The Volokh Conspiracy

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The Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

Litigation financing, campaign financing, and salmagundi.

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

IJ's own Diana Simpson was on NPR discussing Chicago's vehicle impound system, which imposes tens of millions of dollars in fines and fees annually and is insanely unfair to residents, afflicting the innocent as well as the guilty and the poor most of all. Click here to listen.

  • Fan of the Libertarian Party dies, leaves the party a surprise gift of $235k. Uh oh! Campaign finance law imposes limits on contributions to political parties. Libertarian Party: The limits exist to prevent quid pro quo corruption, and we can't repay a favor to a dead guy. D.C. Circuit (en banc): Yeah, but it's conceivable that a donor might strike a corrupt bargain with a campaign before they die, so the limit is fine. Dissent: This is the First Amendment; you need real evidence, not just speculation.
  • Federal law authorizes retired law enforcement officers to carry concealed firearms all over the country (subject to some conditions), overriding state and local laws to the contrary. D.C.: Retired corrections officers don't count, as they didn't have the power to arrest anyone. D.C. Circuit: They do and did.
  • Friends, please enjoy this vocab quiz from Judge Selya of the First Circuit: Perfervid, salmagundi, immurement, plaint, ossature, praxis, and tenebrous. Plus, a scrutable idiom: "nose-on-the-face plain."
  • Lawful permanent resident, a hairdresser from the Bronx, is jailed for several months awaiting deportation hearing, during which time she experiences severe mental health breakdown. She prevails at her hearing; Orange County, N.Y. officials release her in sub-zero temperatures without her medication or any way of obtaining more (or even knowing what medication she needed). Second Circuit: She's plausibly alleged officials failed to provide adequate discharge planning in violation of the Fourteenth Amendment. The suit should not have been dismissed.
  • The Trump Administration failed to adequately explain its reasons for rescinding DACA, an Obama administration program delaying deportation for immigrants who came to the U.S. illegally as children. Which violated the Administrative Procedure Act. So says the Fourth Circuit (over a dissent).
  • Man buys gift for friends on Amazon—a headlamp. It's defective; it burns down his friends' Montgomery County, Md. home. Must Amazon pay the friends' insurer? The Fourth Circuit says no; under state law, Amazon is not a "seller" as it never took title to the lamp. Concurrence: Which is about the only thing Amazon didn't do; it warehoused the lamp, took payment for it, and assumed the risk of credit card fraud, among things. Maryland legislators and judges might want to look into this.
  • Litigation financing, heartbreak, and recusal collide in this Texas-sized debacle. A litigation financing company has a stake in 21 lawsuits being litigated by a Mexican law firm. But one of the law firm's owners is embroiled in a divorce in Texas, and his interest in the law firm is part of the marital estate. So the litigation financing company intervenes in the divorce proceeding to protect its investment in the law firm and to collect debts owing to the firm. But the lawyer the company hires to collect the soon-to-be-divorced lawyer's debts turns out to also be law partners with the divorce court judge. Which—when uncovered—explodes the litigation financing company's efforts to recover its investment and leaves it having wasted $2 mil in attorney fees. Yikes! But that's just the beginning. The litigation financing company then sues the lawyer for malpractice. No, not the lawyer getting the divorce. The other one; the one it originally hired to recover its investment but who had the business relationship with the judge. And in response to the company's suit, the lawyer commits what the Fifth Circuit later describes as a "litany of litigatory misbehavior." Which leads to the district court's striking the lawyers' pleadings, entering a default judgment in favor of the litigation financing company, and awarding nearly $3 mil in damages. Fifth Circuit: The default judgment shall stand, but the district court needs to recalculate the damages award.
  • Man allegedly violates his probation; his probation officer gets a Houston County, Tenn. judicial commissioner to revoke it. He goes to jail for several months. But wait! A state court judge rules that Tennessee judicial commissioners, who can issue search and arrest warrants, do not have the authority to issue probation revocation warrants. Can the man sue the commissioner? The Sixth Circuit says no. Judicial immunity.
  • Since 2014, Bel-Nor, Mo. resident has displayed a "Black Lives Matter" sign in his front yard; since 2016, he has also displayed two (now-outdated) political signs. City: Under our ordinance, you're allowed one "sign" and one "flag"—which we've defined to mean a piece of fabric that is a "symbol of a government or institution"—and none of your signs are a flag. Eighth Circuit: The city's different treatment of "signs" and "flags" is content based. A banner with an Army logo would qualify as a "flag," but one with a Cardinals logo wouldn't. That makes the ordinance likely invalid under the First Amendment, so the resident gets a preliminary injunction while the case proceeds.
  • Man is sent to prison for 145 years on strength of his eighth grade stepdaughter's testimony that he abused her. She recants, but a state court determines the recantation was not credible, and the Colorado Supreme Court declines to order a new trial. Tenth Circuit: His claim that the trial court relied on false testimony (in violation of due process) doesn't work since the allegedly false testimony was from a private citizen and he can't show the gov't knew it was false.
  • Gorilla Gym infringes Gorilla Playsets' trademark, as both use a similar size and type of gorilla for their children's playground equipment, says the Eleventh Circuit. But the district court was monkeying around when it ordered the infringer to pay its profits for continuing to use the trademark after being sued. After all, it was, at the time, a legal trademark that no judge had ruled against.
  • And in en banc news, the Ninth Circuit has asked the Montana Supreme Court for its view on whether dinosaur fossils are owned by the owner of the land on which they're found or instead by them that own the rights to mine minerals under that land.
  • And in further en banc news, the Seventh Circuit will not reconsider its decision applying the "doctrine of consular nonreviewability." Come for the initial decision (a U.S. citizen cannot challenge a consular official's decision to deny his Yemeni wife and children a visa because it isn't clear that the ability to live in America with one's spouse is a protected constitutional right (and, even if it were, the decision was legit)), stay for the fiery back and forth between the dissental and concurrence regarding the denial of rehearing. (Judicial abdication! Rights of citizenship! Bad faith of immigration officials!)

It was a good week for the First Amendment. In North Dakota, a federal judge issued a temporary restraining order barring the city of Mandan from imposing thousands of dollars in fines on the owners of the Lonesome Dove saloon (for now). The owners' crime? Commissioning a painted mural on the side of their building that features a sunset over a landscape with mountains and cowboys and the words "Lonesome Dove," which the city deemed an unlawful commercial message. Click here to learn more. In Savannah, Ga. a federal judge ruled that the city's tour guide licensing law, which, among other things, had imposed a 100-question test filled with picayune trivia on would-be guides, violated the First Amendment. "Today's ruling vindicates a simple principle," says IJ Senior Attorney Robert McNamara. "In this country, we rely on people to decide whom they want to listen to. We do not rely on government to decide who will get to speak." Click here for more.

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

27 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. Instead of saying “nose-on-the-face plain,” Judge Selya could have just used the word “pellucid”, a perfectly good word that is underused.

  2. I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?

    1. Indeed, how can it be illegal to terminate immediately without a comment period a program which was illegally adopted without a comment period in the first place? It should be mandatory to do that, not illegal!

      1. The Fourth Circuit didn’t find that the rescission of DACA was invalid because there was no notice and comment period. To the contrary, it agreed with the district court that the rescission didn’t require notice and comment.

        The Fourth Circuit found that the rescission of DACA violated the APA because it wasn’t adequately explained and thus was arbitrary and capricious.

    2. “I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?”

      The people who acted assuming it was valid have an argument for detrimental reliance. So you might get different legal answers for people who applied for DACA while Obama and Trump were still acting like it was valid, and for people who want to shelter themselves under it now.

      Note that there’s sufficient discretion to allow it to exist… the law says that anybody who’s here illegally can be deported, but it also says “but the government has to give you a hearing before it can actually remove you” and “the number of hearings that can be taken and the number of people they could potentially be given to are wildly dissimilar” This inherently means that the President (or various underlings) can decline to remove any specific illegal until all the other illegals are given hearings and removed.

      Even if the wall were finished tomorrow AND magically worked 100% to stop people from illegally arriving, you still need about 40 years at the present rate to process all the illegals already here.

  3. re: the vocab quiz – I knew 2, guessed right on 2 and recognized 2 more as words I learned in 10th grade (and have probably never seen since).

    re: the Maryland concurrence – Or you could look into charging the people actually responsible – the manufacturer of the defective product. ‘Sue the seller’ made some sense when it was difficult or even impossible to know who the manufacturer was. (For example, when a retailer sources a commodity such as bolts of a common size from multiple manufacturers and stores them all in a common bin.) That model makes little sense in a scenario where everyone has detailed transaction logs and embedded metadata.

    1. According to the decision, the brand was Dream Light. Looking up headlamps on Amazon I do not see that brand listed, so identifying and suing the manufacturer might be kind of tough, transaction logs and metadata notwithstanding, especially if it’s in a foreign country.

      That doesn’t make Amazon liable, necessarily, but it does mean “sue the manufacturer” is not always a great solution.

      1. I was going to make the same comment as Rossami did… rather than having the legislature take note, perhaps Maryland lawyers should take note, and sue the maker of defective goods.

        Your counterargument that it’s hard to find the actual manufacturer isn’t true for the person who actually bought the defective product from the manufacturer. (OK, having your house burn down does give you SOME latitude for not having all your documents in order.)

        On the other hand, I’m pretty sure a letter printed on law firm letterhead explaining that says “I bought this thing through you and darn if the product didn’t burn down the guy’s house I gave it to. We’d like to sue the manufacturer instead of you. Would you mind helping us identify them?” sent to Amazon’s legal offices would produce all the information needed. I’d even give odds that the same letter, on insurance company letterhead, would do the trick.

      2. Amazon is guaranteed to have all that detail still in their logs. I’m sure of it because I can see similar records in my own order history on Amazon. I’ll grant that it might require a subpoena to Amazon for the legal identity and contact information of the manufacturer but that’s a fairly trivial step.

  4. Gorilla Gym monkeying around. Uh, gorillas are apes, and not monkeys (though both are simians).

    1. Monkey as a common term is a paraphyletic taxon, all apes, including humans, are descendants of monkeys.

      It is pretty much orthodoxy in anthropology that a monophyletic taxon of Monkeys exists, and it is even in current popular usage. For example if someone points at say a bonobo and said: “look at that funny monkey”, nobody would be particularly confused. And it is not uncommon to define the Apes as a monophyletic taxon of Old World Monkeys.

    2. “gorillas are apes, and not monkeys (though both are simians).”

      Apes can act like monkeys, except for the parts of acting like monkeys that require prehensile tails, which apes lack.

  5. False recantations are a known phenomenon but any plausible recantation is reasonable doubt.
    “Plausible” would include being consistent with physical evidence and not the result of pressure.
    I will be pleasantly surprised if the government did not in fact know that there were problems with the testimony. In the George Gage case, they did. The prosecutors had a statement that the complaining witness was a “pathological liar”, from her own mother.
    I admit I had to look up “salmagundi” and “ossature”.

    1. The 10th circuit held that it is absolutely irrelevant whether the recantation was credible or not. All that matters is if the first trial violated the constitution. It didn’t. It’s not a constitutional violation for a private citizen to testify falsely as long as the government didn’t know it at the time. And since the trial had no constitutional error, what happened is no concern of the federal courts. It simply doesn’t matter if the person later turns out to be innocent. The opinion assumes he is innocent. They said that as long as the conviction was obtained lawfully, innocence just doesn’t matter. Once lawfully convicted, a person has no constitutional right to a new trial no matter what new evidence later turns up, and no matter how overwhelmingly it establishes innocence. Tough luck.

      1. A person who can show that they were falsely convicted has an avenue to pursue… executive clemency.

  6. Retired cops carrying guns

    “No Title of Nobility shall be granted by the United States”

    A Life Peerage is a title of nobility

    1. The theory behind the LE Officer Safety Act was the retired cops would need to carry guns due to the bad guys they put away possibly wanting revenge in jurisdictions that otherwise wouldn’t allow for it, and that all cops should be able to carry for self defense outside their jurisdictions. It still requires retired officers to get a level of training given to them by the department. It’s more of a permit system for retired officers, and a form of national concealed carry reciprocity for active officers.

  7. I knew praxis and tenebrous without looking them up, but I’m curious as to why we’re getting a vocab test. Did someone use those other words in a trial or something?

    1. I would infer that these words (and phrase) were used in a circuit court opinion.

  8. The courts never fail to apply immunity…..to the courts.

    Where, exactly, is immunity specified in the Constitution? And how is such a finding congruent with Article I section 9? And Article IV, section 2?

    1. “Where, exactly, is immunity specified in the Constitution?”

      Right in the beginning of Artilcle III. The supreme judicial power is vested in one Court, plus as many more as Congress sees fit to authorize.

  9. I agree with the dissent in the DACA case. The same broad discretion which gave the Obama administration the power to implement DACA gives the Trump administration the power to rescind it.

    The 4th Circuit majority’s opinion that the Trump administration gave an inadequate reason for rescinding DACA is, in my view, complete nonsense. Immigration enforcement is the law. It’s a law enacted by Congress. An administration needs no other reason to enforce the law than that’s what the law is. The President has a duty to take care that the laws be faithfully enforced. That duty alone is always reason enough. A new administration is always entitled to enforce existing laws more strictly than a prior administration did. And it simply doesn’t matter whether the prior administration’s leniency reflected a written or an unwritten policy.

  10. If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting. In the 4th Circuit, that fact that something is a violation of the law is simply not a good and sufficient reason for prosecuting it. This we know for sure. What we don’t know is what a good and sufficient reason might be. Until the 4th Circuit explains itself better, I would challenge each and every federal prosecution as being improper.

    1. Alternatively, if the reasoning is limited to reversing prior decisions not to prosecute, I would move for disclosure of prosecutorial deliberations to find out whether there was ever a prior decision not to prosecute that was later reviewed and changed. If there was, I would then challenge the decision to overturn the prior decision as being based on inadequate reasoning.

    2. “If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting.”

      Then you’d get laughed out, and the proceedings could continue.

      The problem isn’t that the President has to explain why he wants to prosecute. The problem is that the President has to explain why he wants to prosecute people he previously told would not be prosecuted.

      If a prosecutor (in the 4th circuit) grants immunity to somebody, and then tries to prosecute them, should the court accept this without discussion, or say “hey, wait a minute…”

  11. Salmagundi want pants too!

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Supreme Court

How Often Has the U.S. Supreme Court Struck Down a Federal Law?

Depends on who you ask.

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Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the "judicial Power of the United States" shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.  But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name "judicial review" is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court's reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court's opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin's list is wrong.

You'll really know the rest of the story if you read Repugnant Laws. You'll get another taste in a future blog post.

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

17 responses to “How Often Has the U.S. Supreme Court Struck Down a Federal Law?

  1. The notion that the power of judicial review was “invented” by Justice John Marshall is rather ridiculous. Even before the Constitution was ratified, Hamilton pointed out in Federalist No. 78 that such a power was essential to the very notion of a government of limited and enumerated powers. There was no other way to realistically enforce the Constitutional limits on the Legislative branch other than to permit the judiciary to simply refuse to recognize legislative acts which were contrary to those limits. In Hamilton’s words:

    “Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

    1. “such a power was essential to the very notion of a government of limited and enumerated powers”

      Well, then I guess he should have gotten such a power into the actual text of the Constitution.

      1. It’s right there in Article III – it is part and parcel of the judicial power, which includes the power to say what the law is. Or would you insist that Article III include a complete definition of the precise boundaries of “the judicial power”?

        1. The executive veto is set out as a specific power, its not assumed to be part and parcel of the executive power though it certainly is.

          Judicial striking of Executive approved Congressional acts is a veto power not set out in the Constitutional text.

    2. “There was no other way to realistically enforce the Constitutional limits on the Legislative branch…”

      This is nonsense. One limitation would be to appeal directly to the Legislature (elections). Another would be the many ways in which the Executive can directly counteract the Legislature. The Executive can veto unconstitutional laws, refuse to enforce them, etc. That’s what ambition counteracting ambition was all about. Even Hamilton contemplated a weak, ineffectual court, with an exceedingly narrow ability to exercise judicial review.

      1. “One limitation would be to appeal directly to the Legislature (elections).”

        That assumes that a majority of voters disapproves of an unconstitutional action. However, since a great many of the limitations in the Constitution were designed specifically to safeguard minorities from the tyranny of the majority, relying upon political solutions is misguided. Can you imagine in 1954 if the Court in Brown v. Board of Education said “of course segregated school systems are unconstitutional, but that is what the laws of the state of Kansas (and Georgia, Alabama, Mississippi, Louisiana, Texas, Oklahoma, etc.) requires, and we are powerless to overrule such laws. Let the voters of these states enact the solution.” No, the interference of the judiciary is essential if the Constitutional protections of minority rights are to be effective.

        1. The thing we’re arguing about is the type of government the Constitution created. Besides creating a limited federal government, it also created a majoritarian legislature and gave it enormous power, certainly more power than it gave the judiciary. Again, the intended extent of minority safeguards are the thing we’re debating, not the conclusion you get to simply assert.

          Can I imagine if Brown came out differently? Of course. There’s little doubt that there were certain rights that the 14A was not intended to protect, even among insular minorities. The 15A itself is pretty distinct evidence that the 14A was specifically limited to certain rights, and a very strong argument can be made that it was limited to certain civil rights contemplated in the earlier Civil Rights Acts, none of which guaranteed non-segregated schools. Brown wasn’t obviously correct (as a constitutional matter).

          It’s also a strange example for two separate reasons. First, Brown involved disputes between SCOTUS and the states, so SCOTUS was not being asked to invalidate the laws of a coordinate branch of government. Second, the 14th Amendment contemplates a specific enforcement mechanism in Section 5, and it doesn’t mention the federal judiciary. And of course the only reason the 14A was necessary in the first place, were fears that the same court that decided Dred Scott would invalidate the 1866ish Civil Rights Act(s).

          So, empirically it’s silly to presume that SCOTUS is essential to the protection of minority rights, given its checkered history. But more importantly we know it isn’t essential in the first place, because the Constitution is a document preserving minority rights, and SCOTUS didn’t write it.

  2. Not nearly often enough?

    It’s my perception that the federal courts are much, much more active about striking down state laws than federal.

    1. That’s hardly surprising. SCOTUS is expected to be more deferential to a coordinate branch, the states are busy little laboratories, and because of incorporation and the EP clause, constitutional prohibitions on state action are now broader than limitations on federal action.

  3. “Not nearly often enough?”

    Agreed.

    “It’s my perception that the federal courts are much, much more active about striking down state laws than federal.”

    True, but that’s for modern times. It’s my understanding that the Federal courts didn’t review state laws at all until after the ratification of 14A.

    1. Yes, 14A was in essence a giant federal power grab then hijacked by the courts.

  4. I do enjoy how conservatives in the Conspiracy comentariat all agree that the judiciary is a liberal disgrace, but differ wildly as to what it should be doing.

    ‘Strike down more federal laws!’
    ‘No, do more state laws!’
    ‘No, strike down fewer laws, you activists!’
    ‘No, stop striking down any laws at all!’

    1. We value diversity of thought, we are not lock step ideologues like your side.

      1. Didn’t think you’d the one to try and be cute.

        This isn’t diversity of thought, this is having no ideological throughline other than radicalism.

      2. Your comment contradicts itself. How do you demarcate between “we” and “your side” if you value diversity of thought? The very fact that you respond to Sarcastro’s comment by inferring he or she is a member of a “side” other than the one you place yourself in means that you employed some criteria for differentiating “sides” and then a quality to assign people to said sides. That this was done based on an anonymous comment expressing thought leads to the conclusion that the expressed thought was the criteria you used.

        I’m sure by now you’ve placed me on a “side” based on my thought. But of course, you value diversity of thought, unlike that “other side.”

        1. You act like Sarcasto just about daily has not posted here for a decade.

          I don’t have to assign him a side.

          “my thought”

          I wasn’t aware you comment involved thought.

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Supreme Court

A New History of Judicial Review

A new history of how the U,.S. Supreme Court has defined and enforced the limits of congressional power

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I'm thrilled to announce that my new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, is now available for purchase. From the jacket copy:

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

This project took a long time to bring to fruition, in no small part because I realized our conventional understandings of the history of judicial review are wrong. The book makes use of a new comprehensive catalog of all the cases in which the U.S. Supreme Court substantively reviewed the constitutional validity of an application of a federal statutory provision from the founding of the Court through the retirement of Justice Anthony Kennedy. The Court has been more active in enforcing limits on congressional power, as well as in upholding and extending congressional power, than we have generally recognized. Whose ox have been gored in the process? Dig in to see.

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

4 responses to “A New History of Judicial Review

  1. If you begin with the notion that the court is legitimately a political body, you are going to have a very hard time maintaining the notion that any particular powers are reserved for the political branches.

    1. Seems correct to me.

    2. Pretending that the court is wholly a-political when the politicians get to decided who’s on the court is delusional.

      1. Yep. The Progressives think the Constitution means whatever they want it to mean and appoint accordingly. Hopefully Trump will continue to appoint Conservatives (who tend to cling to an original intent approach) but in the end the court is essentially a political body . . . especially when there is a Bill of Rights issue, or so it appears to me.

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Julian Assange

Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

Under the government's theory in some of the charges, any reporter who knowingly prints certain kinds of government secrets could equally be prosecuted.

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The revised indictment, just handed down today, contains three sets of charges.

1. Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don't have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords (even just to hide the sources' own tracks), just as very few reporters provide sources with lock picks or instructions on breaking into safes.

2. Most of the other counts focus on Assange's urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government's theory is that Assange himself commited a crime by essentially soliciting Manning's crime.

This is a plausible theory: Usually, soliciting a specific crime—urging a particular person to kill another particular person, or to steal certain kinds of material, or to illegally leak certain kinds of information—is itself criminal, and unprotected by the First Amendment. "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," and that applies to solicitation of such illegal transactions as well (U.S. v. Williams (2008)).

"To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality"; abstract advocacy is much more constitutionally protected under the Brandenburg v. Ohio (1969) test, which is limited to intentional advocacy or likely and imminent lawless conduct. But specifically asking a specific person for specific documents is not protected by the First Amendment, and parts of the indictment suggest that this is what Assange was doing:

After confirming that ASSANGE thoughtthey had value, on March 8, 2010, Manning told ASSANGE that she was "throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now." ASSANGE responded, "ok, great!" When Manning brought up the "osc," meaning the CIA Open Source Center, ASSANGE replied, "that's something we want to mine entirely, btw," which was consistent with WikiLeaks's list of "Most Wanted Leaks," described in paragraphs 4-5, that solicited "the complete CIA Open Source Center analytical database," an unclassified (but nonpublic) database.

To be sure, some of the charged solicitations were aimed at the public as a whole, and not just at Manning, e.g.:

To further encourage the disclosure of protected information, including classified information, the WikiLeaks website posted a detailed list of "The Most Wanted Leaks of 2009," organized by country, and stated that documents or materials nominated to the list must "[b]e likely to have political, diplomatic, ethical or historical impact on release… and be plausibly obtainable to a well-motivated insider or outsider."

As of November 2009, WikiLeaks's "Most Wanted Leaks" for the United States included the following:

a. "Bulk Databases," including an encyclopedia used by the United States intelligence community, called "Intellipedia;" the unclassified, but non-public, CIA Open Source Center database; and

b. "Military and Intelligence" documents, including documents that the list described as classified up to the SECRET level, for example, "Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);" operating and interrogation procedures at Guantanamo Bay, Cuba; documents relating to Guantanamo detainees; CIA detainee interrogation videos; and information about certain weapons systems.

But it seems to me that calls to leak specific documents, even aimed at the public at large, would still be covered by the solicitation exception, rather than being mere abstract advocacy—just as calls to kill particular people or bomb particular buildings would be punishable solicitation, even if general abstract advocacy of revolutionary violence isn't.

This having been said, I suspect that many a reporter has urged a source to leak particular documents, whether they are national defense secrets, trade secrets, confidential documents that are covered under some private nondisclosure agreement, or something like that. Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn't itself criminal but just civilly actionable). Perhaps reporters shouldn't be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

3. But the most striking counts are counts 15-17, which allege, in relevant part:

From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

Nothing in this count turns on Assange's having helped or solicited Manning's leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn't have to find any complicity by Assange in the initial leak.

And reporters do routinely publish information that they know was illegally leaked by someone. In Bartnicki v. Vopper (2001), the Court made clear that third parties are generally free to publish material that they know was illegally gathered (there, by an illegal interception of a cell phone call), at least so long as the publishers weren't themselves involved in the illegal gathering (and so long as the speech is on matters of public concern). That would presumably apply to other kinds of improperly gathered or leaked information as well.

But the government's theory appears to be that this doesn't apply to illegal leaks of national defense information. (The Pentagon Papers case (1971) didn't resolve the issue, because it just overturned injunctions against publishing leaked information; a majority of the Justices left open the door to possible criminal prosecutions for such publication.) And indeed in U.S. v. Rosen (E.D. Va. 2006), the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists:

[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.

This position cannot be sustained. Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The charges were eventually dropped, though, so the case didn't yield an appellate precedent. The Assange case, I expect, will be much more likely to go up on appeal, and to draw broad public attention. It might thus affect prosecutorial and media practices much more than Rosen did.

Whether and when the First Amendment bars this sort of third-party, arms-length publication of national defense information is a complicated question. (Compare the statement in Near v. Minnesota (1931) that "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops," and note that the government argues that the publications jeopardized specific people identified in some of the documents as having helped America and its allies—but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.) Here, though, I just want to explain what is at stake in the new Assange indictment, which is much broader than the old one.

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54 responses to “Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

  1. A standard requiring a particularized showing of actual or likely damage to national security would make for a better balance. The old-fashioned notion of “intent” could also be revived.

  2. Re counts 15-17: I’d be curious to see your analysis of Douglas’ concurrence in the Pentagon Papers case. Using statutory construction, he argued that relevant statute bars “communication” which he claims in this statute is distinct from “publishing”.

    1. That distinction is, not to put too fine a a point on it, idiotic. Which means that it is consistent with most things Douglas wrote.

  3. Well, since lawyer-client privlege and not allowing the government to endlessly filch through one’s papers don’t apply when the powerful seek to harm their political enemies, even though that’s why that stuff exists, why the hell not? No First Amendment for you if those in power rrrrrrrreally want to prosecute you.

    I mean as long as there are at least 6 or more r’s in “really”, that is. And there are 8 in this case. Wow!

  4. In regard to soliciting particular items, I would have thought it would fail Brandenburg’s imminence and liklyhood prongs. Both in that such a solicitation does not seem especially likely to deliver the goods and even if it does there is no time frame for doing so.

    1. Under U.S. v. Williams, the solicitation exception is a separate exception from the incitement exception (or, if you prefer, a special case of the separate speech-integral-to-criminal-conduct exception). It does not have an imminence prong — soliciting someone to kill someone months in the future would be punishable — and it probably doesn’t have a likelihood prong, either.

  5. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  6. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  7. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  8. “Perhaps reporters shouldn’t be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.”

    Indeed, but that’s a commentary on the way the journalistic profession has come to think itself above the law, not a reason to make urging specific illegal conduct legal.

    On 15-17 you’ve got a better case. I think it would go better for Assange if the leaks in question had been less voluminous and indiscriminate. It certainly appears that, if somebody gave him the number and location of troops in battle, or the nuclear launch codes, or something of that character, he’d publish it.

    Personally, I’m somewhat concerned about the extra-territorial nature of the prosecution: Acts that took place outside the territory of the US, and the person being prosecuted isn’t even a US citizen. I don’t see how our legal system properly has jurisdiction over him.

