Short Circuit: A Roundup of Recent Federal Court Decisions

Hurricane preparedness, getting rid of a body, and illegal sideshows.

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

New on the Bound By Oath podcast: the origins of Section 1983—originally known as Section 1 of the Ku Klux Klan Act of 1871.

New on the Short Circuit podcast: Rudy Giuliani is in hot water. And we talk about the undertalked about Reception Clause.

  • In which the D.C. Circuit determines that the Army Corps of Engineers acted unlawfully in granting an easement to the Dakota Access Pipeline underneath Lake Oahe but that we shouldn't be too hasty in doing anything about that unlawfulness.
  • The U.S. can prosecute crimes committed on seagoing vessels that sail under the American flag, but what about "stateless" vessels that fly no flag at all? It can prosecute crimes there too, says the First Circuit, which is bad news for this defendant, his stateless boat, and his honkload of stateless cocaine.
  • Some legal commentators would have you believe that it's never RICO, but this First Circuit opinion demonstrates that if the prosecution introduces copious evidence of your organization's decade-long work as a "mega-gang," then it is probably RICO.
  • In criminal statutes, does the word "willfully" mean "on purpose" or "with bad intent"? Third Circuit: Yes.
  • Norfolk, Va. police arrest two men after a search of their car uncovers 300+ grams of fentanyl, four cell phones, a loaded gun, and $1,800 in cash. Though the men admit to owning the other items, neither claim ownership of the fentanyl. Fourth Circuit: The men clearly knew each other and were acting suspiciously, so it was reasonable for the cops to assume that they were engaged in a common enterprise and the fentanyl belonged to both.
  • Citizen of El Salvador sought to avoid deportation on the ground he faces persecution as a former member of the MS-13 gang. The Board of Immigration Appeals denied relief, reasoning that the social group of "former Salvadoran MS-13 members" is too amorphous to warrant such relief. Fourth Circuit: Even assuming that decision is entitled to Chevron deference (a question we need not decide), the Board's decision is unreasonable and cannot stand. The group is hardly amorphous, as it's limited to former gang members. Dissent: Chevron.
  • Woman visiting an inmate is strip searched, forced to remove her tampon for inspection, and made to "squat and cough." Fourth Amendment violation? Fourth Circuit: Qualified immunity. The guards had reasonable suspicion to believe that she was attempting to pass the inmate contraband given rumors that the inmate was smuggling drugs and that a security guard said he saw the woman unbutton her waistband an hour into her visit. Dissent: This was significantly more intrusive than a standard strip search—should've gone to a jury.
  • Is using someone else's Social Security number a crime involving moral turpitude? Fifth Circuit (further entrenching a circuit split): Sure is. Dishonesty is an essential element of the crime, and it is thus turpitudinous.
  • A Houston peroxide manufacturer discovered that its hurricane preparedness plan was inadequate when Harvey pummeled Texas and the facility's materials blew up. Neighbors sue, and the trial court gives the okay for a class action. Fifth Circuit: Not so fast. When expert opinions are used to certify a class, the court must first ensure that those opinions would be admissible at trial under Daubert.
  • Tennessee couple seeks bankruptcy protection, claiming less than $6,000 in assets. Zoinks! They actually control millions through a complex web of family trusts and shell companies. And the couple's largest creditor is having a bad time at the Sixth Circuit. One decision says the creditor can't pierce the corporate veil in reverse (i.e., get assets from some of those entities to satisfy the couple's debts). And another won't allow the creditor to pursue a malpractice claim against the couple's bankruptcy attorneys.
  • Back in November, a panel of the Sixth Circuit said that a district court could not deny a COVID-related request for compassionate release with a "barebones" form order. But that panel, says a different panel of the Sixth Circuit, was wrong, and one-sentence orders denying compassionate release are totally cool. (In dissent, Judge Moore, who wrote the initial panel opinion, suggests they got things right the first time.)
  • Redacted opinions aren't too common, but here's one from the Sixth Circuit about a sentence reduction for an inmate who assisted police after hearing another inmate say, "[I]f you ever want to get rid of a body, hogs is the way to go."
  • A home healthcare agency declines to pay nurses for the overtime they worked because it "couldn't make money" if it did. She sues, wins with a settlement. The district court orders attorneys' fees, but then reduces them to 35% of the total settlement amount because that's what judges in that district "typically approve." Sixth Circuit: That's not a good reason. Grant the fees as requested, add some for this appeal, and please don't appeal again.
  • Sixth Circuit: There's not a lot that will void the absolute immunity that prosecutors normally enjoy, but threatening to charge someone with double murder unless they falsely implicate someone else (who served 41 years before being released) will surely do it.
  • This Ponzi scheme began—like so many others—when an investment manager decided to paper over a loss rather than fess up to his investors. He invented a fictional investment in an Australian hedge fund, and he used funds from new investors to pay the old. The scheme ran for over seven years before it finally came crashing down, at which point the district court sentenced the gentleman to over seven years in prison. Seventh Circuit: Affirmed.
  • When an elected official blocks someone on Twitter, do they violate the First Amendment? Eighth Circuit: Not in this case; the Twitter account here was the elected official's private account, started in her capacity as a political candidate, not as an elected official. Dissent: But the block occurred after she was elected and started using the account for government business. That violates the First Amendment.
  • Pro tip from the Eighth Circuit: When seeking qualified immunity for allegedly firing a tear-gas canister at a TV news crew for no good reason, do not rely on a set of factual claims contradicted by the video shot by that very TV news crew.
  • Is a private entity constrained by the First Amendment because it rents its space from the government? Still no, says this Ninth Circuit panel.
  • Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn't apply retroactively.
  • Another week, another appellate decision involving churches and COVID-19 restrictions. This time, the Ninth Circuit gives a mixed ruling, enjoining some restrictions while upholding others, including a ban on "singing and chanting."
  • Officers shoot a participant in an illegal "sideshow"—an event where drivers perform donuts, burnouts, and other similar maneuvers—while the driver is moving at a speed of "up to five miles an hour." It's unclear if the victim knew the police (in an unmarked car with a yellow siren) were actually police, and the police claim they worried he was going to run them over. Ninth Circuit: No qualified immunity. It is clearly established that officers cannot shoot the driver of a slow-moving car when they could reasonably step out of the way instead.
  • Kansas militiamen plot to bomb an apartment and mosque complex, acquiring 300 lbs of fertilizer and drafting a manifesto urging Americans to stop "the sellout of this country." Unbeknownst to them, a militia member is an undercover informant. Convictions and lengthy sentences all around. Tenth Circuit: The defendants were eager to commit the crime and thus not entrapped, and their manifesto—addressed to the government and referencing policy—qualifies them for the terrorism sentence enhancement. (More in this longform piece.)

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  1. Note to Militia members:
    Every member except you is an undercover cop.

    1. Similar thing to something I once heard about murder for hire- if you seek out to hire someone to commit murder, odds on the person you proposition will be an undercover cop.

    2. Not literally true unless they’re proposing that you commit a crime; That really settles the matter.

    3. ^^^ Is there anything law enforcement hasn’t infiltrated/found an informant in? Next thing you know those proud boys from the capitol shindig are gonna find out some high level person is on the take and…

      …wait…

      uh oh.

      https://www.bbc.com/news/world-us-canada-55846696

      😀 😀 😀

      1. Given that the Proud Boys are a political group with known and explicit pro-cop sentiments, that’s hardly surprising.

    4. Like the KKK which is basically a social club for undercover FBI agents. Too bad they can’t infiltrate leftwing groups nearly as well.

  2. “In which the D.C. Circuit determines that the Army Corps of Engineers acted unlawfully in granting an easement to the Dakota Access Pipeline underneath Lake Oahe but that we shouldn’t be too hasty in doing anything about that unlawfulness.”

    Of course, the lake wouldn’t be there if the Corps of Engineers had dammed the Missouri River in the first place. I suppose they could remove the dam, and then put the pipeline under the river.

    1. My question: Why is this in the DC circuit rather than the 8th?

      1. Federal matter? Indian matter?

        1. The 8th circuit is also a federal court. And sense when does the DC circuit have exclusive jurisdiction over Indian matters?

          1. No idea. IANAL. But doesn’t the DC court have jurisdiction over copyrights and patents? Maybe someone thought Indian affairs should also be uniquely handled.

            1. Not quite, I think you man the Federal Circuit which also happens to be in DC. They are the nationwide appeals court for patents, trademarks, and a bunch of other things – but not copyrights. The DC Circuit is a regular appeals court, but is important because it is the regular federal appeals court for DC. It may be in that court just because the Army Corps of Engineers HQ is there.

              1. That sounds like what I was confused about. Thanks.

            2. ” But doesn’t the DC court have jurisdiction over copyrights and patents?”

              No, that would be the Federal circuit, which is the only circuit with no territorial jurisdiction at all.

  3. The standards by which video evidence of X or Y matters or not, even if it’s perfectly captured, I’ve yet to understand.

  4. To IJ: I look forward to Short Circuit every week. Thank you.

    1. Me too. One of the best things on this blog lately.

  5. The Sixth Circuit case is surprising. I thought I saw here not long ago that a circuit court’s panel decision could not be reversed by another panel of the same circuit — only by the en-banc court or SCOTUS.

    1. “I thought I saw here not long ago that a circuit court’s panel decision could not be reversed by another panel of the same circuit — only by the en-banc court or SCOTUS.”

      But that’s not what happened here. The second panel issued a contrary decision in a separate case. The original decision of the first panel still stands.

  6. Is using someone else’s Social Security number a crime involving moral turpitude?

    When the discussion begins with a disclaimer that the term has never been defined by the legislature or courts, it’s hard to accept that the rule is anything other than unconstitutionally vague.
    Yes, the court described clear precedence for the application to this case, but it’s “turtles all the way down” – no foundation. It’s pretty silly that terms like that are still allowed to be used.

    1. I figured meriam webster was good enough of a source.

      1. It seems like it’s turning into the interstate commerce clause of enhancement riders and the like.

      2. “Inherently wicked or depraved” seems to describe pretty much every crime, unless you think it isn’t wicked to commit a crime…

        1. I think it’s pretty tough to make the case that breaking the law is always wicked. Say I’m out for a walk, see a cool looking feather, and pick it up. If it’s an eagle feather I’m a criminal.

          Is picking up a feather wicked?

          There are too many laws to say that breaking the law is always wicked. Rather, it’s largely unavoidable.

          1. Isn’t that the entire idea behind mens rea? If you picked up the feather not knowing it was an eagle feather, or not know taking it was illegal, you could say it wasn’t “wicked”. But taking it while knowing it was a crime, isn’t that “wicked” for deliberately breaking the law?

            Either way – too vague or too broad, I don’t think use of the phrase should be allowed.

          2. The problem is that most of us believe something shouldn’t be a crime (maybe it would be ok to make it a civil offense, but not put people in prison for it) unless it is inherently wicked and harms others. Saying everything that the government declares to be a crime is inherently wicked is backwards (and frankly makes even having a category of “moral terpitude” crimes unnecessary).

  7. When an elected official blocks someone on Twitter, do they violate the First Amendment? Eighth Circuit: Not in this case

    TrumpLaw ™ wins again!

    1. I thought Trump’s similar issue was about a law requiring it, not the First Amendment.

      1. No, it was about the first amendment. But the difference between the two cases is obvious.

        Trump, once he took office, started using his account for official business, and had a paid civil servant administer it and tweet on his behalf. That makes it a government account.

        The official in this case did no such thing. She kept using it the exact same way she did before. She did no government business on it. She tweeted about the government business she was doing, just as she would do with any other job she had. That makes it a private account.

        1. Yes that makes it a government account, but that is still a law requiring it be open, not a First Amendment issue.

          Well, back to threading the needle so one side gets away with something and the other doesn’t.

        2. Ah, yes, the “obvious” distinction between speech as official business by someone whose job is primarily talking, and speech about official business by someone whose job is primarily talking.

          In this case, the official used her account to discuss her policy opinions, her actions related to her career, her upcoming votes, or compliment/criticize the media and coworkers. Does any of that sound familiar?

    2. If you’re going to go after Trump blocking citizens access to a government channel you’d have to go after Twitter, Facebook and all the other companies that took his actions one step further.

      1. No, they didn’t. They’re not government entities.

  8. How can finding a jury instruction unconstitutional not be retroactive? The constitution was written before the jury instruction was given. If it’s unconstitutional now, it was unconstitutional then.

