10/17/1862: Justice David Davis takes oath.
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?
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.
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
Hi, Professor Bernstein. Dean Gerken said that you had inquired about the graffiti incident last week. Any updates on the status of the investigation would have to come from the Yale Police Department.
Jan Conroy Chief Communications Officer Yale Law School
Ms. Conroy, with all due respect, the law school sent out a release about this and would be the owner of the relevant surveillance video. Is there some reason the law school hasn't released the surveillance footage? Surely that would help identify the guilty parties.
That was Monday. I have not received a reply. I tried reaching out to the Yale police department, but was unable to reach a spokesperson.
Having informed law school and broader communities that a hate crime took place at the law school, I find it mysterious that the school has neither released the surveillance footage nor provided any updates as to the progress of the investigation.
10/16/1898: Justice William O. Douglas's birthday.
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.
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
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:
- Chief Judge Merrick Garland (D.C. Cir.)
- Judge Sri Srinivasan (D.C. Cir.)
- Judge Paul Watford (9th Cir.)
- Judge Jacqueline Nguyen (9th Cir.)
- Judge Lucy H. Koh (N.D. Cal.)
- Judge Patricia Millett (D.C. Cir.)
- Senator Amy Klobuchar (D-Minn.)
- 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.
[UPDATE, 9:46 am, 10/15/2019: I originally inadvertently omitted "students" from the headline; my apologies. (The subhead was correct all along.) The lawsuit, of course, is by some current and past University of Louisville students, not the University itself; I knew that, but as I was editing the headline I somehow dropped that word. Sorry about that, and many thanks to Ben Llaneta for the correction.]
From Hornback v. Powell, decided Friday by the Kentucky Court of Appeals:
[Plaintiffs] alleged that Appellee Katina Powell claimed that she and her daughters engaged in or agreed to engage in sexual conduct with University of Louisville men's basketball players and recruits from 2010 to 2014 in exchange for a fee of $10,000 paid by a University of Louisville employee. This claim was memorialized in a book called Breaking Cardinal Rules: Basketball and the Escort Queen…. According to the record, Powell's claims resulted in the University of Louisville self-imposing a postseason ban on its men's basketball program for the 2015-16 season….
[1. Plaintiffs] first assert that KRS Chapter 529 and KRS 446.070 may be applied in unison to sustain a cause of action against [Defendants (Powell, her coauthors, and her publisher)]. KRS Chapter 529 addresses prostitution offenses, and [Plaintiffs] direct our attention to case law holding that one of the purposes of prostitution statutes is to protect the public health and welfare. KRS 446.070 states that a "person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation[.]" [Plaintiffs] argue that they are "within the class intended to be protected by the statute" (meaning KRS chapter 529), that prostitution and profiting therefrom is unlawful, and that KRS 446.070 may be applied to allow their recovery from [Defendants] for damages sustained by reason of the violation….
[But Plaintiffs] have not demonstrated that Powell or others were charged with or convicted of KRS Chapter 529 violations. Even if [Plaintiffs] had provided such proof, [Plaintiffs] are at best remote and unconnected third parties who cannot reasonably be characterized as being injured or damaged by Powell's alleged unlawful conduct….
[2. Plaintiffs also cite the Kentucky "Son of Sam" law,] which states: "Every person contracting with any person or the representative or assignee of any person accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio, or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions, or emotions regarding such crime, shall pay over to the Kentucky Claims Commission any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives."
[Plaintiffs] argue that Powell [and other defendants] conspired to profit from prostitution via the book Breaking Cardinal Rules and assert that the [Plaintiffs] are victims for purposes of this statutory provision…. [But Plaintiffs again] provide no citation to the record demonstrating that Powell was "accused or convicted of a crime in this state …." Further, KRS Chapter 346 and the plain language of KRS 49.450(1) allows for the recovery of proceeds by the Kentucky Claims Commission, not by purported victims. And finally, [Plaintiffs] cannot demonstrate that they are "victims" of [Defendants'] conduct in any meaningful sense….