    1. Concerning the extra-territorial issue…

      I liken this to prosecuting foreign terrorists, drug dealers, and those involved in financial crimes.

      When the U.S. Government, corporations, or persons are victims, we can seek justice through our extradition treaties – and therefore bring the foreign person under our jurisdiction.

      1. Extradition will be the hurdle to clear before moving on to First Amendment considerations, and such requests from the US to the UK have taken as long as 13 years to resolve. Along the way they must pass the dual criminality test, now common in extradition treaties. More problematic here might be the political exceptions, where either the offense is political in character or the prosecution is politically motivated. The law concerning political offenses was laid out by the House of Lords in T v Secretary of State for the Home Department [1996] UKHL 8 (in an asylum context rather than extradition) as

        The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the “incidence” theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle.

        which could very well encompass the activities of Wikileaks. I’d also point out that similar considerations have worked in the opposite direction when in the early ’80s the US refused to extradite members of the IRA accused of murdering British soldiers on the grounds that the murders were political offenses.

      2. I think the extraterritorial issue is more complex than that. True, if you plot some action directed against the United States, even if you are a foreigner located abroad, then there is a basis to assert jurisdiction over you. If Al Qaeda members plotted acts of terrorism in a cave in Afghanistan to be done in the U.S., then sure.

        But here, the third group of crimes (as presented by Professor Volokh), do not involve activity directed against the U.S. Someone else leaked classified information, with no assistance, connivance or encouragement from Assange. The crime here is publicizing information the govt. has classified as confidential. So in effect the govt. is imposing a duty on someone to keep its classified material confidential. That can work for a U.S. citizen or someone in the U.S. How does it work for a foreign citizen located abroad?

        IOW, the issue here is legislative jurisdiction, not personal jurisdiction.

        Consider a hypothetical. Someone in the CIA sends highly classified material in an email to someone else in the CIA. The wrong email address gets entered by mistake (darn that Outlook) and the email gets sent to a foreign citizen having no connection to the U.S. Is the foreign citizen obligated to keep it quiet? If he then discloses it on Wikileaks, can he be prosecuted? How does Congress have authority to require him to keep it secret?

        Not saying this is so clear, but I don’t think it is the same thing as directing criminal activity to the U.S. (like what is in the first and second groups of counts against Assange.)

        1. “Consider a hypothetical. Someone in the CIA sends highly classified material in an email to someone else in the CIA. The wrong email address gets entered by mistake (darn that Outlook) and the email gets sent to a foreign citizen having no connection to the U.S. Is the foreign citizen obligated to keep it quiet?”

          Or to turn it around, a KGB agent accidentally emails Dan Rather the secret file detailing how Trump is a long term Russian mole. Rather publishes the info. Do the Russians get to prosecute Dan Rather?

        2. When you ask “can he be prosecuted”, what authority are you looking to?
          The US continues to resist the ICJ infringing on its sovereignty so other than limits from treaties and the loose restrictions of customary international law what Congress can and can’t legislate is determined by US law, and its answer to your question is that as long as Congress evinced an intent that the law have extraterritorial effect then it does.
          If you are looking for a higher justification then I’d say that disclosure of classified information is presumptively harmful to the state, and it is a reasonable principle that the state may punish those who harm it. Of course, that doesn’t mean that any other state is obligated to aid in that punishment.

          1. Punish, yes, but that doesn’t mean our courts would have jurisdiction. Might be viewed as more in the domain of military action.

            1. Humberto Alvarez-Machain was accused of complicity in the murder of a US DEA agent, and was tried in the United States even though he was a Mexican citizen and the alleged crime occurred in Mexico. He did move for dismissal, but based on the lack of due process when he was abducted in violation of a US-Mexico extradition treaty.

    2. I would think it is because there can be multiple places a crime can occur. And at least in count 1 and the solicitation counts those locations would include the location of the other individual involved (i.e. Manning).

  9. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  10. Two points:

    1. “. . . but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.)”

    The press has no constitutional authority to act as a check on governmental conduct.

    2. Concerning the BARTNICKI reference, I would say that wouldn’t apply here because in BARTNICKI, the disclosure was of private (albeit potentially sensitive) conversations – not federal statutory-protected information.

    1. He said “value”, not “authority”. All the “authority” journalists have they get from the 1st amendment, and it’s no more and no less than anybody else has. (They tend to be in denial about that.) But it isn’t non-zero, it’s pretty substantial.

      Wikileaks has had substantial “value” in acting as a check on government conduct, because they’ve exposed some rather serious governmental malfeasance, such as rampant domestic spying. I’d hate to see them abolished for that reason, though it would be nice if they showed a bit better selectivity about what to publish.

  11. Does the reasoning in this indictment depend on a presumption that the executive enjoys an unlimited power to make government information and policy secret? Seems like you have to assume that everything the government says is secret is properly so, and that can’t be challenged either facially or as applied.

    1. Only material that is lawfully classified by a specified classification authority (original or derivative), is considered classified.

      It’s a structured process and no one can willy-nilly say, “This is classified because I say so.”

      Additionally, because the information is the property of the U.S. Government, the U.S. Government can make any rules it wants about how to protect information and under what conditions it can be released.

      1. “the U.S. Government can make any rules it wants about how to protect information and under what conditions it can be released.”

        At least, they can in regards to the conduct of federal employees and NDA signees. Such people acknowledge in writing that they’re subjecting themselves to the rules, and strictly liable if they violate them.

        In as far as rules applicable to the general populace, they’re rather more limited.

        1. The laws for the protection of classified information are equally applicable whether a person signs an NDA or not.

          Yes, a person who signs an NDA may receive a harsher penalty, but the law is the same.

          1. 18 USC §798 does apply to all persons with respect to classified cryptographic and communication intelligence information, but not other classified information.
            Meanwhile §1924 criminalizes the unauthorized removal or retention of all classified data, but only when an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States.
            So, you are correct that the effect of these laws don’t depend on an NDA, but a less careful reader of your assertion could understand you to imply that it is a crime for any person to disclose any classified data, and that is not the case.

            1. True on § 798 and we’d have to review what was released to see if it’s applicable.

              Also § 641 states: Whoever receives, conceals, or retains the same [i.e. US records] with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted–. . . . Shall be fined under this title or imprisoned not more than ten years, or both. . . .

      2. So you don’t think government documents, however secret, are the property of the American people?

    2. And yes, there are procedures to challenge classifications, how whistleblowers should protect classified information, how to release classified information to members of Congress, etc.

  12. So, in addition to largely having the goods on Assange (sets one and two as related by the author) the DOJ is also trying to re-litigate the Pentagon Papers via set three.

    Yeah, I’m not surprised, but I also will not be surprised when they (again) lose that fight.

    Although, I would add, maybe ethical journalists being concerned with threats to the freedoms presented by charges like set three should exercise a little better judgement and no get involved in actions like sets one and two.

    Assange is giving them another bite at the apple. Blame him as well as them.

    1. Assange sucks, but I don’t know that I’d pile the DoJ using his suckiness to push their preferred legal narrative on him.

      1. Well, people with common sense should.

    2. “ethical journalists ”

      No such creatures exist.

      Invaders of privacy, defamers hiding behind “actual malice”, destroyers of lives for awards and raises.

      1. Life as a marginalized malcontent, and lifelong loser of the American culture war, must be tough. My condolences.

  13. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  14. re: the assessment of Count 18, I respectfully think Prof Volokh is missing an important element. Prohibiting the providing information on how to do something is a clear First Amendment problem, even if the something is itself prohibited. That is, in fact, one of the principle defenses used in the 3D-printed-guns cases. It’s also the reason that we can get information about disfavored policy arguments such as legalizing drugs or abortions (on both sides of the debate).

    Information on how to crack a password is and ought to remain available on the Internet because there are many legitimate uses for that information. The use of that information for illegal purposes should fall on the illegal user alone, not on the provider of the information.

    1. How do I pick a lock?

      How do I pick this lock?

      Answering the latter is of concern.

    2. “. . . even if the something is itself prohibited. . . .”

      But in this case, the information wasn’t prohibited, it was protected.

      1. Perhaps my choice of words was unclear. The “something” in Assange’s case was cracking a password to break into someone else’s computer file. Breaking into someone else’s computer is prohibited. Nevertheless, providing information on how to crack a password should be protected.

        By the way, I reject ThomasD’s attempt to distinguish the First Amendment protection of information based on specificity. If that were the rule, then a youtube video about how to pick a generic lock would be legal but all the videos about how to pick a Masterlock Series 6835 would be illegal. That is not the rule and ought not to become the rule.

        1. No, the specificity is more than that. Someone says, I want to break into a house, can you send me information about how to pick the lock. That is aiding and abetting a crime, and I don’t think the First Amendment covers it.

  15. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  16. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  17. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  18. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  19. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  20. Thank you Prof. Volokh for a really great summary of this situation. This posting is a fine example of why many of us read the Volokh Conspiracy every day. It’s readable, it’s supported by facts and analysis, and it covers a wide territory in two screens of text.

    Great.

  21. Since this case depends so critically on who is or is not a member of the press for 1st amendment purposes, what are the precedents? Is there a definitive legal definition of who is a journalist?

  22. I have long been concerned by the “press” and “journalists” asserting for themselves some special privilege in the First Amendment. I believe they stand in the place of the general public and have no more nor any less rights that anyone else. In that they stand as guardians of freedom of speech for the rest of us, especially since so much of the mainstream media consists of large multinational corporation well able to defend their “rights”.

    The age of Social Media makes it plain that any person may publish anything they have or obtain.

    If it is legitimate to criminalize knowingly passing on information legally classified and knowingly illegally obtained, the “press” may have a right not to be prevented from publishing that information but should face consequences for doing so and defending their decisions including challenging the legitimacy of the classification after the act.

    Members of the “press” have in the past asserted special privileges on the basis of the public’s “right to know” that included criminal acts such as trespassing, it is hard to see how that serves the cause of freedom of expression or places any limit of the actions of the “press”.

    1. Comments like this one generally come from folks with a political bone to pick. They don’t like which stories mainstream media print, and they don’t like which stories mainstream media choose to reject, so they want mainstream media taken down a peg.

      Such comments generally come from people who don’t understand that they depend heavily on information that an institutional press has the capability to discover and publish, but which an unaffiliated citizen journalist could almost never discover, let alone adequately publish. Which would be true even if the person doing the reporting were the same journalist, but working in different circumstances. To facilitate news gathering, the institutional nature of an institutional press matters greatly. To facilitate news usefulness, the enhanced publishing power of an institutional press matters greatly.

      This rsteinmetz (and Eugene Volokh) kind of commentary should never be mistaken for a defense of press freedom. On the contrary, it aims to narrow the scope of press freedom, to keep it limited to what one person can do on the internet, from his keyboard. In the process, it frees government officials, and business leaders, and other powerful figures, from the heightened scrutiny which only institutional publishing can deliver.

      That gets touted as a way to keep press freedom on the basis of equality. Never mind that it works the other way—opening a gulf of inequality between ordinary people and figures with power in society, for whom escape from institutional press scrutiny is personally empowering, and much to be welcomed.

  23. […] journalists avoid, such as publicly soliciting classified material (on the WikiLeaks website), asking for specific documents, and offering to help a source conceal his identity by cracking a government password. But these […]

  24. […] as very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  25. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

Please to post comments

State May Punish "Faithless Electors," Wash. Sup. Ct. Rules

The court upheld a $1000 fine imposed by state law on Presidential electors who refused to vote as the voters instructed.

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Today's decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention's nominees: "Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge." The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge.

Justice Gonzalez dissented:

The State's authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector's discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concerns. He opined, "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices."

There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

 

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103 responses to “State May Punish "Faithless Electors," Wash. Sup. Ct. Rules

  1. Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will? Why not just apportion the votes directly and skip the whole extra step?

    I recall there is some legal theory that says if a legislature used some expression or term sometimes, but not other times, that the difference must be construed as intentional, not a mere goof that courts are free to “correct”.

    1. “Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will?”

      One reason to have electors is to avoid having to keep holding elections for the voters to select a winner, if none of the original candidates secures a win. Suppose you have a Presidential election in which three candidates each earns one third of the electoral votes. You COULD call the election a wash, and schedule another one and ask the people if anyone wants to change their mind or suggest another (compromise) candidate, but that’s a big endeavor, and takes time and money and effort. It’s much easier to get the 530-ish electors back together to do that than to ask the entire country (plus, the electors are gathered together for the purpose.)

      This doesn’t come up much in our current setup with two major parties… all the elections between two candidates produced a winner with enough electoral votes to win outright on the first ballot. There have been some third-party candidates who got electoral votes, but not enough to deny a clear victory.

      Yes, the system does give us “winners” who got less than half the votes cast. But the system was designed to be flexible enough to handle more than two candidates. (Remember, the Constitution was written for a country that took months to traverse by horseback, not one that you can catch a jet and see a different ocean the same day.)

      1. IOW, the electors have discretion only when they would otherwise be deadlocked?

        That must be in the penumbras of the Constitution.

        If the framers had meant that, they would have written it. There’s a lot of vagueness in a lot of the Constitution, but I don’t recall any other sections so specifically vague about such a specific twist.

        1. “If the framers had meant that, they would have written it”

          That’s an interesting theory.

      2. What are you talking about? If electors are bound they can’t “change” a vote. And the Constitution takes it away from electors if there is no majority and gives it to the House (President) and Senate (Vice President). They don’t gather electors again and have another vote.

        1. ” If electors are bound they can’t ‘change’ a vote.”

          If.

      3. Except that’s not the way the EC works. Electors only cast one vote. Then it goes to the House.

        1. I took him to imply that ifffff the electors think they will be deadlocked, then they have permission to change their vote. Either way makes no sense.

        2. “Except that’s not the way the EC works.”

          If only someone had pointed out that the two-party solution we landed on rendered all this potential flexibility moot. If only.

        3. Actually, it gets a bit more interesting here. It does go to the House. But the House is restricted to voting for the 3 candidates who obtained the most electoral votes.

          So, not only can the electors change their vote, causing a deadlock, they can also change the choices the House has.

    2. There can be a middle position where the electors are normally bound but are released under some circumstances.

      In decreasing order of urgency:

      1. The nominee dies in the period between when the ballots are printed for the popular vote and when the electoral votes are cast.
      2. The nominee is determined to be ineligible to hold office.
      3. The nominee releases his/her electors from their pledge (something a nominee headed for third or fourth in EVs might want to do).
      4. The nominee didn’t release the electors but is clearly not going to win a majority of EVs anyway.
      5. The nominee tweets stuff revealing himself to be unfit for office.

      OK maybe the 5th one is marginal.

      1. On the one hand, the electors may be seen as representational, like other parts of the American government. Electors are chosen to represent the voters of the state(s).

        On the other hand, maybe it’s more like contract (or at least, detrimental reliance)… I voted for X elector because he SAID he’d vote for Y candidate, then he broke faith and voted for candidate Z instead. I never would have voted for X elector if they’d said they’d vote for Z up front.

      2. #2, How is this happening at the point the electors are supposed to be voting. If someone thinks one of the candidates is ineligible, that is a challenge that should be brought before the primaries/national conventions.

        1. It’s a hypothetical. So, hypothetically, the evidence didn’t surface until after the election. Look, sometimes a guy dies between the time the ballot is printed and the election; then still wins the election. Take the hypo as it is and work within it.

  2. If electors/officials are “faithless” and should be punished for ignoring the voters in their state in general, does that mean we should also punish electors/officials who ignore the voters in their state because of politically motivated ‘popular vote’ compacts?

    1. That is literally the opposite of the logic of this judgment.

      1. Not necessarily. Remember that the ‘popular vote’ compacts include a commitment to give all the electors to whichever candidate got a majority – or in some states, even only a plurality. In a split state, that (arguably) disenfranchises all the people who didn’t vote for the winner.

        1. Correct me if I’m wrong but the implication of the Compact is that all votes for a state would go to whoever won a plurality even if every single person in the state voted for someone else. If that isn’t disenfranchisement of a state what is?

          1. There is no right to vote for President. That is simply the mechanism each state uses. But the Constitution doesn’t require an election to choose electors.

            1. Correct. The Constitution says the Electors will be chosen in a manner chosen by the state legislatures.

              If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.

              1. I’m talking about what should be done according to the moral precepts behind what happened here not what should be done if the Constitution was the be all end all, in which case the Compact wouldn’t exist in the first place.

                1. It’s a pretty carefully tuned moral precept that holds state-by-state majorities are great but national majorities are not.

                  I do think the EC is good policy (despite it currently hurting my side electorally), but making a moral stand on it seems like motivated reasoning.

                  1. Because the Constitution forms an alliance of States. United States. There has never bee a National Election. A national vote did not ratify the Constitution. A national popular vote does not amend the Constitution. A National popular vote has never been taken for any reason. The Bill of Rights protects citizens from the power of a Federal Govt, AND it protect the STATES, from the power of the Federal Govt. States are sovereign. Everything about the establishment, and operation of the Federal Govt is centered on the PEOPLE, or THE STATE. To abandon a cornerstone of our form of governance in favor of rule by the tyranny of the national majority, ignores protections as laid out in our founding principles.

                    1. “Because the Constitution forms an alliance of States.”

                      The alliance of the States existed before the Constitution was ratified, drafted, or even conceived. The Founders tried a government with a weak central government, and it failed only a little more than a decade in. Then they had to make the central government stronger AGAIN 75 years after that.

                      In the original formulation of the United States, the states were charged with protecting the rights of citizens from encroachment by the federal government. This didn’t work. So it was flipped, and the federal government was charged with protecting the rights of citizens from encroachment by the states.

                    2. This is just sophistry.

                      First, Constitutional does not mean moral. Show your work, don’t just worship the Founders.

                      Second, you are not being originalist. The EC as it operates now is certainly not part of any Founder’s vision. Outcome-oriented choice of reasoning. Your argument intentionalist at best.

                      And even then, you’re saying because the Constitution apportions power by the states sometimes, it does so here. That is not in evidence.
                      The Constitution has places in it for the nation, the people, states, districts. And then it was amended and power was shifted away from the states.

                      The EC as constituted isn’t some load-bearing part of any system intentionally created or not to maintain our republic.

                      Again, I think it is good policy. And you make a fine policy argument if I waive away your grandstanding and see an argument about state’s particular character beyond the sum of their parts. But your soapbox is tuned very much too high.

                    3. If “States are sovereign” they can pick their own electoral votes however they want. And if they’d prefer a national vote, who are you to tell them otherwise? If STATES are so important, it is “a cornerstone of our form of governance” that they be allowed to set the rules.

              2. “If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.”

                Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”

                1. There’s no consideration, no negotiation. This isn’t a compact it’s all unilateral.

                  Unless you’re going to find something in the purpose of the Constitution. Or maybe a penumbra?

                  1. If they CALL IT a “Compact”, it must be a compact, right?

                    This is for all the right-wingers who want to dissassociate with the Nazis because they have “Socialists” in their name. Those darn socialist lefty Nazis!

                  2. We have to look at the substance, not mere form.

                    Each “unilateral” law only become effective when a sufficient number of other states pass the same “unilateral” law.

                    Its a mutual agreement by adherence, hence it needs Congressional approval. Think of it like a penalty that would be unconstitutional except it is really a tax so ok.

                    1. Its a mutual agreement by adherence.

                      That’s really a reach, Bob. That’s not how that works at all.

                      It’s not a stealth law if it’s something states have been given discretion to do anyhow.

                    2. The discretion is limited by other sections of the Constitution.

                      I assume that you believe it unconstitutional for a state to require all electors to be Christians.

                    3. Yeah – this isn’t requiring all electors to be Christians. There’s no discretion to do that.

                      If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.

                      This isn’t anything like what that clause speaks to. Not formally, not functionally, not as to it’s purpose, nor to it’s text. You’re becoming like the right-wing caricature of the liberal activist judge, wherein the policy comes first and the legal rationalization comes second.

                    4. “There’s no discretion to do that. ”

                      Nor is there to violate the Compact clause.

                      “If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.”

                      If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      Ever hear of “implied contract”?

                    5. If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      That’s not a compact. You’re just making that up.

                    6. “Nor is there to violate the Compact clause.”

                      Nor is it a violation for a state to say “we’re going to do this, if X happens”.

                      “Ever hear of “implied contract”?”

                      Sure. That’s something different from what you’re talking about, but yeah, I’ve heard of it.

                      As pointed out upstream… you can volunteer to do something, even promise to do it, but that doesn’t make it a contract. Contracts are ENFORCEABLE voluntary agreements to do something.

                2. What difference would it make? If the Court declared the agreement unconstitutional, that wouldn’t change the result. Article I, Section 10 may make it impossible for participants to enforce the agreement, but SCOTUS can’t tell any individual state how to assign its electoral votes. If they all voluntarily comply with the compact, the results would stand.

                  1. If the “winner” controlled the new Congress, nothing except the specter of illegitimacy.

                    A Congress controlled by the opposing party could however approve the “losing” candidates slate on the basis of the illegality of the act or just not count the electoral votes so as to throw it into the House.

                    1. Jesus, Bob. What do you think that would do for the legitimacy of the election?

                    2. Oh no the specter of illegitimacy according to Bob from Ohio, how will the republic survive?

                      If Congress is determined to ignore its obligation to count electoral votes, it doesn’t need to wait for the NPVIC to take over.

                    3. Just responding to the proposition posed by NToJ.

                      If the Supreme Court finds that the state laws violate the Compact Clause and states just ignore it, then expect the opposition to ignore those states.

                    4. @Bob from Ohio,

                      If no one is seeking to enforce the compact, how does it get to SCOTUS in the first place? Even if the compact is constitutionally unenforceable, states are still entitled to pick their electors in whatever manner they see fit. If all the states voluntarily comply with the agreement, there’s nothing for a plaintiff to challenge. Even if Nevada and California cannot agree to pick electors based on the national popular vote, Nevada can decide on electors on the basis of a national popular vote, as can California.

                      But let’s assume SCOTUS declares some state’s law unconstitutional. Ok. That state still proceeds with putting up electors who vote a particular way. What then? You say the “opposition” won’t count their votes. On what basis?

                    5. “If the Supreme Court finds that the state laws violate the Compact Clause”

                      Who, exactly, has standing to sue over that?

  3. How will this WASC ruling affect the dumb, stupid, and ridiculous “National Popular Vote” law that the Governor just signed?

    1. Most voters favor abolishing the electoral college. So not so dumb. stupid, or ridiculous.

      1. regexp
        1. Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous. Until a decade ago, most voters would not have supported gay marriage, decriminalization of pot, etc.–all stupid positions (IMO) held by a healthy majority of voters.
        2. In this particular case, I do favor doing away with the electoral college, either directly via constitutional amendment or indirectly via some sort of national popular vote compact passed by a sufficient number of states. Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.

        1. “Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous.”

          It’s a good indicator.

          “Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.”

          Iowa and New Hampshire will cling to the current system. Who else do you see in a similar status? As it is now, candidates routinely ignore most of the states, except for hitting up the donor class for cash, and sometimes not even doing THAT in person.
          States that have a fairly obvious majority of partisans of one stripe or the other get skipped, and states with less than 10 electors do, too, unless the candidate happens to be passing through on the way to a big swing state.

          Will changing to what amounts to a national popular vote make candidates stop in Wyoming or Delaware, and focus on issues specific to those states? Probably not. But I don’t see how they get even more ignored…

          1. It is easy to argue Trump could have gotten a lot more of the popular vote if he had spent more time in CA and NY instead of WI, MI, and the other medium/small states where he won by a cat’s whisper. By the same token arm chair QBs point out Hillary screwed the pooch by not ever going to WI thinking it would be an easy win.

            Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.

            Bottom line is the US had to grant more power to the smaller states than their population justified in order to get them to join the US. We are stuck with that now unless you want to risk states leaving. Imaging LA leaving and every ship going down the Mississippi having to pay homage to the state government there; or Texas and Montana leaving and oil production taking a hit.

            I don’t see the EC going away.

            1. “Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.”

              Trump has ALSO claimed that he WAS the popular winner, once you delete enough “illegal votes” to make him the popular winner. He’s known to be a somewhat unreliable source for facts.

              “We are stuck with that now unless you want to risk states leaving.”

              Didn’t we settle that issue in 1865?

            2. “We are stuck with that now unless you want to risk states leaving.”

              Nobody is going to leave because the electoral college is abolished. It’s a popular position. Certainly not so unpopular that any state is going to get existential over it. And since this is allegedly a power play between large and small states, why didn’t you frame it in terms of CA and NY leaving if the EC isn’t abolished?

              1. “CA and NY leaving if the EC isn’t abolished?”

                We can hope.

                1. Good luck with that.

      2. Most of those “voters” reside on the coast and are ass-mad when they don’t get everything they want, when they want it.

        1. As opposed to the non-coastal “voters” who don’t reside on the coast, but are ass-mad when they don’t get everything they want, when they want it?

      3. would you like it if china and india suddenly got to outvote everybody in the WTO and all other intergovermental agencies and eventually whatever world governing body would follow and decide what happens in america because they have the most people? Sounds pretty dumb to me but apparently a lot of people are for this going by the underlying logic they support.

        1. AA making the elitist argument against the popular vote, wherein Pennsylvania and Ohio are the elites…for some reason.

          There are arguments for the EC. This ain’t it.

          1. Don’t see it as elitist at all. Having to worry about your political support in a bunch of states means you can’t swing too hard in any direction. Otherwise we’d see Democratic candidates only supporting the big city Democrat policies and Republicans only supporting Southern policies. As it is, Trump has to try and keep Rust Belt Democrats while not pissing off the Republican core too much, just as Obama couldn’t just appeal to the activist left and had to capture moderate Democrats.

            1. It’s not a bunch of states though. It’s a very small subset curated more by luck than anything else – an aristocracy by chance. Those states are not skeptical moderates; have never been since I’ve been politically conscious.

              We see the candidates spend all their time in like 5 states now (Pennsylvania, Florida, Wisconsin, Michigan, Ohio), hence the supremacy of agricultural subsidies and ethanol and such silliness. Your scenario is no worse than what we have now.

              I think it is good policy to respect the identities each state has separate from their population. But don’t pretend that switching to the popular vote would make Presidential electoral strategy any more degenerate than it is now.

              1. “We see the candidates spend all their time in like 5 states now (…Wisconsin…), ”

                Not all candidates!

                1. Disappointed because the Socialist candidate didn’t come to your town?

                2. 😀

                  Shoulda seen that one coming!

          2. I agree with gormadoc – that argument isn’t about elitism. It’s about protecting minorities. In AA’s example, the minorities are all the people who live anywhere besides China and India. In the Electoral College, the minorities are the residents of the smaller states.

            1. You need to explain why a given minority subset deserves privileged treatment. Otherwise it’s just an aristocracy.

              Saying a minority group needs it otherwise it’ll get drowned out by the majority is insufficient to distinguish a given minority group from literally any other way you might slice the population.

              1. In an ideal world God/Darwin would sort people out into accurate categories and suspend them in space and an political candidate would go out in front of them laying out a platform which caters to a reasonably wide set. But without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.

                1. If you’re going to go by the ‘persecuted by the coasts’ sentiment, you need to look at the current status quo and explain why giving those five states similar power but without the populational imprimatur is better.

                  I’m not saying you can’t, but you will need to show your work beyond yelling about the coastal elites.

                  1. Coastal megalopolises do have a lot more power than ‘swing states’. Maybe not in every way the megalopolises want but if Pelosi wanted to do a one on one swap with Trump of Ohio for California I’m sure he’d accept. In some ways they have even more power than they should (ie by buffing their numbers with massive infusions of illegals), inbuilt biases, self-reinforcing network effects in innumerable areas including economy, infrastructure, grants etc (whats called privilege in other contexts) and would have even more influence if they stopped rubber stamping every Dem that came their way.

