Sinologist (and Penn professor) Victor Mair (Language Log) has more on one of the less discussed features of the now-famous Tweet from Houston Rockets general manager Daryl Morey:

The question Prof. Mair discusses is: What's with the logo? Here's what the Stand With Hong Kong Facebook page says:

After Daryl Morey reposted our logo in an effort to #StandWithHK and Hongkongers' ongoing fight for freedom and democracy, the Chinese state intimidated both him and the NBA into silence. But what does our logo actually mean?

Our logo consists of the Chinese character for "person/people (人)", repeated five times and converging from around the globe on one place—Hong Kong. The number five represents the five key demands made by protesters in June 2019. The form of the logo resembles the shape of an opened umbrella, a well-known symbol of the democracy movement. It also brings to mind the bauhinia, a flower native to Hong Kong and its official symbol.

We created this logo to raise international awareness of the situation in Hong Kong. Hongkongers across the world stand united in our fight for freedom, building on a long history of protest and resistance.

We are not afraid of intimidation & censorship. Fight for Freedom. Stand with Hong Kong.

Will you join us and #StandWithHK?

standwithhk.org

P.S. NBA, don't you think our logo looks like a team huddle? This is part of the meaning of the design as well.

A nice line from legendary producer (Batman, Rain Man, Flashdance, and many more) Peter Guber, as reported by my colleague David Ginsburg. (For a published briefer version of the line, see here.)

On October 8th, the Yale Daily News reported:

Late Saturday night - between the Jewish High Holy Days of Rosh Hashanah and Yom Kippur - anti-Semitic graffiti appeared on the steps of the side entrance to Yale Law School.

The graffiti depicted a white, spray-painted swastika above the word "Trump." By noon on Sunday, the graffiti was covered with black paint and a doormat. It has since been removed entirely. On Monday, Yale Law School Dean Heather Gerken issued a statement to the YLS community reaffirming the school's values, offering support and notifying the community of an upcoming investigation.

"We are saddened by this act of hate against our community at any time but understand that this is particularly difficult occurring between the High Holy Days," said Ellen Cosgrove, associate dean of students at Yale Law School. "Diversity and inclusion are core values of our institution [and] attacks against individual students or communities of students will not be tolerated."

Gerken emphasized that there is no evidence that a member of the Yale community painted the swastika, and stressed that the act of anti-Semitism is "utterly antithetical" to the values of the Law School.

"Yale Law School has zero tolerance for discrimination or harassment of any kind, and symbols of hate have no place on our campus or in our society," Gerken said. "We take an incident like this extremely seriously and are currently investigating."

Gerken encouraged anyone with information to reach out to her office.

Organizations in the Yale community, such as the Law School's Office of Student Affairs and the Joseph Slifka Center for Jewish Life, responded to the incident on Monday, condemning the action and offering support to students.

Rabbi Jason Rubenstein, Jewish chaplain at Yale, wrote in an email to the Slifka community Monday evening that the investigation into the perpetrator's identity is ongoing and is "relying on video footage from late Saturday night and early Sunday morning.

Anyone who has been following such "Trump plus swastika in very liberal environments" incidents would immediately suspect one of two things: (1) a hoax; or, perhaps more likely (2) the vandal(s) in question weren't trying to say "I support Trump and he's a Nazi," but rather "I hate Trump because he's a Nazi." Nevertheless, everyone at Yale treated this immediately as a presumptive hate crime.

Having seen the initial reports, I checked google for any followup. There was none that I could find. I wrote to Dean Gerken:

Dear Heather,

I just checked Google, and there appears to be no news about the swastika incident in the last several days. Early reports said that video surveillance existed to help identify the perpetrators. Has this video been released to the public yet to help the identification? If not, why not? Writing in my capacity as a blogger for Instapundit and the Volokh Conspiracy.

Best,

David

 Our interview is with Sultan Meghji, CEO of Neocova. We cover the large Chinese investment in quantum technology and what it means for the United States. It's possible that Chinese physicists are just better than American physicists at extracting funding from their government by hyping their science. Indeed, it looks as though some quantum tech, such as the use of entangled particles to identify eavesdropping, may turn out to have dubious military value. But not all. Sultan thinks the threat of special purpose quantum computing to break encryption poses a real, near-term threat to US financial institutions' security.