[3. Plaintiffs] go on to argue … that they may prosecute a claim against [Defendants] for "tortious interference with a prospective business advantage." …. [Plaintiffs] contend that they were prepared to offer evidence of the diminution in value of their University of Louisville degrees resulting from [Defendants'] actions, as well as the testimony of a psychologist who was expected to state that [Plaintiffs] suffered depression, anxiety, stress, and ridicule.
[Plaintiffs] allege that when wearing University of Louisville logos and attire in public places, they are approached by strangers who make rude and hateful remarks because of the events chronicled in the book…. [But] they cannot demonstrate that [Defendants] committed an intentional act of interference with respect to that business relationship, nor that [Defendants'] actions caused damages. In order to sustain a claim of tortious interference with a prospective business advantage, [Plaintiffs] must offer "evidence of a motive or intent … to interfere" with the business relationship. [Plaintiffs] cannot demonstrate that Powell's alleged sexual contact with University of Louisville basketball players and recruits was motivated by an intent to interfere with a business relationship between remote third-party students and the University. Rather, the only motivator cited by [Plaintiffs] was Powell's desire to be financially compensated. [Plaintiffs'] claim on this issue must fail as a matter of law, and we find no error.
[4. Plaintiffs also argue that Defendants'] actions constituted intentional infliction of emotional distress sufficient to sustain a claim for damages…. [But w]hile [Plaintiffs] contend that strangers ridicule them when they are wearing University of Louisville logos on their clothing, they do not allege the degree of severe emotional distress necessary to sustain the cause of action. Further, this tort "requires conduct intended to cause emotional distress in the victim." No allegation has been forwarded, nor could it be demonstrated under the facts before us, that [Defendants] intended to cause severe emotional distress in the [Plaintiffs]….
I haven't followed the underlying controversy, but here's an excerpt from the NCAA report:
A member of the men's basketball staff arranged on-campus striptease dances and acts of prostitution for enrolled student-athletes and prospective student-athletes (prospects), some of whom were minors, on their campus visits. The conduct occurred in an institutional dormitory predominantly occupied by the men's basketball team and others affiliated with the program. For approximately three and one-half years, the former director of men's basketball operations arranged with a local escort to bring female strippers and prostitutes to Minardi Hall on nights prospects were staying there. The women performed striptease dances for the prospects and, occasionally, enrolled student-athletes. On 10 occasions, one or more of the prostitutes performed sex acts on and/or with prospects, an enrolled studentathlete and a prospect's friend. At leastseven of the prospects who engaged in sex acts were minors under age 18 at the time. On two occasions, the former director of men's basketball operations arranged, through the escort, for prostitutes to have sex at local hotels with the nonscholastic basketball coaches of two prospects being recruited by the institution.
But was the fix in? One of the judges on the panel has two degrees from Kentucky, another has one, and none have any from Louisville. Coincidence?
(Well, OK, the trial judge did go to Louisville for law school, and he ruled the same way as the appellate judges did.)
10/15/1883: The Civil Rights Cases are decided.
An excerpt from a recently filed Complaint (which used the parties' full names, but I decided to abbreviate the names because they are minors):
A. and H. [who are currently minors] dated for a few months, from approximately March 2017 thru July 2017. A. and H. had consensual sexual contact on two occasions.
A. ended the relationship, after which H. continued to express her desire for them to continue dating but that was rebuffed by A. In February 2019, at a homeschool dance, A. first learned that H. had recently told other members of their homeschool group that A. had "raped" her. That statement and accusation is patently false and was uttered maliciously by H. with the intent of damaging A.'s reputation….
The allegation of "rape" constitutes slander per se as it falsely accuses Plaintiff of committing a crime …. Defendant H. orally published this statement knowing its falsity and made it with malice and with the intent to injure, and has injured, Plaintiff's character, personal reputation as well as done damage to Plaintiff's future career and employment opportunities.
[The second defendant] is the mother of H. and has custody and control over her daughter. As such, pursuant to California Civil Code section 1714.1, the misconduct of H. is imputed to her mother, and [the mother] is jointly and severally liable for the misconduct of H.