                    1. You started well, but you veered off onto ‘the coasts have bad values and shouldn’t get a say’ territory pretty quickly. Do you think Ohio has more merit than California somehow?

                      I’ll buy the argument that we already have a lot of policies that favor high population and that the EC acts as a counterbalance. But it’s rather revealing your hand to say that coastal cities deserve less representation because they’re just structurally more close-minded than the rust belt.

                      The massive infusion of illegals bit is some sad nativist paranoia, but I’ll leave it lie as off topic for now.

                2. ” without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.”

                  How is selecting what Podunk wants inherently selecting what Los Angeles/NYC want? Because you live in Podunk?

                  1. editing error.

                    How is selecting what Podunk wants inherently better than selecting what Los Angeles/NYC want? Because you live in Podunk?

            2. The population of different states presumably makes a choice to live where they do. If you switch to a new election system that disadvantages, say, Rhode Island, what stops Rhode Islanders from pulling up stakes and becoming, say, New Yorkers or Virginians? It’s certainly unfortunate that electoral politics might influence or even force such movement, but economic opportunity already has much the same effect.

              In 1789, we needed to convince the small states to join, and that meant that we had to make assurances that they wouldn’t get swamped by the bigger, more powerful states they were joining as equals. But they’re in, and the Big Unpleasantness settled the question of whether states could decide to leave. The slave states got assurances about the slave economy before they joined, and right after the Big Unpleasantness, the slave economy went away, as they feared it would.

  4. If you want to broaden the Electoral process, nationalize what Nebraska does.
    Each house district is one electoral vote and each state is worth two.

    1. It’s bad enough gerrymandering affects congressman, now you want to affect the Presidency too?

      1. I concur. the fighting over gerrymandered districts would be intense.
        I have a simple solution to reduce gerrymandering:
        Put the minority party in each state in charge of drawing the district maps, with the proviso that existing Reps would still be the same district as redrawn.

    2. To avoid the danger of gerrymandering and the resulting lawsuits, proportional distribution of electoral votes would be better. The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.

      1. Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans. It would reveal once and for all that a lot of these states are dominated politically by a few urban megapoles that piss on the rest of the state.

        1. “Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans.”

          It’s not one-sided. The big cities in blue states can’t capture the electoral votes of the rural parts of the state any more, but the rural areas in red states can’t swamp the blue voters in the cities of those states, either.

          The real problem is that since voters like to go 48% to one party, 46% to another, and 6% split among fringe candidates, protest votes, and the like, it’s more likely that the Electoral College fails to produce a majority winner, and elections go to the House. You think gerrymandering is bad now, just WAIT until the Presidential elections depend on who owns the House.

      2. ” The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.”

        How does that work in Wyoming or Alaska, with their 3 electoral votes each? Would getting 16.8% of the popular vote get you an elector?

        1. Depending on how the rounding rules are set by the state and how the state chooses to resolve the allocation when there are more than two candidates, yes, that could theoretically happen. Why do you think that’s a bad thing?

          1. ” Why do you think that’s a bad thing?”

            It doesn’t solve the problem, it just kicks it down the road a little bit.

            The objection to winner-take-all is that minority party members don’t, effectively, get to vote. This leads to cases where the guy who got fewer votes wins the election, because some votes count for more than other votes. (I can win 50.1% of the votes in 270ish electors worth of states, and 0% in the others, and win the election with 40% of the votes cast compared to the other guy’s 60%.
            Switching that the proportionally awarding the electors makes the problem smaller, but doesn’t make it go away. I can STILL barely win in some districts, and totally lose in the others, and win the election even though more voters wanted the other guy.

            If I think that the guy who wins the election should be the guy who got more votes than the other guy, then that should be how the election is decided. If some factor says that the system should be more complicated (as EC supporters claim), fine… but spell out why that factor should allow the guy fewer people chose, and how the altered method for winning te election serves that factor. “That’s the way we’ve always done it” is not an argument to keep doing it that way.

    3. Hey Smooth,
      Is that not what the electoral college does now? One electoral vote for each House district and one electoral vote for each Senator? Similar to the way that the Congress was originally set up with the House representing the people and the Senate representing the State?

      1. No. Here the state winner gets two votes and the popular winner in each district gets one. Most states are winner-take-all.

  5. Might have been easier just to say that the civil penalty was for making the false representation that in every conceivable circumstance, they would vote for their team. Given that the state must select a handful from among its millions, requiring sworn rabid partisanship seems to bear a reasonable relation to the desired ends. “Boost for Birdsburg” placards optional.

    A more interesting case might be whether a state has the power to appoint electors sworn to withhold their vote in protest, or to cast a protest vote.

  6. I haven’t double checked this but my state Senator told a meeting that this session they changed the law so that any elector who doesn’t vote according to state government wishes gets replaced by someone who will. Replacement is a different thing from a fine though many of the same arguments could be adduced.

  7. I would suggest the voters of the State of Washington to pass a ballot proposition permitting any voter to sue any elected official for failing to act consistently with his campaign pledges.

    The Washington Supreme Court’s reasoning applies equally to all state officials. If the Constitution permits any state officials to be punished for failing to keep their campaign pledges, why not punish all of them?

    1. Why stop there? Why not make lying a tort, in any circumstance?

      “Ladies and gentlemen of the jury, testimony will show that on or about Jun 15, 2022, the defendant did say to my client that she did not look fat in the jeans she was wearing at the time. She did then proceed to wear those jeans in public, incurring humiliation and scorn from multiple onlookers. We cannot let this heinous act go unpunished. YOU, the jury, cannot let this go unpunished…”

      1. IIUC opinion is not fact and therefore not a basis for bringing a law suit. Beauty (fatness) is in the eye of the beholder!

        1. You are correct that if you apply today’s law to the hypothetical, you would get a different result than the (not entirely seriously) suggested change would produce.

  8. ‘Faithless Electors’ should be a ‘Fugazi’ cover band.

  9. Only a thousand dollar fine? Washington is part of the popular vote State Electoral compact. If I were an elector, I’d pay the 1000 and vote based on who won my state, not who won California.

    By the way, despite the claims Hillary won the popular vote, she didn’t. She got 48.2%. The constitution requires a majority of the Electoral College or it goes to the house. I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority, but we don’t want a system that throws every election to the House either.

    Best to keep things they way they are.

    1. ” I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority”

      Depends on how many candidates. Primary elections can have any number of candidates; sometimes a clear winner doesn’t have a majority in a crowded field. If Presidential elections had a dozen candidates, 25% might be a winning percentage.

      1. It doesn’t matter how many candidates are running, either one gets a majority (>50%) or one does not. If not then the Constitution has a process to resolve said lack of majority.

        1. “It doesn’t matter how many candidates are running”

          You’re assuming that what the Constitution prescribes as the procedure for holding elections matches 100% with what would make me upset. This assumption is incorrect.

          Seeing as how a hypothetical change to the Constitution is directly implied by quoted text, this is doubly foolish.

  10. I think the dissent is more correct here. An Elector is a Federal office, imo. Electors are chosen by the states, but they aren’t state officials. The majority opinion is akin to saying the states could prosecute or remove Senators or Representatives from office for not doing what the state government tells them to do.

    1. ” An Elector is a Federal office, imo.”

      I think that’s a stretch. You’re seeing them as similar to Senators, but I don’t. You send a Senator to Washington, and they stay there for six years. You send an elector to wherever the heck electors meet, and they stay there for a couple of days, then they come back home to the state.

    2. However the State(s) determine the rules that apply IAW the Constitution. I would also note that if a State so passes, they can remove a Senator/Representative, aka impeachment.

  11. I agree that, regardless of whether an Elector holds a federal or a state office, neither the federal government nor the state has power to interfere with an elector’s free choice, not to replace a duly appointed elector because state officials son’t like the way the elector voted.

    The word “elector” is also used to describe people who vote for members of Congress and state legislatures. If state officials can punish or disqualify electors because they don’t like their votes or they disagree with the opinion of some other body on one issue, the constitution’s text articulates no reason why they can’t do so for the other. State legislatures appoint electors for President and determine the qualifications of electors for Congress. If the appointment power includes power to control an elector’s vote once appointed, there is no logical reason why the qualification power shouldn’t either.

    I disagree with Ray and think it should be overruled for the reasons in Justice Jackson’s dissent. And even given Ray, a power appoint does not extend to a power to control conduct once appointed.

    If states want faithfulness, they should put the electors’ names on the ballot and let the voters decide which ones they want to select. It is the states that are being dishonest by not even identifying who voters are actually voting for.

    1. “neither the federal government nor the state has power to interfere with an elector’s free choice”

      Another view is that the elector’s free choice is exercised when they declare which candidate they support and get listed on the ballot under that name. Voters who voted for them under that representation feel cheated if/when the elector goes off and votes for someone else. If you view it as a contract (or at least, like a contract), then there’s no conflict.

      Imagine if someone enters a party X primary, manages to win, then goes on to win the general election, and THEN says “Oh, by the way, I’m actually party Y”. Are the members of party X justifiably angry? Is there an argument that they consumed the resources of party X under deceptive circumstances, and ought to be liable to party X for those costs?

  12. I’m siding with Washington on this one.

    Art II, Sec 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .

    How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

    Suppose a state said an appointment is conditional upon the Elector remaining in good standing (e.g., defined as have no current warrants), or must be a citizen of the state, etc.

    No problem here.

    1. How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

      But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it.

      Thus for example, Trump might nominate, the Senate might confirm, and then Trump might appoint, a federal distruict judge. Trump might specify in whatever deed of appointment that is deployed, that the appointment is conditional on the judge always ruling in Trump’s favor in any case in which Trump is a party.

      The condition would be entirely without legal effect.

      Presumably in this case, the Elector has a federal cause of appeal, on constitutional grounds, and I’d be a bit surprised if this decision stood. It seems akin to a State fining a US Senator for voting in Congress contrary to the demands of some State law.

      1. “But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it”

        We have lots of these. They’re called “laws”. As an example, federal judges are appointed for life. But, when it comes to sentencing, sometimes mandatory minimums apply. You know, a regulation about how the judge may exercise their office after they have been appointed to it.

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Free Speech

Todd Levitt, "Badass Lawyer," Loses a Third Libel-Related Appeal (with an Emotional Distress Claim)

"In this day and age, one must accept the possibility that one might be recorded in public. That possibility heightens when one chooses to engage in vitriolic behavior."

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Longtime readers of the blog may recall Todd Levitt, the self-described "Badass Lawyer."  As I wrote back in 2016, Levitt's main client pool was apparently students from Central Michigan University, so he tried to cultivate an edgy image (hence the "Badass" title), and promoted it through YouTube videos and a Twitter feed. This led to three lawsuits:

1. In the first, he sued a CMU student who created a parody of his Twitter feed; a trial court threw out Levitt's libel lawsuit, and the Michigan Court of Appeals affirmed, concluding that the feed was indeed a parody and thus not libelous. (I argued in the case on behalf of amici, with the help of my invaluable local counsel Michael F. Smith.)

2. In the second, he sued local media outlets for reporting on an award that he had "won," in the context of reporting on the first case:

In August 2014, The Morning Sun … published an article discussing Levitt I with the headline, "[L]awyer suing student admits to fake award[.]" … The article stated that plaintiff created the website "topcollegelawyers.com," and that the website announced plaintiff as the winner of a College Lawyer of the Year award.

It's rarely a good sign for a libel plaintiff when part of the Court of Appeals opinion in his case begins with:

Substantial truth is an absolute defense to a defamation claim.

The court went on:

In this case, although it is technically true that plaintiff did not "admit" that the College Lawyer of the Year award was "fake" or admit in a court document that he "awarded" the "'top college lawyer' recognition … to himself," we conclude that these inaccuracies do not alter the complexion of the affair and would have no different effect on the mind of the reader than would the literal truth….

[P]laintiff admitted that he commissioned the topcollegelawyers.com website and created the College Lawyer of the Year award to generate profits. He further conceded that he established the criteria for the award, chose the persons who comprised the committee that selected the award recipient, won the award, and then broadcast this as an accomplishment on a marketing website.

3. But wait, there's more, don't answer yet, just look at what else you get: Levitt then sued various people for their supposed misconduct stemming from the first two incidents. On Tuesday, the Michigan Court of Appeals rejected those claims as well; here's a sample of the analysis:

The heart of Levitt's [intentional infliction of emotional distress] claim appears to be the audio recording of the incident with [Kenneth] Sanney. Specifically, plaintiff objects to [Gordon] Bloem submitting the recording with [Bloem's] Request for Investigation to the Attorney Grievance Commission. Similarly, plaintiff argues that it was egregious for James Felton [the father of the student whom Levitt sued in the first case] to share the recording with "anybody who wanted it."

Read More

Video of NYU Panel on Hate Speech on Social Media

I discuss with Nadine Strossen and Jacob Mchangama what the Internet has come to

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Earlier this month, I was on a panel entitled "Hate Speech on Social Media: Is There a Way to a More Civil Discourse?" at the NYU Arthur L. Carter Journalism Institute with Nadine Strossen and Jacob Mchangama. We discussed a host of issues including free speech before and after the advent of the Internet, social media platform liability, the effectiveness of counterspeech, fake news and its effects on democracy, and other themes. Interested readers can watch the full event here.

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27 responses to “Video of NYU Panel on Hate Speech on Social Media

  1. There’s always this fantasy that people are nice. They aren’t.

    There’s one way to get to a more civil discourse in public… when the participants want it to be, it will be, and until then, it won’t. Back in the olden times, when Internet access was limited to mostly just college students at research universities, there were flame wars amongst the nerds, with some wondering why people couldn’t be nicer on Usenet. Today, the nature of human interaction on the Internet is… about the same.

    1. Humans have been killing each other since…the first time.

      It’s ridiculous to thing the internets has anything to do with hate or civil discourse.

      The only thing different now is, instead of yelling at my neighbor across the street, I can yell at my neighbor across the country or across the ocean, and have other people who agree with me yell at him/her/hir too.

      1. “It’s ridiculous to thing the internets has anything to do with hate or civil discourse.”

        Well, no… there are a couple of things the Internet does change. One thing is that people can find other people that share niche interests, instead of remaining isolated. This is fine for people who otherwise wouldn’t be able to share their love of first-generation Doctor Who or some band you never heard of, less fine when it’s people who think shooting up schools and offices is a neat idea.
        Another thing is the potentially global reach, which you allude to. It’s one thing when you yell at your neighbor over the fence… nearly everybody can ignore it. Converse, if you say mean things about Taylor Swift on Twitter… LOTS of people will make it their business.

        But there’s only two ways to increase civility in popular discourse on the Internet… once is to develop increasingly civil human beings (no progress on that front, AFAICT) and the other is to exclude incivil people from Internet access or Internet communities (a third approach is to limit one’s one access, which changes nothing about what’s happening online but substantially alters one’s reactions to what’s happening online.

      2. The interwebs allow you to spew bile at others anonymously (and at very low cost of transmission) that could not be done so easily in the past, which does contribute to degrading civil discourse.

        1. This is the critical factor, I suspect. The anonymous nature. Sure, in real life, there will be the rare person is enough of a jerk to publicly say horrible things to a coworker, neighbor, etc. But you can’t swing a dead cat on the internet without hitting a dozen people who are willing to say the most awful things to anyone who dares disagree with them . . . and 99.9974% of those comments are made anonymously.

          1. I’ve seen some speculation that, for some fraction of humanity, the usual social filters that stop us from screaming in each others’ faces like poo throwing monkeys just don’t engage when the interaction isn’t face to face.

            So you’ve got people who are going to be civil whether or not they’re online, but there’s just a certain number of people who can’t keep it together if there isn’t a face in front of them to remind them they’re dealing with another human.

            Then, of course, you’ve got the group who have adopted vicious attacks as a deliberate strategy to advance their causes. I suspect they’re the real problem.

    2. There’s one way to get to a more civil discourse in public… when the participants want it to be, it will be, and until then, it won’t.

      This isn’t at all true. Civilization is the story of setting up incentive structures to keep humans acting better than they otherwise might. This is a new arena for that fight; we don’t know the rules yet. But that doesn’t mean the effort is doomed. We’ve tamed worse temptations.

      1. ” Civilization is the story of setting up incentive structures to keep humans acting better than they otherwise might.”

        Then the barbarians come, and raze the city.

  2. I suspect – more than suspect – that many of these “private rules” promulgated by social media platforms are done to kow-tow to the governments where these platforms operate – “look, we’re doing the censoring you want, please don’t go after us!”

    Which raises some delicate issues about “state action v. private action.”

    1. You still have the option of withdrawing from a site that censors in a way you object to, and building your own site(s) that censors according to your preferences.

      1. …followed by the option of dealing with govt regulators breathing down your neck.

        1. The Internet routes around blockages.

      2. Technically, this is quite true.
        Anyone with a couple of $10 billions can attempt to set up a competitor to Facebook or Twitter. They might even have a little success, before Google delists them or Cloudflare drops their DNS.

        In reality, though, it’s close to impossible. Notice that with all the money Microsoft has spent on Bing, they’ve only managed to score 20% of the English query market… and that’s WITH browser and OS tie-in. No one has managed any inroads against Facebook or Twitter in the English market – the best competitors have managed is about 0.1% of the Facebook/Twitter userbase.

        1. (If you’ll allow a little snark)…
          Bing is (in)famous in our home for “forcing” itself onto our computer. All of a sudden, Bing will have become my default search engine. I’ve never selected this–it’s always something that judge magically happens. I go into Firefox, deselect it, and things will be fine for 1-6 months, when it will happen again.

          So, I refuse to ever use Bing on religious grounds. Two friends have experienced the same thing, with similarly negative reactions.

          I totally get that your Bing reference was not the main point of your post. But this reply did allow me to vent my spleen a bit, and–given Bing’s actions (yes, I know Bing is not an actual actor)–I am happy to do my part to lower Bing’s market share even more.

          Whew. That felt good!

          1. Agreed; Google may be a monopoly, but Bing is malware.

            I wouldn’t even be troubled about Google being an effective monopoly, if it weren’t that they were exploiting it, and not just for financial gain. I have repeatedly noticed when doing politically fraught searches, that on some topics Google will just relentlessly not serve up the relevant result, but instead bury it several pages down below stuff that is clearly not responsive to the search. Some things you’re looking for on Google, you can’t find them unless you have an extensive quote to use in the search string.

            Then you go do the same search on DuckDuckGo, and the relevant result you were looking for just pops right up.

            Mind, this is only on politically fraught topics; I’m not fond of the way Google has dumbed down their parsing of search strings, but they’re still technically the better search engine if what you’re searching for isn’t political. That’s the only reason I still use them.

            1. A monopoly that you can easily avoid, and that you only continue to use because you believe it’s better in most respects, isn’t a monopoly. It’s just your preference.

        2. That’s not entirely true. There have been other major social media sites that have come and gone. Do you remember MySpace? It’s what Facebook supplanted.

          Also, historically speaking, Facebook and Twitter are still a relatively recent phenomena. Our culture and law are still feeling out the rules and norms for interaction. I expect yet more swings from harsh censorship to unrestrained speech over the coming years until we find the balance we like. Whether that will be regulating Facebook, Twitter and Google like common carriers, people threatening their ad and other revenue streams to force a modicum of political balance and civility, or anything else, is still far too early to ascertain.

          1. “That’s not entirely true. There have been other major social media sites that have come and gone. Do you remember MySpace? It’s what Facebook supplanted.”

            The PC industry dates back to 1981 (if you use the introduction of the IBM PC) or the late 70’s (if you use a different microcomputer to mark the start). In that time, there’s plenty of cases of one product more-or-less completely supplanting another one. PC-DOS killed CP/M. WordPerfect killed WordStar, and then was itself crushed by Word. 1-2-3 and Excel. Netscape Navigator to Internet Explorer to Chrome. Novell NetWare to Windows NT.

            The argument “but they’re big and established” doesn’t mean they can’t be replaced.

        3. “Anyone with a couple of $10 billions can attempt to set up a competitor to Facebook or Twitter.”

          So can anyone else with nothing but some friends who know how to code, a lot of time, and lots of cheap computing power.

          “In reality, though, it’s close to impossible.”

          It’s been done. Quit whining about how hard it is. If you don’t want it badly enough to put in the work, you don’t want it badly enough, end of story.

          1. No, it hasn’t been done.
            MySpace, despite being one of the first, never managed to scrape up even 1% of Facebook’s current traffic, much less Facebook’s peak traffic.
            This is not 1981 anymore, and getting 1000 users from a con passing your software around on floppies doesn’t make you one of the most popular applications on the planet.

            The fact you think that all it takes to create a website with a billion daily visitors and store/retrieve petabytes of data is “some friends who know how to code” shows you don’t know a damn thing about programming, servers, web traffic, or anything else in the industry.

            1. “No, it hasn’t been done.
              MySpace, despite being one of the first, never managed to scrape up even 1% of Facebook’s current traffic, much less Facebook’s peak traffic.”

              But Facebook did, right? Facebook has had more than 1% of Facebook’s current traffic, right? You might even say they managed to hit 100% of Facebook’s current traffic?

              If your argument includes claiming that Facebook doesn’t exist, I’m going to continue treating your argument as laughable.

              “The fact you think that all it takes to create a website with a billion daily visitors and store/retrieve petabytes of data is ‘some friends who know how to code’”

              That’s how Microsoft got started. Or, in your world, does Microsoft join Facebook in never having been invented?

              “you don’t know a damn thing about programming, servers, web traffic, or anything else in the industry.”

              I think I’m still ahead of you, since I, apparently unlike you, know that Facebook exists.

              1. Wow, you are an idiot.

                Here’s a hint: This is not 1981 any more. This is not 2004 anymore. The circumstances of the here and now are not like they were decades ago.

                Facebook and Twitter are firmly entrenched giants in an established market. MySpace, like Friendster, was one of many early social networks. It started a WHOLE YEAR before Facebook, which gave it the initial appearance of being large. But it never dominated, and the entire market of social networks was still emerging.

                Your suggestion is much like claiming that any two guys in a garage can compete with Boeing and Airbus, because that’s all it took in 1920 – ignorant and foolish.

                1. “Wow, you are an idiot.”

                  Are ALL idiots smarter than you, or just me?

        4. ” Notice that with all the money Microsoft has spent on Bing, they’ve only managed to score 20% of the English query market… and that’s WITH browser and OS tie-in.”

          So, if the existing services are perceived as badly as you imagine they are, people will flock to your newer, better product in uncounted millions. You’ve just established that being strongly entrenched, backed by a huge company, and available to billions of users isn’t enough to own the market.

  3. Does NYU often hold panels on things that don’t exist?

  4. Let’s just get rid of all the liberals. That will fix the problem.

  5. Yeah, the there’s way too much speech that I hate on social media. The answer, of course, is to give me the ability do ban people’s accounts on twitter.

Please to post comments

Free Speech

Court Throws out Lawsuit Against Tor for Providing Anonymous Routing

Tor, a leading service for anonymously accessing the Internet, is shielded by 47 U.S.C. § 230.

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From a decision yesterday by U.S. District Court Judge Dee Benson in Seaver v. Estate of Cazes (D. Utah):

This action arises from the death of G.S., a 13 year-old boy, caused by ingesting the illicit drug U-47700. The parents of G.S. have brought suit against the website that sold the drug to G.S., the service provider that created the network through which G.S. was able to access the website on the dark web (Tor), and the mail service that sent the drug to G.S. Plaintiffs have brought claims for strict products liability, negligence, abnormally dangerous activity, and civil conspiracy….

Tor provides software for enabling anonymous communication and transactions on the internet. To use the Tor Browser, an individual must visit Tor's website to download the software. When downloaded, installed, and used by an end-user such as G.S., the Tor Browser automatically starts Tor background processes and routes Internet traffic through the Tor network, which relays traffic through a worldwide network. The Tor network provides security to a user's location and Internet usage to anyone conducting network surveillance or traffic analysis.

The Tor Browser operates through a group of volunteer-operated servers whose users employ the Tor network by connecting through a series of virtual tunnels, or relays, rather than making a direct connection. Tor estimates, on average, between 350,000 and 400,000 directly connecting users in the Unites States over the past three months. Information regarding the location of these users and relays is not publicly available. Via its website, Tor invites users to run a relay in order to help the network grow….

Plaintiff's claims are barred by the Communications Decency Act, 47 U.S.C. § 230 …. The CDA provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The CDA further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Through these provisions, the CDA "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party." … The purpose of this immunity is to "facilitate the use and development of the Internet by providing certain services an immunity from civil liability arising from content provided by others."

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236 responses to “Court Throws out Lawsuit Against Tor for Providing Anonymous Routing

  1. It’s Judge Dee Benson, with an “s.”

    1. Whoops, fixed, thanks!

  2. In other words, Plaintiff seeks to treat Tor as the “publisher or speaker” of third party information—”a result [the CDA] specifically proscribes.”

    Yeah, who cares what the facts actually are? If to get the result you want, you have to purport as a matter of law to decide the facts of cases, before the actual facts even occur, you are doing it wrong. Public tolerance for doing it wrong this flagrantly won’t last forever. The victim will be free speech itself.

    Once again, it is past time to change the law to require publishers, internet or otherwise, to read everything before publishing it. That is the only way to be certain that actually murderous information, as in this case, does not get published, and cause harm that can never be redressed.

    1. Are you saying you think browser makers should be required to read all of the content on the internet before allowing users to have access to their browser? Which browser do you use? How would you comment on this website if your browser’s maker was required to read all content on the internet before supplying you with the browser?

      1. No. I am saying internet publishers should be required, just as ink on paper publishers are required, to read everything they publish.

        I made that clear, so what are you trying to accomplish?

        1. No. I am saying internet publishers should be required, just as ink on paper publishers are required, to read everything they publish.

          They are. What you want is to force them to read things that other people publish.

          Tor doesn’t publish a darn thing. It’s a software company. Holding Tor accountable makes as much sense as holding Apple accountable because the kid ordered the drug from his iPad.

          1. What you want is to force them to read things that other people publish.

            Yes. In exactly the way the NYT is forced to read the things other people publish when the NYT collaborates with other people, including, for instance, it’s letter writers, to publish their work. The law has since forever treated actual ink-on-paper publishers and their contributors as joint publishers. I doubt the law had ever treated just the contributors as publishers, until Section 230 was passed, but I haven’t looked into that. It was certainly not the norm before Section 230.

            1. Who do you think Tor “collaborates with” in this context? Again, they make a browser. Do you think Google “collaborates” with Reason.com? Should Microsoft be required to read everything posted on this website, since users can access it with Internet Explorer?

              That’s what the plaintiff wants, to hold an internet browser maker liable as a “publisher”. It probably wouldn’t work even pre 230, because it’s such a preposterous theory. So what is the windmill you’re tilting at on these facts? What is it you think should have happened in this case? Tor be liable?

              1. “Again, they make a browser”

                They do make a browser, but to nitpick … ‘tor’ is an acronym for ‘the onion router’, where ‘onion’ is sort of describing a routing protocol where an attacker has to ‘peel the onion’ to match inputs and outputs.

                So, at it’s heart, it’s a routing system for packets. It doesn’t care whether those packets come from a browser or any other kind of client.

                IIRC (and I may not; take this with a grain of salt), the Tor browser came about because several years ago because people were using Tor with a normal browser (firefox?) that happened to leak info even through Tor, and so the Tor folks wrote their own privacy oriented browser. It may well be that most people’s interaction with Tor is via that browser, but at its heart its a routing protocol, not a browser.

                Apologies for the pedantry, but several people have made comments that seem to imply that Tor is just a browser flavor.