    1. Try reading the decision. Pages 9-14 go over it.

  9. I think that it’s not so much “It’s never RICO”, but rather “It’s never civil RICO”. When the government brings criminal charges under RICO, they tend to do so against actual gang and mob members.

  10. Thanks for these IJ postings, which have taught me more than I expected, have entertained me, and have enabled me to exercise my righteous-indignation muscles to a perhaps unhealthy extent.

    Because today, I direct some indignation at you: I mean, you *call* yourself the Institute for Justice, but when you refer to “four female airmen,” that is sexist and wrong.

    I guess you don’t think it’s wrong, because everyone knows that referring to fliers as “airment” implies nothing about the gender of the people involved, it’s just an accident of history that the term developed this way, don’t you have something better to do than getting wrapped around the axle about something so picayune anyway, etc., etc.

    I thought that too, until I was invited to imagine a hypothetical world whose English was racist in the same way that *our* English is sexist. In *that* world, people routinely use “chairwhite” to refer to the head of a group no matter the person’s race, have sayings such as “white is the measure of all things,” measure project effort in “white-hours” and “white-years,” and so on and so on. In *that* world, apologists of course chuckle dismissively at people who call such language racist, damaging or inappropriate; what’s the big deal, have people no sense of history, must they take everything so literally? But imagine being (say) a black child growing up in that world, having been bombarded with such language your entire life. Now imagine being a parent of one, or a parent-to-be of one.

    Does considering this hypothetical change your perspective on the sexism of *our* world’s English? If not (if you still think our English is fine), is that because you think the hypothetical-world English is *also* fine, or is it because you think our world differs in some principled way from theirs, one that makes *our* English OK even though theirs is not? If so, what is that difference?

    [This jeremiad inspired by the essay “A Person Paper on Purity in Language” by Doug Hofstadter]

    1. Until you notice that “women” ends with “men” and find an alternative word or spelling (womyn?), you aren’t serious. Pelosi, now, with her “amen and awomen”, is obviously serious.

      1. That wasn’t Pelosi.

    2. You assumed a rather important part of claim. You are assuming that “-men” as a suffix comes from gendered derivation. It doesn’t. From our German roots it meant “person”. “Wer” was male (from vir in latin probably). “Wif” female. So it used to be wermann for male and wifman for female in German. Eventually the “wer” got dropped and wifman morphed into woman for English. It also has latin roots that I believe is “to think” (I recall reading that this used to be a meaning but I may be wrong about latin being the source). But that is why we were termed Man or Human. We were “the thinkers”. It only started being gendered several hundred years ago and only recently has it become almost exclusively gendered. But you are claiming sexism because of your own genderization of a suffix that has been around for millennia as gender neutral that now doesn’t conform to your interpretation.

      1. I don’t think you’re taking my argument seriously, mse. If you wouldn’t like your non-white children growing up in a world where they see leaders called “chairwhites” (or your white children growing up in one where they’re called “chairblacks”), and where this is one of countless subtly and not-so-subtly racist conventions to which their own language subjects them daily, then what {other than familiarity-induced blind complacency) makes you ok w/ your daughters’ immersion in the analogously sexist English of *our* world?

        For centuries “man” in its primary sense has referred to just a subset of humanity, as “white” has in analogous hypo-world. The deep-past etymology of these terms in their respective worlds doesn’t magically negate the harms of their inappropriately racial/sexist use in the present era.

        1. “For centuries “man” in its primary sense has referred to just a subset of humanity,”

          Do you think that in the original Star Trek, they were saying that women had already been to the strange new worlds, and it was just men that were getting around to going?

          1. Of course not. The (stirring, thanks for the memory) Star Trek intro used “man” not in its primary sense, but in its unfortunately-all-inclusive sense to mean “person.” And just as in our hypo-world where the hypo-Star Trek intro ended with “To boldly go where no white has gone before,” such all-inclusive uses are racist/sexist and inappropriate.

            1. I wonder how much is real opporesion of females (sh*t, that’s probably problematic, too) and how much is growth in outrage mechanics teaching people to behave as if outraged, for political reasons.

              In the 1970s, someone wrote to Dear Abbey complaining of how ashamed women felt having to change their name when marrying. She replied she didn’t know any women who felt ashamed of that.

              You have to teach new generations they are supposed to feel offended, that there’s something wrong with them if they don’t, and only then can you put it to work as factional tribalism to get a handful of people elected.

              1. So Krayt, just to get a baseline here (and I’ll guess here that you’re white for the purposes of this question; adjust as appropriate): You see nothing wrong with, and would be just as cool with living in, a black-racist-English world (chairblacks in charge, black is the measure of all things, work measured in black-years and black-hours, etc., etc.) as in our own?
                As with David, I strongly suggest you read the Hofstadter essay. It has many more illustrations of parallels between the worlds, and also of apologists deploying creative but ultimately hollow defenses of the status quo.

        2. I’d be fine with terms like “chairwhite” if, as mse pointed out about “man”, the usage of “white” to mean “person with light-colored skin” had come about after those terms already existed.

          1. Thanks Milhouse. And I take it that if you are white, you’d be similarly comfortable with your kids growing up with a language in which “chairblack” and the like were pervasive, under a similar assumption re: word origins.
            Given the importance of the etymology to you, I get why you’re unpersuaded by Hofstadter’s racist-language analogy. But I *am* curious: Do you really think that the etymological distinction you’re pointing to (which relates to events centuries in the past) significantly changes the influence this era’s language has on today’s kids (and on today’s English-speakers generally)? If so, by what mechanism (given that almost no one is even aware of this etymology)?

            1. I’d find that odd, but I wouldn’t allow myself to become coopted into the political outrage mechanics of a handful of people by feigning outrage over it, so they can be elected and do very little about anything other than ensuring their relatives unstatistically become investment geniuses.

        3. You’re right, I’m not taking it seriously because it’s BS. It’s only “sexist” because you are choosing to misinterpret it with your own genderized interpretation. That isn’t what it means here and for well over a thousand years that was known. It is gender neutral. I already showed how the suffix “man” meant person. It didn’t even originally have the secondary meaning of male person. So no it is not a sexist convention. And a word doesn’t become sexist because you decided to make it one. It neither was at it’s origin, nor is it used that way now by the vast majority of people. Only people who want to be offended read it the way you do.

          1. mse, please see my 10:54(ymmv) response to Milhouse, which I think is also responsive to this 10:54 comment of yours.

            1. It only has any influence because people like you basterdize what is being said and are telling them they should be offended

    3. “Airman” is the term used by the U.S. Air Force to describe one of its members, just as “soldier” is the term used by the Army, “sailor” by the Navy, and “marine” by the Marine Corps. Indeed, it’s extremely likely that these women held the rank of Airman or Senior Airman. I’m not unsympathetic to your point that it’s an ill-chosen name, but I don’t think it’s fair to criticize IJ for using the official nomenclature.

      1. Thanks NaS; maybe I need to dial back my indignation a bit, as John was only following rules.
        But only a bit. There is no penalty for breaking these rules, and good reason to do so. I would expect that an Institute for Justice in hypo-world, if it meekly thought avoidance of the official-but-racist term a bridge too far, would at least enclose “airwhite” (substitute “airblack” if that rankles you more) in scare quotes, or append “(sic),” or otherwise nod to the inappropriate racism of the term.
        I don’t see why I should expect any less of the *real* Institute for Justice in our world.

    4. Counterpoint: male/female are not analogous to black/white, and therefore the hypothetical is unrevealing.

      1. This response just begs the question, David. Assuming you’re not enamored of the racist language in hypo-world, what specific differences (if any) between the white/nonwhite distinction and the male/female distinction magically render our sexist English OK, while hypo-world’s racist English isn’t OK?

        1. Maybe your argument is backwards. Maybe the fact that “Airman” is inoffensive means that we shouldn’t be offended by “chairwhite” in hypo-world.

          1. Great point. I think the reason that we should place more weight on our intuitive judgement of the hypo-world’s racist English than of the real world’s sexist English is precisely because our unfamiliarity with the former allows us to see its problematic aspects more objectively.

            (Personal aside: Though not religious I was somehow familiar with the biblical story of Exodus since childhood. When I later saw The Prince of Egypt, I remember thinking mainly that it was a compelling story beautifully told. Someone had to actually *tell* me afterwards that what I’d seen in the part about the final plague involved a mass murder of innocent children. Sure enough, it was right there in front of my eyes but I’d totally missed it, due to some combination of familiarity, reluctance to believe ill of something with which I’d grown up, and (in the case of the movie format) elegant storytelling/scoring. Quite an eye-opener for me.)

            1. Clarification: I should’ve said “dismissed” rather than “missed” above. I was *aware* that all firstborn sons were killed, but during and shortly after the film gave nary a thought to the moral import of this. It had just totally blown by me.

            2. If God does it it’s not murder, by definition. Otherwise you’re stuck calling every death “murder”.

              1. Well, um, thanks for the reply. Please don’t take my declining to engage further on this side topic as either agreement or as inability to respond. Plenty to say, but I think this would lead us too far astray.

              2. I call God a murderer. Assuming he exists and is pretty much as any religion describes. He’s also grotesquely unethical. And that’s before rolling in the idea he knows the outcome of everything ahead of time, or could if he wanted to.

                1. Oh, and resurrecting everyone, then throwing most into a tortured eternity isn’t helping his murder case any.

            3. Great point. I think the reason that we should place more weight on our intuitive judgement of the hypo-world’s racist English than of the real world’s sexist English is precisely because our unfamiliarity with the former allows us to see its problematic aspects more objectively.

              But you’re skipping a step. Saying that chairwhite is problematic is insufficient to establish that chairman is problematic.

              We likely think that labeling the white head of a religious congregation with a different term than the black head of a religious congregation is problematic. (Blackpriest and Whitepriest would certainly raise our hackles.) And we could use the same form of argument that you (Hofstadter) employ to demonstrate that labeling the Jewish head of a religious congregation with a different term than the Muslim head of a religious congregation is problematic. But is that true? Is using Rabbi for Jews and Imam for Muslims (or Reverend for Protestants or whatever) problematic? I don’t think so.

              Would a university having a black soccer team and a white soccer team be problematic? Yeah. Does that show that having a men’s soccer team and a women’s soccer team is problematic? I again don’t think so.

              Would we look askance at a white person who said, “I am only willing to date white people”? Probably. Would we look askance at a man who said, “I am only willing to date men”? Well, some people would, but for reasons separate from the ones we’re discussing here. The fact that you can grammatically substitute white for man and black for woman in a sentence does not make the two situations comparable.

              1. David, I agree with your main point about mere word substitution. But the strength of Hofstadter’s metaphor lies not in that, but in the fact that the morally repellent feature most of us see in his hypothetical racist-English world is a feature *shared by our own world*. By removing it from its familiar context Hofstadter has simply pulled back the gauze curtain of familiarity and permitted us to see it clearly for what it is.
                The feature in question (my take) is the fact that in both worlds, English systematically and quite unnecessarily diminishes a subset of the population by implicitly suggesting in a multitude of ways that they are less important, less representative, less real than others. Over a lifetime – actually over many generations – this can take quite a toll.
                Absent additional morally-salient differences between these worlds which somehow render this odious commonality illusory or ineffective in our world (I can’t think of any and haven’t seen others point out any, despite numerous tortured efforts by apologists in both worlds), I think we have to admit that the same morally-repellent feature exists in our own world’s English. And begin to do something about it.
                It’s been a long time since I read the essay, so I’m sure I didn’t do it full justice. I’m going to read it again today. I strongly suggest you read it too and let me know if your take differs from mine.

                1. Although I am familiar with Hofstadter generally, I had either never encountered or had forgotten about this essay, but I read it the other day when you first posted about it. Does it provoke a gut reaction? Absolutely. “We accept A only because we’re familiar with it” is always something to be cautious about, and transporting it to another context can be illuminating. But we need to get past the gut reaction and decide whether the other context is actually analogous.

                  Separate-but-equal is easily regarded as terrible in the context of race. But that does not mean that one can simply replace race with every other concept and use that to prove that it’s always a terrible thing. Nobody thinks that the purpose of segregating bathrooms by sex comes from the same place as segregating them by race. (Recent objections to the former come in the context of a discussion about the phenomenon of transgenderism, not about issues of sexism.)

                  1. Thanks David.
                    1) Regarding separate-but-equal: In my original comment and also I think in the Hofstadter essay, the central concern is not related to separate-but-equal, but about our language’s use of terms whose primary sense denotes just a subset of humanity (“man” in our world, “white” in Hofstadter’s hypothetical world) to mean “person.”

                    Regarding your comment “But we need to get past the gut reaction and decide whether the other context is actually analogous.”:
                    Having now re-read the essay, as far as I can tell every racist construct in Hofstadter’s hypo-world English indeed has a sexist counterpart in our actual (sexist) English. Of course, I could be mistaken about this or about other aspects of the overall picture. That said, for each racist-English construct in Hofstadter’s essay where you can’t do at least one of the following:
                    1) observe that it has no sexist-English counterpart, or
                    2) explain why it isn’t objectionable after all, or
                    3) point to specific differences in racist-English vs sexist-English, or in the respective worlds they inhabit, which somehow render the correspond sexist-English construct morally *un*objectionable while the racist-English counterpart remains objectionable,

                    ..I think you’re stuck having to admit that *there* lies a morally problematic aspect of our current English language.

                    1. 1) Regarding separate-but-equal: In my original comment and also I think in the Hofstadter essay, the central concern is not related to separate-but-equal, but about our language’s use of terms whose primary sense denotes just a subset of humanity (“man” in our world, “white” in Hofstadter’s hypothetical world) to mean “person.”

                      I know that separate-but-equal does not expressly appear in his essay. My point is that his proposition (and yours) is, “If X would be ‘problematic’ when applied to race, then this demonstrates that X is ‘problematic’ when applied to sex.” And I’m pointing out a counterexample. (Surely that proposition is not only a linguistic one.)

                      And no fair trying to burden shift. If you’re asserting it’s objectionable, you have to show that it is, not challenge me to show that it isn’t.

                    2. Right David, and if I had argued the analogy holds for separate-but-equal, pointing to the distinction that mixing genders (but not races) in a bathroom comes freighted w safety issues related to sexual attraction etc. So you have pointed to just the kind of distinction that I referenced under 3), except it’s not relevant to Hofstadter’s examples.

                      As for burden, I explained in my Jan 31 1:36 post why the racist language is harmful.

                      So again I appeal to you to respond to the specifics, or if this proves too challenging, to seriously consider that the explanation for this may be that you are (wrt at least some of the examples provided in the essay) mistaken.

                    3. As for burden, I explained in my Jan 31 1:36 post why the racist language is harmful.

                      Sure. But not why the allegedly sexist language is harmful.

                      The only argument being proffered is “if it’s harmful when applied to race, then it’s harmful when applied to sex.”

                    4. “The only argument being proffered is ‘if it’s harmful when applied to race, then it’s harmful when applied to sex.’ ”

                      The argument being proferred is that it’s harmful when applied to race *for reasons which are also true of the sexist English of our own world*. And that absent any differences between the two worlds which could somehow mitigate the impact of those reasons in our world, it is therefore at least a reasonable working assumption that our sexist English is *also* harmful.

                      It’s true that I haven’t *proven* the absence of such differences (which as you know is hard to do); but I’ve looked hard for them (and encouraged others to do so, and hereby re-encourage you), and so far come up empty.

                      I get the strong presumption in favor of the status quo. One can’t be changing one’s language habits daily with the latest fashion trend. But as it *is* possible for a language to have serious issues, and it’s even possible for that language to be one’s own, one must also guard against putting the bar so high that it can effectively never be met.

      2. Arch, I would suggest you focus on things that actually are negative: for example: “blackmail”, “blacklist”, and “whitelist”. Use actual examples instead of a wild hypothetical.

        1. Thanks Ben. I was kinda channeling Hofstadter who didn’t focus on more obviously problematic examples such as those, I think because he wanted to attack the broader, somewhat-less-obvious (just as water isn’t obvious to fish) problem.

          As to the hypothetical being “wild”: if you mean it’s untrue, well, it’s a hypothetical! And if you mean that it’s so crazy as to be irrelevant, the whole point of his essay (read it) is that in the salient moral respects, it’s exactly as crazy as our own world – which is to say, unacceptably so in a number of ways to which the essay points.

    5. AFTERTHOUGHT: While I appreciate the replies to date, I find myself wondering whether any of them has fully taken on board the hypo that I posited. I suggest that before any of you chime in further on this subthread in defense of our status quo, you clearly envision hypo-you making your analogous point in defense of the racist English of hypo-world, and see how that sits with you. It may possibly reduce the required level of back-and-forth.

      1. I’m familiar with the Hoftadter piece (available here by the way https://www.cs.virginia.edu/~evans/cs655/readings/purity.html), and it changed the way that I think about these issues. I’m just not sure this is best-chosen target to take aim at.

        1. Thanks for the pointer! I found myself a bit annoyed at what seemed to me overly-cute wordplay in the essay, but like you found my perspective changed by it, which more than compensated.

          As for choice of target, I wasn’t being strategic (and certainly there are much worse offenders than John in this regard); this was basically a gripe of opportunity. That said, it’s not beyond the pale to think that a person skilled in communication who works with an organization called “Institute for Justice” might possibly be interested in and open to persuasion on the topic.

      2. Or you can realize that -man didn’t mean male for a long time while white and black has always been used to differentiate the races so it isn’t even remotely analogous. You are assuming we aren’t considering your hypo. We are, we just dismiss it as the inapt hypo it is.

        1. Butt you’re dismissing it for a bad reason: A distinction which makes no morally salient difference, as it concerns something in the distant past of which most current English speakers are totally oblivious. So it doesn’t in any way reduce the psychological impact to those in the slighted group; the analogy holds.

          1. It’s amazing that it never had a psychological impact until people started telling kids it should. Perhaps it isn’t actually the word that is the problem but the desire of too many to look for and find oppression where it doesn’t exist

            1. A related argument in support of hypo-world’s racist-English status quo appear in the Hofstadter essay, mse. Please read the whole essay and LMK what you think.

          2. Also when we talk about derogatory terms they are offensive specifically because of the history. So the history does matter. You can’t just wave it away because you feel like teaching people this is sexist rather than teaching them historical etymology

  11. Pro tip from the Eighth Circuit: When seeking qualified immunity for allegedly firing a tear-gas canister at a TV news crew for no good reason, do not rely on a set of factual claims contradicted by the video shot by that very TV news crew.

    Even when we get a ‘good’ QI decision, it’s not an unalloyed good. They declined to adopt the cop’s argument that his own perjury should entitle him to immunity. (That’s almost literally what his argument was: it doesn’t matter that the video clearly shows that the reporters weren’t doing what he claimed, as long as he’s willing to falsely testify that he thought they were.) But having found that teargassing reporters for no reason violates the 1st amendment — and having rejected the Nuremberg defense — they then decided that the cop needs to not only be aware that it’s illegal, but exactly which provision of the constitution it violates. So QI for violating the 4th amendment.

    1. “they then decided that the cop needs to not only be aware that it’s illegal, but exactly which provision of the constitution it violates. So QI for violating the 4th amendment.”

      No, that is not why the cop won QI on the 4A claim.

      The issue was whether or not the use of tear gas without either arrest or any kind of physical restraint counts as a seizure of a person for purpose of the Fourth Amendment.

      From the decision:

      When Anderson deployed the tear-gas, it was not clearly established that his acts were a seizure. The district court should have granted qualified immunity to Anderson on the Fourth Amendment claim.

      That is the standard that the Supreme Court has set for QI and it has nothing to do with what the officer did or didn’t know.

      1. Yes, I am aware that QI is an objective test — whether something is clearly established — rather than a subjective test — whether the cop actually knows that. I was using shorthand.

        But you’re missing my larger point. The ostensible purpose of QI is so that government employees won’t be inhibited about doing X by worry of being held liable,¹ if it isn’t clearly established that X violates the constitution. But here the court agrees that it was clearly established that X violated the constitution! What possible difference could it make whether it violated the 1st or 4th amendment? He knew that he wasn’t allowed to tear gas reporters for no reason, so he knew he shouldn’t do it, so he should be subject to liability regardless of the precise theory of liability.

        ¹Yes, it’s a fiction anyway, since cops aren’t scholars and don’t read cases. That’s why QI is a farce to begin with.

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