.

    1. Well, no, that’s just wrong. This rule is about how many and what people are allowed to LEGALLY immigrate.

      1. You could improve both legal and illegal immigration by allowing people to legally come in, and stay if they can support themselves but remove them if they can’t/won’t/don’t support themselves (or find private sponsors)

  32. I think a fair reading of the situation is that Congress passed a harsh law by past administrations interpreted and enforced it very leniently. The current interpretation seems within the plain meaning of what the law says. An administration is entitled to tighten enforcement of laws they prioritize as long as they stay within the meaning of the statute. And this does. In other words, the administration is restoring what Congress had said it wanted.

    There can be many criticisms of the Trump administration. But on this issue, flouting the law doesn’t seem to be a legitimate one here.

    It’s important to first interpret what laws mean neutrally, then say whether one agrees with their policy or not. The law itself may not be good policy. But from a neutral, plain meaning perspective, the proposed Trump administration rule is closer to what the law says than the previous rule was.

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Animals Aren't "Individuals" for Freedom of Information Act Purposes

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In yesterday's Ninth Circuit decision in Animal Legal Defense Fund v. U.S. Dep't of Agriculture, the ALDF had asked that a Freedom of Information Act request be expedited; the statute calls for such expedited processing when "failure to obtain requested records on an expedited basis … could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." The request, though, had to do with the health of Tony the Tiger (no, not the Frosted Flakes one):

Since 2014, ALDF had been involved in state court litigation concerning a tiger named Tony who was being displayed in a cage at a Louisiana truck stop. In March 2017, ALDF learned from a veterinarian with special expertise in tigers that Tony was suffering from serious health issues. On April 7, 2017, ALDF asked USDA to carry out an Animal Welfare Act ("AWA") inspection to ascertain whether Tony was getting adequate care. USDA responded on April 10 in a letter stating, "If you wish to know the results of our findings, you must send a request, in writing, to our Freedom of Information Act Office." AWA inspection reports had previously been posted on USDA's website. However, following a policy change in February 2017, inspection reports that have not received final adjudication are available only by FOIA request…. In response to ALDF's request for records about Tony, USDA released four pages of responsive records on August 14, 2017, over three months after the request was made.

And the Ninth Circuit held against the ALDF, because animals aren't "individuals":

The Supreme Court considered in Mohamad v. Palestinian Authority, 566 U.S. 449 (2012), the meaning of "individual" as used in a provision of the Torture Victims Protection Act. The Court defined "individual" to mean "natural person" as opposed to an organization. Id. at 451–52. Although Mohamad addressed a different statutory context, we find much of its reasoning applicable here. Surveying dictionaries, the Court wrote, "As a noun, 'individual' ordinarily means '[a] human being, a person.'" Id. at 454 (quoting 7 Oxford English Dictionary 880 (2d ed. 1989)); see also, e.g., Random House Dictionary Of The English Language 974 (2d ed. 1987) ("a person"); Webster's Third New International Dictionary 1152 (1986) ("a particular person"). The Court continued, "After all, that is how we use the word in everyday parlance." Mohamad, 566 U.S. at 454. We agree that, as a noun standing alone, "individual" ordinarily refers to a single human being.

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Scalia Law School's Liberty and Law Center Seeks Free Speech Clinic Fellow for 1/2020

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Purpose of the Organization:
The Liberty and Law Center is an academic center within Scalia Law School. Its mission is to provide a forum to learn about the role of law in protecting and promoting liberty, challenge government encroachment upon liberty, and lead the discussion of the law's role in protecting and promoting liberty.

 

Purpose of the Position:
The Liberty and Law Center at the Antonin Scalia Law School is looking for a Free Speech Clinic Fellow to run its Free Speech Clinic for law students, which was launched in Fall of 2018. The Free Speech Clinic Fellow will collaborate with the Clinic Director to manage, instruct, and support the activities of the Free Speech Clinic. It is anticipated that the Clinic will focus on two core First Amendment objectives: (1) litigating and supporting cases and other legal proceedings that further the cause of free speech; and (2) training a group of future lawyers who want to advance their knowledge of the status of freedom of speech in the United States, and seek practical training in protecting freedom of speech.

 

Duties:
At the direction of the Clinic Director and the Center's leadership, the Fellow's responsibilities include but are not limited to:

Serve as the day-to-day manager of the Clinic.

  • Provide supervision and instruction to students in the Clinic, including feedback, mentoring, and training.
  • Solicit and manage ongoing cases, ensuring that the work is done in a timely and professional manner.
  • Assist with the organization and teaching of the Clinic, focusing on substantive knowledge of First Amendment doctrine and the litigation process, as well as effective legal writing, advocacy, and client relations skills.
  • Develop the focus of cases the Clinic will work on, including developing and maintaining relationships with public interest law firms with which the Clinic expects to collaborate.
  • Assist in managing the marketing and promotion of the Clinic.
  • Initiate Clinic and free speech focused events for Clinic students and the larger community.

