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University of Alabama Student Expelled for Racist Instagram Rant

Clearly unconstitutional, and a threat to a vast range of other, much more serious, speech.

According to press accounts, a University of Alabama student was expelled for posting an Instagram video in which she said, among other things, "I fucking hate niggers," and then some. The University president issued a statement condemning the video and saying the student "is no longer enrolled here"; that doesn't outright say that she was expelled, but I have no reason to doubt the press accounts.

Now no-one can confuse the video with a thoughtful argument. If empty hostility like this vanished from American life (perhaps through some magical transfusion of decency and good judgment), the nation would be a better place.

But there's a practical reason that the First Amendment forbids expelling university students for saying such things -- or for that matter saying that they hate fucking Americans or Israelis, or love Hitler or Stalin or Mao or Che or whoever else. The last several years have made clear what the preceding decades should have shown as well: Attempts to punish people for their views aren't going to be neatly cabined just to the extreme.

Condemnations of illegal immigration, of the Black Lives Matter movement, of affirmative action, of Israel, and of a wide range of other things are routinely excoriated as racist or anti-Semitic. Some such excoriation may be factually accurate in some instances; but it means that, if supposedly racist speech can be suppressed, then any expression of such views risks being suppressed as well.

Likewise, we've routinely seen people on campuses try to suppress serious speakers alongside the ridiculous, and to suppress substantive arguments alongside epithets. Nor is this limited to race and ethnicity. Sharp criticism of Islam is viewed by many as morally equivalent to racism (and is sometimes even outright labeled racism). Logically, the same should apply to sharp criticism of Catholicism, evangelical Christianity, and the like. Likewise, the notion that disapproval of homosexuality -- not just slinging epithets but any form of discrimination or support for discrimination -- is morally tantamount to racism is a commonplace of modern debates about gay rights.

If university students know that students can be freely expelled for racist rants, would they feel confident that they wouldn't be expelled -- or suspended or otherwise punished -- for expressing their views even without the epithets? Would they feel confident that they wouldn't be punished for expressing views critical of illegal aliens or transgender rights, or for arguing that there are biological differences between the sexes or between racial groups? Even apart from the rights of the particular student in this case, is there any safe harbor that officials like the University of Alabama president can offer to other students who want to express other views that the president may find "highly offensive and deeply hurtful," and that "do not represent ... the values of [the] University"?

Justice Black's 1961 dissenting opinion in Communist Party of U.S. v. Subversive Activities Control Bd. began with the famous line:

I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.

Justice Powell's majority opinion in Healy v. James (1972) relied on this very point, in holding that college students who hold extreme views (there, again leftist views) are protected even against far lesser penalties than expulsion. This wasn't abstract theorizing: This was practical calculation based on the experience of preceding decades, experience that seems fully applicable today. It's too bad that so many are forgetting it now.

Internet Taxes, the Supreme Court, Old Decisions, and New Facts

A very interesting analysis of the Supreme Court's new Internet tax case (South Dakota v. Wayfair, Inc.), by Notre Dame Prof. Randy Kozel.

Notre Dame law professor Randy Kozel -- a leading scholar of precedent -- was kind enough to pass along this item about this case, which raises important questions about precedent as well as federalism, jurisdiction, and taxation:

Last week, the Supreme Court agreed to hear South Dakota v. Wayfair, Inc., a constitutional dispute involving internet retailers. The question before the Court is whether a state may force out-of-state vendors to collect taxes on sales to its residents.

The justices won't be writing on a clean slate. In prior decisions, the Court ruled that a state can't impose tax-collection obligations unless a seller has a physical presence within its borders. The basic rationale is that without a physical presence, there's not a strong enough connection between the seller and the state.

But the relevant Supreme Court decisions are decades old. In a world where online selling is easy, fast, and ubiquitous, the Court is now asked to reconsider whether a physical presence is always necessary. The combination of technological innovation and changes in consumer behavior has allowed sellers to become more connected than ever with customers across the country. As Justice Kennedy noted in a recent concurrence, what it means to be "present" in a state may have taken on a different meaning.

A few months ago, I was fortunate to have the opportunity to blog here about my recent book, Settled Versus Right: A Theory of Precedent. The book deals with the role of precedent in judicial decision-making, with a particular focus on the Supreme Court. I describe precedent as a meaningful constraint and a unifying force that draws together judges over time. That explains why Supreme Court justices should generally defer to the Court's prior decisions even if they disagree with their predecessors' interpretive approach. The idea is to make sure that the Court retains a stable core, and that constitutional law isn't reinvented whenever some justices leave the bench and others arrive. Respect for precedent separates the content of the law from the perspectives of the justices who are on the Court at any given moment.

Even so, deference to precedent isn't absolute. Sometimes it's appropriate to reconsider a prior decision. To illustrate, my book discusses Quill Corp. v. North Dakota, a 1992 case that endorsed the physical-presence requirement in the context of mail-order selling. I argue that Quill is a good example of a decision that is subject to reconsideration. The technological and commercial environment has changed markedly since Quill was decided. Those intervening changes warrant a fresh look at the problem, and they don't depend on disputed matters of constitutional philosophy.

This doesn't necessarily mean the Court should overrule Quill (or an earlier case that Quill reaffirmed). Maybe Quill reflects the best understanding of the Constitution. Or maybe Quill was flawed, but it should nevertheless be retained in order to protect reliance expectations—a consideration that was important to the Court's analysis in Quill itself. I don't mean to take any position on these questions. My point is simply that significant changes in the retail world provide a sound basis for asking whether Quill ought to remain the law of the land.

This conclusion reflects broader principles that shape the role of precedent in constitutional law. Deferring to prior decisions isn't about freezing mistakes or ignoring facts. It's about allowing a court to operate as an enduring institution and bolstering the impersonality of law. Precedent can't serve this role if judges are too quick to reject prior decisions based on interpretive disagreements.

The calculus is different if key facts have changed in the years since a decision was issued. Judges might part ways over the role of the Constitution's original meaning or the best reading of a provision like the Commerce Clause. But those interpretive debates are separate from factual questions like whether technological innovation has made it easier for retailers to connect with consumers across geographical boundaries, arguably erasing some of the distinctions that formerly existed between local, brick-and-mortar sellers and their out-of-state counterparts.

Factual change is a justification for reconsidering prior decisions that goes beyond disputes over interpretive philosophy. It also underscores the nature of deference to precedent as presumptive, but not absolute. So long as it remains the rule rather than the exception, deference to precedent can promote stability and continuity even as it allows some flawed opinions to be set right.

(One other note: Wayfair isn't the only pending Supreme Court case that raises important questions about the role of precedent. Another is Janus v. American Federation of State, County, and Municipal Employees, Council 31, dealing with a First Amendment challenge to compulsory fees that support public-sector labor unions. I discuss the role of precedent when First Amendment rights are on the line in my recent article, Precedent and Speech.)

Free Speech and the Administrative State

A conference on January 26 at George Mason University's Antonin Scalia Law School will explore the intersection of administrative law and the First Amendment.

Next Friday, January 26, the Center for the Study of the Administrative State at the George Mason University Antonin Scalia Law School will host a conference on "Free Speech and the Administrative State." Speakers will include legal academics, such as Martin Redish, Tamara Piety, Samuel Bagenstos, Gus Hurwitz, David Vladeck, and Shep Melnick, in addition to practitioners and policy experts, such as Coleen Klasmeier, Andrew McLaughlin, Mike Godwin, Alan Butler, and Harold Kim, as well as Volokh Conspirators Eugene Volokh and David Bernstein. The conference is free and open to the public. Registration information is here.

The Challenge of Fourth Amendment Originalism and the Positive Law Test

If the Positive Law test is originalist, then what isn't? A close look at Fourth Amendment history and some recent scholarship.

My friend and co-blogger Will Baude argued recently that his Positive Law test of the Fourth Amendment is an originalist approach. I find that position intriguing, in part because it brings up the difficulty of identifying what it means for a view of the Fourth Amendment to be originalist. It seems to me that if the Positive Law test of searches is originalist, then all of my writings on what is a Fourth Amendment search are also originalist, or at least are perfecty consistent with originalism. Indeed, I have a hard time thinking of any proposed Fourth Amendment search tests that aren't consistent with originalism. And most of them seem more plausibly correct from an originalist perspective than the Positive Law test.

That raises an interesting question for a Supreme Court Justice who is a committed originalist: Does the method of originalism provide any guidance in interpreting what is a Forth Amendment search? The practical answer may be "no," or at least "not all that much." And the Positive Law test seems particularly hard to reach from an originalist perspective. This post will explain why.

I. The Challenge of Fourth Amendment Search Originalism

As I have written before, the big challenge of Fourth Amendment origialism is that the framing-era materials are very sparse. Here's most of what we know. First, the enactment of the Fourth Amendment was largely a response to a few high-profile English cases on general warrants, such as Entick v. Carrington and the Wilkes cases. The Fourth Amendment was largely a response to those cases, as it specifically prohibits general warrants in the warrant clause. We know that there was a body of English law covering certain aspects of search and seizure at the time of the framing, most of it focused on the standard for a lawful arrest (see, for example, 4 Blackstone's Commentaries Ch. 21), although we don't know how much of that English law would have been understood to be adopted by the Fourth Amendment's enactment.

We also know that several states had enacted search and seizure restrictions in their state constitutions before the Fourth Amendment was proposed, and we have good reason to think that the federal Fourth Amendment was designed to do more or less what they did. But we don't have much of a sense of what those state constitutional provisions did beyond ban general warrants. Finally, we have the text of the Fourth Amendment, the first clause of which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"

That's at least a modest amount of history to go on, so there are some Fourth Amendment questions that originalism can shed some light on. For example, if someone proposed that the Fourth Amendment allows general warrants, we could confidently say that was inconsistent with an originalist approach.

But here's most maddening thing about trying to be a Fourth Amendment originalist. The existing historical materials shed almost no light on the original public meaning of what today is the most important issue, the scope of "searches." (I'll base this discussion in large part on this article, which you should consult if you want more details.) That specific issue didn't come up for a bunch of reasons, among them that there was no independent cause of action for unreasonable searches and seizures. The scope of law enforcement privilege in investigations generally came up as affirmative defenses to liability for other causes of action, such as civil trespass suits (where a proper warrant could justify the trespass of a house search) or a civil suit for false imprisonment (where proper cause could justify an arrest that had seized a person). Given that, it just wasn't necessary to define what counted as a search or seizure. It didn't matter.

And then as now, "searches" can mean a range of things. A search could mean physically breaking into and rummaging through a place. But then it might just mean scrutinizing something closely. Or maybe it means just looking for something from afar. Which of those definitions might have been assumed by the public at the time of the Fourth Amendment's enactment?

Based on my research, I think we just don't know. On one hand, the few cases and the occasional framing-era discussion of the Fourth Amendment involved and referred to physical entry as "searches" and physical removal of property as "seizures." The paradigmatic case of a search was physical intrusion into a home and rummaging through stuff inside, as in cases like Entick. On the other hand, the few data points don't suggest a test or say the level of generality that can answer how far beyond physical entry (if at all) the Fourth Amendment concept of searches should extend. As far as I have been able to discern, at least there just isn't a useful discoverable historical answer to the question.

II. The Non-Originalist Principle Needed to Devise any Search Test (Even For Originalists)

Why does this matter? It matters, I think, because modern doctrine now demands a test for what is a search. These days there are causes of action for Fourth Amendment violations. Criminal defendants can file motions to suppress. The subjects of searches can file civil actions under Bivens or Section 1983. The Fourth Amendment is now a sword and not just a shield. It provides a cause of action and not just the basis for an affirmative defense. That means we now need to answer something that didn't need to be answered in 1791. We need a test for what counts as a search to know what the police can do and when that legal cause of action exists.