In the News Roundup, we cover the new California Consumer Privacy Act regulations, which devote a surprising amount of their 24 pages to fixing problems caused by the Act's feel-good promise that consumers can access and delete the information companies have on them.

Speaking of feel-good laws that are full of liability land mines, the Supreme Court has let stand a Ninth Circuit ruling that allows blind people to sue under the Americans with Disabilities Act if websites don't accommodate their needs. Nick Weaver and I explore a few of the harder questions raised by this seemingly simple mandate (you can accommodate the blind by providing a "read aloud" option, but what about people who are blind and deaf?) and the risks of making law by retroactively imposing liability.

Weirdly for a populist administration that says it mistrusts the big social platforms for their restricting of conservative speech, the Trump trade negotiators are actually expanding Section 230 immunities for Silicon Valley that both left and right have begun to question. The expansion is buried in hard-to-amend and even-harder-to-repeal trade agreements. By way of explanation, I lay out the Realpolitik of trade deals. As if to prove my point, the US and Japan have signed a Digital Trade Agreement that has much the same provision.

Nick and I muse on the rise of Commerce Department sanctions on individual companies. In a way, such sanctions are a less harsh alternative to OFAC sanctions, which include property seizures, but they are also like antibiotics—they either destroy the target or help it develop better resistance for the future.

Does TLS stand for "Tough Luck, Sucker?" That's the message of a new and clever form of malware that has been, softly attributed to the Russian FSB.

Apple, having banned, and then unbanned, an app that locates police activity in Hong Kong, has now re-banned it. Tim Cook offers an explanation for the latest move that triggers Nick's bovine excrement detection system. In a Final Four of Hypocritical Surrender to the PRC, LeBron James and the NBA give ESPN a run for its money. South Park fails to qualify.

Matthew Heiman and I discuss India's effort to create a national facial recognition system. Naturally BuzzFeed thinks it's Evil. Not enough people of color in the training set, apparently, or perhaps it's too many. Or Modi is too much like Trump. Or some damn thing. Look, it's Evil, okay? So shut up and leave BuzzFeed alone.

Nick and I consider DHS's request for the power to subpoena ISPs to identify owners of compromised systems. I critique Herb Lin's suggestion that the ISPs can solve the problem without giving data to DHS.

As Matthew notes, it was just last month that the French government gave the world a stiff-necked little lecture on respecting sovereignty in cyberspace. So why are French police helping reprogram computers in Latin America? Because it's different when the French are doing it than when it's done to them, I surmise.

A recent "good guy with a keyboard" story offers me one more chance to tout my views on hacking back.  I ask why someone who's rescued hundreds of victims from ransomware should have to worry for one minute about being prosecuted for compromising (again) the already compromised C2 machines that apparently held the keys.

Matthew and I try to simplify a complex ruling from two FISA courts. Among the takeaways: The FBI has been running a lot of searches against 702 databases (3.1 million a year!), which greatly complicates its compliance program, and the FISA courts are overusing the 4th amendment, which in FISA minimization cases is like trying to do brain surgery with a chainsaw.

Argh! That embarrassing Bloomberg Supermicro story is back. Sort of. Wired has shown that something like it could really be done. Which, Nick points out, we already knew.

I give a shoutout to Jennifer Daskal and Peter Swire for their useful overview of the UK-US CLOUD Act, but I wonder if the agreement's mutual "no targeting of the other country's nationals" assurances are a scalable solution.

Finally, Matthew reviews the second volume of the SSCI report on its investigation into Russian election interference. The TL;DR? The Russians did what you think they did. The closest thing to a surprise? After starting out just trying to hurt Hillary, by the end the Russians seem to have been trying to help Trump too.

Download the 282nd Episode (mp3).

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Demand Justice has released a "shortlist of possible [Supreme Court[] nominees in the next Democratic administration." The group selected 32 "brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation."