 

Desired qualifications and skills:

  • A strong interest in freedom of speech and the First Amendment;
  • 2 or more years of relevant experience;
  • Demonstrated ability to collaborate with others and execute projects;
  • Strong analytical and research skills; and
  • Strong spoken and written communication skills.

 

Apply for position FA23FZ at this link.

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  1. “Its mission is to provide a forum to learn about the role of law in protecting and promoting liberty. . . . ”

    Wondering…how does law protect and promote liberty?

    1. Attend and ye shall find out!

    2. Wondering…how does law protect and promote liberty?

      “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

      1. I know, right? Do they not teach this stuff in school anymore?

        1. How many times has someone (anyone?) been found guilty of breaking the Declaration of Independence?

          1. Kinda slow today?

            That paragraph was not legislation; it explained the role of government and its legislation.

    3. Liberty without law is license.

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Free Speech

Libel Lawsuit Dismissed Under "Fugitive Disentitlement" Doctrine

The doctrine originated in criminal appeals by defendants who were fugitives, but it can also apply to civil cases -- here, where the federal court plaintiff has absconded with her and defendant's children in violation of a state court order.

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From Judge Rodolfo Ruiz writing earlier this year in Vibe Ener v. Martin (S.D. Fla. 2019) (now on appeal):

In 2017, [Johanna Maria Vibe] Ener and [Pedro] Martin were parties to several disputes in Florida's Eleventh Judicial Circuit Unified Family Court and Domestic Violence Divisions …. On July 18, 2017, then-Judge Ariana Fajardo Orshan entered an Order Granting Defendant's Motion for Sanctions and/or Contempt …, finding that Ener "contemptuously, willfully, and deliberately violated the clear and express orders of [the] Court" by, among other reasons, failing to attend court-ordered mediation, refusing to communicate with the Court-appointed Guardian Ad Litem, and failing to comply with the Court's visitation order.

Additionally, Judge Fajardo Orshan found that Ener "has absconded with the [the Parties'] children while cutting off all communication with [Martin]."  The Contempt Order provided Ener with the opportunity to purge herself of the contempt by complying with the Court's orders and reimbursing Martin for the reasonable attorney's fees and costs he incurred because of Ener's contempt.

On October 31, 2017, over three months after the Contempt Order was entered, Judge Fajardo Orshan entered an Order of Referral to Law Enforcement … finding that Ener violated a Temporary Injunction. More importantly, the Referral to Law Enforcement authorized any Florida law enforcement officer to detain Ener if located in the jurisdiction. Ener was never detained pursuant to the Referral to Law Enforcement and is currently residing in the United Kingdom.

Despite being fully aware of the Contempt Order and the Referral to Law Enforcement in the State Court Proceedings, Ener filed the instant Complaint in this Court … on April 23, 2019 seeking upwards of $200,000,000.00 in damages from Martin and ten unidentified co-conspirators pursuant to six counts: Count I — Defamation, Count II — Invasion of Privacy, Count III — Breach of Contract, Count IV — Intentional Infliction of Emotional Distress, Count V — Civil Conspiracy, and Count VI — Abuse of Process….

[T]he Complaint warrants dismissal pursuant to the fugitive disentitlement doctrine. "The fugitive disentitlement doctrine limits access to courts by a fugitive who has fled a criminal conviction in a court in the United States."  Although the doctrine has traditionally been applied by the courts of appeal to dismiss the appeals of fugitives, district courts "may sanction or enter judgment against parties on the basis of their fugitive status."  And while the doctrine typically applies to criminal defendants, "the doctrine has also been applied where the fugitive was not a criminal defendant, but instead was a civil litigant who continued to ignore court orders and evade arrest." …

The rationale for the fugitive disentitlement doctrine includes "the difficulty of enforcement against one not willing to subject himself to the court's authority; the inequity of allowing a fugitive to use court resources only if the outcome is an aid to him; and the need to avoid prejudice to the nonfugitive party." …

To dismiss an affirmative claim pursuant to the fugitive disentitlement doctrine, the following three elements must be satisfied: (1) the plaintiff is a fugitive; (2) his fugitive status has a connection to his civil action; and (3) the sanction employed by the district court, dismissal, is necessary to effectuate the concerns underlying the fugitive disentitlement doctrine.  In order to be considered a fugitive for purposes of the fugitive disentitlement doctrine, "a party must either have 'absented himself from the jurisdiction with the intent to avoid prosecution[,]' … or constructively fled, i.e., 'depart[ed] for a legitimate reason from the jurisdiction in which his crime was committed but who later remains outside that jurisdiction for the purpose of avoiding prosecution….'" …

[Ener] absconded with Martin's two children in violation of various court orders and has remained outside the United States for purposes of evading arrest pursuant to the Contempt Order and the Referral to Law Enforcement in the State Court Proceedings. In this Court, Ener failed to appear at the Status Conference despite the Court confirming her availability and arranging for her to appear telephonically. Moreover, Ener's fugitive status has a direct connection to the instant action as many, if not all, of the allegations levied against Martin stem directly from the facts underlying the State Court Proceedings and the State Court Proceedings themselves.

Ultimately, dismissal is necessary to avoid the inequity of allowing Ener, a fugitive, to use court resources to aid only herself, as well as to avoid prejudicing Martin, who has not had access to his children since Ener fled the United States in violation of court orders…. [I]mplementation of the fugitive disentitlement doctrine is a reasonable and measured response to Ener's contumacious disregard for prior court orders in both the State Court Proceedings and before this Court. Ener cannot avail herself of the benefits of this Court while she openly flaunts her disregard for the authority of the state court. Equitable principles mandate that Ener be disentitled from calling upon the resources of this Court for determination of her claims….

I came across this order because someone using Mr. Martin's name (who may or may not be Mr. Martin or his agents) has asked Google to deindex a The Real Deal (South Florida Real Estate News) article about the original libel lawsuit—a request that I expect Google to reject, since nothing in the court order suggests that the story is libelous or otherwise a violation of Mr. Martin's legal rights. (It may be that The Real Deal ought to, as a journalistic matter, update the story to mention the dismissal of the lawsuit, but that's a separate matter. Compare Petro-Lubricant Testing Labs., Inc. v. Adelman (N.J. 2018), which takes the view that not reporting something that "'reflects ambiguously on the merits of the action' and is not a determination of whether the allegations are true or false"—there, a settlement, and here, a dismissal on grounds unrelated to the merits of the libel claim—is not libelous; see also Martin v. Hearst Corp. (2d Cir. 2015).)

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  1. $200M seems a bit excessive too.

  2. There ought to be an exception to the fugitive disentitlement doctrine for challenges to the fundamental fairness of the criminal process itself, but this sure isn’t that.

    1. I disagree. The fugitive is free. If he or she gets caught and brought back for trial, the fugitive will of course get to litigate any issues of fundamental fairness at that time.

      But there’s no reason to grant fugitives any other legal right other than that. Especially since the American system is at least fundamentally reasonably fair. We aren’t talking about Stalin show trials here. There’s no reason to think if the fugitive comes back they won’t be treated reasonably fairly.

      The reason that fugitives stay away is precisely because that is what they are afraid of.

      1. “Especially since the American system is at least fundamentally reasonably fair.”

        In theory, on paper.

        “We aren’t talking about Stalin show trials here. ”

        Operationally, in practice, we are closer to that than you imagine.

        Around 90% of criminal cases end in plea bargains. Most of the time, we don’t even bother with the show trials.

  3. I wonder how the mom got the children out of the country.

    Federal law prohibits a parent from removing a child from the United States or retaining a child in another country with intent to obstruct another parent´s custodial rights (18 U.S.C. § 1204).

    1. By breaking the law? Getting out of the country probably didn’t take much effort. Getting them back involuntarily, that’s another matter.

    2. There’s what is called a “Letter of consent for travel of a minor child”. You know, to establish that the other parent consented? (Had to fill it out when my wife visited the Philippines so grandma could meet her first grandkid, while I stayed at work.)

      She probably had a forged copy. It isn’t as though they check to see if it’s legit, that part of the system is fairly informal.

      Getting the passport would have been harder, but it’s basically the same thing: You need at least a notarized form showing consent from the absent parent. But that, too can be forged.

      1. I left the country with minor daughter in tow, and didn’t need anything. Before 9/11, so didn’t even need a passport to come back.

        1. Yes, things have been tightened up since, it used to be quite informal.

          When I was a kid, the border between the US and Canada was barely treated as an international border at all, and both countries currencies were accepted in the other, at least if you were anywhere near the border.

          1. As far south as Seattle. And there are still huge stretches of border with nothing whatsoever to mark the difference of which country you are in, and which country you are looking at.

          2. Hmm. Seems weird. I’ve been told that without borders you don’t have a country.

      2. “It isn’t as though they check to see if it’s legit, that part of the system is fairly informal.”

        Its just theater, like most “security” measures.

        1. How many parents travel alone with their children, compared to the number trying to remove them from the country illegally or even the number of single parents who don’t have any relationship with the other parent?

      3. The kids could have already had passports.

        1. That was my assumption as well.

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Can Excluding Someone from a Town Be a Proper Remedy in a Libel/Harassment Case?

Yes, said the New Hampshire Supreme Court; is that right?

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From a New Hampshire Supreme Court decision earlier this year in MacDonald v. Jacobs:

The record supports the following facts. The defendant [Lisa Jacobs] seasonally resides in Fitzwilliam. According to the plaintiffs [Lorraine and Peter MacDonald], in 2012 they purchased a vacation home that abuts or is near the defendant's family's property.

Thereafter, the defendant began letter-writing campaigns in which she falsely accused the plaintiffs of, among other things, a variety of illegal activities. In 2016, the plaintiffs sued the defendant for defamation. Following a trial, the jury found that the defendant's statements were defamatory and that they were made with malice, thereby warranting the award of special damages. In addition, the trial court, finding the defendant's statements "vast and disturbing," issued a permanent injunction prohibiting the defendant from, inter alia, going within a five-mile radius of the plaintiffs' home in Fitzwilliam [where defendant's family has a summer home] and from entering the plaintiffs' hometown in Sterling, Massachusetts….

The trial court found that the geographical restrictions it imposed were "appropriate because a less restrictive order would be ineffective." According to the court, the plaintiffs' "fear for their safety is a rational response to [the defendant's] relentless and increasingly intimidating behavior," and the defendant's "several threats" toward the plaintiffs provided a "compelling interest" for granting the injunction. Thus, the trial court reasoned that preventing the defendant from accessing her family's summer home in Fitzwilliam, "the epicenter from which all of [her] attacks have stemmed, [was] an appropriate, narrowly tailored restriction to address this interest."

The trial court further found that "[the defendant] has more than demonstrated her belief that she has a right to harass the [plaintiffs] and that she has an absolute fixation on the victims. She has published defamatory, false materials; contacted numerous federal and state authorities to report these falsities; threatened the [plaintiffs'] lives; and travelled to the [plaintiffs'] hometown in Massachusetts to solicit signatures to support her false and extreme accusations. [The defendant] has also given the Court no indication that she will abide by a more narrow court order, and she has shown no contrition for any of her actions—actions that were defamatory, threatening, and even criminal, as she was arrested for impersonating an agent of the New Hampshire Attorney General a week before trial and yet testified during the defamation case that she was such an agent.

"Even when the defamation case was approaching trial, and even with standing orders from this Court to refrain from harassing the [plaintiffs], [the defendant] published more defamatory material. [The defendant's] increasingly threatening actions and her failure to follow previous court orders make geographical banishments necessary.

"[The defendant] has harassed the [plaintiffs] … for no apparent reason and they have been driven to desperation by continuous harassment…. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction … will provide them with a margin of territorial safety in which they can live in peace. This Court also considered the fact that the [Fitzwilliam] property, where [the defendant] has occasionally resided, is not a year-round residence, and that [the defendant] was not at the residence during the summer months of 2017…. [The defendant], therefore, would not have her liberty and right to travel overly burdened by the five-mile restriction around the [plaintiffs'] Fitzwilliam residence. Similarly, since [the defendant] is not a resident of Sterling, and has not evidenced reasons to visit Sterling other than to garner signatures for her false affidavits implicating the [plaintiffs], preventing her from entering Sterling would not unconstitutionally constrict her right to travel."

To the extent the defendant challenges the injunction because there was insufficient evidence for the trial court to conclude that she presents a danger to others, we disagree. The trial court relied upon evidence that the defendant sent a letter to several state and federal authorities, including the Boston, Massachusetts office of the Federal Bureau of Investigation (FBI), stating that she had "been having fears of homicidal ideation of having to be put in the position of killing the [plaintiffs] and or their drunken tenants." The trial court also found that in her letter to the FBI the defendant stated that she had considered hiring a federal contractor "with an assault weapon to try to protect [her] to help [her] calm down" when she was at the house in Fitzwilliam, that "issues between neighbors blossom to the point until someday one neighbor gets a gun and shoots the other neighbor," and that she had "thought about getting a gun."

Based upon this evidence, the trial court found that the defendant is "irrational and quite capable of inflicting harm — both physical and emotional" on the plaintiffs, that she believes she is a "surrogate" of multiple law enforcement agencies, including the New Hampshire Attorney General and the New Hampshire State Police, and that "[i]t is quite rational to conclude that she could convince herself — as a self-proclaimed law enforcement agent — to arm herself," which would be a "disastrous, but foreseeable, result." Thus, there is ample support in the record to support the trial court's determination that the defendant presents a danger to others….

[T]o the extent that the defendant argues that the injunction unconstitutionally restricts her freedom of travel, she has failed to develop this argument sufficiently for our review.