But originalist methods just can't provide the test. As I wrote in my article a few years ago:

Devising a test from a set of examples raises a level-of-generality problem: Examples alone cannot identify how far beyond their facts the principle should extend. Clearly, physical entry of individuals inside the home to find evidence counts as a search. At the narrowest level, then, a search might be only a physical entry by government officials. A broader approach could focus on whether the officials interfered with property interests, such as whether a trespass occurred. Or perhaps the test should be whether the government interfered with privacy, with physical intrusion being just one example of government acts that violate privacy interests. Examples alone cannot identify which principle to use.

Here's the key. It seems to me that to arrive at a test -- to articulate a doctrine for what is a search -- one must adopt a non-originalist method for choosing among these possibilities. Maybe you think a broad test is right. Maybe you think a narrow approach is correct. But the historical materials can't answer the question. To use a football analogy, originalist methods can say that the rule is somewhere in the wide center of the field, say, between the 20 yard lines. But because the needs of modern doctrine demand a test for searches, you need some non-originalist principle to pick it.

As a practical matter, that makes it hard to distinguish originalist and nonoriginalist approaches to articulating a test for what is a search. Among all of the possible search tests, most of the tests I can recall having encountered -- several dozen over the years, I would guess -- are between those 20 yard lines. That is, most approaches could be articulated as being consistent with the originalist approach. When the history doesn't narrow the range, pretty much everything falls within it.

The upshot of this is that whether you claim to be an originalist or claim to reject originalism, you're actually doing pretty much the same thing when you try to articulate a test for what is a search. Everyone is picking non-originalist principles to get there, whether they are picking tests that are broad or narrow; based on property or privacy; derived from positive law or proabilistic expectations or something else. One author may claim that his theory is originalist. Another author may claim that his theory is nonoriginalist. But when you shed the label, I think that the analytical step that is doing the actual work -- the selection of some principle outside the original public meaning of the Fourth Amendment to get to a test for "searches" -- is not obviously different for originalists and non-originalists.

III. The Difficulty of Reaching the Positive Law Test From An Originalist Perspective

I think the Baude and Stern Positive Law test is a good example of this. The new and creative work that is being done to arrive that their new test strikes me as non-orignalist in nature. Consider their test. They propose that a Fourth Amendment search occurs "when government officials either violate generally applicable law or avail themselves of a governmental exemption from it" in a way "generally likely to obtain information." Under their test, as I understand it, you imagine that a private party did the same thing the government did. If it was "unlawful for an ordinary private actor to do what the government's agents did," in the sense that a private party committing the act would violate "any prohibitory legal provisions, whether legislative, judicial, or administrative in origin, and whether classified as criminal or civil in nature" -- federal, state, or local -- then it counts as a Fourth Amendment search. They further "take for granted" existing Supreme Court doctrine on reasonableness and remedies.

The key idea is that violating any kind of legal prohibition of any kind makes the government act a search, as long as the government is likely to obtain information. If enacted, this test would have extraordinary and quite radical implications.

But is it originalist? As best I can tell, Baude and Stern don't directly say in the paper that theirs is an originalist theory. In their 69-page article, the word "originalist" appears only once in passing. The word "originalism" appears only once in a footnote citing an article with that word in the title. "Public meaning" isn't mentioned at all. Most of their article is based on non-originalist arguments for why their test is a good one, largely based on a particular theory of the state and the proper role of government outside the specific context of searches and seizures. The early history and text of the Fourth Amendment itself seems to be covered only in a 5-page section, pages 1837 to 1841. And that discussion of history is super tentative. It concludes with more of a question than a conclusion: "the time has come to consider . . . whether [the Baude and Stern test] is compatible with the history leading up to the Fourth Amendment's adoption."

The tentative case Baude and Stern make that their proposed test is compatible with the history runs like this. First, the cases that inspired the enactment of the Fourth Amendment involved entering and ransacking homes that sometimes led to trespass actions such as Entick and Wilkes. "These episodes," Baude and Stern write, "have contributed to a longstanding conventional wisdom that until the mid-twentieth century, trespass was the central test for a Fourth Amendment search." So far, that's pretty standard. I should say that I happen to think that standard historical account is wrong: As I have argued here, there actually was no trespass test for what is a Fourth Amendment search until 2012 in Jones. But this is indeed the standard account most sources (including Supreme Court decisions) have repeated for the last fifty years or so.

How do we get from a trespass test to an all-forms-of-positive-law test? That's a pretty huge difference. The key passage is at pages 1839-1840:

The positive law model does not stop at the law of property, however, and neither did this history, though this part of the story is frequently overlooked. Wilkes (and the printers arrested along with him) had sued not just for a property violation but also for false imprisonment. Other suits similarly challenged searches and seizures as false imprisonment or other violations of what would today be thought of as torts relating to personal security. Of course we do not know exactly how far this went, or more accurately, would have gone. We cannot say for sure whether the same Founding-era principles would apply to a suit for, say, "intrusion upon seclusion" because no such right of action was then recognized. But the history is at least suggestive, and the most straightforward extrapolation is that the search-and-seizure principle — the idea that some actions by government officials raised questions demanding judicial scrutiny — was marked by violations of positive law, and moreover, by violations extending beyond the law of property.

Mull that over. The idea is that some lawsuits filed against what today would be seen as unreasonable searches and seizures claimed torts other than trespass -- in particular, false imprisonment or some other (unnamed) personal security torts. We don't know that those other torts were significant in those cases. We don't know that the non-trespass claims were significant in the cases that influenced the enactment of the Fourth Amendment. But torts beyond trespass were alleged in some cases. Based on the fact that there were some non-trespass claims alleged in some of the cases, Baude and Stern conclude that "the most straightforward extrapolation" is that a search occurs when any "positive law" was violated.

Woah. Whatever you make of that conclusion, it does not strike me as a "straightforward extrapolation" of the history. Consider, why should the presence of non-trespass claims in some cases expand the original public meaning of what is a "search"? And even if false imprisonment torts and maybe some other torts about personal security were considered part of the picture at the time of the framing, why would that mean that any violation of any positive law -- not just torts, or crimes, but any statute, any regulation, anything law -- would be a search?

The leap to an "any positive law" test is particularly puzzling because there's a simple explanation for why false imprisonment and other personal security torts would be claimed in search and seizure cases in the 18th century. As I noted earlier, the common law of search and seizure had a lot of law on the standards for arrests. Arrests were seizures of persons. And the way that the law of arrest would be raised was often as an affirmative defense to a tort claiming false imprisonment or some other tort relating to personal security. If the investigator broke into a house, the tort was trespass and the defense would be that the search was reasonable. If the investigator made an arrest, the tort was false imprisonment and the defense would be that the seizure was reasonable. The common law of searches and seizures provided an affirmative defense to these particular torts.

Baude and Stern try to use that switch by claiming that "the original remedial structure of the Fourth Amendment" echoes their positive law test. Because search and seizure rules originally acted as a privilege for those enforcing the law, they reason, Fourth Amendment issues came up when there was some source of positive law that created a cause of action for which search and seizure rules could be a defense. "[T]he structure of the inquiry matches our vision," they argue, in that there had to be a positive law violation alleged to trigger litigation on search and seizure law.

But that conclusion suffers from a serious level-of-generality problem. True, search and seizure issues generally came up when there was one of the causes of action for which the search and seizure privilege provided a defense. But that involved a limited set of tort claims like trespass and false imprisonment. Those causes of action arose in cases that involved, well, searches and seizures of persons, houses, papers, and effects. In contrast, much of what makes Baude and Stern's test so unique is that it goes so far beyond those traditional tort claims to cover any law, even apparently it provides no cause of action at all, and even if it has nothing to do with persons, houses, papers, or effects -- and even if it doesn't in any way involve acts that resemble searches or seizures. What makes the Baude and Stern test unique is departure from the history, it seems to me, not allegiance to it.

That gap seems a particular challenge for the positive law approach. As Baude and Stern recognize, the scenarios that triggered the Fourth Amendment involved breaking into homes, taking away stuff, and arresting people. The text of the Fourth Amendment expressly limits the Fourth Amendment along those lines, declaring a right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Baude and Stern positive law approach seems to ignore that text and history. Not only does it drop the idea of any kind of invasion being required, whether physical or virtual. It also drops the idea that the invasion be of one's person, house, papers, or effects. It replaces that with the rather different idea that any kind of law violation triggers the Fourth Amendment.

In short, it seems to me that the choice of a test here isn't coming from 18th Century history. Instead, the real work of arriving at the test is coming from my friends Will Baude and James Stern, circa 2016. If their test is originalist, then it's hard to come up with a test that isn't -- or at least that couldn't be justified using originalist methods just as easily or more easily than the Positive Law approach.

More on When "United States" Shifted from Plural to Singular

James Phillips, a Constitutional Law Fellow at The Becket Fund for Religious Liberty, offers some very helpful data.

Phillips writes:

A recent Volokh Consiracy post noted the shift in our nation's history from using "United States" as a plural noun to using it as a singular noun, arguably reflecting the increasing tendency of Americans to identify first with their country and secondarily with their state in the post-Civil War era. The post cited two attempts to understand the historical shift from "the United States are" to "the United States is," one by Mark Liberman and one by Minor Myers, who respectively relied on two corpora (or collection of texts): Pennsylvania newspapers from 1831-1877 and U.S. Supreme Court opinions from 1790-1919. These two corpora tell us something, but arguably little about general historical American usage of "United States."

That's because one can only generalize to (or make inferences about) a particular speech community if one is analyzing a corpus that represents that speech community. Thus, a corpus of speeches of 19th Century American presidents will not help us make inferences about the language usage of 21st Century Ukrainian teenagers. This principle is clearly understood in survey opinion polling. Few would believe an opinion poll of Pennsylvanians in the mid-1800s or of Supreme Court justices would accurately portray American opinion overall during the same time periods. In other words, ask the right question of the wrong corpus and get an irrelevant answer. (For more on this, see scholarship here and here.)

The best corpus for investigating the question here is Mark Davies's Corpus of Historical American English (or COHA). It is the only large, structured historical corpus of American English that covers most of our country's existence: 1810-2009 (there will soon be a Corpus of Founding-Era American English that will cover 1760-1799, created by BYU's Law School). As a structured corpus, COHA contains texts from fiction, popular magazines, newspapers, and non-fiction books, with about the same number of words representing each decade, though COHA reports both raw frequencies and words per million to compensate for early decades that are represented by fewer words. In short, we can more confidently extrapolate patterns found in COHA to the American people generally during the same time period.

Searching for "United States is" and "United States are" in COHA, we get the following results (combined into one graph via Excel):

There does not appear to be a sharp decrease in the use of plural version following the Civil War—usage was already slightly declining and generally that trend continued. As for the singular noun version of "United States," after the Civil war there is an immediate drop in the 1870s, followed by a fairly large increase as it becomes the preferred version. These are somewhat different results than the ones found in looking at much narrower (Pennsylvania newspapers) or specialized (Supreme Court opinions) corpora noted above. And the findings are certainly more generalizable to the United States as a whole.

With a corpus like COHA, one could further delve into genre-specific patterns: for example, do we see differences in non-fiction books compared to popular magazines? And one can dive even deeper to see to what degree context matters for choosing "is" versus "are" after "United States." Similarly, one could do a search of the words that most frequently co-occur (collocates) with "United States is" compared to "United States are." Thus, a well-made corpus can help answer more nuanced questions that a bare-bones collection of texts cannot.

Corpus linguistics is relatively new—roughly a half-century old in linguistics, and just now beginning to be applied in other contexts, including law (see scholarship here for statutory interpretation, here and here for constitutional interpretation, and here for criminal law). But corpus linguistics is everywhere, if hidden: from the suggestion for the next word your smart phone gives you when writing a text to the definitions in modern dictionaries. And as big-data has revolutionized fields as diverse as sports, medicine, and political campaigns, corpus linguistics has the potential to improve answers to linguistic-related questions we've long been asking and long been answering with less accurate tools.

(Unsurprisingly, the views expressed here are Phillips', and not necessarily those of Becket or its clients.)

Contempt Proceedings to Enforce YouTube Personality's Secret Speech-Restrictive Settlement Agreement

The latest twist in the Barley House case -- and my attempt to intervene.

As I blogged last month, the Barley House bar in Cleveland got a temporary injunction -- with very short notice to the defendants -- barring two YouTube personalities, Alissa Violet and FaZe Banks (who have millions of followers), from "publishing on social media platforms any statements" about the business. The business claimed that the personalities' video criticism of the business was libelous, and that this led to a flood of negative reviews and some electronic threats of violence. But though this might be the basis for a damages lawsuit, I argued, this can't justify a categorical restriction on defendants' further speech about the business, or even a narrower restriction imposed before a trial on the merits.

There have been many developments in the case since: The case was removed to federal court, with a fight over whether Violet was still legally resident in Ohio or was now a Californian. The parties entered a partial settlement agreement in which Violet and Banks promised not to say certain things about Barley House. This agreement apparently led to the original injunction lapsing. And now there's a contempt of court proceding against Banks, claiming that Banks had breached the agreement, by posting a new video -- which was viewed hundreds of thousands of times -- further criticizing Barley House. (I haven't found anything in the court docket reflecting that the agreement was actually incorporated into a court order, but I assume from the proceeding that the court's theory is that such an order was indeed issued.)

But while in principle breaches of speech-restrictive contracts can lead to lability (see, e.g., Cohen v. Cowles Media (1991)), this still leaves the question: Did Banks' speech breach the agreement? And this question, which is the subject of the contempt hearing, is hard for me to analyze because the agreement is apparently being kept secret. It was never docketed on the court docket, even though the court is obviously referring to it during the proceeding. Presumably the parties' and the court's view is that the agreement somehow merits being sealed. But can an American court really punish a speaker for his speech, based on an agreement whose contents the court system will not disclose to the public, at least absent some especially powerful showing of need for secrecy?

I think the answer is "no," and I'm glad to report that Patrick Kabat of Chandra Law has filed a motion on my behalf to intervene and to gain access to the speech-restrictive agreement that the court is considering enforcing. (Many thanks to Patrick, who has worked in this field for a long time -- co-founded and directed the MFIA Media Freedom & Information Access clinic at Yale Law School, taught First Amendment law at Case Western, and has just launched a new First Amendment program at Cleveland State University's Cleveland-Marshall College of Law.) All members of the public, we argue, have a right of access to this agreement, so I have standing to intervene (that is not a controversial point), especially since I need the agreement to write further about the proceedings. You can read the whole motion, but here is a longish excerpt:

This lawsuit raises important issues in the roiling public debate about the rights and responsibilities of online speakers. It also implicates important questions about the role of the courts in policing this speech. And it has been hotly litigated, giving rise to contempt proceedings before this Court arising from a partial settlement agreement between the parties.

The public has a right to access these proceedings and records. Secured by the First Amendment and Sixth Circuit common law, that right is independent of the parties' substantive claims and interests, and enforceable by members of the public. And the right cannot be limited until the parties make specific factual showings, and after the Court (after providing an opportunity for the public to be heard) makes specific findings justifying redaction or partial sealing of documents.

Here, the parties have made no such showings to justify restricting public access to records in the contempt proceedings, including the settlement agreement that appears to undergird the dispute they have presented to the Court. And based on the information presently available to the public, they cannot.

Movant Eugene Volokh is a law professor who focuses on First Amendment and Internet law. He has written about this suit on his Washington Post blog.

Prof. Volokh's right of access to the documents based on which the Court adjudicates the parties' disputes, including the settlement agreement at issue in the contempt proceedings, is vital to his continued coverage of this important controversy. He therefore requests leave to intervene and be heard to assert the public's right of access, and that the Partial Settlement Agreement (the "Agreement") be docketed and made publicly available.

[I.] Documents used in contempt proceedings, and settlement agreements considered by courts, are subject to public access.

The public's right of access to civil proceedings is guaranteed by the First Amendment and the common law. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983); see also Karl v. Bizar, 2009 WL 3644115, at *2 (S.D. Ohio Oct. 28, 2009) (public right of access to "documents forming the basis for adjudication" is not outweighed by commercial self-interest or parties' interests in avoiding adverse publicity) (applying Brown); Wedgewood Ltd. v. Twp. of Liberty, 2007 WL 1796089, at *3 (S.D. Ohio June 21, 2007) ("a strong public right of access attaches when a document is filed or utilized in public proceedings") (citing Brown).

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"This Microwave Is Out of Order at This Time"

An editing exercise.

A "found editing exercise" (by analogy to found poetry) just seen in an office kitchen.

[Yes, I see the connection to the "Fresh Fish Sold Here" story, though overediting can sometimes be a danger, too.]

Photographing Someone Being Arrested Doesn't Count as "Stalking"

Because "there is a First Amendment right to videotape police officers while they are conducting their official duties in public," that right applies even over the objections of the people being arrested by the officers.

From yesterday's Florida Court of Appeal decision in Pickett v. Copeland:

Terrance J. Pickett appeals the trial court's Final Judgment of Injunction for Protection Against Stalking.... As defined in section 784.048(2), Florida Statutes (2016), stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person[.]" "Harass" is defined in section 784.048(1)(a) to mean "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." In its turn, "course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b)....

[W]e are compelled to conclude that the evidence was neither competent nor substantial to carry Ms. Copeland's burden [to provide evidence of stalking].

While there was evidence that Mr. Pickett followed Ms. Copeland from the Murphy gas station on Thanksgiving Day in 2016, he did so because there was an outstanding warrant for Ms. Copeland's arrest for violating the injunction he had obtained against her, and while he was following her, it is undisputed that he was talking to the police. That was, at most, a single act of following.

Furthermore, though Ms. Copeland accused Mr. Pickett of driving past her house on multiple occasions—presumably to prove harassment—the evidence only suggested a single incident of his passing by, which falls short of a malicious "course of conduct" serving "no legitimate purpose." § 784.048(1)(a), (b) & (2), Fla. Stat.; see Leach, 162 So. 3d at 1106 (reversing injunction and holding Leach's several messages to Kersey by phone, through friends, and on social media, after she learned of an eighteen-month affair between Kersey and Leach's husband, could not be found to serve " 'no legitimate purpose'").

[Footnote moved: It is clear that the trial court was troubled by the fact that when law enforcement caused Ms. Copeland to pull over into a parking lot, Mr. Pickett got out of his vehicle and used his cell phone to videotape her arrest. However, for purposes of the definition of harassment, "course of conduct" "does not include constitutionally protected activity[.]" § 784.048(1)(b), Fla. Stat. (2016). Even though we recognize that this protective language will not necessarily provide immunity for every instance where an individual videotapes an arrest—because an individual's actions may go beyond the scope of the constitutional protections—there is a First Amendment right to videotape police officers while they are conducting their official duties in public:

"Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendmentprotects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public." Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir. 2017).]

As a result, we hold there was no competent, substantial evidence to support the imposition of an injunction for protection against stalking. Consequently, the final judgment is reversed.

"United States" -- Plural vs. Singular

When did the change happen, and how quick was it? [UPDATE: For more comprehensive data, see this post.]

A commenter on the Republic/Democracy thread mentioned the shift from "United States" being seen as a plural noun -- e.g., the Constitution's "Treason against the United States, shall consist only in levying War against them" or the Thirteenth Amendment's "Neither slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction" -- to the modern treatment of the "United States" being singular ("the United States is ...").

This reminded me of an earlier post, which cites an item by Mark Liberman (Language Log). Liberman was commenting on the assertion that,

Before the war, it was said "the United States are." Grammatically, it was spoken that way and thought of as a collection of independent states. And after the war, it was always "the United States is," as we say today without being self-conscious at all. And that sums up what the war accomplished. It made us an "is."

Liberman investigated -- see the link above for the start of his investigation -- and discovered that, according to Minor Myers, Supreme Court Usage and the Making of an 'Is', 11 Green Bag 2d 457 (2008), usage changed quite gradually, at least in the Supreme Court. To quote Myers,

This survey examines use of the phrases "United States is" and "United States are" in opinions of the United States Supreme Court from 1790 to 1919. It demonstrates that the familiar claim about the timing of the change is not accurate. In the Supreme Court, the plural usage – "United States are" – did not end with the Civil War. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely....

The Civil War does not appear to have altered the Supreme Court's usage in a fashion as dramatic as [some] have suggested. In the 1860s, the usage pattern shifts away from "are" and toward "is," and it is during that decade that usage of "is" first predominates. But the change is not wholesale – "are" and "is" were used roughly equally in the 1860s. In the following decade, Court usage reverted back to antebellum patterns. For the remainder of the nineteenth century, plural usage predominated in Supreme Court opinions, though by slowly declining margins.

No First Amendment Right to Display Van as "Lawn Ornament"

And that's so even if the van is red, white, and blue.

From De Pere Ledgeview Municipal Court v. Knaus, decided today by the Wisconsin Court of Appeals:

In August 2015, the Town sent Knaus a letter advising him, among other things, that an old vehicle kept outside on his property did not comply with a Town ordinance [which generally bans "leav[ing] or allow[ing] to remain on the property any motor vehicle which is abandoned, junked, or hazardous"]. The Town requested that Knaus propose how to rectify this purported violation. Knaus responded via letter that the vehicle was a "van lawn ornament" ....

Knaus ... insists that his rights to "Freedom of Speech and Expression" allowed him to display his "lawn ornament van" on his property, citing his vehicle's red, white and blue paint job as "show[ing] patriotic expression." As the circuit court noted, that Knaus may consider his vehicle a "lawn ornament" does not excuse the vehicle from compliance with [the ordinance]. And even if Knaus's "lawn ornament" could qualify as protected speech under the First Amendment, that alone does not render invalid either the ordinance or the Town's enforcement of it. See Ward v. Rock Against Racism (1989) (government may impose regulations on time, place and manner of speech if they are content-neutral, narrowly-tailored in service of a legitimate governmental interest, and do not foreclose all avenues of speech).... Knaus does not cite any authority or develop an argument on this issue, so we decline to address it in any greater depth....

Sounds right to me. Indeed, if the law focused on the designs (e.g., barring any vehicles painted in American flag colors), it would be unconstitutionally viewpoint-basde -- but a content-neutral restriction aimed at promoting aesthetics is constitutional, at least so long as it leaves open ample alternative channels for speech (such as via flags, signs, and the like), see City of Ladue v. Gilleo (1994). One can debate whether such aesthetic regulations improperly restrict people's property rights; but a content-neutral ban on having junked vehicles on one's property doesn't violate the First Amendment, regardless of the vehicle's paint job.

Does Jury Nullification Undermine the Rule of Law?

In theory, yes. But not in the world we actually live in, where law enforcement is already rife with numerous discretionary decisions made unavoidable by the fact that we have far too many laws.

In a recent post at the Law and Liberty website, conservative legal commentator Mark Pulliam takes issue with defenders of jury nullification, including myself. Jury nullification occurs when jurors acquit a defendant who they believe to be guilty because they conclude that the law he or she violated is unjust or carries overly harsh penalties. Pulliam's main concern is that nullification could undermine the rule of law:

The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century's pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek's words: "[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free." Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek's view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case "that it can be said that laws and not men rule.

There is some truth to this argument. Relative to a system where laws really are "uniformly applied, without excessive discretion," jury nullification can indeed undermine the rule of law. This sort of consideration is one of the reasons why I used to oppose jury nullification myself. But, sadly, we do not in fact have such a system. In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce - and vastly more violators thereof than the authorities can possibly go after. The data indicate that a large majority of adult Americans have violated federal criminal law at some point in their lives - to say nothing of the many state and local laws. Some 52 percent admit to using marijuana in violation of both federal law and that of many states; the true percentage of users is likely higher, as some may not be willing to admit it to pollsters.

With so many lawbreakers to choose from, police prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials. I expanded on that point here:

The case for jury nullification today is strengthened by the enormous growth of modern criminal law, which has expanded to the point where almost all of us are guilty of some crime or other.... In a world where almost everyone is a criminal, there is already enormous arbitrariness, because prosecutors can only go after only a small percentage of the many perpetrators. Jury nullification is unlikely to make that situation worse than it already is.