Therefore, in addition to general damages and injunctive relief, Plaintiff is entitled to an award of punitive damages against Defendants in an sum appropriate to punish and deter such misconduct in the future, in an amount of not less than $200,000.
Two interesting practical and legal twists:
- Section 1714.1 provides, in relevant part,
Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct….
[Such parental liability] shall not exceed [$45,000] for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed [$45,000]….
Does this extend to libel cases? No, suggests a trial court (nonprecedential) decision, Caplin v. Harvard-Westlake School (Cal. Super. Ct. 2008). That case involved chiefly emotional distress damages rather than reputational damages, but its logic would apply here:
The damages allegations [in this case] are of a psychological and emotional nature to Plaintiffs…. Plaintiffs' attempt to analogize property damage to the [insulting internet postings on plaintiff's site] is without merit …..
Even assuming that the nature of the injuries complained of fall within the ambit of Section 1714.1, Plaintiffs' seventh cause of action would nevertheless fail, as the only damages allowed under the statute are for "medical, dental and hospital expenses …." Here, the allegations do not support a claim to recover such expenses, as the damages sought are for psychological and emotional injuries rather than for physical injuries….
I'm inclined to think that the Caplin analysis is right, and would apply fully to defamation cases. The statute contemplates holding parents liable for physical injuries that require "medical, dental and hospital expenses," not reputational injuries, and for damage to property, which generally isn't seen as covering reputation. But I don't know of any binding precedent on this point.
2. Litigants usually have to indicate their full names, but minors, especially in California, are often allowed to litigate using initials or pseudonyms—especially when there are allegations of sexual impropriety involved. Here, the plaintiff is acknowledging that there was a sexual relationship when the parties were, at most, 15; a quick search for defendant H.'s full name, coupled with the name of the city she lives in, reveals a local newspaper article that describes her as having been age 12 in January 2016, which would have made her 13 or 14 at the time of the relationship (March to July 2017). And of course defendant allegedly accused plaintiff of having raped her.
It thus seems odd that the lawsuit was filed using the parties' full names. This is especially so because A.'s name is quite unusual, he appears to be an aspiring actor (with a few bit parts in some TV shows), and a Google search for the full name now shows the docket (on the UniCourt.com site) on the first results page. I am generally not a fan of pseudonymous litigation, but my tentative thought is that a case involving minors' sexual conduct (and possible misconduct) would have been a suitable case for that. Of course, query whether it is a sound decision at all for the plaintiff to sue, and turn an alleged slander within a group of home schoolers into something that could easily become a matter of public record even had the case been litigated pseudonymously.
In any event, this struck me as an interesting case (and a good fit with another libel-of-a-child case I blogged about last month), so I thought I'd pass it along.
Over at The Atlantic, I have a new piece on the escalating tensions between the Trump White House and the Democratic House of Representatives. The House has been unusually aggressive in its pursuit of oversight of the executive branch, which has often veered into an unofficial and now more official impeachment inquiry. For its part, the White House has been unusually defiant of congressional investigations, from the president's early declaration that the administration would fight all subpoenas to the White House counsel's announcement of a policy of total noncooperation.
The piece revisits the constitutional rationale for a congressional investigative and oversight function and the challenges of performing that task in an environment of partisan polarization. Presidents have some responsibility to cooperate with congressional oversight when possible, though less of a duty to facilitate their own impeachment. Even so, presidents also have some legitimate reasons for obstructing congressional investigations, and the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.
Here's a taste:
Pelosi's House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.
Read the whole thing here.
10/14/1911: Justice John Marshall Harlan I dies.
Not that I know how to arrange that, but it's as worthy a goal today as it was in 1801.
10/13/1890: Justice Samuel Miller dies.
From Magistrate Judge Richard A. Lanzillo in Peschmann v. Quayle (W.D. Pa. Aug. 13, 2019):
[Marinka] Peschmann attempts to state a defamation claim against [Stephen] Quayle, arguing that his comment that she had sexual relations with the devil imputes serious sexual misconduct to her and therefore constitutes defamation per se. [Quayle's statement was, "When I hear a woman making a claim to a national editor of a major Internet uh, uh, uh presence, news presence, and talking about sleeping with the devil … If someone says they are sharing the bed with the devil that means they are having sex with an entity, okay?"]