                1. Instead of nitpicking here, why not provide some justification for treating a browser or a router as a publisher? If you focus on tor as a packet router, you’re setting up an even harder analogy -how can you justify holding a router liable as publisher for the info routed?

                  Must Cisco inspect all packets to know they don’t contain damaging into before selling a router to avoid such liability?

                  1. “how can you justify holding a router liable as publisher for the info routed?”

                    You’d have to ask someone who thinks Tor should be liable here 🙂

                    1. K y bad, thought your post was from Stephen.

        2. You keep saying this. And you’re still wrong. Ink-on-paper publishers were never held to the standards that you are trying to hold internet providers to. You’re basing your arguments on a fantasy.

          1. Rossami, haven’t you already been corrected on that by EV himself? Maybe you didn’t check back and missed it.

            If, like Nieporent, you want to contend that Tor is not a publisher, then there might be something to talk about. I contend that what defines publishing is assembling an audience, and monetizing it. If Tor does not do that, then I am mistaken about it being a publisher. What keeps Tor in business? Does it sell its browser? If so, and if that is all it does, then it is indeed a software company, as Nieporent claims.

            If, however, Tor assembles an audience, and sells advertising based on advertiser access to that audience, then it is a publisher. If the law says otherwise, that does not mean reality has changed, it just means the law has chosen (recklessly) to pretend, in order to grant privileges to internet publishers which it withholds from ink-on-paper publishers. The resulting decline in public support for speech freedom will continue apace as a consequence.

            To complete the picture, I acknowledge that the internet created one new category in the world of information distribution—the internet search engine, which is not exactly a publisher, because it does nothing to assemble the content it distributes, but which nevertheless sells advertising. I do not think Google is a publisher.

            Perhaps Tor is not distinguishable from Google, or perhaps it is. Maybe Tor, with its encryption, networks of anonymizing servers, and focus on particular kinds of content, is yet another new category, which will require separate regulation.

            1. I contend that what defines publishing is assembling an audience, and monetizing it.

              That can’t be a satisfactory definition, since it’s both underinclusive and overinclusive. It’s overinclusive in that it would include bookstores in its ambit; it’s underinclusive in that a publisher that disseminates information for free is still a publisher. A random blogger who does not have any ads on his blog is still publishing the blog.

              The resulting decline in public support for speech freedom will continue apace as a consequence.

              There is no such decline in public support for speech. There’s just a decline in your support for speech, once you no longer had any special privileges as a newspaper publisher.

              1. “There is no such decline in public support for speech. There’s just a decline in your support for speech, once you no longer had any special privileges as a newspaper publisher.”

                Why would a newspaper publisher have any special interest in freedom of speech? Freedom of the press, obviously, but why speech?

            2. “Does it sell its browser?”

              No. It’s free.

              “What keeps Tor in business?”

              It’s a non-profit. The overwhelming majority of its income comes directly from the US Government “to aid democracy advocates in authoritarian states.” The Swedish government is another major donor.

              “If, however, Tor assembles an audience, and sells advertising based on advertiser access to that audience, then it is a publisher.”

              Well it doesn’t do that.

              1. NToJ, thank you for that. I misunderstood the Tor business model. Based on that, most of my other commentary is off the mark.

                1. Good thing you went out of your way to accuse this judge of recklessly ignore the facts in his decision, then.

        3. Tor is NOT an internet publisher! It merely provides the software which enables others to communicate. The argument you are making here is exactly like asserting that every printing press manufacturer should be held liable for anything which its printing press is ever used to print. And if you can’t see just how ridiculous that is, then something is seriously wrong with you.

      2. Oh, I get it. You think that because Tor features its own browser that it isn’t also acting as a publisher? Is that it?

        1. Tor does not operate host the server or provide the hosting services for the darknet markets; they’re as related to it as your ISP. Not that I think an idiotic troll such as yourself won’t be responding that Verizon better be damn sure I don’t witness a user comment anywhere on the internet that offends whatever your definition of acceptable speech is.

          1. Wait a minute, farfalone. Tor does not host the servers in the anonymizing server chains it assembles? How does it assemble those chains without becoming hostishly involved in assembling them?

            There is a mystery there to be cleared up, I think.

            I confess I’m not especially versed in Tor practice details. I wonder if anyone commenting here is?

            1. Tor users volunteer to run servers for it on their own computer. Tor just provides the software.

              It’s kind of like bit torrent in that regard; The software sets up a network that runs entirely on users’ hardware.

              1. “The software sets up a network that runs entirely on users’ hardware.”

                A bittorrent (or TOR) network that runs only on users’ own hardware would be unsatisfactory for most applications.

        2. What you’re advocating — as a purely practical effect — is the end of internet posting. As things already stand, companies such as Facebook, which have developed policies to arrest content they or their minions don’t approve of–even using fancy algorithms to help!–“publish” a lot they wished they’d caught, and remove a lot they later admit they “should have” left alone.

          Do you really thinks there’s a way around this? Perhaps we should more closely follow China’s efforts?

          1. What you’re advocating — as a purely practical effect — is the end of internet posting.

            I’ve told him that many times over the years; he doesn’t care. Or, rather, he welcomes that. He used to be a newspaper publisher, and he pines for the days when people like him got to decide what everyone else was allowed to read.

          2. What you’re advocating — as a purely practical effect — is the end of internet posting.

            No, no more than I am advocating the end of ink-on-paper publishing. My interpretation of purely practical effect is that because internet technology enables world-wide publishing at practically zero cost, it enormously increases publishing possibilities for everyone.

            I am advocating an end to the failed novel experiment with liability-free publishing. It is a mistake to equate that with internet posting. Internet posting does not require suspension of liability laws. Those laws previously advantaged, rather than hampered, ink-on-paper publishing. Even with libel responsibility restored, internet commenting could be done as readily as the letters to the editor sections of newspapers everywhere.

            Two novel differences wrought by the internet will still favor commenters. First, lower costs mean more outlets will be available. Second, would-be commenters will be better empowered than previously, again by lower costs, to bypass established outlets and create their own. As always, folks who publish on their own will have to assemble their own audience—and that will be the one notable disadvantage, compared to present internet practice.

            Do you really think there’s a way around this? Perhaps we should more closely follow China’s efforts?

            Recognizing that as the sarcasm you intend, do you nevertheless equate the private editing at the local hometown newspaper with Chinese censorship practiced nation-wide? Private editing is the way around this. It always has been.

            When private editing was the norm, none of the flagrant problems now threatening to discredit speech freedom on the internet were much seen. Libel, scurrilous invasions of the privacy of inconsequential people, copyright violations, fake news stories, internet bullying of students, weaponized speech practiced by ginned up mobs of internet trolls, false-light frauds, reputation-protection rackets, foreign interventions in our nation’s elections, mug shot extortion rackets—none of that could get much purchase in a publishing world built around private editing. On the internet today, none of it can be stopped, or even slowed down, because—as you seem to understand—it is all going to be published world-wide before anyone sees it.

            Worse, because all that is happening, and no one can think of any other way to stop it, the very government censorship you rightly fear is now commonly bruited as the solution. Look at all the cases on this very blog which center on courts striking down incipient censorship attempts. Government bodies ranging from state legislatures to local zoning boards are getting into it. In a democracy, in the long run, what the people want is what is going to happen. A sandbar cannot hold back a tsunami, and the courts will not indefinitely hold back this flood-tide of would-be censorship.

            To prevent an otherwise inevitable public assault on speech freedom, repeal Section 230.

            1. WE MUST KILL FREE SPEECH TO SAVE IT! So stupid. Speakers are already liable for your parade of horribles.

              “…it is all going to be published world-wide before anyone sees it.”

              The drafter sees it, right?

              1. NToJ, speakers, as a practical matter, are not being held liable (even assuming as seems obvious, but arbitrary, that you intend to exclude publishers as speakers). Nor if they were, would anything about that liability do much to prevent the damage unleashed by the game of catch-up that is built into publish-first, sue-later. Especially in the case of judgment proof speakers, which will be nearly all of them, there isn’t even anything to keep a found-responsible speaker from repeating the offense using his cellphone on the way home from court. Holding publishers responsible is what prevents all of that.

                1. I’ll just put you down in the “OK to hold people responsible for what totally different people have done” column.

                  It is true that judgment-proof people can’t be held to account in the civil court system. In other news, there’s no criminal penalty for murder-suicide.

                2. Judgment proof is just a euphemism for poor. The human condition has been improved by the internet, which allows the poor to reach much larger audiences than they previously would have been able to reach. It’s democratizing in a way that nothing in human history before could manage. That’s a feature, not a bug. The rich no longer have a monopoly on mass speech.

                  1. ” The rich no longer have a monopoly on mass speech.”

                    You just hand-waved away the digital divide.

                  2. NToJ, there is nothing inherent in ink-on-paper publishing, nor in traditional broadcasting, nor in private editing and news directing, which gives advantage to the rich over the poor. Other factors might, but not any factor that uniquely attends traditional publishing. The history of publishing abounds with poor people made famous and influential by the traditional press. Tom Paine began poor. Who among the poor now publishing on the internet has achieved more influence, or more democratizing influence, than Paine?

                    Consider the career of Frederick Douglass. Rising from enforced illiteracy and slavery, Douglass became a self-taught force who rocked the nation again and again, on the strength of his pen. As a result, historians now believe that no 19th century American addressed so many people as Douglass did, nor was as frequently photographed.

                    Douglass was a renowned orator. But what won Douglas that fame, and the use of those platforms, was ink-on-paper publishing, first practiced by others who supported Douglass, and then by Douglass himself. By the end of his life, Douglass had been a long-time newspaper publisher, and he had published 3 autobiographies. Others publishing about Douglass had made him celebrated in England before he ever went there. On the strength of publishing in the American South, Douglass became anathema, before he ever returned to it, after fleeing slavery in Maryland.

                    And what about that other 19th century upstart from ordinary circumstances, Mark Twain? Presumably you don’t think traditional publishing was any bar to his career.

                    1. When Thomas Paine published Common Sense, he probably sold 100,000 copies in the first year. If he did that online today, 3.2B people could access it.

                    2. NToJ, there is nothing inherent in ink-on-paper publishing, nor in traditional broadcasting, nor in private editing and news directing, which gives advantage to the rich over the poor.

                      Every time you think Lathrop can’t get dumber on the subject, he proves you wrong. “Look at this poor person who became famous. This proves that rich people don’t have an advantage in becoming famous.” Obviously Joe Smith, a guy who worked in an auto plant in Detroit in 1920, was at no disadvantage compared to William Randolph Hearst in getting his views out there. Hell, if he were really serious about it, he’d just have bought the Dearborn Independent like Ford did.

                    3. When Thomas Paine published Common Sense, he probably sold 100,000 copies in the first year. If he did that online today, 3.2B people could access it.

                      The Drudge Report gets millions of views every day.

                    4. Nieporent, you cite fame in point of comparison, and call me dumb?

                      Do you suppose Hearst in his time, or Ford, or Drudge in our time, ever achieved fame on the scale of the 3 examples I offered in their own times, or in ours? Paine, Douglass, and Twain will all be taught in schools public and private a hundred years hence—when the names you picked will be little more than footnotes, mostly forgotten, even by archivists.

                      Drudge—the only of your examples whose reputation depends on the internet instead of on traditional publishing—if he is remembered at all, will be remembered as a figure with stature similar to Petroleum Vesuvius Nasby, but less humorous. Don’t remember Nasby? Neither will anyone remember Drudge.

                      I suppose I ought to be grateful for the insight that internet utopians expect twaddle they publish online to make them immortal. I wouldn’t have thought of it on my own.

                    5. “Do you suppose Hearst in his time, or Ford, or Drudge in our time, ever achieved fame on the scale of the 3 examples I offered in their own times, or in ours? Paine, Douglass, and Twain will all be taught in schools public and private a hundred years hence”

                      Hearst, too. If the invention of Yellow Journalism isn’t enough, there’s the role he played in the Spanish-American War. History classes LOVE to talk about wars.

                    6. “there is nothing inherent in ink-on-paper publishing, nor in traditional broadcasting, nor in private editing and news directing, which gives advantage to the rich over the poor.”

                      Freedom of the press only applies to those who own a press.

                    7. @Stephen,

                      “Do you suppose Hearst in his time, or Ford, or Drudge in our time, ever achieved fame on the scale of the 3 examples I offered in their own times…”

                      Probably. Literacy rates and population size alone would have made Hearst, Ford, and Drudge more listened to in their own times than Paine was. But you’re not even using good examples. How many Mark Twain books have been sold? 60 million? In 150 years? Some Swedish YouTube star named PewDiePie has 96.1 million subscribers today, and his videos have been viewed 21.5 billion times. He’s probably reached a broader audience than Hearst, Ford, Drudge, Paine, Twain, and Douglass combined. But sure, ink and paper is no limit whatsoever on exposure.

            2. “Internet posting does not require suspension of liability laws.”
              Yes it does, actually, and that is why Section 230 exists. You don’t understand that technical nature of how the internet actually works, and the massive scale of said functionality. The potential liability would lead to so many suits that only massive companies could potentially stay in business, simply by legal costs alone, even if they never lost a judgement. And even the massive companies would not have enough financial incentive to do so, since the risk-reward ratio would not justify it. So yes, there literally would be zero sites that allowed user-posted content, in the long-term.

              1. You could, hypothetically, fix things on the tort law end, instead of the liability exemption end. More extensive use of loser pays, for instance.

                1. “You could, hypothetically, fix things on the tort law end, instead of the liability exemption end. More extensive use of loser pays, for instance.”

                  You support abandonment of the American Rule?

                  1. Yes, including cases where the government loses a case. You initiate a legal proceeding against somebody, and lose, you should make them whole.

                    Empirically, the rare nature of loser pays, (Even though judges can in theory impose it as a sanction for frivolous lawsuits.) has encouraged excessive litigation.

                    1. I think it’s just as likely that abandoning the American rule will lead to more litigation. But if you have data I’ll look at it.

                    2. ” You initiate a legal proceeding against somebody, and lose, you should make them whole.”

                      May I suggest that you adjust your circumstances by relocating to a place that practices the English Rule?

                      Seems easier to move just you rather than re-jigger the entire legal system of a country to suit you.

                    3. May I suggest that you adjust your circumstances by relocating to a place that practices the English Rule?

                      Seems easier to move just you rather than re-jigger the entire legal system of a country to suit you.

                      This seems like fairly silly response. I don’t read Brett Bellmore to be saying that switching to a loser pays system would fix every problem facing the US today, or even that it’s a particularly important issue — just that it’s an improvement over our current system. The fact that he might have concluded that, in spite of not implementing an optimal policy in this one area, the US is still on balance the best place to live doesn’t invalidate his position.

                    4. “This seems like fairly silly response. ”

                      You picked up on that? Good.

                      ” I don’t read Brett Bellmore to be saying that switching to a loser pays system would fix every problem facing the US today”

                      Are you assuming someone did? That seems a foolish assumption.

                2. “You could, hypothetically, fix things on the tort law end…”

                  That’s what 230 does.

              2. So yes, there literally would be zero sites that allowed user-posted content, in the long-term.

                That seems far-fetched. At some point during the scale-back toward zero—and long before the zero point—the demand for internet posting opportunities would exceed the supply, as would the demand for internet advertising exceed the capacity of available outlets. The scarcity curves and the value curves would intersect. Because of marginal scarcity, both the value of advertising and the value of posting would increase. Publishers would find a variety of ways to monetize those values.

                On yet another curve, the cost of liability screening (and every other kind of screening a publisher utilized to add value to its content) would be declining in proportion to the decreasing number of would-be posters on a publisher’s list of usefully valuable candidates. The publisher would be empowered to focus most of its screening attention on the subset of posting candidates judged by the publisher and the advertisers to offer the best value in terms of audience recruitment. These dynamics would apply alike to article authors, commenters, and audience.

                Would-be posters thus excluded by Publisher A, would then become candidates for publication by Publisher B, and so on. The market would determine the eventual size of a viable national enterprise in internet publishing, with the cost of liability screening scaled to stay within the value which internet publishing could actually return—a high value, as everyone knows.

                Even at its higher cost point, the far more expensive process of ink-on-paper publishing has already shown that an enduring market for adequately screened contributions exists. Lower costs on the internet will broaden that scope, enabling many more would-be contributors to participate—but not all of them. That is the best you can do.

                The potential for defamation damage—which internet publishing can and does inflict (as did its predecessors)—can not be wished away. And neither can other more diffuse but very real costs be wished away—the costs of social chaos, such as the unprecedented frauds, scams, intellectual property thefts, defamations, novel means of election tampering, tendencies toward monopoly, and other such hazards which uniquely attend internet publishing. Those costs must either be paid willy-nilly (and often as externalities inflicted on the public, which arouses public hostility and censorship demands), or instead defrayed in a more orderly way within the (still lower than ink-on-paper) cost of internet publishing.

                Speech can be cost-free, publishing cannot be. The internet since Section 230 has been an experiment in ignoring that reality—ignoring it in favor of a utopian vision of cost-free publishing for everyone. The experiment is failing, because costs which must be paid are not being paid. Experience tells us they can be paid, at a price which will prove a bargain, when compared to the price of the ink-on-paper alternative. The lower costs* will improve publishing opportunities for everyone, but the utopian vision will not be realized—because it is impossible.

                *For hostile skeptics who don’t understand the economic comparison between internet publishing and ink-on-paper, please note that for a typical daily newspaper the costs of paper, ink, printing, and distribution typically account for approximately 70 – 80% of total expenses—and always more than half. (At its peak, the printed weight of the Sunday Los Angeles Times was measured in thousands of tons, all processed and distributed within about half a week’s time.) Those expenses are all gone on the internet. That suggests it is foolish to suppose there are not resources available to defray the costs of monitoring comments.

                1. You sure used a lot of words to say you don’t understand the Internet.

            3. “I am advocating an end to the failed novel experiment with liability-free publishing.”

              What gives you the right to define the criteria upon which success or failure of said experiment should be judged?

            4. “Even with libel responsibility restored, internet commenting could be done as readily as the letters to the editor sections of newspapers everywhere. ”

              Respectfully, this is a dumb statement. Internet websites do not function the same way that newspapers do, and this is a good thing, and forcing them to operate like newspapers do is short-sighted and obtuse.

              A newspaper that publishes “letters to the editor” devotes resources to do so. Those resources are tightly controlled and censored for content.

              Internet publishing allows for much greater individual freedom. If you require Internet sites to be responsible for all of the content added by all of the individuals who think they have something to say, they have to review all of them prior to publication. That takes time, effort, and money, and imposes a HUGE chill on what the site owner tolerates. Yes, they’ll take real efforts to block illegal content… but the other 99.9% gets limited, too.

              To see the other side, look at copyrights and Internet publishing. You get cases like a mother’s video of her child being depublished because a copyrighted song can be heard in the background.

              1. James Pollock, do you intend your comment as advocacy to legalize (and/or regularize) libel, fraud, copyright violation, and foreign election interference on the internet? Publishing content without reading it first guarantees that the damage done by all those practices (and more, the list grows continuously) will, at best, always occur, and then have to be redressed in court afterwards, if at all.

                It also means that people who are judgment proof are either going to be licensed to use those practices again and again, with impunity, or a great deal of speech will have to be made criminal to stop them. It means that speech freedom will come into such disrepute among both the direct victims of those practices, and also among a public forced to pay for them as externalities, that democratic government and sober considerations of self-interest will combine to conjure up a pro-censorship movement in politics.

                It is time to abandon the utopian dream of liability free publishing for everyone. It is a dream which can never be realized. There has never previously been any such regime. There is nothing about mere technical change which empowers it now.

                1. “do you intend your comment as advocacy to legalize (and/or regularize) libel, fraud, copyright violation, and foreign election interference on the internet?”

                  No. Do you?

                  ” Publishing content without reading it first guarantees that the damage done by all those practices ”

                  How does my posting comments on this site without having it approved by an editor interfere with foreign elections?

                  “It also means that people who are judgment proof are either going to be licensed to use those practices again and again,”

                  Somehow, I don’t think the allure of being judgment-proof are going to cause a stampede in that direction.

                  “It is time to abandon the utopian dream of liability free publishing for everyone.”

                  Darn. Who held this dream, exactly?

        3. “You think that because Tor features its own browser that it isn’t also acting as a publisher? ”

          Tor is a publisher???? Oy vey. Is the USPS the publisher of every letter it transmits?

          1. There is a book publishing company called Tor Books; it occurs to me that maybe he thinks that this is related to that in some way.

        4. You REALLY don’t understand how TOR works.
          It’s a web browser/access point to the TOR network. They don’t publish anything. They simply provide a tool to access the internet anonymously – including some of the shadier bits.
          You’re basically calling for making EVERYONE who has some part in allowing people access to the internet responsible for the bullshit that people post.

          The rough equivalent would be making bookstores and the newspaper delivery boy responsible for the bullshit that the NY Times puts out.

          1. I agree that I really don’t understand how TOR works. I doubt if you do. Two things:

            1. That “TOR network,” is the part that bothers me. Everyone seems to be just gliding past that, as if it doesn’t really contribute to the character of the company, or in any way define what it does.

            2. It is striking that the case was decided on the basis of Section 230, which of course was enacted to protect internet publishing, not ISP-type activity.

            So I suggest the comparison with the newspaper boy is not a good one.

            Finally, I am only calling for internet publishers to be held responsible for the content of what they publish—not Verizon, not Google, which don’t publish.

            1. Yeah, you really don’t understand how TOR works. It isn’t a site. It’s a browser that uses a network of servers run by users of that browser to route your internet access through a bunch of anonymous jumps, so that a third party can’t track what sites you’re visiting.

              They don’t publish squat. They don’t have the technical capacity to read traffic through their browser even if they wanted to, it isn’t going through anything they own or have control of.

              1. Based only on the description I have from you of how Tor manages servers, I’d say your comment is way more assured than it ought to be.

                1. Oh, sure, they theoretically could include some kind of tattle tail routine in the browser or server software. Then the user base, who tend to be just a smidge more internet savvy than IE users, would publicize it and they’d be dead.

              2. “Yeah, you really don’t understand how TOR works.”

                You may or may not understand it yourself, but you don’t know how to explain it.

                The TOR browser isn’t the important part. It’s literally just a fork of Firefox. The important part is the network of routers.

            2. “1. That “TOR network,” is the part that bothers me. Everyone seems to be just gliding past that, as if it doesn’t really contribute to the character of the company, or in any way define what it does.”

              It’s not clear that you even understand what a network is. Why don’t you tell us what you think is important about the “TOR network”?

              “2. It is striking that the case was decided on the basis of Section 230, which of course was enacted to protect internet publishing, not ISP-type activity.”

              It’s “striking” to you that a case is decided on the basis of the plaintiff’s theory? If I sued you as an internet publisher because of comments that David Nieporent said, and you defended on the basis of 230, would that also be “striking”?

              1. “Why don’t you tell us what you think is important about the “TOR network”?”

                The principal feature of the the TOR network is that it obscures who is connecting to who. It is harder (but not entirely impossible) to tell who is connected to what when they use onion routers to obscure the routing of their network packets.

                Now, ordinarily, users don’t have to care about the routing of Internet packets, and choose to remain blissfully in the dark about how it all works. A few people do still have to care, and they work as network administrators keeping all the stuff working. If you want your traffic to be confidential even from your network administrators, then using TOR is entirely your prerogative; there’s nothing inherently illegal in masking your activity from your IT staff. That said, there’s plenty of illegal things you CAN do, for which masking your traffic is something you might want to do… in much the same way you wouldn’t want to use your car, with your license plate on it, to make a getaway from a bank robbery, you might not want to browse child-porn or terrorist recruitment sites from your home computer.

                1. I’m interested in hearing whether Stephen (or you) thinks the fact that illegal things can be done with Tor, should make Tor liable for those things.

                  1. “I’m interested in hearing whether Stephen (or you) thinks the fact that illegal things can be done with Tor, should make Tor liable for those things”

                    Then you should have read the comment where I answered that question directly. As of 5:00-ish on 5/22, it’s just a couple of comments down.

                    1. “Then you should have read the comment…”

                      My time machine was out of fuel.

                    2. You need a time machine to read comments written and posted prior?

                      The comment you didn’t/hadn’t/couldn’t read was posted at 1:14pm, your comment was posted at 3:30pm. My response pointing you to my earlier comment posted at 5:36pm. Care to explain why a time machine figures into things?

              2. NToJ, the plaintiff’s theory was that they should be thrown out of court on the basis of Section 230? Somehow, I thought that was the judge’s contribution, perhaps in response to arguments offered by the defendant.

                Just speaking as a layman, I took it as interesting that the judge used a legal theory based on protecting internet publishing to decide a case which almost everyone here is asserting didn’t involve publishing. (If there is anyone getting ready to tell me again that Section 230 is about not-publishing, save your trouble. I already have you guys in mind—as the folks who insist dogs have 5 legs.)

        5. No, I’m saying that since the only liability that Tor could have was for its browser, it wasn’t acting as a publisher in the case at issue. Tor does publish, occasionally. Their website, for instance, contains content that Tor publishes.

          But in this case, the parents weren’t suing Tor for anything they published on their website. They sued Tor because their child used a Tor browser to access somebody else’s website and bought drugs there. So since you thought liability should attach, the only conclusion I could reach is that you thought Tor was a publisher because it has a browser.

          1. You might argue that TOR publishes the routing tables that onion routers use to reach other onion routers. This is flimsy, at best, and not sufficient for liability to attach.
            It would be like suing the phone company for publishing a yellow-pages phone book that had ads in it for massage parlors or escort services, because (gasp) some of those turned out to places where prostitution might happen.

            1. It would be like suing the phone company for publishing a yellow-pages phone book that had ads in it for massage parlors or escort services, because (gasp) some of those turned out to places where prostitution might happen.

              The plaintiff’s theory — which, I stress, I think is bogus — is that nobody in the U.S.¹ legitimately needs to anonymously surf the Internet in the manner that Tor allows, so therefore Tor knows that the only people using its software are criminals like these drug sellers. And, that, in fact, drug transactions like these depend on Tor. Therefore, Tor is being negligent by allowing people to use Tor.

              ¹Sure, other countries have political dissidents, but we’re the land of the free so we don’t need to worry about it.

              1. “The plaintiff’s theory — which, I stress, I think is bogus — is that nobody in the U.S.¹ legitimately needs to anonymously surf the Internet in the manner that Tor allows”

                It is bogus, since people can (and do) choose to surf the web anonymously for lots of different reasons, and in some cases no good one.

        6. >”oh I get it”

          Big eye roll on that one.

    2. There’s a big difference saying it’s a bad law and Congress should change it, and saying the judge didn’t interpret the law correctly or apply the law currently to the facts, given the law as it now is.

      1. Completely agree. I contend that Section 230 ought to be changed, not that judges should ignore it.

    3. Unlike FB or Twitter, Tor literally IS just an impartial conduit. They don’t censor at all. They thus have a much better claim to section 230 protection than any of the social media sites, for that reason.

      1. No, Brett, they don’t have a better claim to 230 protection for that reason. The alt-right lawtwitter folks have been lying to you when they started talking about “platforms” vs. “publishers.” The main reason why 230 was passed was to allow sites to “censor” without liability.

        1. It was passed to allow them to censor in good faith without liability. Don’t write that language out of the law, it’s right there in black and white: They’re only protected in so far as their censorship is a good faith effort to police objectionable content, and objectionable content is actually defined.

          Granted, with the usual catch-all, but those are always interpreted as meaning things of the same nature as those listed, not something completely different.

          I would say TOR is extra protected, because without censorship, there can’t be any question at all about whether censorship is done in good faith.

          1. Good faith can mean censoring liberal or conservative perspectives.

            1. If one or both are objectionable to the intended audience.

          2. “It was passed to allow them to censor in good faith without liability.”

            It was passed to allow them to PARTIALLY censor.

            The fact that comment A was removed does not imply that the fact that comment B was allowed to remain constitutes endorsement of comment B.

            In print, the publisher has control over what gets printed, either directly or by hired agent. So if a story in a newspaper is defamatory, the writer and the paper can be sued for defamation. If a letter-writer (not an employee) writes something defamatory, the paper can still be sued because although it wasn’t written by an employee, and employee still exercised editorial judgment in deciding to publish it. Websites with comment functions (like, say, this one) allow users to publish WITHOUT going through an editor first. If the publisher intentionally exercises no editorial power over comments, there’s no basis to assign the publisher liability for what the users post.
            What section 230 does is allow the site to use some editorial control over the comments, without thereby taking on liability for all of them. So they can take out the boner-pill ads, and the Nigerian Oil-Minister scams, without thereby becoming liable for what Joe User had to say. Joe User remains liable for what Joe User said.

            1. “What section 230 does is allow the site to use some editorial control over the comments, without thereby taking on liability for all of them.”

              But the point is that it only does this as long as the moderation is done in good faith.

              That’s the claim in regards to these platforms, (TOR not being a platform in this sense.) that they’re engaged in bad faith moderation. They’ll say they’re policing advocacy of violence, when they’re actually policing political ideology.

              YT, for instance, putting Prager U videos in “restricted” status meant for porn and extreme violence, despite their being just civil discussion of political issues.

              1. Brett,

                What is it you think YT should be liable for if they are engaged in allegedly “bad faith” moderation by putting Prager U videos in a restricted status? Are you saying any defamation, anywhere on YT, is now actionable because 230 is out? Are you saying that since they mislabeled Prager U, any violent content that is watched and which causes violence, they’re now liable for? Could you explain what liability you think YT is exposing itself to with your alleged “bad faith” editing?

              2. “But the point is that it only does this as long as the moderation is done in good faith.”

                Yes. If they INTENTIONALLY leave something up because they endorse it, THEN they are liable for endorsing it. If they remove something because it’s objectionable to them, they get a pass. It doesn’t (and shouldn’t) include any text along the lines of “‘Good Faith’ means reasons that are acceptable to Mr. Brett Bellmore, and no others.”

                “They’ll say they’re policing advocacy of violence, when they’re actually policing political ideology.”

                Which is their right to do. When did you stop believing in property rights? Internet publishers fall into a couple of categories, most of them being “for-profit business”. They choose their actions based on profit motive. If the majority of their customers don’t like your politics, AND don’t like it enough that losing you (and people who agree with you) as a customer is a net positive for them, why should they eat the cost of catering to you?
                It seems that you’re just mad because people who agree with you didn’t manage to invent/build Internet sites that were compelling to a general audience.

            2. JP, what do you suppose would happen to an ink-on-paper publisher which allowed defamatory material to be published without reading it, and the person defamed suffered damages?

              I have never known whether the story is apocryphal or not, but plenty of old time print journalists were educated to believe that the reason newspapers say the jury found the defendant “innocent,” was because publishers feared the liability if the “not” in “not guilty,” somehow didn’t make it into the paper.

              1. “JP, what do you suppose would happen to an ink-on-paper publisher which allowed defamatory material to be published without reading it, and the person defamed suffered damages”

                I don’t have to suppose, I can look at the case law.

  3. With all the trolls, pranksters, pirates, and efreedom freaks that used to be on the internet I’m a little surprised and disappointed that Tor isn’t 10x bigger and more capable than it is. As it is, it seems reasonably effective for routine privacy against random websites but not really much use against a determined and well resourced attacker. Yet its still pretty much the only game in town for what it does.

    Depressing isn’t it? Nobody cares about privacy or anonymity anymore. Except in a trivial sense like where a chick is angry at her next door neighbor taking nudie pics of her and wants to sue. The cyberpunk books were filled with tales of free spirits rising against the corporations yet here the snot nose kids sell out to work for g00gle and farcebook. Their noble fight against all odds is the fight with the full backing of Silicon Valley and Governments against wrongthink.

    1. Most TOR users who get caught are caught via correlation attacks. Even the ones caught by Uncle Sam. Drop by your local internet cafe, and that significantly increases the difficulty inherent in de-anonymizing you. Use TAILS on someone else’s hardware, and that’s even better.
      Of course, that level of effort isn’t really necessary if you’re only using TOR to keep your ISP from snooping on you.

    2. ” I’m a little surprised and disappointed that Tor isn’t 10x bigger and more capable than it is.”

      Tor takes effort to use. Never underestimate the laziness of the general public.

  4. All of these decisions based on S230’s shield is making the internet seem awfully fragile right now. The right wants to destroy 230 because of reasons x, the left wants to destroy 230 because of reasons y, and then there’s reasons z that both the left and the right want to destroy 230 over.

    If 230 were to fall, is there any legal defense to fall back on to prevent basically the end of user-content on sites? Pre-screening every post seems pretty much impossible at scale, and something is bound to get through anyway.

    1. This ^ !

    2. Pre-screening every post seems pretty much impossible at scale, and something is bound to get through anyway.

      Right. At gargantuan, national-monopoly scale, pre-screening would be, at least, expensive and cumbersome to manage. Why isn’t that a feature, not a bug? In what world are gargantuan publishing monopolies a good thing?

      It is precisely Section 230 which opened the door to the vacuum-up-everything business model which enabled internet giantism, and which is currently severely depleting variety among publishing sources throughout the nation.

      Right wingers have already developed a sensitivity to that, and so they should. Everybody should.

      Private editing is the fall back, not the problem. Private editing can be practiced on a national scale, by creating a diversity of outlets. That will accomplish multiple good results at once:

      1. End monopolistic publishing,

      2. Vastly improve internet content,

      3. Spike the growing trend in calls for government censorship,

      4. Diversify beyond any previous precedent the availability of publishing outlets for commenters,

      5. Broaden now-monopolized advertising markets, to make entry into internet publishing once again a viable business plan,

      6. Create hundreds of thousands, or perhaps millions, of jobs in new publishing businesses, which will require writers, editors, photographers, graphic artists, advertising sales people, and administrators.

      Repealing Section 230 would be a great thing for commentary, for publishing, for business, and for the nation.

      1. I see we can agree about something, at least. Gigantic platforms are a bad way to go. The internet was a better place as an ecosystem of smaller independent sites.

        But I don’t think getting rid of 230 would spike the growing trend for censorship, which is actually driven by the left’s ideological determination to silence all expression of competing views.

        The right, notably, isn’t demanding that FB, for instance, censor. It’s demanding that FB stop censoring.

        1. “The right, notably, isn’t demanding that FB, for instance, censor. It’s demanding that FB stop censoring.”

          Yes, the right is simply demanding that a private company not remove content the right prefers. It’s not censorship, though, because, uh, it’s freedom.

          1. A problem endemic to the right is short-memory syndrome. The only two words necessary to deal with a claim that the right doesn’t endorse censorship are “Ed Meese”.

            (For those who legitimately don’t remember, Attorney General Ed Meese tried unsuccessfully to ban anything he considered pornography. It was that other guy who had the statue of Justice covered up because (eek!) in that statue, Justice is a WOMAN with BREASTS!

            Rightists aren’t asking FB to censor. Textbook publishers, on the other hand, should absolutely continue to censor.

            Pretending that only one side of the Great Ideological Divide wants things censored is silly, and shows either A) a person so partisan that their opinions can be safely discarded unexamined, or B) a person whose opinions aren’t informed and again, who can be safely ignored.

            1. ” The only two words necessary to deal with a claim that the right doesn’t endorse censorship are “Ed Meese”.”

              Are you joking? Ed Meese was somebody when I was in high school. I’m 60 now!

              “Isn’t” is present tense. I’d never claim that censorship was never a right-wing thing, decades ago.

              But, TODAY, the demand for, and the execution of, censorship, is on the left. And the right isn’t demanding that social media platforms engage in censorship, they’re complaining about them engaging in censorship.

              It’s perhaps a bit depressing that the parties swapped stances on censorship as soon as who got to play censor changed, but don’t pretend it didn’t happen.

              1. Ashcroft censoring Justice is much more recent though. Had his stance changed since he’s been out of office? Don’t pretend the religious right isn’t into censoring content they find objectionable.

                1. That is a little bit more recent, but changing the decor in what is, for the duration, your own facility, is scarcely the sort of censorship we’re talking about.

                  1. Censoring textbooks is an ongoing process. Censoring sex education to omit contraception is still a thing… in some states. Which states have abstinence-only sex ed?

                    If you can’t find the examples of censorship by right-leaning folks, it’s either because you didn’t bother to look, or your partisan goggles blocked the view. Either way, your opinion on the subject is without value.

              2. “…as who got to play censor changed…”

                It never changed. The government can censor. FB cannot. Free speech requires that private entities be entitled to play “censor”. But that isn’t censorship. It’s freedom of the entity doing the censoring.

                1. “It never changed. The government can censor. FB cannot. Free speech requires that private entities be entitled to play “censor”.”

                  Respectfully, nonsense. Private entities can’t violate the first amendment, which is not the same thing as saying they can’t censor. The Catholic Church has been banning books for centuries, but they’re only “the government” in a couple of blocks of downtown Rome.

                  1. The Catholic Church could ban books when it was the state. When it isn’t the state, it can’t ban me from reading books. Which books is the Catholic Church prohibiting me from reading right now?

                    1. I’m not Catholic.

                    2. You’ve revised your argument from “The Catholic church can’t censor because they’re not a government” to “the Catholic church can’t censor because you’re not a Catholic”?

                      Doesn’t matter, they’re both wrong.

                    3. The Catholic Church can’t censor because the only people it has authority over (when it isn’t acting as government) are its voluntary members. If you don’t want to be governed by Catholic Church rules you just leave the church.

                      Freedom of association requires that churches be allowed to “censor” their members’ conduct. It’s still voluntary by the censored. Freedom of speech requires that newspapers/websites/etc. be allowed to decide who gets to post to or on them.

                  2. “The Catholic Church can’t censor because the only people it has authority over (when it isn’t acting as government) are its voluntary members”

                    I’m not Chinese, so China can’t censor.

                    Want to try again, or quit at three times wrong?

                    You’re still confusing violation of the first amendment, which can only be done by (American) government, and censorship, which can be done by anyone.
                    Bowdler censored Shakespeare. The Hays Code censored motion pictures. Editors and publishers censor authors. The State of Texas censors textbooks that are sold in states that are not Texas.

                    1. “I’m not Chinese, so China can’t censor.”

                      Are you fucking with me? China is a government. Governments can censor. So long as the Catholic Church is acting like a government, it can censor. But when it’s just banning its own members who read books, it’s not censoring anything that its members are not voluntarily agreeing to censor.

                      Thomas Bowdler couldn’t prevent people from reading Shakespeare in its original form. The Hays Code was self-censorship in anticipation of government censorship. But even so, still voluntary. Some Like it Hot was produced without approval by the MPPC, never received its certificate, and still was a box office hit.

                      The State of Texas is a government.

              3. “Ed Meese was somebody when I was in high school. I’m 60 now! ”

                How old was Lincoln when you were in high school?

                “But, TODAY, the demand for, and the execution of, censorship, is on the left”

                I refer you to my previous statement on this subject:
                Pretending that only one side of the Great Ideological Divide wants things censored is silly, and shows either A) a person so partisan that their opinions can be safely discarded unexamined, or B) a person whose opinions aren’t informed and again, who can be safely ignored.

              4. Are you joking? Ed Meese was somebody when I was in high school. I’m 60 now!

                I know some people here don’t think much of your intelligence, but surely you weren’t still in high school at age 28. (At which point Ed Meese was Attorney General of the United States.)

      2. Right. At gargantuan, national-monopoly scale, pre-screening would be, at least, expensive and cumbersome to manage. Why isn’t that a feature, not a bug? In what world are gargantuan publishing monopolies a good thing?

        Your premises are completely wrong. First, there aren’t any monopolies here, and second, it isn’t merely “gargantuan, national-monopoly scale” sites that can’t pre-screen posts. No site bigger than a solo blog nobody reads can afford it. Again: we couldn’t be posting comments at Reason (or any other iterations of the Volokh Conspiracy) without § 230. The bloggers here would have to read every single comment before deciding whether to approve it. This would not result in a carefully-curated higher-quality comments section; this would result in no comments section.

        Also, obviously, gargantuan platforms are better in the world of network effects; ten Facebooks that are 10% the size of the current Facebook are not each 10% as useful as the current Facebook.

        1. “Your premises are completely wrong. First, there aren’t any monopolies here”

          Apple’s lawyers were recently disabused of this claim.

      3. “It is precisely Section 230 which opened the door…”

        To you commenting on this website. If Reason.com was held to be “publishing” your comments, you wouldn’t be posting comments here.

        1. Reason is different from FB in a very important respect: Reason actually engages in the sort of good faith moderation that Section 230 refers to, deleting only the worst sort of genuinely offensive comments. You can openly advocate anarchism, communism, conservatism, libertarianism, they don’t care. You have to actually get into extreme stuff like posting child porn to get the boot.

          FB engages in ideological censorship under the pretext of good faith moderation. They’re failing to qualify for Section 230 protection because their moderation isn’t in good faith.

          1. They still qualify for Section 230(c)(1), which has nothing to do with good faith.

            Section 230(c)(2)(A) says they can’t be held liable for decisions to censor in good faith. So you think they censor in bad faith. What is it you think they’re liable for? They still aren’t publishers under 230(c)(1). FB doesn’t need protection under 230(c)(2)(A) unless it’s a publisher. And it remains not a publisher even if it does something Brett thinks is in “bad faith”. (This argument also loses, since “otherwise objectionable” will end up giving FB as much latitude as they need to avoid bad faith.)

            It’s also stupid because FB’s policy does allow them to moderate on the basis of ideological censorship.

          2. “FB engages in ideological censorship under the pretext of good faith moderation”

            You keep repeating this. Whose talking point is it?

            “They’re failing to qualify for Section 230 protection because their moderation isn’t in good faith.”

            That’s still not how it works.

            1. Then what meaning do you attribute to that “good faith” in the statute? It has to have SOME meaning.

              1. I suppose the ordinary, common, well-known concept of “good faith” could be what they meant when they used the term “good faith”.

    3. “If 230 were to fall, is there any legal defense to fall back on to prevent basically the end of user-content on sites? ”

      You’d have to do it by contract. Before accessing any content on a webpage, you’d first have to click through a user agreement, and included in the user agreement would be a hold-harmless clause.
      Then all the legal fighting would be over whether you can contract away your right to complain about something before you can even see the something. That sounds like a couple of decades of up-and-down before a meaningful precedent emerged from what would undoubtedly be multiple cases for the Supreme Court to resolve.

      1. A hold-harmless clause would not accomplish what you think it would accomplish. If Website allows Poster X to post defamatory material about me, that is reported in the NYT, the plaintiff doesn’t have to visit Website to sue. (So the plaintiff is never bound by the hold harmless.)

        1. “A hold-harmless clause would not accomplish what you think it would accomplish.”

          A hold-harmless clause would accomplish exactly what I think it would accomplish. Perhaps it is your assumption(s) which is/are wrong?

          “If Website allows Poster X to post defamatory material about me, that is reported in the NYT, the plaintiff doesn’t have to visit Website to sue.”

          They lose the lawsuit, however, because hearsay is inadmissible.

          1. They lose the lawsuit, however, because hearsay is inadmissible.

            I assume this is another of your “jokes” that only you think is funny.

            1. Congratulations! Your status as a humorless twit will be adjusted to just “twit”.

  5. All of Plaintiff’s claims are state law causes of action that would hold Tor, an internet service provider, liable for information originating with a third party. Those claims are barred by the CDA.

    Something about this does not seem right. The CDA bars treating someone as a “publisher or speaker” of certain content. That works well where the cause of action concerns publishing information, e.g. defamation. (Which was what the CDA was drafted for.)

    But the claims here rest not on disseminating information, but facilitating the sale of a dangerous (and illicit) substance. The various causes of action have different mental states (strict liability, negligence, knowing conduct). Is that really within the language of the CDA?

    Suppose an ISP knows that someone is using it to sell a dangerous substance (e.g., food that is tainted with toxic chemicals). The Seller wants to use the ISP to advertise and sell the product. Is that really within the CDA? I am dubious.

    1. Bored Lawyer just posted the kind of comment that keeps me coming back here.
      Now I’m curious. Is there a legal difference between “facilitating the sale” and advertising?
      I acknowledge a difference between a web site that says “Buy fentanyl!” and one with an Add to Cart button for it.
      Very curious what legally knowledgeable people think about whether this is outside section 230.

    2. Just imagine all the crime Ford, Nike, DeWalt, Verizon, and Microsoft have facilitated.

    3. It’s more a matter of, suppose an ISP knows as a general matter that some of it’s customers are using it to sell a dangerous substance, (Because they know in a general way that sort of thing happens.) but have no way of knowing which customers are doing it, because they don’t look at the traffic they carry, they just carry it.

      I mean, the phone company knows that crimes are frequently arranged over the phone, but they’re not (supposed to be) listening to the calls, so they’ve got no idea who is doing it.

    4. phoqueue and Brett Bettlemore:

      You both raise good points, but the way criminal and civil law generally deals with this is requiring knowledge by the facilitator. Unless the facilitator knows or is willfully blind to the fact that its assistance is being used to do a wrong, there is no liability.

      The issue of general vs. specific knowledge was actually decided by the Second Circuit (at least for trademark law) in Tiffany (NJ) Inc. v. eBay Inc. 600 F.3d 93 (2nd Cir. 2010). eBay knew that, generally there are lots of counterfeits being offered on its site. That is not enough, held the Second Circuit — it has to have specific knowledge of a specific listing for liability to attach.

      My point is, though, none of these have to do with the CDA, which is a special immunity for ISPs. The first question one needs to ask, I think, is what liability would Tor have without the CDA? If the answer is none, then who cares about the CDA.

      If the answer is there is liability, then would that liability be as a “publisher or speaker?” Or some other basis?

      1. “My point is, though, none of these have to do with the CDA, which is a special immunity for ISPs.”

        Section 230 isn’t for ISPs. It’s for Internet publishers that want to allow user interaction (like, say, a comments section). They aren’t going to do this if they can be held liable for every loonie who can operate a keyboard and knows of their website.

        The comparison is to the “letters to the editor” columns in the local newspaper. The publisher hires editors to decide which letters to print and which ones to ignore, and which ones to forward directly to law-enforcement agencies. Everything that sees print is reviewed by, and approved for publication by, an employee of the newspaper who is acting at the publisher’s direction.
        Section 230 allows for something different on the Internet… Interactive websites that allow users to post what they like, without it having gone through an employee of the website first. Things may be removed (for various reasons) but the publisher does not have to hold every item for review before publishing it (though, of course, they can choose to do so.) Joe Public can type whatever they see fit, and hit “Publish”, and poof! there it is on the Internet, available to anyone who comes along. Section 230 limits liability to the person who wrote it, and NOT to the website owner, unless the website owner does something beyond just allowing the user to publish comments.

        1. I was using ISP as a shorthand. The statute applies to any “provider or user of an interactive computer service.”

          Broadly speaking, anyone that allows third parties to post content can claim the immunity. Even if they review and edit or censor the content or some of it.

          1. “Broadly speaking, anyone that allows third parties to post content can claim the immunity.”

            Yes. Which is different from ISPs.

            If I sue Verizon because Person X wrote something on Corporation A’s website, for being Corporation A’s ISP, that’s not the same thing as suing Corporation A. It turns out that both are immune from suit, but that immunity comes from different sources.

    5. “But the claims here rest not on disseminating information, but facilitating the sale of a dangerous (and illicit) substance.”

      These aren’t as separate as you seem to think. A market-maker works by publishing information… making would-be buyers aware of would-be sellers, and vice-versa. Consider the Real Estate Multiple Listing Service, a publisher of information, and also, at the same time, facilitating the sales of real property. Or consider Ebay, or Craigslist, which fall under the category of publishers of information, but who also “facilitate sales”.

      The point of section 230 of the CDA is to limit liability to the person/entity most responsible. If some jackass lists an Ebay auction for his child-porn collection, we go after the guy with a child-porn collection, not Ebay. If some other jackass uses Twitter to threaten to kill people, we go after the homicidal jackass, not Twitter.

      1. I get that they are related. But the statute is not an all-purpose tort immunity. It says, specifically, that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).

        Treating someone as a publisher or speaker fits well with defamation claims. But you don’t have to be a publisher or speaker to be held liable for knowingly assisting a tort (in those jurisdictions that allow aiding and abetting for tort claims.)

        Let’s say in this case someone supplied bottles for the seller to put Fentanyl in, knowing that what was intended. That at least plausibly gives rise to a tort claim for aiding and abetting a tort. (Not to mention criminal liability).

        Why would Tor be any different? The claim is not that it was a publisher or speaker, it was that it provided some assistance to a wrongful act (assuming you can show knowing conduct, which I doubt very much).

        1. So it would be logically possible to impose liability for selling poison while preserving protection against injustices like the Stratton Oakmont case?

          On the other hand, if selling something is commercial speech, then being neither the publisher nor the speaker seems like it would put the web host out of the legal line of fire.

        2. “Why would Tor be any different? The claim is not that it was a publisher or speaker, it was that it provided some assistance to a wrongful act”

          Because the wrongful act is “assisted” by publishing or speaking. Section 230 cuts off that liability (by design).

          We also don’t let you sue sound-amplification-equipment manufacturers for what someone said over a loudspeaker.

    6. I think it is, but it might not be, since an ISP can get outside the CDA if it specifically encourages the content. To the extent your fact pattern moves you closer to specific encouragement, that should be the answer.

  6. I think there’s an argument to be made that the internet is now a relatively mature technology, so some of the powers and immunities granted to help develop it should be rolled back somewhat. Internet companies have complete control over user information and complete immunity from liability. One could argue both features should be tempered, at least in places.

    1. Any such compromise would somehow need to be tailored to make SLAPP suits like Stratton Oakmont versus Prodigy difficult or impossible. Open discussion of the idea is healthy. ReaderY, what are your thoughts about how to structure a change safely?

    2. “Internet companies have complete control over user information”

      Tor transmits encrypted packets between anonymous users. It has no way of knowing whether the users are Iranian LGBT activists or druggies.

      As phoqueue says above, Tor knows people are using its software for buying drugs like Ford knows people are using its cars in bank robberies – after the fact from the results. Or that the same drug transactions Tor is facilitating are also being facilitated by Microsoft, whoever wrote the device driver for the keyboard, etc, etc. Heck, the device drivers and operating system even handled the information before it was encrypted.

      1. “Heck, the device drivers and operating system even handled the information before it was encrypted.”

        Indeed, blaming TOR for facilitating illegal conduct is like blaming a keyboard manufacturer for not including a key logger in their device driver for police convenience.

        1. “… blaming a keyboard manufacturer for not including a key logger in their device driver for …”

          … the convenience of the police, Chinese and Russian intelligence, random hackers, etc, etc.

          Thought I’d FTFY before anyone got ideas 🙂

        2. “blaming TOR for facilitating illegal conduct is like blaming a keyboard manufacturer for not including a key logge”

          A better analogy:
          Blaming TOR for facilitating illegal conduct is like blaming a door manufacturer for all the illegal things done behind closed doors.

      2. Tor the foundation does not transmit anything.

        Tor the foundation wrote and distributed the Tor software, that’s only thing they transmitted or published (plus some mailing lists, technical documents and so forth).

        This software, when executed on the machine of a person not affiliated with TOR, transmits things.

        1. Thank you nonzense! I was about to post this.
          The TOR network is a collection of volunteers with servers. The TOR project is a software development organization.

    3. ” Internet companies have complete control over user information and complete immunity from liability.”

      Apple would like to learn more about this complete immunity from liability.

    4. “I think there’s an argument to be made that the internet is now a relatively mature technology, so some of the powers and immunities granted to help develop it should be rolled back somewhat”

      Some of them have. Online retailers can now be compelled to collect sales taxes for states they aren’t in, for example.

  7. I’m surprised at the comments above suggesting we tighten/reduce 230’s protections.

    The infrastructure (i.e. ISPs, internet browsers, social media sites, e-mail providers, sites with comments [like VC]), is not the problem.

    Yes, individuals use these services to facilitate their criminal activity, but that’s the same as saying people use public streets and sidewalks when they rob a bank.

    Keeping the 230 protections in place helps insure freedom of speech.

    1. Yeah, my only concern is that the words, “good faith” in 230 actually be given some teeth. The problem today is that 230’s protection is being extended to sites that are engaging in ideological and political censorship under the pretense of policing objectionable content.

      “No provider or user of an interactive computer service shall be held liable on account of—
      (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;”

      Sure, there’s a catch all clause, but that would normally be interpreted as content of the same nature as the listed items. Interpreting it as authorizing absolutely any sort of restriction whatsoever would render the “good faith” language void.

      1. So what’s the problem?

        Facebook, Volokh Conspiracy, etc., delete user/commenter material all the time based on their standards (whatever those standards are including changing the standards whenever and for whatever reason they want).

        I guess the only change I would make to 230 is to delete “voluntarily taken in good faith.”

        No provider or user of an interactive computer service shall be held liable on account of—
        (A) any action to restrict access. . . .

        1. I should as long as other non-discrimination laws are obeyed, i.e. can’t deny service because of age, disability, sex, etc.

      2. “The problem today is that 230’s protection is being extended to sites that are engaging in ideological and political censorship”

        Since removing objectionable content is allowed under the statute, why are you complaining that owners of websites are removing content they find objectionable? Just because you don’t find something objectionable, doesn’t mean that they can’t.

        If you want a website that censors things they way you would, build it yourself, and quit whining that other people do things differently than you would, and quite whining that other people won’t let you use their stuff the way you want to.

        If you don’t like the way Facebook does (or doesn’t) control content on its service, demand a refund and stop using the service.

        1. I would prefer a website that censors NOTHING.

          1. Then you should only visit websites that censor nothing…?

          2. “I would prefer a website that censors NOTHING.”

            Then don’t censor anything on your website. Problem solved.

          3. This quickly devolves into spammer, trolls and a lowest-common-denominator mindset.

            A better approach might be the way Reddit allows anyone to create a sub-community, people can leave/join those sub-communities at will, but within them the moderators have very substantial authority.

            1. The point was, the available choices are A) use someone else’s website according to their rules for doing so, or B) make your own website, and impose your choice of rules on people who come to it. Forcing other people to let you use their stuff on the terms you’d like is not one of the choices.

        2. I’m pointing out that the statute provides a list to illustrate what sort of ‘objectionable’ is meant. And sites like FB are removing content on other basis that are not of that nature, and lying about why it was removed.

          What meaning would you give that “good faith”, or do you just want it to be rendered moot?

          Would I stop FB from deleting whatever they want? No, I’d just deprive them of Section 230 protection on that basis, because they’re not actually complying with the terms of Section 230. Their moderation is bad faith moderation, as regularly demonstrated.

          1. “And sites like FB are removing content on other basis that are not of that nature, and lying about why it was removed.”

            So you keep saying. When will you be suing them, and under what theory?

      3. Why do you think conservative websites ought to be dragged into court by liberal commenters challenging their good faith censorship of liberal comments?

      4. What in the statutory language prevents consideration of political leaning as being considers “otherwise objectionable”.

        For instance, if I run a gun forum, I might simply not want to have posters advocating for gun control. Under §230, I believe I ought to be allowed to consider this objectionable simply because I don’t think that discussion belongs there. It goes to the core purpose of my forum that we want to have some matters discussed and not others.

        It would be very odd to believe that “otherwise objectionable” must be read to exclude this sort of thing. That would essentially mean that it would not be possible to run limited-topic forums, and that anyone could post on any topic anywhere, so long as they were not obscene or lied. Congress could not have possibly intended this.

        1. What prevents it is the list illustrating what is meant by “objectionable”.

          A gun forum would remove content that isn’t gun related on TOS basis, but FB TOS do not specify political ideology as a basis for removal of content. If they did, then I wouldn’t call their ideological curation of content bad faith moderation.

          What meaning would you give that “good faith” that’s right there in the text of the law? The law expressly contemplates a forum losing Section 230 protection on the basis of the way they carry out moderation!

          1. A gun forum would remove content that isn’t gun related on TOS basis, but FB TOS do not specify political ideology as a basis for removal of content. If they did, then I wouldn’t call their ideological curation of content bad faith moderation.

            They specify “anything they damn well feel like” as a basis for removal of content.

            (Well, that’s Twitter. I assume FB still says something similar, but I haven’t looked in a while.)

          2. I mean, ‘otherwise objectionable’ seems to indicate things that are objectionable for other reasons.

          3. “What meaning would you give that ‘good faith’ that’s right there in the text of the law?”

            I would assume that “good faith” continues to mean what it has always meant, rather than attempt to redefine it the way you want to. Isn’t that the core of our disagreement?

        2. “For instance, if I run a gun forum, I might simply not want to have posters advocating for gun control. Under §230, I believe I ought to be allowed to consider this objectionable simply because I don’t think that discussion belongs there.”

          And, I’m going to suggest that there might be (hypothetical) people on your (hypothetical) website that have even stronger feelings than you do, who might, say, threaten violence towards the gun control advocate who stumbles into your gun-enthusiast midst. If you leave their posts up because you only pay attention to the flagged comments, and your sites visitors keep flagging the gun-control advocate but didn’t flag the guy who offered to shoot him with each of his weapons, you’d be free from liability if the guy followed through.

      5. Are you arguing against owners of private property setting their own rules?
        I regularly visit the home of someone with a house rule against discussing politics under his roof. It’s constitutionally protected speech. I have a right to make it, he has a right to throw me out and forbid me to return.
        That’s not a rhetorical question, because there is precedent that after the town square is purchased by a developer there is still free speech allowed there. Facebook is so big that I wouldn’t be contemptuous of an argument that they are the new town square. A single-family home is a very different situation.

  8. Did any of the defendants countersue for negligent parenting, for allowing a 13-year-old to access the dark web unsupervised? Because that’s the real problem in this story.

  9. People who still support sec. 230 need to start thinking about how to reform it, at least a little. Because its enemies are increasing in numbers from both sides, for their own reasons.

    The middle is not going to hold.

    1. You’re probably right but that’s just the normal ebb-n-flow of democracy.

      1. Sure but the supporters are just “free speech”-ing away the complaints. As we see in these comments.

        They are going to have to do better than that if its going to survive.

        1. Arguing in favor of free speech is not “‘free speech’-ing away the complaints.” There aren’t any better arguments. If you have better arguments, let’s see them.

          1. My complaint about FB, YT, Twitter, is that they’re moderating in bad faith, and thus by the express terms of Section 230, have removed themselves from its shelter.

            They claim not to politically curate content, but they do. They lie about the basis of their moderation.

            If FB just came out and announced, “We’re a social platform for left-wingers, no right-wing content is allowed.”, I’d withdraw my objections, they would be honest about how they’re moderating content. But they don’t do that. They claim to be ideologically impartial, while moderating on the basis of ideology.

            That is categorically bad faith, and Section 230 does not protect bad faith moderation.

            1. They claim not to politically curate content,

              I don’t see that anywhere in the TOS.

              1. I’ve seen it in the public statements of their press spokesmen.

              2. That was in Zuckerberg’s testimony to the Senate earlier this year, so assuming he wasn’t perjuring himself (I.e. he knew it was false), and this isn’t a word games deal (we don’t censor based on politics only when we’re giving testimony about it, the rest of the time we do censor based on politics) that’s a pretty clear statement from FB

            2. “They lie about the basis of their moderation. ”

              (Pretending the claim is true)
              What statute requires them to be 100% open about how their moderation filters work?

              Most platforms allow users to signal bad content to management. Most platforms (if not all) will react to things that generate lots of these before moving on to other things.

              Thus, if one side gets moderated more, it may be because the site’s owners are biased to the other side. It ALSO may be because the people who get moderated are boorish, rude, or otherwise objectionable, and also happen to be mostly on one side.
              So, if you and your side are getting moderated a lot, maybe check to see if you’re hanging out with a bunch of rude jerks, and adjust accordingly.

              1. “What statute requires them to be 100% open about how their moderation filters work?”

                THIS statute, the one we’re discussing, which says, “good faith”, rather than allowing sites total freedom to moderate in any way whatsoever.

                You seem absolutely determined to strip those words of any force.

                1. THIS statute, the one we’re discussing, which says, “good faith”, rather than allowing sites total freedom to moderate in any way whatsoever.

                  Why do you think that total freedom to moderate is somehow bad faith?

                2. “You seem absolutely determined to strip those words of any force.”

                  Not joining you in interpreting them to mean “moderation in any way I don’t agree with is bad faith”, you mean.

    2. It’s just a pendulum swinging. Once the protection is removed, some widely publicized, ludicrous result will emerge (involving lawyers that the public hates), and we’ll be right back to 230. You can’t keep good ideas down, especially after people have enjoyed the benefits for decades.

      And we’ve already seen the reform. Last year, for instance, 230 was modified to have no effect on sex trafficking.

      1. “And we’ve already seen the reform. Last year, for instance, 230 was modified to have no effect on sex trafficking.”

        Just to kill one website (Backpage) that was actively cooperating with law enforcement on tracking down posters of genuine human trafficking adds.

        1. Right, which is another example why we shouldn’t tolerate fucked up “reform”. This idea that we have to negotiate because inevitably the people will turn on free speech is wrong. The rejoinder is to convince the people that free speech is good, not to abandon it.

  10. The best thing about all this is that even if the lawsuit succeeds (perhaps in a future without §230) and the TOR foundation goes bankrupt and dissolved, the TOR network will continue to function just fine. The source code itself is open source and freely copied/mirrored around the world in the possession of non-TOR-foundation entities. The network continues to run on machines completely unaffiliated with the foundation, new users would have to either get and build the source or, more likely, binaries would be built by other parties.

    One could imagine trying to clamp down on publishing both the source and compiled binaries, but this is a bit like trying to chase down people distributing pirated movies, except much harder since there is no aggrieved rightsholder to drive the process. Indeed, the software itself is permissively licensed!

    1. More solid information from nonzenze! I apologize for misspelling your name earlier.

    2. “the TOR foundation goes bankrupt and dissolved, the TOR network will continue to function just fine.”

      It’s compromised. If that fits into your definition of “just fine”… yes, it will continue to be “just fine” if there is no maintenance/development.

      56-bit encryption once seemed “just fine”, too.

      1. Its open-source, there will be plenty of maintenance/development from third parties

        And no, this third party development need not fragment the network, just as forked clients didn’t fragment the old P2P networks

      2. Wait, how would it be compromised?

        And what’s to stop maintenance/development? The source is (extremely) permissively licensed, so there are no legal/IP hoops to prevent individuals from contributing patches.

        1. “Wait, how would it be compromised?”

          The FBI won’t say. They’ve been letting USAs drop cases so they don’t have to testify about how they broke it.

          “The source is (extremely) permissively licensed, so there are no legal/IP hoops to prevent individuals from contributing patches.”

          And when everybody’s running their own version of the client, they all work together because positive thinking?

          1. No, they work together because the specifications necessary to do that are public domain.

            1. The specifications to make a network that the FBI can track. I thought you wanted one they can’t track.

  11. Since some have mentioned reforming the CDA, a possible model would be the printer-publisher partial immunity for trademark infringement, contained in 15 U.S.C. 1114(2). (Too long to copy here.) Basically, printers and publishers of infringing materials who can show they acted innocently (meaning in good faith) are not liable for damages, but only for an injunction against future infringements. (And even there, there are some limitations on injunctive relief if the injunction would cause delay in dissemination of a newspaper, periodocal. etc.)

    So if you act in good faith, all that might happen is you will be ordered to take down and not repeat the offending item.

  12. I don’t know enough about how courts have interpreted it, but I’ve always read (2) of Sec. 230 differently. I just read it to clarify that censoring in good faith can’t be used to prove that you actually are the publisher, but I don’t know whether censoring in bad faith automatically means that you ARE the publisher.

  13. It is remarkable to me that so many here can write so much, and speak to authoritatively on a topic without having the slightest understanding of the fundamental nature of the subject.

    It’s also remarkable that the court doesn’t either. And, that a very simple internet search could have cleared this up.

    A special note to Stephen Lathrop: you have written so much here that is so ill informed, I recommend you do a little research before you “launch” again. Go to wikipedia. Or, in this case, go directly to tor.org.

    Tor is not an internet service provider, a network, or a publisher, of any kind. It is a 501(c)(3) research-education nonprofit organization who’s primary products are the Tor network and Tor browser, free and open source.

    A few snippets from wikipedia:

    The Tor Project, Inc. is a Massachusetts-based 501(c)(3) research-education nonprofit organization founded by computer scientists Roger Dingledine, Nick Mathewson and five others. The Tor Project is primarily responsible for maintaining software for the Tor anonymity network.[4]

    The Tor Project was founded by computer scientists Roger Dingledine, Nick Mathewson and five others in December 2006. The Electronic Frontier Foundation (EFF) acted as The Tor Project’s fiscal sponsor in its early years, and early financial supporters of The Tor Project included the U.S. International Broadcasting Bureau, Internews, Human Rights Watch, the University of Cambridge, Google, and Netherlands-based Stichting.net.[5][6][7][8][9]

    As of 2012, 80% of The Tor Project’s $2 million annual budget came from the United States government, with the U.S. State Department, the Broadcasting Board of Governors, and the National Science Foundation as major contributors,[34] “to aid democracy advocates in authoritarian states”.[35] The Swedish government and other organizations provided the other 20%, including NGOs and thousands of individual sponsors.[8][36] Dingledine said that the United States Department of Defense funds are more similar to a research grant than a procurement contract.

    1. “Tor is not an internet service provider, a network, or a publisher, of any kind. It is a 501(c)(3) research-education nonprofit organization who’s primary products are the Tor network and Tor browser, free and open source.”

      You lose credibility when you claim they’re not a publisher of any kind in one sentence, and then one sentence later describe what they publish.

      1. Snarky reply. Providers of software are not “publishers” in the context of that term here.

        1. You lose even more credibility when you insist that publishers aren’t publishers, or that when you say “publishers”, you don’t mean “publishers”. (Whichever it was you just did.)

          1. What’s your point, James? Are you just being “correct” about everything? You’ve made 46 comments on this entry already, and haven’t contributed much to the conversation, except to criticize other people’s comments.

            I fully understand that a software provider may be referred to as a publisher. Believe it or not, words in English can take on different meanings depending on context. It’s called connotation.

            In the context of this discussion, “publisher” refers not to suppliers of software, but to an entity that disseminates content. The software at issue here, the TOR browser and the router, are analogous to the printing press, not to the entity that uses the printing press (publisher) to disseminate content. That’s what I meant.

            If you have a substantive criticism, or some content to offer, go ahead. But to snark at me, say that my credibility is injured by my use of a term in an otherwise informative reply to this blog entry, is not helping anyone.

            By the way, your comment “Tor takes effort to use” – not so. You can simply install the TOR browser and be up and running, near zero effort.

            1. “What’s your point, James?”

              Your argument is crap. Was this not clear?

              “In the context of this discussion, “publisher” refers not to suppliers of software, but to an entity that disseminates content.”

              What did I say previously about your attempts to redefine “publisher” to not mean “publisher”?

              “By the way, your comment ‘Tor takes effort to use’ – not so. You can simply install the TOR browser and be up and running, near zero effort.”

              You haven’t learned the lesson yet that saying something in one sentence, then in the very next sentence saying something that contradicts what you just said, doesn’t work. Maybe next time.

              1. You are being deliberately obtuse, in not acknowledging that “publisher” takes on different meanings in different contexts, i.e., the connotation of “publisher” here. Surely you have the intelligence and capacity to grasp this. Whey do you ignore the distinction? Or maybe you don’t grasp it. If someone creates a newspaper called “NewsPaper using Adobe tools, and puts it on the web using IIS, and includes content written by John Doe, who’s the publisher? NewsPaper, John Doe, Adobe, Microsoft? While MS ‘publishes’ software that may enable distribution of content, I don’t think any reasonable person would say MS is the publisher in this context. Get it?

                In the second part are you saying that installing a browser is equal to “some effort to use?’ If so, ridiculous. For example, the Android version installs from the Play Store by simply hitting the “install” button. No other config required. Maybe you should try it.

                1. “You are being deliberately obtuse, in not acknowledging that “publisher” takes on different meanings in different contexts”

                  “Publisher” means “publisher”. This is not difficult for anyone (except, apparently, to you.)

                  ” If someone creates a newspaper called “NewsPaper using Adobe tools, and puts it on the web using IIS, and includes content written by John Doe, who’s the publisher? NewsPaper, John Doe, Adobe, Microsoft?”

                  All of the above are publishers in your example (assuming “NewsPaper” has some sort of legal status independent of Mr. Doe.)

                  “While MS ‘publishes’ software that may enable distribution of content, I don’t think any reasonable person would say MS is the publisher in this context. Get it?”

                  They publish, but aren’t publishers? Nope, don’t got it. Nothing to get. Try this instead: “They publish. That makes them a publisher”. See how easy?

                  “In the second part are you saying that installing a browser is equal to ‘some effort to use?'”

                  Yes. Because “some effort” means “some effort”. Is English your second language, or third?

  14. There are exceptions to free speech, comments such as assault, aspects of fraud, insider trading and the like. TOR is a cesspool of criminal activity and anyone abetting by technical means is abetting criminal acts.

    Given the full nature of the TOR environment it seems perfectly reasonable to me for the Fed’s to go after the group that makes the TOR browser using (at a minimum) the RICO act.

    1. You saw the part above that says “As of 2012, 80% of The Tor Project’s $2 million annual budget came from the United States government, with the U.S. State Department, the Broadcasting Board of Governors, and the National Science Foundation as major contributors,…”??

      So the US Government is going to use RICO to have the US Government declared a racketeering organization?

      Oh wait … on second thought, what’s the downside?

      Seriously, though, suppose you do break Tor. That will
      1)hurt dissidents worldwide, and…
      2)not really make drugs any less available
      Are you sure that’s a good bargain?

  15. Good news! Tor browser is now available for Android!

  16. By the way, is there anyone here who supposes TOR provides any security at all from surveillance by the U.S. government?

    1. Well, sure it does.

      Tor security is a complex subject, and one where a lot of work has been done. It’s not a subject that can be neatly summarized in a paragraph. If you are interested, I’d suggest doing some research instead of just imagining what the facts must be. Have you even read the wikipedia page yet?

      1. Absaroka, I don’t propose to undertake the absurdity of turning myself into a self-styled national security expert by researching the subject from the outside. James Bamford already went down that road, retired the trophy, and still ended up telling his readers notably less than events subsequently disclosed was going on.

        I grew up in the DC area, in circumstances notably embrined by juices from the national security pickle barrel. I know enough about the boundaries of what I can’t know to distrust the notion of finding much out by research. It is not for nothing that our nation’s national security adversaries employ shockingly aggressive methods to pick up mere tidbits.

        My advice to other ordinary citizens who take an interest in national security practices is precisely, “Imagine what the facts must be.” In doing that, start with what you think you know about capabilities, then assume the government is doing whatever its most ambitious national security entrepreneur recommends for the use of those capabilities. Then remind yourself again that you really don’t know anything reliably. And that among the things you really don’t know will be interesting capabilities you never dreamed of. That’s about as good as anyone can do, I think.

        I would prefer less secrecy, and a national security posture for the nation notably more constrained than the one the secrecy enables. With that in place, research would look more promising. But for now, if someone came to me and said, “I’ve done the research, and here is what is happening,” my response would be, “Have you tried imagining what the facts must be? At least that way, if you get it right, they won’t have to shoot you.”

        1. “I don’t propose to undertake the absurdity of turning myself into a self-styled national security expert by researching the subject…”
          “My advice to other ordinary citizens…”

          Why am I hearing “I don’t propose making even a trivial effort to learn about vaccines, but my advice about vaccines is …”

          There are genuine experts out there who do understand these things. Bruce Schneier is on the Tor board, for goodness sake. To not even listen to them … words fail.

          “Imagine what the facts must be.”

          Sure; you have a habit of that. But it’s not a good habit, because oddly enough, when you imagine what the facts must be, the ‘facts’ always seem to support your preconceived notions. Inferring the facts from your conclusions is not the right direction.

          1. ” Inferring the facts from your conclusions is not the right direction.”

            Well, it often works in the short-term, as long as there are enough people who ALSO want their facts to align with your conclusions. Say you are a tobacco producer, and your customers want to keep smoking. Surprise! All your facts show that smoking doesn’t cause health problems, and the smokers keep smoking until they die. Or say you’re a petroleum extractor or refiner. If people though climate change was related to your industry’s actions, they might want you to start paying for it! So, your “facts” show that there is no climate change, and there’s no reason to extract any of your profits to address the problem. Get a political faction on your side, and watch as the “fact” that climate change isn’t happening gets repeated and repeated, even by people looking directly at where their house used to be, before the tornado.

        2. “My advice to other ordinary citizens who take an interest in national security practices is precisely, “Imagine what the facts must be.””

          This is how conspiracy theories work. Inject a little bit of paranoia, and then you can start believing all that stuff you imagined.

    2. Is Tor a silver bullet? Absolutely not.

      In some cases, could Tor be one part of a comprehensive opsec posture? Depends heavily on the details.

    3. ” is there anyone here who supposes TOR provides any security at all from surveillance by the U.S. government?”

      Yes, it does.
      The FBI lets USAs drop cases rather than reveal how its surveillance of the TOR network works.

      1. James Pollock, at least we agree on that. I suggest it is foolish to suppose that the U.S. Department of Defense would pay to develop a security tool that did not enable ready access by the U.S. surveillance community. But just reading the newspapers tells me that with that access in place, protection of sources and methods would lead to ignoring essentially every offense that did not seem to affect U.S. national security. For those cases which did harm national security, some way would be found to respond without disclosing the source of the information.

        Of course what that may point a cynic to conclude, is that TOR does provide high-quality security to perpetrators of ordinary crimes—none better, because none of the alternatives can guarantee no one will say anything, even after they catch you.

        Implications for TOR users among the international political community are more sinister still.

        1. “I suggest it is foolish to suppose that the U.S. Department of Defense would pay to develop a security tool that did not enable ready access…”

          Do you understand what ‘open source’ means?

          If entity X provides object code and says ‘trust us, we didn’t put in a backdoor’ then … reasonable people assume there is a back door. But it’s a little harder to do that with open source. As Nonzenze aptly says above, tor isn’t a silver bullet. There are attacks that can work when an attacker (NSA Cough!) has ubiquitous enough surveillance to watch both entry and exit nodes. And tor traffic is uncommon enough that using it makes you stand out, so all your other computer security better be up to snuff. This is all widely known and discussed in e.g. the wiki page … hint hint.

          1. Do you understand what ‘open source’ means?

            Not the right question.

            I am sure that even if I had a perfect understanding of open source, that would not put me on a par with an NSA team with comparable understanding, plus access to an array of workarounds not directly related to open source, but highly relevant to defeating open source security schemes.

            The right question is, what gives you the confidence you know about all that stuff as well as the NSA does?

            1. “I am sure that even if I had a perfect understanding of open source, that would not put me on a par with an NSA team with comparable understanding, plus access to an array of workarounds not directly related to open source, but highly relevant to defeating open source security schemes.”

              You are a (paranoid) fool.

              “open source” means that anybody can see how something works. No amount of mystical NSA-ness changes this to allow them to hide things in open code.

              1. “open source” means that anybody can see how something works. No amount of mystical NSA-ness changes this to allow them to hide things in open code.

                James, problem is, you think you are playing a game of complete knowledge. But you aren’t. You would be a fool to take that attitude into a poker game, thinking that just because everyone can see the up cards in stud poker, everyone is on an even footing, so the down cards can’t make any difference. You would get killed if you played that way.

                But playing against the NSA, it’s much worse than that. In their game, they are the only ones who ever get to see down cards. You are playing a game of uncertain knowledge, against opponents with certain knowledge and a far bigger bankroll. And you are all shiny and confident because you can see the up cards? I don’t like your chances.

                1. “James, problem is, you think you are playing a game of complete knowledge. But you aren’t. You would be a fool to take that attitude into a poker game, thinking that just because everyone can see the up cards in stud poker,”

                  Gad, what a twit.

                  If you can see all the cards, you’d probably do quite well in poker.

                  Wait, did I just flip from your “seeing all the up cards” to “seeing all the cards”? That’s cheating! But, it’s ALSO how open source works. There are no hidden cards.

                  “I don’t like your chances.”

                  But you DO like your chances of winning this argument about information security you’ve gotten yourself into, where you’re arguing against an information security professional who keeps telling you that you don’t even have a grasp of the basics?

        2. ” I suggest it is foolish to suppose that the U.S. Department of Defense would pay to develop a security tool that did not enable ready access by the U.S. surveillance community.”

          That is because you don’t understand information security. A “secure” communications system that can be cracked by your intelligence agencies is a communications system that can be cracked by ANYBODY’S intelligence agency. The reason that the US government supports TOR is so that oppressed people worldwide can communicate without surveillance by intelligence agencies.

  17. Inferring the facts from your conclusions is not the right direction.

    Exactly, it’s absurd. Which doesn’t mean there are not situations when something absurd isn’t as good or better than something else—such as supposing that as a national security outsider you can research your way to insight into what would surely be a SCI classified program. That is beyond absurd.

    Absaroka, I don’t suggest imagining facts because I think that’s a great route to the truth, or even a useful one. (Which is why I repeatedly noted that anyone trying it as method has to stop to remind himself that he doesn’t really know). Instead, I suggested it to emphasize my belief that it is pretty far out to think you can research facts which not even national security insiders with the highest clearances can access, or even know exist.

    You write as if you think you are knowledgeable about national security, and I don’t assume you are not. But so far I haven’t seen anything specific in what you have written here to suggest more-than-typical public knowledge on any subject except programming—which isn’t the subject I have been discussing.

    Because you usually seem pretty well informed, I do assume you probably know what SCI means, and what it implies for this discussion. But because you haven’t been writing here as if you know that, maybe Wikipedia could help you out.

    If there are other readers following this discussion, who don’t know what I am talking about, Google: national security SCI. It is a security system which uses code word authorizations to keep even people with the highest security clearances from knowing about the existence of some programs—typically to protect sources and methods used in intelligence gathering.

    People judged to already have sufficient security clearances are chosen for SCI program participation by superiors, on a need-to-know basis, informed of the program’s existence, and told the code word. Until that happens, no matter how high and various the person’s clearances, he typically can’t even find out the program exists, barring a very big deal security breakdown.

    1. And by the way, Absaroka, around DC, at least, and among Hollywood script writers, too, what I wrote above is pretty typical public knowledge. I don’t pretend to be telling you anything which sets me apart as an insider with special access. I’m just wondering why a well-informed person such as yourself writes comments that seem not take account of stuff you can find out about in the movies.

      1. “among Hollywood script writers, too, what I wrote above is pretty typical public knowledge”

        Hollywood script writers don’t know how ANYTHING works. Try this experiment:
        Step 1: Take any movie or TV show about anything that requires specific knowledge.
        Step 2: Ask someone how has specific knowledge about the topic whether or not the movie got it right.
        Step 3: Wait for the person who knows that they’re talking about to stop laughing.

        Approximate number of network television shows which accurately depict information security at any point in their program: 0.0

    2. I think you don’t understand what open source means.

      1. I think “open source” is just the tip of the iceberg of what he doesn’t understand.

  18. That is because you don’t understand information security. A “secure” communications system that can be cracked by your intelligence agencies is a communications system that can be cracked by ANYBODY’S intelligence agency. The reason that the US government supports TOR is so that oppressed people worldwide can communicate without surveillance by intelligence agencies.

    This from Schneier seems relevant:

    What I took away from reading the Snowden documents was that if the NSA wants in to your computer, it’s in. Period.

    Do you see any contradiction between that and what I quoted from you above?

    1. What I took away from reading the Snowden documents was that if the NSA wants in to your computer, it’s in. Period.

      Relevant.

      1. “Relevant.”

        The softest spot in any information security system is always people.

    2. “Do you see any contradiction between that and what I quoted from you above?”

      They don’t contradict each other; they just aren’t related in any way.

      You made a specific claim that Tor had a builtin backdoor: “I suggest it is foolish to suppose that the U.S. Department of Defense would pay to develop a security tool that did not enable ready access…”

      That’s false (because … open source).

      Unrelated to that claim are these generally true things:
      1)The NSA has skilled hackers, and more (e.g. supply chain compromises).
      2)Various TLA’s have skilled burglars that can pick your house locks and install keyloggers, cameras, microphones, …
      3)TEMPEST – don’t forget TEMPEST!
      4)As DMN mentions, ‘enhanced interrogation’ is always an option.

      I’m honestly not sure if you’re arguing in bad faith, or just don’t understand much about the field.

      “I don’t pretend to be telling you anything which sets me apart as an insider with special access. ”

      That’s pretty obvious.

      1. “‘Do you see any contradiction between that and what I quoted from you above?’
        They don’t contradict each other; they just aren’t related in any way.”

        There’s a tangent. Schneier is saying that once you’ve come to the attention of a national intelligence agency, you must assume that they can penetrate your information systems.
        The point of using TOR communications is, in part, to avoid coming to the attention of national intelligence agencies.

        In analogy, if you are driving while intoxicated, and you get pulled over, you can expect to be arrested and prosecuted. This does not imply, as Mr. Lathrop imagines, that cops have infiltrated automaker supply lines to place intoxicated-driver detectors in all the cars on the road. (In fact, automakers have started installing features that make it harder to detect intoxicated drivers, because the car now does lane-keeping and collision-avoidance automatically.)

    3. I stand by my conclusion that you don’t understand information security. Mr. Schneier does, but you don’t understand HIM.

      1. James, I think I can characterize Schneier better than you have. I think he is saying that you, as an individual, can’t have information security, at least not in the face of an adversary as imposing as the NSA. He holds out a (wan) hope that really extraordinary information security techniques, widely enough practiced, would accomplish a sort of herd immunity inoculation, by making NSA work too hard to target everyone. But even then, if the NSA has decided to target you specifically, your supposed security is toast.

        The cherry on top of that fine news is that Schneier cheerfully admits there is stuff going on at NSA he knows nothing about.

  19. “James, I think I can characterize Schneier better than you have.”

    There’s no evidence that you can. I continue my previous conclusion.

Please to post comments

Restriction on Signs on Residential Property Violates First Amendment

The restriction was unconstitutionally content-based, the Eighth Circuit held, because it has an exception for flags "containing distinctive colors, patterns or symbols used as a symbol of a government or institution."

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So the Eighth Circuit held yesterday—correctly, I think—in Willson v. City of Bel-Nor:

[The ordinance] is content-based because whether a fabric is a sign or a flag—and whether it is prohibited by the Ordinance—depends on the "the topic discussed or the idea or message expressed."

And the court also concluded that, even setting aside the content-based exception, the ordinance would likely be unconstitutional even under the more relaxed scrutiny applied to content-neutral restrictions:

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36 responses to “Restriction on Signs on Residential Property Violates First Amendment

  1. What sort of dystopian image is Bel-Nor going for here? None of these given restrictions would hurt the city image, and should quite do the opposite in my opinion.

    1. It’s all part of the drive to increase the number of wonderful, Stepford communities in these United States of Generica.

  2. Progress. Still waiting for courts to finally say “No, government has no legitimate interest in regulating the ‘aesthetics’ of private property” though.

    1. Even under straight-up hardcore libertarianism, I’m not so sure. The way the “aesthetics” of one building affect the property values of the buildings in the vicinity is about as textbook an example of externalities as you’re going to get.

      1. Except that it isn’t, because the property values of person A are not the responsibility of person B in any way. It is not, even slightly, the function of government to make money for interested private entities. Such indirect analysis would allow for near-infinite government power, which is plainly non-libertarian.

        1. By that logic, it is also not the function of government to spare me the expense and hassle of having to go to the hospital to have my nose fixed because you punched it. Your freedom to move your hand stops at my nose and your freedom to do on/with your property what you like stops where it affects the property of others. If you don’t like that, buy a million acres in Montana and paint your house in whatever colour your like.

          1. Boorish, anti-social people have rights, too.

            But usually not as many as they believe they have or would like to have.

            1. Yes, you do.

          2. The city can just leave the dirty work to the area HOA’s.

            The end result is the same: I have known the inexorable sadness of houses, neat on their lots, dolor of replication and hedge,
            all the misery of precise, six-inch lawns, all sign-free, desolation along immaculate public drives. (with apologies to Theodore Roethke)

            https://www.poemhunter.com/poem/dolor/

            1. It’s a real shame that this law does not prohibit similar regulation by the managers or HOAs of apartment and condo complexes and mobile home parks. They are just as much government as city halls are.

            2. Bel-Nor is for all practical purposes, a HOA (home owner’s association) compact.
              Population of 1500, a third of the land area is a private golf course, incorporation as a city in 2015 (upgraded from status as a village), total funding via speed trap on major county thoroughfare that runs along southern border.
              It is just one of 80 some odd municipalities within St. Louis County, most of which exist for the purpose of functioning as HOAs.

          3. “your freedom to do on/with your property what you like stops where it affects the property of others.”

            This claim is overly broad. No one has an obligation to maximize their neighbors’ property value. If I own a house in the middle of an open space, but not the surrounding property, I don’t have a right to prevent others from building on their property. My house would be more valuable if my neighbors all bulldozed their houses and combined their property into one park, but of course I have no right to ask them to do so.

        2. See, like I inferred, Valkanis, you are an ideologue.

      2. “The way the “aesthetics” of one building affect the property values of the buildings in the vicinity is about as textbook an example of externalities as you’re going to get.”

        Question – are you entitled to any value that I, myself, create? I can’t think why, but that’s what this argument presumes. It presumes that, if we’re neighbors, any rise in value of your property that is attributable to its proximity to my property is something you are entitled to, and entitled to have me keep contributing to. If your house is slightly more valuable because of how nicely I keep up my house, if anything that’s something you should owe ME for, but since that’s really not practical, at the very least you should not be able to compel me to keep creating or maintaining value for you.

    2. And neither does any HOA purporting to act in its members’ interest.

  3. Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether. Municipalities throughout the land prefer to exclude some signs by category in residential areas—for instance, commercial advertising signs are commonly excluded. EV’s reasoning would seem to make the determination that a sign is commercial advertising a “content-based” distinction. That may even be the nub of his argument—that folks shouldn’t be able to discriminate against commercial advertising in residential neighborhoods. Very ideological, very free market, but likely very unpopular—or soon to become unpopular, once the signage arms race really gets going.

    I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted. That would leave regulators free to match ordinances to local preferences, by excluding some categories, but not others.

    Perhaps it would be wise to tweak that general principle, by always including a broad exception for speech on core first amendment issues—no outlawing the political speech category. But that might run into its own set of problems in making necessary distinctions. In which case, the right response could be to answer on the basis of time, place, and manner distinctions. It is long established that not every place is a public forum for all manner of speech. In a residential neighborhood, tell the my-property-my-speech-rights types that they can go into their front yard and say anything they please, anytime they please, but not with amplification, and not on a sign.

    Or consider another possibility—one perhaps horrifying to ideologues—that maybe the private property sign problem has already been optimized, by allowing somewhat arbitrary policies, but governed and amended under local political control. In most places, that seems to be the long-standing status quo. Maybe it can’t be improved upon.

    1. ” is so broad it basically abolishes sign ordinances altogether. ”
      Not true, they could regulate size/placement without regard to content.

    2. once the signage arms race really gets going

      That doesn’t make any sense. You can either allow signs or not. And if you allow them, you can control where and size. So what would cause this “arms race”?

    3. I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted
      Umm, that is classic viewpoint discrimination; Not content based.

      And being content-based merely means it is subject to strict scrutiny rather than intermediate. And in your example of commercial signs that would likely be governed by the commercial speech exception which is a lower level of scrutiny.

      In a residential neighborhood, tell the my-property-my-speech-rights types that they can go into their front yard and say anything they please, anytime they please, but not with amplification, and not on a sign.
      That is content-neutral and is governed by a lower level of scrutiny. Read the opinion posted, it explains how to review that and why that, too, is likely unconstitutional.

      by allowing somewhat arbitrary policies, but governed and amended under local political control. In most places, that seems to be the long-standing status quo. Maybe it can’t be improved upon.
      The First Amendment is not governed by elections. Nor is it about what is optimal. It is what it says. If you think it goes too far and that we’d be better if it didn’t then you pass an amendment.

    4. Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether.

      It’s not EV’s notion; it’s the Supreme Court’s. And it doesn’t. It just abolishes ordinances based on (duh) the content of the signs. They can still regulate other aspects of the signs, such as location or size.

      I suggest the law needs to narrow the content-based discrimination category, to make it operate against only distinctions among differing content within a specific category—in the political speech category, no laws against “vote for” signs if “vote against” signs are permitted.

      That’s viewpoint-based, not content-based.

      That would leave regulators free to match ordinances to local preferences, by excluding some categories, but not others.

      The entire point of the first amendment is to take these questions away from local preferences.

      1. Can local authorities regulate the signs as land uses, not as speech? Thus, within residential zoning, signs deemed residential land uses, “Here is the birthday party!” are permitted, and signs deemed commercial land uses, “Al’s barber shop around the corner,” are banned.

        1. Whether something regulates speech is about it’s effect, not whatever nonsense the government calls it.

        2. “Can local authorities regulate the signs as land uses, not as speech?”

          Sure, as long as those regulations aren’t in any way dependent on the speech content of the signs.

      2. The entire point of the first amendment is to take these questions away from local preferences.

        I’m pretty sure the 1A is broader than that, and more tightly focused on speech than it is on land use. If you want to say that speech freedom requires an end to land use regulation, because that can adversely affect speech freedom, then I think you have found a principle which can get rid of all government altogether. It all affects speech freedom. Maybe that is the point you are working toward, but most folks are going think it an absurdity.

    5. “Problem is, EV’s notion of “content-based” is so broad it basically abolishes sign ordinances altogether”

      I personally would hope so.

  4. a broad exception for speech on core first amendment issues

    Well, there’s your Failure To Understand The First Amendment, right there.

    1. KHP54, I’m taking a conservative position, one with which EV might not agree. I know the arguments, but I think tradition, practice, and familiarity might usefully be considered in the balance. The position is that if local authorities have power to ban signs altogether, then permitting some kinds of signs (without regulating content within kinds) while continuing to ban other kinds, is an expansion of liberty, not a constriction.

      I take it you prefer an ideological, absolutist approach. Do you have any reason for that, except insistence on keeping your ideology consistent?

      1. You don’t get to redefine ‘conservative’ at your whim, either.

        No, the point is if government gets to define what kind of speech the First Amendment applies to, and what kinds it doesn’t… then it’s not really any kind of restriction on government power, despite the fact that this is exactly what it was supposed to be!

        Scalawag!

        1. KHP54, did you know that there is not just one definition of conservatism? Decades ago, before movement conservatism, conservatism was a genus, with a variety of species—I included a few keywords to suggest the Burkean species.

          But maybe you are a modern movement conservative.

      2. Requiring the government to following well defined rules in all cases doesn’t make you an “ideologue.” It is called rational governance, and is the basis of the prosperity of modern society. History has shown unequivocally that your position is wrong, and that arbitrary power that “balances interests” is wrong. So local authorities don’t have the power to ban signs altogether. The point of the rule-of-law is that it doesn’t matter what kind of “position” you are taking; in fact, by doing so, you are revealing yourself to be an ideologue.

      3. Are you honestly arguing against consistent application of legal texts and principles?

        1. I am arguing in favor of experience-based politics, and against rationalist utopianism in politics. This from you is mistaken (and foolishly ideological):

          It is called rational governance, and is the basis of the prosperity of modern society. History has shown unequivocally that your position is wrong, and that arbitrary power that “balances interests” is wrong.

          At best, that proposition is controversial, and brilliantly contested besides. For an example, read, Rationalism in Politics and other essays, by Michael Oakeshott.

          1. So your way to interpret the constitution is based on what you think is best, not what it says. I think everyone would say that is nonsense.

            If you want experience-based restrictions on speech, amend the constitution. You won’t get far.

            1. No. You have no idea what I think. I can tell, because nothing you wrote about me can be inferred from what I wrote.

              1. I say you are arguing in favor of experience-based politics. That is irrelevant if you interpret the constitution as it is. So, yes, that can be inferred quite readily.

                Given that you claimed the vote for/vote against distinction as content based, rather than viewpoint based tells me you don’t actually know First Amendment jurisprudence in the slightest.

  5. […] Source: Restriction on Signs on Residential Property Violates First Amendment – Reason.com […]

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Holocaust Revisionism at Williams College

A debate over recognizing a pro-Israel student group reveals ignorance and antisemitism among Williams' students

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KC Johnson has an excellent piece at the Tablet about a recent controversy at Williams College involving the refusal of the student government to recognize a pro-Israel student group, and the College's administration's subsequent reaction. Perhaps the most striking part of Johnson's piece is the following:

The Holocaust bit speaks for itself. The "genocide against Palestinians" trope, regarding a population which has had among the highest population growth rates in the world, whose standard of living improved dramatically during the Israeli occupation but before Oslo gave them (limited) self-rule, is a great example of people believing something because they want to believe it, regardless of the facts. I've challenged many folks on social media regarding this particular trope, and have concluded that this trope is essentially is evidence-proof, and can only really be explained by a pathological hostility to Israel that not surprisingly often has a strong antisemitic component.

This sort of ignorance mixed with malice reminds me of a prior post of mine about Oberlin College, involving leftist students who dismissed the Holocaust as merely an example of "white on white crime."

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118 responses to “Holocaust Revisionism at Williams College

  1. “The “genocide against Palestinians” trope, regarding a population which has had among the highest population growth rates in the world, ”

    That is some seriously effective genocide

    “whose standard of living improved dramatically during the Israeli occupation but before Oslo gave them (limited) self-rule,”

    standards of living almost alway decline with regimes progressives want to emulate.

  2. Where’s the rev to denounce Bernstein for nipping at the heels (and what sort of animal nips at heels, anyway, wink, wink) of liberal-libertarian cool colleges instead of covering Biola’s Flintstone’s Film Festival (portraying dinosaurs and humans together)?

    1. Rev also ignores the blatant, and award winning!, anti semetism at schools like NYU where anti semetism such as leaving eviction fliers for Jewish students in dorms is a way of school life.

  3. Late to the party on this one, everyone’s favorite Mohameddan member of Congress Rashida Tlaib made major news when she claimed that Palestinians welcomed Jews to the Middle East after WWII, when in actuality Palestinian leader Grand Mufti Haj Amin el Husseini was actually an ally of Adolph Hitler and met with the dictator in 1941.

    1. everyone’s favorite Mohameddan

      Well everyone will at least see you’re coming from a weird place as you try make this national and partisan. Never let a crisis go to waste, eh?

      1. The politics of the OP’s issue is (inter)national and partisan.

        Mohameddan means follower of Mohamed, which is what Tlaib is; describing things accurately shouldn’t be a problem, eh?

      2. Your chosen ignorance is epic to watch sarcastro. You cant even admit grand revisionism to factual history. What a child you are.

        1. I don’t deny the facts about el Husseini, just that they speak to what Tlaib was saying.

          And using an imperalistic 1800’s European term for Muslim that no one uses anymore isn’t something you just play innocent about.

          1. How about I refer to them as followers of the pedophile terrorists?

            1. How about you do that? It would be weird. That’s his point.

          2. Please tell my why the term “Mohameddan” is imperialistic. The fact that people used it during a time that Europe had colonies doesn’t make it imperialistic per se. In fact, during the 18th Century, and just before that, the Muslim religion was the one that was colonizing and slaving left and right as much as the Europeans (if not more).

            1. If you actually answer the question, I will reply with the reason I use the term.

              1. So why did you use that term?

                1. That’s a fair answer below from Sarc, and it, ironically, is the reason why I rarely use the term Muslim, because to do so is a form of linguistic imperialism on the part of Islam.

                  Muslim means “submitter to God.” God doesn’t want you to kill people in his name (not to mention some of Islam’s other practices), so a Muslim isn’t really submitting to God. They are just a follower of Mohammed.

                  Furthermore, Islam means “to surrender” or “resign oneself” (sometimes “peace”, but that peace comes through surrendering to Islam. Again, this is not surrendering to God, but rather to Mohammed’s version of God, which is, again, a form of linguistic imperialism.

                  While somewhat archaic, it is not insulting, and accurately describes the thing in question. Moreover, it is what Christians call themselves, followers of Christ, or Buddhists, etc.

                  1. If a group wants to be called the Proud Boys, I’ll call them the Proud Boys. Doesn’t mean I endorse that they are proud or even boys.

                    1. That’s a short-sighted answer, and I suspect with a little bit of introspection you might find that you won’t support that policy across the board.

                      To-whit, is someone pro-life or anti-abortion? Is someone pro-choice or pro-infanticide? On a funnier note, if a band called themselves “The Greatest Rock Band Ever” would you call them that (even if that’s what they wan’t to be called), even if you know the best rock band ever is actually the Rolling Stones?

                    2. I call the pro-life people pro-life because that’s what they want to be called. I call pro-choice pro-choice because that’s what they want to be called.

                      If a band has such a name, I’m down. What I call them says nothing about me.

                      The one exception is I call illegals around here, and undocumented persons elsewhere. That’s less about what they want to be called and more what third-party advocates insist upon or else they’ll derail everything.

                    3. I appreciate the honesty on that. There are no bright lines, self-identification only is a problem when it either imposes on others through forced speech, or the self-identification is not in alignment with objective reality. Illegal aliens what they are, illegal aliens. Men can’t be women, you get my drift, but I might say “she” when I see some dude in convincing drag even if I know it’s a man, if I am not imposed upon.

                    4. If someone insisted on being called the N-word, and I was somehow convinced of his good faith, I don’t know that I’d do it, but it’d be two competing impulses. But beyond that extreme hypothetical, it’s not forced speech to be courteous to people.

                      You’re still working to make calling people what they want something about you. It’s not forced speech; it’s courtesy.
                      I’ll call a tall guy Shorty if he wants. Does no violence to my sense of reality. And yes, calling transgenders by their old name and gender is the same thing. Regardless of what I believe, it’s no skin off my nose to not be a dick to them and call them what they want to be called.

                      Not calling Muslims Muslims does nothing to your ideals. No one thinks your endorsing the Muslim God by doing so. It’s as petty as the people who type demonrats for Democrats.

                    5. Courtesy can be forced speech, if there is authority behind it.

                      Do we have forced speech, yea, all the time. My workplace has safety regs posted…forced speech there. But don’t kid yourself, if you had negative consequences, even just social ones, but especially financial or criminal ones, for not calling a fellow “shorty” when his actual name is Steve…then it’s forces speech and it violates your freedom of speech, and conscience. How about not calling a “your honor”?

                      Hell, it even violates your freedom of thought, because how we name things and the language we use to frame ideas, reflects how we perceive reality.

                  2. “Muslim means “submitter to God.” God doesn’t want you to kill people in his name (not to mention some of Islam’s other practices), so a Muslim isn’t really submitting to God. They are just a follower of Mohammed.”

                    So, you didn’t mean anything mean by “Mohameddan” because you wanted it to be clear that you didn’t think the Muslim practice of “kill[ing] people in [God’s] name” accurately reflected “submitter to God”. This just ups the ante on your slander to: All Mohameddan/Muslims are murderers.

                    This is all pointless, anyway, because you’re reaching back hundreds of years to resolve an ambiguity that doesn’t exist. When Muslims refer to themselves as Muslims, we all understand that they are excluding other people who consider themselves submitting to the wills of different gods, like Christians, Jews, etc.

                    Also, how the fuck do you know what God does or does not want? Give me a break.

                    1. I don’t like calling a Muslim a Muslim, because they are not submitting to God (which is what the word means), even though they think they are submitting to God, because many of the precepts of their religion, specifically jihad. They are just following Mohammed, not God. Nowhere in that logic does it entail calling every Muslim a murderer, just a follower of Mohammed, the man who believed that God told him to murder in God’s name. All oaks are trees, but not all trees are oaks, eh?

                      Pointing back hundreds of years? How long ago was the last jihad suicide bomber killing a couple hundred people….oh that’s right, it was April of 2019.

                      How the fuck do I know God doesn’t want to kill people in his name…they same way a Mohammedan knows that God wants people to kill in his name…my faith. For that matter, how the fuck do you know that God didn’t tell you to not kill in his name (or any number of things), but you just chose not to listen?

                    2. @mad_kalak,

                      “…because they are not submitting to God (which is what the word means), even though they think they are submitting to God…”

                      Well they aren’t submitting to your God. But if their God requires them to practice Islam, they can’t submit to their God without practicing Islam, right?

                      “They are just following Mohammed, not God.”

                      Right, but they think Mohammed speaks the word of God, not unlike the way Christians think about Christ.

                      “How long ago was the last jihad suicide bomber…”

                      The phrase, you idiot. I’m not talking about the ancient sins of Muslims. I’m talking about your archaic usage.

                      “…how the fuck do you know that God didn’t tell you to not kill in his name (or any number of things), but you just chose not to listen?”

                      For starters, I know I couldn’t have ignored God’s command not to kill in his name, since I haven’t killed anyone at all, much less in the name of a God. Second, I don’t! That’s why I wouldn’t insist, like a fucking asshole, on calling some self-identifying Christian I happen to disagree with as a “False Christ Follower”.

                  3. Do you also refuse to use the term “Christian” because it’s a form of “linguistic imperialism”? After all, the term would refer to a follower of the christ, and the people who call themselves that are really just followers of Jesus, a probably-fictional character who – even if he existed – was definitely not the messiah. Do you – and should other people – call them Jesus Cultists instead?

            2. It’s imperialistic because it’s not what Muslims called themselves. It’s just the British naming a group of natives whatever they thought was about right, not caring about the natives preferences. As imperialists will do.

      3. If he called Steve King “everyone’s favorite white supremacist”, would you have had an issue with it?

        1. I had three issues with the comment:
          1) the odd use of Mohammedan. Which is, as expected, just petty self-righteous stroking.
          2) The accusation against Talib being an incorrect intepretation of her quote, moving from some people to the political ruler.
          3) Going off topic to try and use the OP to gain national political points.

  4. Prof Bernstein,

    Would you consider the below YouTube interviews to be a promising resource to dispel the haze of ignorance?

    The Ask Project

  5. Gosh, I can’t wait to be occupied ! Since occupation raises the standards of living of the people who inhabit the land, perhaps we should invite in the Chinese to occupy America! What a concept, this benefitting from occupation is!
    Gee, I wouldn’t want to be anti semitic or something. Especially since the Palestinians are the only Semites in Palestine. The Jews are descended from Japheth’s grandson Ashkenaz, not Shem. But I wouldn’t want to go all Nohide law. Since the commandments are only for the Jews, and do not apply to non Jews unless public opinion might damage Jew/Goy standing. ?Though shalt not kill (your brethren). We know the Palestinians are not brethren, so its open season at the GAZA wall. Don’t even need a license, just a rifle and some dum dum rounds will do nicely. Oops, don’t want to be anti semitic. I am sorry! I’m sorry! (I’m not sorry!)

    1. Your view seems to be through a polarized lens, and gets progressively more disturbing from there.

    2. Gosh, I can’t wait to be occupied ! Since occupation raises the standards of living of the people who inhabit the land

      If your government is massively corrupt and dictatorial, yes, you could expect your standard of living to increase substantially if occupied by a free nation.

      1. Living standards in Africa collapsed after the end of colonial rule.

        1. Of course they did, and Ian Smith and many others knew it would happen. Blacks, as a group, are not capable of governing themselves. An average IQ of 70-85 means that any form of civilization is impossible. Under colonial rule, whites set standards and put in place government and societal structures that allowed blacks to succeed. Once those went away, so did the success.

          1. It was more than the colonizers leaving, it was also that the (former) colonies where a hodgepodge of tribal enemies bound together politically in an unstable way.

  6. This all ought to be very familiar to anyone with the Birth of A Nation view of American history. Blacks and whites lived in perfect harmony in the Old South, when invading Yankees illegally occupied and subjugated them. They created horrific corrupt governments where black people went around raping and terrorizing the upstanding white citizens until the good folks of the Klan came in to restore order, prevent white massacre, and put everyone in their rightful place.

    Asa Earl Carter came up with the brilliant idea of writing pro-confederate propaganda with the same pro-Old South rhetoric, except with a more currently sympathetic minority group substituting for the Klan. He picked American Indians.

    This appears similar. Scratch out the word “Negro,” write in the word “Jew” in crayon, change a few dates and a few place names, and you have classic Klu Klux Klan propaganda, exactly as the Klan presented it, pretty much verbatim.

    1. An essential feature of racism is the inability to conceive the inferior race as having agency. Exactly as black people were nothing more than a tool of Yankee imperialism in the old Old South rhetoric, Jews are nothing more than a tool of Western white imperialism in the new rhetoric. In both cases, it’s not possible for a racist to conceive of them as doing anything on their own.

      1. That doesn’t make any sense. We’re all just people. And shooting someone deprives them of their agency.

    2. I must have missed in birth if a nation where the slaves elected a terrorist government and lobbed hundreds and hundreds of rockets at America using aid money from foreign governments instead of feeding their population.

      Let’s see how stupid liberals can get defending their blatant jew hatred.

      1. I don’t think you bothered to read all the way through because he was clearly comparing Jews and slaves in too different revisionist histories without mentioning Palestinians.

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  8. I’m at the point where I don’t care. Most American Jews would vote for Hitler if he ran as a Democrat. They blindly supported, and continue to support, the Democrat Party. They asked for the Omars and Tlaibs of the world.

  9. Holocaust can’t be white on white crime because us Jews are not white.

    Anyways, yes, there is a lot of revisionism about the Holocaust and Zionism. Every American needs to know the following:

    1. There is no such thing as a Palestinian people. There are Arabs who settled some regions while the territory was part of various Caliphates/Ottoman Empire.
    2. The word Palestine is a Roman name derived from Philistine and was devised to destroy the historical connection between Jews and Israel/Judea.
    3. Hebrew kingdoms ruled in Israel for over a thousand years and predated both Christianity and Islam.
    4. Zionism was a civil nationalist movement that aimed to reconnect diaspora Jews and resettle Israel in substantial enough numbers to actually make a difference. It is no mere coincidence that Zionism began at a time where global organization finally became possible. It was never a practical goal prior to the advent of modern transportation and communication, even though every Jew dreamed of it for millenia.
    5. Jews have always resided in Israel and have returned throughout history.
    6. Zionists bought land and legally settled in Israel.
    7. When Jews first started resettling Israel, there were approximately 500k Muslims in the region. Not the tens of millions “Palestinians” who often claim right of return.
    8. Like South Africa, more Muslims settled Israel as Jews improved it. Just as Bantu migrants are not native peoples exiled by Boers, Arab migrants are not native peoples exiled by Jews.
    9. The original position of Arabs was that they did not approve of any international support for creation of a Jewish state. Whether it was the League of Nations or the UN, Arabs opposed it violently.
    10. When the Arabs initially rebelled against the Ottomans and sought British support, they didn’t consider themselves Palestinian. Interesting how that identity suddenly appeared 40 years later after multiple failed wars as a united Arab front.
    11. The Arab “refugee” argument is bushleague. Imagine if you said Germans have a right to resettle Alsace Lorraine, or if the Russians have a right to resettle the FSU. Losing a war means you are not allowed back. Why do we make exceptions only when it hurts Jews?

    1. I agree with your post, except the “Jews are not white” is silly. It’s true that Mizrahi Jews are arguably not white, but Ashkenazis clearly are. If they’re not white, what are they? If one was seen fleeing a crime scene, how would witnesses describe him?

      1. It was tongue in cheek. Neo Nazis always say we aren’t white because whiteness isn’t about melanin, but a cultural identity, one which we were frequently not a part of and often outright forbidden from joining. They then use this basis to explain why we’re so subversive and trying to destroy whiteness even though to the rubles of the world, we look white to them and suffer the same consequences of anti white discrimination.

        I do have to admit I have never felt very culturally white even though I am what many people call a crypto Jew. Unless I told you my faith, most people wouldn’t know, especially not with my German name and western European mutt heritage.

        1. Oh, not me. I’m white first, American second, and ethnic Jew third.

          1. It’s an interesting subject within Judaism. I’ve always felt a bit removed because American is culturally Christian and I know their practices more than they know mine. I also feel very American and that’s why I didn’t move to Israel, but depending on the culture war and replacement taking place right now, America might not be a safe place for Jews in 100 years. I respect the European cultural evolution and enlightenment ideals that produced our common American ancestors, but I don’t feel much of a cultural affinity for them.

            1. Oh, I totally identify as culturally American. I identify with George Washington, Thomas Jefferson Davy Crockett and I don’t with Ben-Gurion or Herlz

    2. I don’t think I could accept several of these arguments. Peoples and nations form through historical processes, and history is happening around us. I don’t think it works for outsiders to tell others they don’t exist. The extreme Palestinian position that Jews are mere white Western colonists indistinguishable from general white people is obviously untrue. But pretending there is no such thing as Palestinian national aspirations isn’t true either. And coming up with some logical argument why there shouldn’t be shows no more than that history isn’t bound by by your logic.

      Accordingly, the fact that “Palestinian” as an ethnic or national identity may be relatively recent in historical doesn’t really prove anything in terms of its being a political force or having a claim. These sorts of arguments will no more result in Palestinians simply packing up and going away than the corresponding Palestinian arguments will result in Jews doing so.

      2. Further, attempts to delegitimize the other side – to argue it doesn’t really or logically ought not to exist – are likely to backfire. The more time passes, the more evident the reality on the ground, the more the origin questions become an academic point for historians. In general, delegitimization arguments tend to make it appear to neutral observers that it’s one’s own side that’s being aggressive and greedy and indulging hyper-nationalist fantasies rather than accepting demographic reality, and hence it’s owns own side that’s the problem.

      1. The reason I say Palestinians don’t exist is because their conception of statehood is designed to expel Jews. It isn’t an actual national movement. Some people, many of whom are now Israeli citizens, lived there due to circumstance under various caliphs and empires. Before the 1970s, people there were perfectly content with being called Arab, being part of Egypt/Transjordan, and creating a unified Arab state. Now, all of a sudden, we’re supposed to treat them like something they aren’t even though they chose to flee to Arab nations, ally with Arab nations, and fight for the Arab League.

        I’m just stating the facts as they are. If Palestine ever could have been a nation (two state was never practical, but that’s another subject), it de-legitimized itself after nearly a century of fighting foreign wars on the behalf of ethnic Arabs, utilizing terrorism to achieve its goals, and being completely unwilling to compromise in any capacity.

        1. As a point of comparison, consider Zionist expansion into Israel during the late 1890s. Jews bought land and organized migration. They didn’t rebel against the Ottomans or the British (initially) and at the time were perfectly content with building their communities within an existing structure. They didn’t engage in absolutist ethno-nationalism that made no room for Arabs to continue living in the area. They didn’t conquer the land as foreign invaders. From the beginning, they were even content with giving Gaza to the Egyptians and part of the West Bank the Jordanians (then Transjordan). Syria even held parts of the north that Israel has decided to keep after later wars (Golan Heights). Why didn’t we care then? Because at the time, we thought we could live peacefully with Arabs and didn’t have many issues with them.

          All of these problems began when Arabs rejected the UN Partition, created the Arab League, and declared war with the express purpose of ELIMINATING Israel. Not taking more land, not making a unified Arab state with Jewish citizens; eliminating all Jewish presence from the area. There have always been reformers and dissenters within the Arab League (namely Transjordan at the time, thank you Abdullah I), and today Israel has strong support from Jordan, Egypt and even Saudi Arabia.

          Now, all of a sudden (and notice how nobody asks anyone else to do this, only Jews), we’re supposed to forgive a century of transgressions by Arab nations and just give up more land to people who still haven’t changed their ways or their fundamental objective. Why are we supposed to do this? Because after dealing with it for a century, it’s “wrong” to bulldoze their terrorist shitholes. It’s “wrong” to kill their combatants who bomb our women and children on buses and stab and rape them in the streets. It’s “wrong” to realize that the only practical way to ensure long-term defense is to kick them all out, dismantle any semblance of a state, and enforce their borders with increasingly hostile northern neighbors ala Syria, Turkey, Iran, China, Russia, and portions of Western Europe. It’s “wrong” to acknowledge the link between Islam and anti-Jewish terrorism even though international Muslims target Jewish communities in every country they preside in.

          I realize that Palestinian statehood might seem to exist in an academic context, devoid of any historical references other than current behavior, but the “Palestinians” dug their own grave and now they’re lying in it.

          I don’t know many people who would compare the territorial issues of Korea and various African nations to Israel, but non-Jews/non-Arabs really need to keep their noses out of our issues. The UN (for god only knows what reason) drew up these retarded partitions that caused all these problems in the first place instead of letting the actual people who live there decide among themselves. It comes across as two faced for non-Jew westerners and UN apologists telling Israel what to do and how to behave when they created the problem in the first place.

    3. Is there anything wrong with hoping for a kinder, gentler Zionism, as critical component to better relations between the west and the Middle East?

      1. And I’m not defending the students.

      2. Of course it’s not wrong in the slightest, but after almost 100 years of this shit, Israelis are tired. We’re fighting ghosts at this point. I don’t blame them for just taking what they want at this point. Might made right and kept us exiled for 2,000 years, so what’s different now? The ends shouldn’t justify the means, but these are no ordinary ends.

        In the same vein that America should never surrender substantial sums of land or money to Native tribes and descendants of slaves, Israel should reclaim its historical borders and fully administer Jerusalem for the benefit of the world.

        1. As Dr Phil would say, there ain’t none of us getting out of this thing alive.

    4. Good sumnary.
      I would add a further overlooked historical fact:
      When the Brits controlled Mandate Palestine, they strove mightily, under Arab pressure, to keep the local population at no more than one third Jewish, thus excluding tens of thousands of Jewish immigrants. This continued during the Holocaust.

  10. Calling the holocaust “white on white crime”, as if “white vs. (some other color i.e. race)” is some deeper and more insidious evil shows profound ignorance of the mechanism at work. All power hungry dictators use hatred of other groups to gain and maintain power by focusing the peoples’ attentions on some external threat so they don’t start wondering about the quality of their own life under the dictator, which, not being free, is far worse than it could be.

    Whether it be race, religion, or next city-state over, it’s all the same.

  11. Curious why Bernstein isn’t following his own advice that he offered regarding the Charlottetown neo-Nazis: ignore them.

    1. Do you have a link? I Googled “site:reason.com bernstein charlottesville ignore” – is one of those articles what you’re thinking of?

      1. It was something he tweeted in the wake of Charlottesville, so you’d have to dig thru his twitter feed. But his advice to those who worried about neo-Nazi violence was that we should just ignore them as numerically insignificant. Which is, y’know, an odd exception to the sensible position of “never again” with regards to Nazis and the Holocaust. Never again … unless they don’t crack some magical number where Nazism is worth being concerned about.

        1. Assuming he said it, have you any reason to believe that violence by actual, literal National Socialists is a real problem in the U. S.? Is there a statistically significant number of people killed or injured by bona fide national socialists?

          On the other hand, if students – not random students, but those who are supposedly the elected representatives of the student body at a “top liberal-libertarian school” – start banning pro-Israel groups while sketchy Palestinian groups have free reign on campus, and if there are examples of similar stuff on other campuses too, then – as artie assures us – we’re looking at our betters and our future rulers, so maybe its of greater significance than some disaffected wannabe National Socialist in a trailer somewhere.

          1. Your comment demands actual numbers in the first case yet is more abstract in the second (e.g., where are the numbers and where is the hard evidence of the implication?). That seems to be rigging the standard for outrage. I find it pretty easy to appalled by and not ignore either. I’m not going to check the person’s place on the spectrum before I decide whether to be outraged by ugly statements or actions. Neo-Nazi thugs or liberal Holocaust distorters—they both merit condemnation. I’m not going to defend or otherwise ameliorate their statements or beliefs.

            Which is the problem with Bernstein and why he isn’t persuasive when he writes about anti-Semitism. He’ll find all kinds of ways to diminish or deny it when it’s on the right, but muster plenty of outrage if it’s on the center or the left. Since he’s obviously selective in which groups he’ll criticize, it’s fair to ask whether his interest is in exposing anti-Semitism or using it to demonize his political foes. I have the same issues with liberals or those on the left who refuse to criticize anti-Semitism in their midst. If you’re checking party affiliation first, you’re not persuasive.

            1. “I’m not going to check the person’s place on the spectrum before I decide whether to be outraged by ugly statements or actions. Neo-Nazi thugs or liberal Holocaust distorters—they both merit condemnation.”

              The condemnation of the Neo-Nazis seems fairly unanimous – I know there’s a political competition of saying that “your denunciation of Neo-Nazis is more than two days old and you said ‘terrible’ instead of ‘totally horrifying,'” but apart from that who is actually making excuses for the Neo-Nazis as opposed to making excuses for the more modern, hip, anti-Jewish agitators?

              1. In fact, there was the student in the article who soft-pedaled the crimes of *actual* National Socialists, but Bernstein certainly mentioned him.

                1. I can see some comments by Bernstein along these lines:

                  “On the right, the internet has given anti-Semites a way of much more easily coordinating than they had in the days of handprinted newsletters and secretive meetings in Days Inn conference rooms….

                  “…Donald Trump can retweet anti-Semitic imagery, not apologize for doing so, and not have any political consequences….”

                  To be sure, he also discusses anti-Semitism on the left.

                  https://reason.com/2018/11/05/why-are-american-jews-increasingly-conce/

              2. Reacting to neo-Nazi thugs where a woman was killed by one by saying “ignore them” is mild condemnation at best. Honestly, if someone who asserts himself as an expert in anti-Semitism reacts in the face of genuine neo-Nazi marching and violence with “ignore them,” why on earth should I think campus politics merits attention? That’s the issue. He’s set the bar himself where right-wing anti-Semitic violence is a shrug. If I shouldn’t give a damn about that, then liberal or left-wing campus politics isn’t going to make me nod in furious agreement with him.

                1. I’m curious about what the Tweet says, but I couldn’t find it in a Google search.

                  1. Neither can I. Perhaps he wisely deleted it because it was a reprehensible take as both someone who writes about anti-Semitism and, frankly, a human being.

                    1. One context in which a remark like that would make sense is advising “antifascist activists” not to stage a simultaneous counter-protest with the risks of violence (yes, on both sides), but to avoid giving them the oxygen of publicity which fuels the fire of attention-whoring, not to mention avoiding injury and death.

                      I don’t know if that’s what he said, but what with Bernstein’s both-sides condemnation of “lefty” and “righty” anti-Semites, including Pres. Trump, I would be interested and surprised if he swerved off one day and said he didn’t care about “right wing” violence.

                    2. What Mr. Hook seems to be alluding to was at the time of Charlottesville, in which neo-Nazis managed to assemble about 300 people for a widely publicized, “national” rally, the media should have paid as much attention as it would to any “national” rally of 300 or so losers, rather than treating it, as it did, as if there were hundreds of thousands of Nazis descending on Charlottesville, threatening to upend the American political system as we know it. Note that I didn’t say that the media should have ignored the subsequent violence that took place, but I did blame the media for putting this relative handful of Nazis in the spotlight to begin with. Given that the media has barely covered the Williams situation, and Williams students are in a rather different position re cultural and political influence than Richard Spencer followers, I don’t see that the analogy holds.

                    3. Yes, wouldn’t it have been wonderful if the media ignored Nazis marching loud and proud? Wouldn’t it have been better if Americans were more unaware of how these worms were feeling emboldened? I repeat: If you can’t be outraged by damned Nazis marching in the streets, if that doesn’t reach your standard, then I see no reason why I should be even slightly bothered by knaves distorting history in campus politics. Suggesting we ignore Nazis in our midst—in essence, tolerating them—because they don’t meet some magic number before concern kicks in necessarily voids your persuasive ability on the subject.

                    4. Yes, wouldn’t it have been wonderful if the media ignored Nazis marching loud and proud?

                      Since what these people wanted was media attention, it would have been wonderful if the media didn’t give it to them, yes.

                      Suggesting we ignore Nazis in our midst—in essence, tolerating them

                      Until they break the law, you don’t have any choice but to tolerate them. You can of course hold whatever personal feelings you wish about them, and say what you want about them, but they have as much right to march and speak as you do.

          2. “as artie assures us”

            That tense is incorrect. Artie was banned by the Volokh Conspiracy.

              1. Who are you?

                Rev. Arthur L. Kirkland. Of the Congregation Of Exalted Reason.

                The “L” is for libertarian.

                Artie Ray Lee Wayne Jim-Bob Kirkland is a relative. From the South. Banned by the Volokh Conspiracy for being too authentically conservative.

                1. Oh, you mean a sock.

                  Well, focus on the positive, at least you have one persona left with which to post here.

  12. Telling you read ReaderY and assume he must be a liberal.

  13. Both the title and subtitle of this post are exaggerated.

    I guess you could say that one student’s ignorance constitutes “revisionism at Williams,” but it’s quite a stretch. If you are going to criticize every institution that has someone so ill-informed on the grounds that they harbor someone who knows no better you have a long list to deal with.

    I also think it’s unfair to omit from the OP the fact that Williams’ president overrode the council’s rejection of the application, which, admittedly, is mentioned only in the nineteenth paragraph of the linked article.

    Maybe that wouldn’t have fit with the anti-Williams message here.

    1. “one student’s ignorance ”

      The majority of students on the “council” agreed with him.

      Its good that the Williams president is not yet a Jew hater. Its a pretty low standard though.

      1. They agreed with him on denying the application. There is no evidence that they shared his ignorance about the Holocaust, which is what the title here is about.

        1. Lay down with dogs etc.

          They ratified it by agreeing with the bigots course of action.

          1. That’s idiotic, Bob.

            Because they did something he wanted doesn’t mean they agree with everything he said.

            Are all Republicans bigots and liars?

            1. “I don’t really support the Klan; I march with them because I look awesome in white”

              1. Yes, what should have happen is anybody on any voting body resigns anytime someone else on the body says something outrageous. That way, only people who say outrageous things will exercise control. What an idea.

              2. “I don’t really support the Klan; I march with them because I look awesome in white”

                The vote was not on the issue of the Holocaust.

                If you agree with the Man of many Names on some issue, does that make you a racist, homophobic, white supremacist murderous imbecile?

    2. It looks like the student government is honeycomed with BDS, SJW and anti-academic-freedom sentiment, and they admit there were anti-Semitic views at one of their meetings, views which they chose not to share with the public.

      Fortunately, the administration, for whatever reason (and their alerting the alumni is kind of a hint), doesn’t want to be associated with the ultra-crazy form of SJW foolishness, so they arranged to recognize this group anyway. The fact that they had to rule those who were supposedly the students’ elected representatives indicates that, as artie would say, it’s the youth, the bigoted students, who represent the future, and the old administrator who represent the old order which is passing away.

      1. I meant to say “overrule,” not “rule” the student govt.

      2. “it’s the youth, the bigoted students, who represent the future, and the old administrator who represent the old order which is passing away.”

        Yes, that is the danger.

        The next president will have to satisfy these savages before he or she gets the job.

      3. They technically did not overrule the student government. The administration found an “alternative means” to do the same thing.
        From the attached article, the students filed a civil rights (presumably “title VI”) complaint. Since the decision was not actually voided for bigotry and there have been no consequences for the student government acting as adults in a position of school authority, it will be interesting if the Dep. of Ed. uses this opportunity to set an example.

        1. Yes, technically correct is the best kind of correct, as they say.

          But the administration convened the alternate-route-to-recognition committee *because* it wanted to overrule the student govt – technically maybe they’re parallel methods, not an appeal process, but I think non-lawyers get the idea.

        2. What do you expect the department to do?

          1. What does the department of Ed. do for title IX violations?
            Generally the process is the same. They negotiate remedial action, and if that doesn’t work they ask DoJ to litigate (for damages and/or remedial action).

            1. What does this have to do with Title IX?

  14. To be fair, the Nazis did intend the ghettos to be rather short lived….

    1. That was my reaction as well.

  15. If we want to talk about a real Holocaust lets discuss the millions of unborn babies that Liberals have killed since Roe v. Wade.

  16. Kudos on having the guts to point out the obvious anti-Semitism at Williams College. The problem is not that it is evidence-proof (after all, so are the flat-earthers, but no one cares), but rather that too few people are willing to stand up and castigate the fools.

  17. […] The Volokh Conspiracy: Holocaust Revisionism at Williams College – A debate over recognizing a pro-Israel student gro… […]

  18. By the way, the headline on the Tablet piece,

    Separate and Unequal for Jewish Groups on Campus,

    is inaccurate also. The group was not denied approval (by the student council, not the College) for being Jewish but for its stance on the Israel-Palestine issue.

    IOW, the Tablet and Bernstein are distorting and exaggerating a fairly stupid decision, and a single quote, for their own ends. Whether this is better or worse than what the council did I will leave as an exercise for the reader.

    1. Imagine these parallel situations:

      The student government is willing to recognize black student groups, so long as they don’t support affirmative action or criticize police. Groups supportive of the police, or opposed to affirmative action, are OK.

      The student government is willing to recognize Palestinian student groups, so long as they recognize Jerusalem as fully Israeli. Any group is free to support Jerusalem as a fully Israeli city.

      Of course, assume that the administration of the college bypasses the student govt to recognize the organizations in question, (at least after negative publicity!).

      For a headline writer, separate but equal would seem like a good term to describe the situation.

      1. My objection is mostly to the use of the phrase “Jewish groups.”

        There is no indication that other Jewish groups have had a problem getting approved. Indeed, in your example other black and Palestinian groups get approved.

        I think the student council decision was both wrong and stupid, but it was based on the political views of the group (singular, not “groups”), not the fact that the members were Jewish.

        Oh, while I’m at it, ignorance about the Holocaust is not “revisionism,” it seems to me. Revisionism suggests some sort of nonsense masquerading as historical research. When I read “Holocaust revisionism at Williams” my impression is that trhere is faculty there doing that sort of thing. There’s not. This was just a dumb comment.

        In other words, both Tablet and Bernstein take a foolish incident and overblow it into something it wasn’t.

        1. Since there’s a bit of a problem with students trying to run universities, Holocaust denialism among students is almost as newsworthy as it would be among faculty.

          “There is no indication that other Jewish groups have had a problem getting approved. Indeed, in your example other black and Palestinian groups get approved.”

          I was saying that could be summed up as the student govt acting on a separate but equal basis.

          There are indications that the administration invoked the alternate route to recognition in response to bad publicity, though I don’t pretend to definitive knowledge on this. But if the Jewish angle wasn’t such a delicate issue for alumni (Jewish and Gentile), would the administration have acted so quickly? In other words, Americans have rightly been conditioned to be suspicious at even the first signs of anti-Jewish behavior. If this was a case of denying recognition to the Campus Conservative Club, would they have worried so much about the alumni freaking out?

          1. a bit of a problem with students trying to run universities, Holocaust denialism among students is almost as newsworthy as it would be among faculty.

            No. It’s not.

            And students aren’t setting the content of classes.

            And it wasn’t “students.” It was one student.

            And that one student’s opinion was not what was being voted on.

            The article did not cite any support fro the council’s decision from faculty. The only faculty member quoted said, ““all student groups on campus should be very concerned about this, ….. You can disagree with the content of what people are saying, while supporting their right to say it.”

            Like I said, wildly overblown.

            if the Jewish angle wasn’t such a delicate issue for alumni (Jewish and Gentile), would the administration have acted so quickly?

            IOW, you take quick action as proof of anti-Semitism? That makes no sense, Eddy.

            Think about it. If the Administration had supported the student decision you would have regarded that as evidence of anti-Semitism.

            If they had acted after a delay you would have wondered why a simple matter couldn’t have been handled quickly, and argued that anti-Semitism caused the delay.

            IOW, whatever the Administration did here would be interpreted as proof of anti-Semitic attitudes.

            I didn’t go to Williams, but if this had happened at the school I went to, and you wanted me to object as an alumnus, neither Bernstein’s approach nor the linked article would be the way to do it.

            If this was a case of denying recognition to the Campus Conservative Club, would they have worried so much about the alumni freaking out?

            I have no idea. Neither do you. And why do you claim that the Administration’s action was in response to alumni freaking out? There is nothing in the article to support this.

            1. “you take quick action as proof of anti-Semitism?”

              No, I don’t, I said the opposite – “Americans have rightly been conditioned to be suspicious at even the first signs of anti-Jewish behavior.”

            2. “why do you claim that the Administration’s action was in response to alumni freaking out? There is nothing in the article to support this.”

              From the Tablet article:

              “The college did forward her WIFI remarks to at least one Williams group email list—alumni volunteers—presumably to address criticism the council’s move had received. As of Friday afternoon, moreover, no campuswide email has been sent regarding the decision to formally recognize WIFI.”

              1. Note the word “presumably” in the quote.

                Regardless, that there was criticism from alumni does not mean they were “freaking out.” It means they (some) were critical.

                1. I said the *administration* was *worried* that the alumni *might* freak out. I really do wish you’d summarize my remarks with more regard for accuracy.

                  It’s possible that the alumni simply were at the clubhouse, saw the news item, said, “by Jove, that’s not cricket, what what?” and sent calm emails to the alumni listserv or what have you.

  19. Eddy,

    What you wrote:

    would they have worried so much about the alumni freaking out?

    I interpreted that as meaning they were concerned that the alumni were freaking out, not that they might. I guess I misunderstood your point, for which I apologize. Still, as you yourself say, there are only “indications” that it was a response to alumni pressure, immediate or expected, and we can’t know.

    Of course it’s also just possible that Mandel, the President, did what she did simply because it was the right thing to do. Her statement reads, in part:

    The transcript of the debate and vote indicate that the decision was made on political grounds.

    In doing so, Council departed from its own process for reviewing student groups, which at no point identifies a proposed group’s politics as a criterion for review. The decision also seems to be in tension with CC bylaws, especially Article V, Section 3: “Prohibition Against Discrimination in Student Organizations….

    Differences over such views are legitimate grounds for debate, but not for exercising the power to approve or reject a student group.

    1. I did cover my bases by saying: “There are indications that the administration invoked the alternate route to recognition in response to bad publicity, *though I don’t pretend to definitive knowledge on this*.”

      I have an hypothesis that this was a case of a school administration responding to bad publicity. But like I said, I can’t prove it. If it turns out the administration was always fixin’ to do what it ultimately did, regardless of public-relations fallout, then I’m certainly sorry for casting insinuations their way.

      1. I have an hypothesis that this was a case of a school administration responding to bad publicity. But like I said, I can’t prove it. If it turns out the administration was always fixin’ to do what it ultimately did, regardless of public-relations fallout, then I’m certainly sorry for casting insinuations their way.

        Of course, we’ll never know the answer to that. So the issue is whether you are going to assume that Mandel would only overrule the council because of alumni pressure, rather than because she thought it was the right thing to do.

        And if you are assuming the former, then it’s really not worth having a discussion, because you automatically ascribe bad faith to those you think you don’t like.

        But ask yourself this: What could Mandel, specifically, have done to make you think her statement was sincere and she really thought the council decision was just wrong?

        If you can’t answer that, then everything you say is based on the assumption of bad faith.

        1. What evidence would I look for to test my hypothesis in a sure-fire way? When you get right down to it, the sort of evidence I probably don’t have access to about who she talked to and what she said at the time of the controversy. That’s more the province of the student newspaper, if they’re into that sort of thing.

          For hints of Williams’ attitude toward academic freedom, I can look at their yellow-light rating from FIRE, and President Mandel’s willingness to keep the due-process diluting sexual-harassment standards from the Obama era even after colleges no longer have to have those standards – so she’s not exactly a valiant crusader against the SJWs.

          On the other hand is the fact that setting up a separate-but-equal situation for Jewish organizations (as I discussed above with my analogies) is such an outrageous action that even a typical college administrator, accustomed to indulge SJW antics, might be spontaneously inclined to draw the line and finally say “no,” without any need for outside prompting.

          1. …also her academic speciality is Jewish history, so she may be particularly aware of what happened in the German Universities under Weimar as the students began attacking Jews, even before the plague of persecution had begun in the non-campus world.

          2. “New Williams’ president talks challenges in age of Trump…

            “And with U.S. Secretary of Education Betsy DeVos softening the guidelines for procedures regarding campus sexual assault cases, Mandel notes that they are guidelines. Under the Obama administration, guidelines were tightened to protect victims. DeVos loosened those guidelines, but Mandel said the guidelines are not binding and that most schools are leaving Obama-era policies in place.

            “‘Most schools have opted to stick with the more rigorous policies to do the most we can to follow through on Title IX cases,” she said. “And that won’t change unless the law does.'”

            https://www.berkshireeagle.com/stories/new-williams-president-talks-challenges-in-age-of-trump,549818

  20. Bernard 7-11,

    I said from the beginning I could be wrong, and here is some evidence that the President could be sincere since she’s at least making the right enemies.

    “Those of us who opposed the recognition of WIFI by CC were disappointed”

    “For one, nowhere in the bylaws does it say that decisions should not be made on political grounds, out of concern for student safety or simply because CC takes moral issue with something.” blah blah blah “democratically elected representative of the student body” blah blah

    “Although it is the first time a club has been denied in years, it is also the first time someone has attempted to start a nationalist club. Students for Justice in Palestine (SJP) organizes around issues related to Israel-Palestine; however, they are not interested in defending the interests of some hypothetical Palestinian state. Instead, SJP takes a human rights-based approach to the conflict; it is deeply troubling that WIFI could not commit to doing the same.” blah blah

    “President Mandel’s words were being used as ammunition to harass students” blah blah

    “a club more concerned with nationalistic sentiment than opposing Israel’s active genocide.” etc.

    https://williamsrecord.com/2019/05/failures-of-mandels-wifi-statement-how-her-words-are-being-weaponized-against-students/

    1. Eddy,

      Thanks for the responses.

Please to post comments

Donald Trump

Trump Loses Round One in Financial Record Fight

A federal judge rejects the President's attempt to block a Congressional subpoena of his financial records.

|

This afternoon, Judge Amit Mehta of the U.S. District Court of the District of Columbia rejected President Donald Trump's attempt to block a congressional subpoena seeking financial records from Trump's accountants.

Here is the introduction to Judge Mehta's opinion in Trump v. Committee on Oversight and Reform:

I do, therefore, . . . solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country . . .

- President James Buchanan

These words, written by President James Buchanan in March 1860, protested a resolution adopted by the U.S. House of Representatives to form a committee—known as the Covode Committee—to investigate whether the President or any other officer of  the Executive Branch had sought to influence the actions of Congress by improper means. . . . Buchanan "cheerfully admitted" that the House of Representatives had the authority to make inquiries "incident to their legislative duties," as "necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained." But he objected to the Covode Committee's investigation of his conduct. He maintained that the House of Representatives possessed no general powers to investigate him, except when sitting as an impeaching body. Buchanan feared that, if the House were to exercise such authority, it "would establish a precedent dangerous and embarrassing to all my successors, to whatever
political party they might be attached."

Some 160 years later, President Donald J. Trump has taken up the fight of his predecessor. On April 15, 2019, the Committee on Oversight and Reform of the House of Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to President Trump. The subpoena called for Mazars to produce financial records and other documents relating to President Trump personally as well as various associated businesses and entities dating back to 2011—years before he declared his candidacy for office. The decision to issue the subpoena came about after the President's former lawyer and confidant, Michael Cohen, testified before the House Oversight Committee that the President routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed. For instance, Cohen said that the President provided inflated financial statements to a bank to obtain a loan to purchase a National Football League franchise. But when it came time to calculate his real estate taxes, the President would deflate the value of certain assets. To support his accusations, Cohen produced financial statements from 2011, 2012, and 2013, at least two of which were prepared by Mazars.

Echoing the protests of President Buchanan, President Trump and his associated entities are before this court, claiming that the Oversight Committee's subpoena to Mazars exceeds the Committee's constitutional power to conduct investigations. The President argues that there is no legislative purpose for the subpoena. The Oversight Committee's true motive, the President insists, is to collect personal information about him solely for political advantage. He asks the court to declare the Mazars subpoena invalid and unenforceable.

Courts have grappled for more than a century with the question of the scope of Congress's investigative power. The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress's investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which "legislation could be had," Congress acts as contemplated by Article I of the Constitution.

Applying those principles here compels the conclusion that President Trump cannot block the subpoena to Mazars. According to the Oversight Committee, it believes that the requested records will aid its consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws. The Committee also says that the records will assist in monitoring the President's compliance with the Foreign Emoluments Clauses. These are facially valid legislative purposes, and it is not for the court to question whether the Committee's actions are truly motivated by political considerations. Accordingly, the court will enter judgment in favor of the Oversight Committee.

 

No doubt this opinion will be appealed. Trump's attorneys may succeed in obtaining a stay, or otherwise slowing down these proceedings, but I expect they will ultimately be unsuccessful.

Assuming Congress must be able to identify a legitimate legislative purpose when seeking such information, Judge Mehta is correct to conclude that that any such requirement is amply satisfied here. The President is not a private individual. His financial information is relevant to the legislature's authority to determine whether foreign emoluments are to be permitted and under what conditions, as well as to whether presidential conduct implicates his oath of office or could justify an impeachment inquiry. Whether or not relevant legislation has been introduced or a formal impeachment inquiry has been opened is irrelevant, as Congress is not required to introduce legislation before investigating whether any such legislation is desirable, nor is Congress required to open a formal impeachment proceeding before looking into whether such a proceeding would be justified, and it would be a stark departure from traditional separation of powers norms for a court to conclude otherwise.