Moreover, many of the crimes on the books are ones that either should not be illegal at all, or should not carry such harsh penalties. As a practical matter, jury nullification is much more likely to target those kinds of laws than ones that rest on a broad social consensus to the effect that the activities they ban should be criminalized and violators subjected to severe punishment.

Even in a legal system with less discretionary authority than our own, jury nullification might still sometimes be justified. Consider a deeply unjust law such as the Fugitive Slave Act of 1850. Even if it were enforced in a predictable, uniform, and nondiscretionary fashion, it would still be a great evil; in some ways it would be an even greater evil if officials let many violators go. And conscientious jurors would be justified in nullifying it (as some northern juries in fact did). The rule of law is an important value. But it is not the only important value, and can sometimes be outweighed by other considerations.

This is not to say that jury nullification is a magic bullet for all the ills of our criminal justice system, or even that it is always a good thing. Ultimately, the best solution to the problem of overcriminalization is to cut back on the amount of criminal law.

And jury nullification can sometimes be used for bad ends, as well as good ones - such as the notorious Jim Crow-era cases where all-white jurors acquitted whites guilty of racially motivated crimes against African-Americans. In this day and age, where racial prejudice is less severe than fifty years ago, and minorities are themselves able to serve on juries to a far greater extent than in the days of segregation, I believe the benefits of nullification outweigh the risks. But we certainly should not ignore the latter.

In a more ideal legal system, where the amount of law is strictly limited and there are few or no unjust restrictions on liberty, there would be little if any legitimate role for jury nullification. In the far more problematic systematic we actually have, it is a useful check on government power that deserves support, even as we remain aware of potential downsides.

The United States Is Both a Republic and a Democracy

"Democracy" has long included representative democracy as well as direct democracy; and "Republic" was used by the Framers to refer to regimes that were not representative.

[A couple of items I read in the last several days -- including one I'll blog about later this week -- lead me to write again about this question, adapting some items I wrote up when we were at the Washington Post site.]

[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them" — we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives" — we are that, too.

The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.

[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.

Likewise, James Wilson, one of the main drafters of the Constitution and one of the first Supreme Court justices, defended the Constitution in 1787 by speaking of the three forms of government being the "monarchical, aristocratical, and democratical," and said that in a democracy the sovereign power is "inherent in the people, and is either exercised by themselves or by their representatives." Chief Justice John Marshall — who helped lead the fight in the 1788 Virginia Convention for ratifying the U.S. Constitution — likewise defended the Constitution in that convention by describing it as implementing "democracy" (as opposed to "despotism"), and without the need to even add the qualifier "representative."

Sir William Blackstone, who was much read and admired by the framers, likewise used "democracy" to include republics: "Baron Montesquieu lays it down, that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil …." Holland was of course a republic, and England was compounded of monarchy and government by elected representatives; Blackstone was thus labeling such government by elected representatives as a form of "democrac[y]." The same is so today. America is a democracy, in that it's not a monarchy or a dictatorship. (Some people claim it is too oligarchic, in which case they'd say America isn't democratic enough — but again they'd be distinguishing democracy from oligarchy.) America is not a democracy in the sense of being a direct democracy.

[3.] And the Framers didn't just refer to representative government as democratic -- they referred to direct democracy as a republic.

One way to get at this is to ask: What is the first nation that you think about when you hear the word "Republic" today, and that the Framers likely thought about? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed as a republic. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis. (If someone suggests that the Senate was Rome's elected representative legislature, you can point out that it was not elected, not representative, and not a legislature.)

Roman lawmaking was thus direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate — such as one of the 10 tribunes of the plebs — and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic — indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic." (Profs. Akhil Amar and Rob Natelson have written more extensively on this.)

[4.] Today, "republican" does tend to refer more to representative systems, but "democratic" often refers to following the will of the people, whether through direct democracy or representative democracy -- the precise meaning differs depending on the context. If you're asking whether to do something by direct ballot or by representative processes, you might ask whether we should be more democratic or more republican. If you're asking whether China would be better off giving more power to Chinese voters, you might ask whether it should be more democratic or less democratic, quite apart from whether you think the democracy should be direct or representative.

To be sure, in addition to being a representative democracy, the United States is also a constitutional democracy, in which courts restrain in some measure the democratic will. And the United States is therefore also a constitutional republic. Indeed, the United States might be labeled a constitutional federal representative democracy.

But where one word is used, with all the oversimplification that this necessary entails, "democracy" and "republic" both work. Indeed, since direct democracy — again, a government in which all or most laws are made by direct popular vote — would be impractical given the number and complexity of laws that pretty much any state or national government is expected to enact, it's unsurprising that the qualifier "representative" would often be omitted. Practically speaking, representative democracy is the only democracy that's around at any state or national level. (State and even national referenda are sometimes used, but only for a very small part of the state's or nation's lawmaking.)

Cyberlaw Podcast 198: Kaspersky

The government ban -- and why it took so long

It turns out that the most interesting policy story about Kaspersky software isn't why the administration banned its products from government use. It's why the last administration didn't. Shane Harris is our guest for the podcast, delving into the law and politics of the Kaspersky ban. Along the way, I ask why the Foreign Sovereign Immunities Act, which allows suits against foreign governments for torts committed in the United States, shouldn't allow suits against foreign governments that hack computers located in the United States.

In the news, the House comfortably adopts a bill to reauthorize 702 surveillance; the Senate is expected to act today as well. While the House bill makes some changes to the law, it endorses the most moderate of the reform proposals.

In case you haven't heard, Apple is handing off its iCloud operations in China to a local cloud storage company – with none of the histrionic civil liberties posturing the company displays in the United States. Whose data is being transferred to the tender mercies of the Chinese authorities? Who knows? Not Apple, which can't even send out notices to its customers without getting confused about who's covered by the new policy.

It's a threepeat for state authority to make online companies collect sales tax from their customers. The Supreme Court has agreed to reconsider a dormant commerce clause doctrine that it has already affirmed twice.

I apologize to Uber for snarking on their "bounty" payment of $100,000 to a hacker who exposes a serious security flaw and gained access to large amounts of personal data. A good New York Times article demonstrates that the decision to pay up was at least plausibly justified. But as if to demonstrate why the company never gets the benefit of the doubt, Bloomberg reports on Uber's latest scofflaw-ware scandal. Luckily for journalists everywhere, Uber continues to adopt colorfully damaging nicknames for its scofflaw-ware. In this case their product locked or deleted data sought by local law enforcement with the touch of a panic button. It was named, of course, after Sigourney Weaver's character, Ripley, who declared that the only way to deal with an alien-infested installation was to "nuke it from orbit."

Sheila Jackson-Lee gets an admiring mention for winning House passage of a cyber vulnerability disclosure bill that is probably nuanced enough to be adopted by the Senate as well.

And Deputy Attorney General Rosenstein makes a short pitch for "responsible" encryption that actually manages to move the debate forward a step.

Talk about 21st century warfare. Russia is claiming it fought off swarms of drones with cyberweapons. As Nick Weaver points out, that's just the beginning.

Brian assesses the state of CFIUS reform legislation and the claim that Sen. Cornyn's bill would result in CFIUS's regulation of technology transfers that would be better addressed through export controls.

Finally, having already critiqued Apple and Uber, I feel obliged to offer equal time to Twitter, which remarkably can't even identify advertisements that invite users to log on to fake Twitter sites and steal their credentials. If you want to understand the worst of Silicon Valley, I argue, you shouldn't look to the big rich companies; it's the struggling would-be unicorns who show what the Valley really cares about. And security ain't it. Speaking of which, where is that Ad Transparency Center that Twitter promised any day now back in the fall of 2017?

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 198th Episode (mp3).

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Lebanon Bans "The Post"

The reason: Steven Spielberg shot some scenes for Schindler's List in Israel.

So reports The Hollywood Reporter (Tatiana Siegel):

A source involved with The Post's international rollout says the movie, which stars Meryl Streep and Tom Hanks, was presented to the Lebanese censorship board, which nixed it, citing a "boycott Israel" list that includes Spielberg due to his Oscar-winning Holocaust film Schindler's List (the 1993 film shot some scenes in Jerusalem).

The matter has been transferred to Lebanon's Minister of Interior and Municipalities, who could overturn the decision....

The source says the move came as a shock, given that over the past three years, at least five films either directed or produced by Spielberg were accepted and approved by the censorship board and it is only now that it is invoking Spielberg's inclusion on the "boycott Israel" list.

Wonder Woman was also apparently banned in Lebanon, because Gal Godot is Israeli. Lebanon is still formally in a state of war with Israel.

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The Effects of Collective Bargaining in the Public Sector

New research seems to show adverse consequences from allowing collective bargaining for teachers and cops

What are the long-run consequences of allowing public sector unions to engage in collective bargaining? Less accountability and poorer performance according to some recent studies.

"The Effect of Collective Bargaining Rights on Law Enforcement: Evidence from Florida," by University of Chicago law professors Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, suggests that police unionization may result in greater police misconduct. Here is the abstract:

Growing controversy surrounds the impact of labor unions on law enforcement behavior. Critics allege that unions impede organizational reform and insulate officers from discipline for misconduct. The only evidence of these effects, however, is anecdotal. We exploit a quasi-experiment in Florida to estimate the effects of collective bargaining rights on law enforcement misconduct and other outcomes of public concern. In 2003, the Florida Supreme Court's Williams decision extended to county deputy sheriffs collective bargaining rights that municipal police officers had possessed for decades. We construct a comprehensive panel dataset of Florida law enforcement agencies starting in 1997, and employ a difference-in-difference approach that compares sheriffs' offices and police departments before and after Williams. Our primary result is that collective bargaining rights lead to about a 27% increase in complaints of officer misconduct for the typical sheriff's office. This result is robust to the inclusion of a variety of controls. The time pattern of the estimated effect, along with an analysis using agency-specific trends, suggests that it is not attributable to preexisting trends. The estimated effect of Williams is not robustly significant for other potential outcomes of interest, however, including the racial and gender composition of agencies and training and educational requirements.

Turning from cops to teachers, a session at the annual meeting of the American Economic Association focused on "New Evidence on the Effects of Teachers' Unions on Student Outcomes, Teacher Labor Markets, and the Allocation of School Resources." This session featured several papers, two of which found (unsurprisingly) that unionization tends to result in higher salaries for teachers. The more interesting paper, however, was "The Long Run Effects of Teacher Collective Bargaining" by Cornell researchers Michael Lovenheim and Alexander Willen which found that teacher unionization has "adverse long-term labor market consequences for students." Here is the abstract:

This paper presents the first analysis of the effect of teacher collective bargaining on long-run labor market and educational attainment outcomes. Our analysis exploits the different timing across states in the passage of duty-to-bargain laws in a difference-in-difference framework to identify how exposure to teacher collective bargaining affects the long-run outcomes of students. Using American Community Survey (ACS) data linked to each respondent's state of birth, we examine labor market outcomes and educational attainment for 35-49 year olds. Our estimates suggest that teacher collective bargaining worsens the future labor market outcomes of students: living in a state that has a duty-to-bargain law for all 12 grade-school years reduces earnings by $800 (or 2%) per year and decreases hours worked by 0.50 hours per week. The earnings estimate indicates that teacher collective bargaining reduces earnings by $199.6 billion in the US annually. We also find evidence of lower employment rates, which is driven by lower labor force participation, as well as reductions in the skill levels of the occupations into which workers sort. The effects are driven by men and nonwhites, who experience larger relative declines in long-run outcomes. Using data from the 1979 National Longitudinal Survey of Youth, we demonstrate that collective bargaining leads to sizable reductions in measured cognitive and non-cognitive skills among young adults. Taken together, our results suggest laws that support collective bargaining for teachers have adverse long-term labor market consequences for students.

I suspect both studies will prompt significant debate.

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