Courts, for certain, have found false allegations of serious sexual conduct to be capable of defamatory meaning. For example, a claim that a college professor "falsely and maliciously stated to [University] employees and other third parties that she had been sexually assaulted and harassed by [another professor], when in fact, she had not" imputed serious sexual misconduct and stated a claim for defamation per se. A statement that a plaintiff "ran young girls for him down at spring training, ages 12 to 14 … so that's statutory rape every time you do that" was capable of a defamatory meaning. Likewise, a public statement that a plaintiff was "an attacker," thereby "forever labeling him in print as a violent sexual deviant" was also found to be sufficient to state a claim for per se defamation. Asserting to others that a plaintiff had committed "adulterous sexual conduct," was "a slut," "the queen of sluts," and a "whore" also was found to capable of a defamatory meaning and, therefore, stated a claim of per se defamation. Finally, a false claim made to and subsequently published by a local newspaper that a high school band director had sexually harassed students stated a claim for defamation because it alleged serious sexual misconduct.
Here, however, Quayle argues, and the Court agrees, that his statement was pure hyperbole or an epithet, such that it was not provable and thus not defamatory. Statements which cannot be proven true or false, such as insults and name-calling, even if offensive, are not capable of a defamatory meaning. And the Constitution actually protects such words.
Similarly protected are those statements which "could not reasonably have been interpreted as stating actual facts about the" individual, and statements of opinion unless they imply "undisclosed defamatory facts justifying the opinion." The Third Circuit has held that "the law of defamation does not extend to mere insult" and that there is "a distinction between actionable defamation and mere obscenities, insults, and other verbal abuse."
Here, Peschmann herself acknowledges that Quayle's statement is "impossible to be true," "preposterous," "ludicrous," and "outrageous." In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally. As such, the statement is not capable of a defamatory meaning. Peschmann's defamation claim against Quayle based upon his "sex with the devil" statement should be dismissed.
The District Court didn't expressly discuss the Magistrate Judge's recommendations on this, and went along with the Magistrate Judge's recommendation on some issues but not all of them, so in principle the matter might still be open. But I think that, on this point, the recommendation is clearly correct.
10/12/1977: Regents of the University of California v. Bakke argued.
Earlier today, federal district judge Judge David Briones issued a decision holding that it is illegal for President Trump to use his declaration of a "national emergency" to divert funds to build his border wall. This is the first judicial ruling directly addressing the issue of whether it is legal to use the emergency declaration for that purpose. Previous wall decisions dealt with the administration's attempts to divert other funds to build the wall, from sources that did not depend on the use of the emergency declaration. Judge Briones' ruling comes in a case filed by El Paso County and the Border Network for Human Rights.
In February, the president issued a declaration announcing that the situation at the border qualifies as a "national emergency." That, in turn, allowed him to make use of a wide range of powers triggered by an emergency declaration. Among them was authority to use 10 U.S.C. Section 2808, which states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." The administration contends that Section 2808 gives it the authority to transfer some $3.6 billion in defense funds towards the border wall. The decision also addresses efforts to rely on 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies.
Judge Briones' ruling concludes that such a diversion is illegal. He reaches that conclusion for two reasons. First, it violates the Consolidated Appropriations Act of 2019, which ended the government shutdown caused by Trump's fight with Congress over border-wall funding:
To resolve this case, the Court turns to one of the three golden rules of statutory
construction "established from time immemorial" that "a more specific statute will be given precedence over a more general one." Nevada v. Dep 't of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (quoting 1 Comp. Dec. 126, 127 (1894) and Busic v. United States, 446 U.S. 398, 406(1980)). This rule "appli[es] to appropriations bills." See id. Thus, "[a]n appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation." Id…..
[T]he CAA specifically appropriates $1.3 75 billion for border-wall expenditures and requires those expenditures to be made on "construction. . . in the Rio Grande Valley Sector" alone. CAA § § 230, 231. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes f military construction, under § 2808, and counterdrug activities, under § 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA….
The court also ruled that the funding diversion violates Section 739 of the CAA, which mandates that "None of the funds made available in this or any other appropriations Act may be used to increase. . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act":
§ 739 creates a general rule and an exception. The general rule is that "[n]one of
the funds made available" in an "appropriations Act" (including the CAA) "may be used to increase funding for a program, project, or activity" that was "proposed in the President's budget request for a fiscal year." CAA § 739. The exception is that appropriations may be used to increase such funding if that use is authorized by "the reprogramming or transfer provisions" of an "appropriations Act." § 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception.
Defendants' plan is barred by § 73 9's general rule, because it (1) seeks to use funds "made available in" an "appropriations Act"; (2) "to increase funding for a program, project, or activity"; (3) that was "proposed in the President's budget request for a fiscal year." First, Defendants' plan seeks to use funds "made available in" an "appropriations Act." CAA § 739. It taps appropriated military construction funds under § 2808 and counterdrug support funds under § 284. As the White House has acknowledged, all funds have been "appropriated by Congress….."
Second, Defendants' plan also seeks to use these appropriations to "increase funding for a program, project, or activity." CAA § 739. Construction of a wall along the southern border is a singular "project" under that word's ordinary meaning. See Merriam Webster's Dictionary 932 (11th ed. 2003) (defining "project" as "a specific plan or design") Indeed, the Executive Branch has consistently referred to the wall in this manner….
Defendants' funding plan is not saved by § 739's exception: the funding increases it proposes are not "change[s] . . . made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act." Under federal law, an "appropriations Act" is an Act whose title begins: "An Act making appropriations." 2 U.S.C. § 622(5); 1 U.S.C. § 105. Neither § 2808 nor § 284 begins with this language. § 2808 is a provision of the Military Construction Codification Act, Pub. L. No. 97-124, 96 Stat. 153 (1982), which says nothing about appropriations in its title, nor makes any appropriations in its body. And § 284 is a provision of the National Defense Authorization Act, Pub. L. No. 114-328, 130 Stat. 2000, 2381, 2497 (2016), which by title and substance is not an "appropriations Act." Cf Pub. L. No. 115- 31, 131 Stat. 135, 229 (2017) (separate statute appropriating DOD funds). The Proclamation violates § 739 of the CAA.
I am not sure what to think about the court's "specific trumps general" argument. It raises some difficult statutory interpretation questions that I will leave to those with greater relevant expertise. But the Section 739 point strikes me as compelling, for exactly the reasons explained by Judge Briones.
Resolving the national emergency question in this way allows the court to avoid virtually all of the big picture issues surrounding the emergency declaration, such as whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976, whether the relevant provision of the National Emergencies Act (if interpreted in the broad way the administration advocates) is unconstitutional, and even whether the text of Section 2808 actually allows the use of funds for border wall construction (in my view, the answer is an emphatic "no"). It also does not consider whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress.
The narrowness of the ruling might prove attractive to appellate judges (including perhaps some Supreme Court justices) who want to find a relatively simple way to dispose of the national emergency issue, without having to set any broad precedent. But the broader questions could, nonetheless, come back into play when the administration appeals the decision.
The ruling is also notable for the fact that it comes in a case where the plaintiffs have clear "economic" interests at stake. El Paso County controls land near the area where the wall would be built, and its construction is likely to damage its tourist industry and reduce its revenues. In addition, some $20 million of the money diverted would come from a military construction project in the County, in which the local government has an obvious economic interest, as well.
Some previous rulings in border wall cases have been decided on procedural grounds, because the plaintiffs in question lacked sufficient strong interests to qualify for standing. In a recent Ninth Circuit decision holding that Trump lacked authority to divert other military funds for border wall construction, a dissenting judge argued that the plaintiffs were not legally entitled to bring the suit, because their lack of an "economic" interest placed them outside of the "zone of interests" protected by the relevant federal statutes. The Supreme Court eventually stayed the Ninth Circuit decision, possibly based on such procedural concerns.
In the El Paso case, the plaintiffs' economic interests are difficult to deny. It is hard to have a much clearer economic interest than having the government build a wall near your land, using funds that might otherwise benefit you. Thus, it will be difficult for the administration to get this case dismissed on procedural grounds. Courts will likely have to continue to address it on the merits.
Given the virtual inevitability of an appeal, this case is far from over. And there are many other wall-building cases still making their way through the system, whose outcomes remain to be seen.
It is also worth noting that Judge Briones is a Democratic appointee. So far, all of the Democratic-appointed judges who have issued decisions in wall cases have ruled for the plaintiffs, while all but one Republican appointee (Judge Clifton of the Ninth Circuit) have voted against them. It is, possible, therefore, that the wall litigation will continue to split judges largely along partisan lines. On the other hand, all the Republican judges who have voted against the plaintiffs, so far, have done so on procedural grounds. Judge Clifton is the only one who has reached the merits, and he voted for the plaintiffs. At least some other GOP-appointed judges might take similar positions when and if they get the chance to rule on the merits, as well.
Today's ruling is a notable victory for opponents of the wall. But the outcome of both this case and that of the broader legal struggle over the wall remain uncertain. Stay tuned!
UPDATE: The original version of this post overstated the directness of El Paso's economic interests that will be affected by the construction of the border wall. I apologize for the mistake, which has been corrected.
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:
Educational and charitable organizations are entitled to exemption from federal income tax, and their contributors are entitled to tax deductions. The IRS had granted tax-exempt status to organizations not having "gay" in their names, most prominently the University Fellowship of Metropolitan Community Churches, and had been willing to give "gay" groups exemptions if they stipulated that they did not "promote" homosexuality or if they accepted homosexuality as a "diseased pathology." Accordingly, the IRS denied tax exempt status to the Gay Community Services Center of Los Angeles in January 1973. In an important turnabout and after a series of meetings with gay representatives, the IRS reversed itself in August of that year, giving exempt status for the first time to an organization with "gay" in its name. Lambda Legal Defense got surprisingly quick approval the next year.
In other words, the IRS made a speech restriction (no "gay") or even compelled speech (accepting homosexuality as a mental illness) a condition of receiving a tax benefit.
The IRS also initially denied exempt status to the Pride Foundation, a pro-gay educational and legal organization.
The IRS found that the Pride Foundation's "efforts 'toward the elimination of unjustified and improper discrimination or treatment, or toward violations of the privacy of adult individuals, are insignificant when compared to the possible detriment to society,"' specifically, "'advancing the unqualified and unrestricted promotion of the alleged normalcy of homosexuality"' which the IRS feared would have the effect "'in the general prevalence of what is still generally regarded as deviant sexual behavior."' As legal authority for its position, the agency cited the Supreme Court's disapproval of "perverted" sexuality in its obscenity opinions and state sodomy laws against homosexual conduct.
Here the federal government doled out exempt status purely on the basis of the viewpoint of the gay-advocacy group: it could not "promote" the idea that homosexuality was normal. Doing so might have socially harmful (and indeed illegal) behavioral consequences. Eskridge recounts how gay-rights attorneys were able to turn the IRS around:
Once such a justification was out in the open, gaylegal representatives were able to ply the IRS with arguments and information undermining its premises. Lawyers for the Fund for Human Dignity in New York worked with the IRS for two years and persuaded the agency to grant exempt status to gay educational groups, without any disclaimer, in a September 1977 ruling.
O'Rourke's rationale for denying exempt status to churches and other groups that oppose same-sex marriage is identical in form to the rationale for denying exempt status to the Pride Foundation in the 1970s. A federal benefit (exempt status) can be denied selectively on the basis of a viewpoint ("promoting" homosexuality then, opposing same-sex marriage now) in the interest of avoiding social harm ("sexual deviancy" then, denial of "full human and civil rights" now).
There's a lot of forgotten or unrecognized history in the LGBT-rights movement. The movement has been trying rather self-consciously to unearth that history. It's also worth recalling that the government, with its long and ready list of good causes, has not always been a friend.