Who was selected? The nominees generally fall into 5 broad categories:

• Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),
• Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),
• Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)
• Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)
• State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court),

Who didn't make the cut? We can speculate. In July 2016, the Hill published a potential shortlist from a Clinton administration. Of these 11 names, only three made it onto the Demand Justice List: Judge Jane Kelly (8th Cir.), Justice Goodwin Liu (California Supreme Court), and Justice Mariano-Florentino Cuéllar (California Supreme Court). Eight names were left off the Demand Justice list:

1. Chief Judge Merrick Garland (D.C. Cir.)
2. Judge Sri Srinivasan (D.C. Cir.)
3. Judge Paul Watford (9th Cir.)
4. Judge Jacqueline Nguyen (9th Cir.)
5. Judge Lucy H. Koh (N.D. Cal.)
6. Judge Patricia Millett (D.C. Cir.)
7. Senator Amy Klobuchar (D-Minn.)
8. Senator Cory Booker (D.-N.J.)

Garland's re-nomination was never a serious option. And it isn't clear that Demand Justice considered elected officials, such as Klobuchar and Booker. But what about the other Obama appointees? The not-so-shortlist excluded many possible nominees-by design. Demand Justice explains:

None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations. Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff's lawyers.

Judges Paul Watford, Sri Srinivasan, Jacqueline Nguyen, Lucy H. Koh, and Patricia Millett all worked in private practice. Those careers, apparently, rendered them ineligible for the Supreme Court. Also excluded is Judge Ketanji Brown Jackson (D.D.C), whom Tom Goldstein tapped to replace Justice Scalia. She worked in Big Law.

Who else would not make the list? Justice Sotomayor was a partner at Pavia & Harcourt. She would have been out. Justice Kagan briefly served as an associate at Williams & Connolly. Would she have made the cut?

Ultimately, I welcome these lists. They provide the public with insights into the type of jurists an administration would consider. Though, it's difficult to know how much weight to put on Demand Justice's roster. Unlike President Trump's original list, the current list was not released–or even endorsed–by any campaigns.

Not that I know how to arrange that, but it's as worthy a goal today as it was in 1801.

In a televised Democratic presidential forum on LGBT issues last night in Los Angeles, CNN's Don Lemmon asked Beto O'Rourke, "Do you think religious institutions like colleges, churches, charities – should they lose their tax-exempt status if they oppose same-sex marriage?"

"Yes," O'Rourke responded. "There can be no reward, no benefit, no tax break for anyone, or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us."

Eugene explained well in this 2016 post why the IRS cannot deny tax exemptions solely on the basis of viewpoint, even if you conceive of a tax exemption as a form of subsidy (a "reward") that the government does not have not to give anyone at all, and even if you think the group propounds a hateful or deeply immoral message. The IRS

Walter Olson expands on why O'Rourke's answer was so objectionable, calling it "illiberal, anti-pluralist, and inflammatory." Scott Shackford piles on, noting the political damage that could be done: "If you care about LGBT rights, you should be glad O'Rourke doesn't have a shot: The backlash against him as a nominee would be massive."

All of these points are well taken. Perhaps most striking to me about the exchange between Lemmon and O'Rourke was not that a candidate would tell an audience what he thought they wanted to hear, but that the audience was so wildly enthusiastic about it.  The reaction was explicable on one level because organized religion has been an extraordinary source of pain to LGBT people. (And of course, it has also been a source of extraordinary comfort to many LGBT people. It giveth and taketh away.)

But on another level, it's an act of forgetfulness. As William Eskridge has written, "the modern regulatory state cut its teeth on gay people." First Amendment rights, especially the cardinal directive that government may not discriminate on the basis of viewpoint, has served both individual LGBT people and the organized LGBT-rights movement very well.  When the government, including the administrative state and courts, failed to live up to those principles, the whole movement was imperiled.

One of the innumerable ways in which the state attempted to discourage gay-rights advocacy in its infancy was through the device of denying corporate charters, school recognition, and all other manner of what O'Rourke might call a "reward, benefit, or tax break . . for anyone, or any institution, or any organization" that violated right and good state-sanctioned principles.

Among these devices was specifically the selective denial of charitable tax exemptions for gay organizations in the 1970s. As Eskridge summarized some of the cases in a 1997 Yale Law Journal article: