Short Circuit: A Roundup of Recent Federal Court Decisions

Say yes to the dress, respectful dissents, and kettling technique.

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

While he was on the campaign trail, President Biden told voters that he would allow states to "continue to make their own choices" on marijuana legalization. So just why is the FBI trying to forfeit nearly $1.1 mil from California-legal cannabis businesses? Read all about IJ's latest forfeiture case in the Los Angeles Times.

• Plaintiffs: Various tech companies treated us badly because they didn't like what we had to say about vaccines. And they did this because Congressman Adam Schiff sent them a letter! D.C. Circuit: You've established that exactly one of those things is true. Case dismissed.
• The worst part of having the Venezuelan government nationalize your manufacturing company is having to figure out what counts as effective service under the Hague Convention after you sue the Venezuelan government for nationalizing your manufacturing company, as this D.C. Circuit opinion illustrates. (Ed. note: That is probably not the worst part.)
• DEA administratively subpoenas the program manager for New Hampshire's Prescription Drug Monitoring Program, demanding an individual's PDMP-kept prescription-drug records. Program manager: Pound sand. Your statute says you can subpoena "persons" and here, you're really subpoenaing the State of New Hampshire, which isn't a "person." First Circuit: All your theories are wrong. The subpoena was against you, not the state, and even if it were against the state, that'd be okay too. Plus, the rare First Circuit vocab nugget from a jurist other than Judge Selya: "semble." (Separately, First Circuit—Courier font? Still? Why? Is it because of the Massachusetts state courts? You don't have to stick with them on this. And this wouldn't be the first time you broke with the Massachusetts SJC on a matter of pressing nationwide significance. Remember when you split with them on the Fourth Amendment's protections for cell-phone data? And then the Supreme Court said you were in the right? You could do the same here, but with fonts.)
• Under the leadership of El Chapo, the Sinaloa Cartel supplied more illegal drugs to the U.S. than anyone in history, employing techniques such as murder, kidnapping, torture, and bribery. Mexico extradited the kingpin to the U.S. in 2017, where he was convicted of ten offenses and sentenced to five terms of life imprisonment. El Chapo: Here are ten reasons my convictions should be overturned (spanning the usual to the less typical, such as the indictment violated the extradition treaty between the U.S. and Mexico and that his attorney had a conflict of interest (made public by the attorney's sexual relationship with another client)). Second Circuit: No, ten times over.
• Hayley Paige wedding dresses are a $220 mil business for JLM Couture, with the designer appearing on "Say Yes to the Dress" and running popular social-media accounts. Yikes! Things start to sour in 2019; Hayley Paige Gutman (the designer) locks JLM out of the social-media accounts and starts outside work. JLM: The contract has a noncompete and gives us the right to the name and its derivatives. Second Circuit (over two partial dissents): The noncompete and name-ownership portions of the contract are enforceable. But ownership of the social-media accounts is fuzzy, and it's too soon to assign them to JLM.
• A pair of school mask-mandate cases from the Fourth and Eighth circuits (with dissents in both): South Carolina's law prohibiting the use of state funds to impose mask mandates survives (plaintiffs lack standing), while Iowa's similar prohibition is enjoined (for running afoul of the Rehabilitation Act).
• The Fourth Circuit is known for its cordiality—they shake hands with the lawyers after each argument—and that tradition is on full display in this False Claims Act decision. Majority: "We thank our friend for his thoughtful dissent," which takes a view that "is not sustainable under law or under any notion of notice and due process with which we are familiar." Dissent: "With respect for my colleagues in the majority," this opinion is further evidence for "[t]hose who believe that some judicial decisions usurp the power of elected legislatures by making the law rather than merely interpreting it" and the majority's "legal hand-waving cannot cover the stench here."
• When a pregnant teenager fell in the shower and broke her tailbone, her doctor prescribed her opioids. Later, a doctor for whom she worked gave her blank prescriptions and allowed her to write her own. Soon, she was hopelessly addicted, forging prescriptions, taking up to 80 pills a day, and selling pills. She gets caught and is sentenced to 210 months in prison. Fourth Circuit (en banc): And she needs to be resentenced for ineffective assistance of counsel; her lawyer inexplicably waived multiple meritorious objections to the sentencing calculation. Dissent: Would be nice to hear his side of things, which is why we normally handle this on collateral review, not direct appeal.
• The Wayback Machine is an amazing free resource that archives more than 651 billion web pages. But for all that, it is not—per the Fifth Circuit—so obviously reliable that its contents are subject to judicial notice.
• A few months back we shared with our readers the inspirational story of Texas A&M's original "12th Man," E. King Gill, and also the less-than-inspirational story of how Texas A&M straight-up stole a biography of Gill from its copyright owner. The first time around, the Fifth Circuit let the Aggies get away with it, holding that the school was entitled to sovereign immunity. But a bright spot appears! In this substituted opinion, the Fifth Circuit holds that they have no jurisdiction over an appeal by the Texas A&M employee most directly responsible for the theft, and the claims against him will thus go to trial.
• Lawyers spend thousands of hours litigating False Claims Act case that results in a settlement of more than $97 mil that expressly reserves the issue of attorney fees. The relators' share of that money was awarded to one relator and then distributed under a shared agreement to the other relators in the case. District Court: So no fees for the relators who received their money under the agreement instead of directly from the government. Sixth Circuit: Nothing in the statute requires that the relator get their share directly from the government to be entitled to fees. Everyone gets paid.
• In enacting the second round of the Paycheck Protection Program, the squares in Congress excluded strip clubs. Strip clubs: Which violates our First Amendment rights. District court: Sounds probably right—preliminary injunction! Seventh Circuit motions panel (Sept. 2021): Sounds probably wrong—preliminary injunction stayed. Seventh Circuit merits panel (Jan. 2022): Those motions-panel judges were sharp cookies—preliminary injunction vacated.
• Allegation: St. Louis, Mo. man was not protesting the acquittal of a police officer, was not involved in riotous behavior, and did not receive a dispersal order from officers. Yet, when he left his home near the scene of a protest, he was rounded up via officers' kettling technique, pepper sprayed, and arrested with zip ties (along with ~100 others). Eighth Circuit: No QI for the officers who participated in the kettling, even if they were following orders. And no QI for the supervisory officers who failed to intervene.
• University of Arizona student brings Title IX suit, alleging the university should be liable for taking insufficient steps to prevent physical abuse she suffered at the hands of her former boyfriend, a university football player who assaulted two former girlfriends (he's now serving five years). Ninth Circuit: No liability. The abuse took place at the player's off-campus apartment, where the university has no control. Dissent ("strong[] but respectful[]"): Players are only allowed to live off campus with university permission, and that's contingent on good behavior. They had plenty of control.
• Arizona inmate orders six rap/R&B CDs and two Nation of Islam texts. Prison declares the CDs unauthorized content because of the references to drugs, sex, and violence and declares the Nation of Islam texts unauthorized because they had previously been excluded for promoting racism and the superiority of one group. The inmate sues. District Court: All fine. Ninth Circuit: Not fine! The inmate has adequately alleged both that the unauthorized-content rule is enforced inconsistently (e.g., the prison library is full of romance novels) and that he sincerely believes the books are necessary for his observance of Ramadan.
• Are Roth IRAs excluded from Georgia debtors' bankruptcy estates? Bate your breath no longer, world. The Eleventh Circuit says yes.
• And in en banc news, the Eleventh Circuit will reconsider its decision striking down a 2014 Alabama law changing the judicial process by which a minor can obtain an abortion without parental consent so as to allow or require the participation of parents, the district attorney, and a guardian ad litem for the fetus, "transforming it from a proceeding that was designed to be more of an avuncular visit in chambers with the judge than an open court, call-your-first-witness affair."
• And in amicus brief news, IJ is asking the Supreme Court to affirm a Ninth Circuit ruling allowing constitutional claims to proceed against a CBP agent, who (among other things) allegedly assaulted a man after the man asked him to leave his property. In recent cases, the Court has suggested that such claims (which the Ninth Circuit found are the only remedy available to this plaintiff) are improper and ahistorical—a remnant of the "heady days" in the 1960s and '70s when the Court felt comfortable creating causes of action without the express approval of Congress. In the brief, however, we argue that claims for damages for violations of individual rights have always been a part of our legal system and that it's the Court's recent doctrine that is a break with tradition (and, moreover, that the Court should take the two IJ cases involving the same issue that are currently pending on cert). Click here to read the brief.

In 2015, then-Judge Gorsuch of the Tenth Circuit suggested that victims of government misconduct should look to state tort law rather than the Constitution to seek redress for their injuries: "Often, after all, there's no need to turn federal courts into common law courts and imagine a whole new tort jurisprudence under the rubric of § 1983 and the Constitution in order to vindicate fundamental rights when we have state courts ready and willing to vindicate those same rights using a deep and rich common law that's been battle tested through the centuries." This week, IJ released a study, 50 Shades of Government Immunity, that takes up that suggestion, examining each state's regime for civil rights enforcement—and finds them wanting. Click here to read it.

Comments

[Bob from Ohio]

"romance novels" = "six rap/R&B CDs"

Only said by someone who has read/heard neither.

9th circuit remains the worst circuit

[LawTalkingGuy]

"For example, Jones submitted evidence that inmates have access
to shows like L.A. Gang Wars; Moonshiners; Drugs, Inc.;
Nazi Underworld; Aryan Brotherhood; and Dexter. We
cannot determine merely by reading the titles whether these
materials violate ADC’s prohibitions on publications
containing “depictions or descriptions” of “street gangs” or
“drug paraphernalia” but we may draw a reasonable inference
that they do. See DO 914.07 § 1.2.4, 1.2.7. Jones also
provided excerpts from ADC’s library catalog and inmate
testimony showing that ADC provides inmates access to
books like James Patterson’s Kiss the Girls, a psychological
thriller about the serial killing of young women, and an entire
selection of romance novels, which “may . . . cause or
encourage sexual excitement.”

Written by Torture-Endorser Jay Bybee. If the torture guy thinks a prison isn't on the level with its treatment of prisoners, maybe its a sign that they're not?

[Bob from Ohio]

The blurb was pretty misleading to use as the example "romance novels" then.

Though "romance novels" have little to do with "sexual excitement”.

[Jimmy the Dane]

Only a judge would not understand romance novels are written for women, not men. Most men would find the contents boring and dull, not sexually exciting.

[apedad]

Yeah...those roles get a little mixed up in prison.

[Drewski]

I dunno. I really liked War and Remembrance, the Prince of Tides, and a few other romance novels, and last time I checked I was a man. You'd have to be pretty damn insecure to avoid great books because you think genres have genders.

[Brett Bellmore]

Bujold has had remarkable success selling to men, and most of her novels are romance novels on some level. They're just a combination of romance and space opera, or romance and sword and sorcery, or what have you.

[LawTalkingGuy]

I’m not so sure. Those are often linked. Although my search of the library of Congress classification system outlines didn’t really reveal a linkage to sex/sexuality/erotic fiction with romantic fiction (and by romantic I mean the colloquial use, not the literary use describing an artistic era or a genre like an “Arthurian” romance, or anything having to do with Romance languages). Of course a book can have multiple LCC subjects related to it, and sometimes the classification is odd.

I’d probably ask a literature professor or librarian to be sure though.

[LawTalkingGuy]

"(Separately, First Circuit—Courier font? Still? Why? Is it because of the Massachusetts state courts? You don't have to stick with them on this. And this wouldn't be the first time you broke with the Massachusetts SJC on a matter of pressing nationwide significance. Remember when you split with them on the Fourth Amendment's protections for cell-phone data? And then the Supreme Court said you were in the right? You could do the same here, but with fonts.)"

Yes. Finally Short Circuit is annoyed by this too. Can IJ send them a couple of copies of Butterick?

[Jimmy the Dane]

I once set the default font in Word for one enterprise to Trebuchet MS on the request of the authorized IT rep. No one cared except the two people who REALLY cared...

[Kevin Smith]

Yeah, the amount people care abiut fonts is pretty much 0, or 100. Not much in between

[Michael P]

Monospaced (fixed width) fonts like Courier are pretty bad for publishing, though. They're okay for computer source code because the important notations there are not English, and okay for printed drafts because monospacing makes it easier to mark up changes by hand, but they make it harder to read prose.

[Jerry B.]

“While he was on the campaign trail, President Biden told voters that he would allow states to "continue to make their own choices" on marijuana legalization. So just why is the FBI trying to forfeit nearly $1.1 mil from California-legal cannabis businesses?”

Because that was a campaign promise, which the progressive commentariat at the Washington Post assure me should not be considered as binding (if made by a Democrat, of course).

[John F. Carr]

The Etch-a-Sketch rule applies after the general election as well as after the primary.

[Intelligent Mr Toad]

OFF TOPIC: How Democrats should handle the nomination and confirmation of Justice Breyer's replacement

Senator Susan Collins is right: there is no rational reason to rush the SCOTUS appointment. However, there is a very good irrational reason: payback for Mitch McConnell's shameless and disgusting treatment of Merrick Garland's and Amy Coney Barrett's nominations.

What the Democrats should do is this: President Biden should nominate a candidate, and the Democratic senators should confirm her, on a party-line vote, two or three days later, without telling the Republicans her name or anything about who she is. If any Republican asks whom President Biden has nominated, the answer should be: "According to the McConnell rule, I don't have to answer that question. After she swears the oath and begins work as a new Associate Justice of the Supreme Court, THEN we'll tell you who she is. McConnell-rule!"

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You're right. That is pretty intelligent -- for a toad.

[bernard11]

Senator Susan Collins is right: there is no rational reason to rush the SCOTUS appointment.

I don't recall the Lady of the Furrowed Brow being concerned about how Barrett's confirmation was rushed.

[Bob from Ohio]

You ought to work on your memory.

“Prior to Justice Ruth Bader Ginsburg’s death, I stated that, should a vacancy on the Supreme Court arise, the Senate should follow the precedent set four years ago and not vote on a nominee prior to the presidential election. Since her passing, I have reiterated that in fairness to the American people -- who will either be re-electing the President or selecting a new one -- the decision on the nominee to fill the Supreme Court vacancy should be made by whoever is elected on November 3rd."
“Because this vote is occurring prior to the election, I will vote against the nomination of Judge Amy Coney Barrett. To be clear, my vote does not reflect any conclusion that I have reached about Judge Barrett’s qualifications to serve on the Supreme Court. What I have concentrated on is being fair and consistent, and I do not think it is fair nor consistent to have a Senate confirmation vote prior to the election.”

https://www.collins.senate.gov/newsroom/senator-collins%E2%80%99-statement-supreme-court-nomination

[bevis the lumberjack]

She voted against Barrett for that exact reason - too fast.

But if you want to ignore that for partisan reasons then knock yourself out.

[Michael P]

Do you think that 50 Senators plus VP Harris will all sign on to that demonstration of phenomenally bad faith? And that there are no elections later this year, and also that voters will forget that kind of stunt before 2024?

[Intelligent Mr Toad]

Didn't hurt the Republicans who went along with McConnell, did it?

[Michael P]

When did Republicans hold a confirmation vote without telling Democrats the name of the nominee?

[Jason Cavanaugh]

When did you realize that you had to move your goalposts from "bad faith" and "stunt" to something else?

[gormadoc]

Who are you talking to? That is actually what Toad suggested, Micheal didn't come up with it out of nowhere.

[Jason Cavanaugh]

Michael can't refer to that idea as just "bad faith" and a "stunt" because McConnell's behavior easily qualifies. Only by specifically setting the standard at holding a vote without telling anyone the name does his argument hold any water.

So he changed what his standard was for crying foul.

[Michael P]

Your complaint is nothing more than "Turtle is an effective politician!"

There is precedent for Democrats calling a vote without letting anyone know what was voted on. Remember "we have to pass the bill so that yourl can find out what is in it"? It's just that that bad-faith stunt cost them before. My standard hasn't moved.

[Sarcastr0]

You don't have standards; you set them by your side's partisan characterization of the other side. It's a closed cycle where one side is on both sides of the equation.

With such false equivalences you can rationalize anything.

For instance, pass the bill to find out what's in it was not about a bill whose text was secret. It was about implementation by the executive.

[Brett Bellmore]

It wasn't just about a bill whose text was secret. Or rather, extremely long, and opponents denied enough time to look through it for sneaky provisions. But it was at least partially about that.

And, yeah, if you can't tell what the implementation will be until the bill is passed, you're over-delegating, and it's a bad bill.

[Sarcastr0]

It wasn't a bill whose text was secret *at all.* Your added 'just' is wrong.

There were no sneaky provisions. Nothing came up that the GOP wasn't tracking about the ACA.

Unlike, say, Trump's tax bill:
https://www.washingtonpost.com/news/politics/wp/2017/12/02/democrats-fume-over-absurd-gop-tax-bill-full-of-last-minute-handwritten-edits/

if you can't tell what the implementation will be until the bill is passed, you're over-delegating
This is literally every administrative agency. Unless you think Congress predicted every regulation when they created the agency.

[Brett Bellmore]

Yeah, that IS literally every modern regulatory agency. Your point?

[Intelligent Mr Toad]

"Payback" doesn't mean you do to the opponent the same thing that the opponent did to you. It means you also include a bit of interest. You go a little further than your opponent did.

[Michael P]

In a vote to confirm "a nominee to be named later", voting in the negative is the principled and rational choice. You instead claim that it is a sign of partisanship. The American public would recognize that you are backwards, and that voting for such a confirmation is not only a sign of partisanship but an abdication of responsibility and accountability.

[Jimmy the Dane]

Haven't read the law of judicial appointments, but I take it at least statute authorizes the nomination and confirmation of a Justice that has announced their retirement? Otherwise, there is no vacancy so how you can nominate someone for something that is not vacant?

[Armchair Lawyer]

Here's a better question. Say they rush the nomination and confirmation, and they confirm a new SCOTUS judge before Breyer actually retires.

Is such a confirmation legal, if they position that is being confirmed isn't actually open yet?

[Life of Brian]

It appears today's answer is no:

The Senate can begin processing the nominee before the seat is vacated, a Democratic aide said, adding that Biden would simply need to wait to officially appoint his pick until Breyer's retirement becomes official.

We'll see if they come to a more enlightened understanding down the road.

[Armchair Lawyer]

I'm sure they can begin "processing". What I'm really curious about is the actual final Senate confirmation vote.

Does that need to wait till Breyer's retirement is official?

[Life of Brian]

If he can make the nomination ahead of time, it's not clear why the "advice and consent" part would have to wait.

[Armchair Lawyer]

I will address below to mse.

[mse326]

There are 3 parts.
1. Nomination (by the President)
2. Confirmation (by the Senate)
3. Appointment/Commission (by the President)

Until all 3 are completed nothing has been done. That was one of the key holdings of Marbury (in that the question was whether there was a 4th step of delivery which it said no) There is nothing in the Constitution that requires a vacancy for nomination and confirmation. Biden can't sign the commission until Breyer retires but that is it, since until then neither the retirment is official, nor is the process of appointment.

[Armchair Lawyer]

OK.

Let's hypothesize for a second. Let's say that after confirming Breyer's replacement, Biden nominates a second SCOTUS judge. Hypothetically, it's for Thomas's seat, but it doesn't really matter. The Senate in 2022 confirms that nomination. In 2023, the GOP takes the Senate. In 2024, Thomas passes away. Biden uses the sitting confirmation to appoint the candidate the Senate confirmed in 2022 for Thomas's seat.

Is there anything wrong with that?

[mse326]

I don't know for sure, my instinct though is advice and consent doesn't survive the end of that Senate.

[Armchair Lawyer]

That's my feeling as well.

The issue I'm having is with what happens if the Senate composition changes in the middle of the Senate session (IE, a member retires or passes away).

Are there any previous examples of nominees being confirmed before the position is actually open?

[mse326]

Isn't this exactly what O'Connor, Souter, and Stevens did. Probably more too

[Kevin Smith]

I guess it all depends on what you consider rational. Given their careers I would assume politicians consider partisan politics to be rational, therefore rushing (or delaying) a nomination is perfectly rational, depending on the circumstances

Also, wouldn't voting on a nominee without knowing who it is be more of a Pelosi rule? Gotta pass it to see whats it in, and all that

[Jimmy the Dane]

Meanwhile in media hypocrisy of the week -

A convoy about 15 miles long of truckers and other supporters fighting against a universal vaccine mandate in portions of Canada is set to arrive at the Capital and is threatening to stay until said mandate is repealed. The media has greeted these protesters by calling them "niche", "extreme", "small", and other diminutive terms.

Compare this to convoys of illegals that start out in Southern Mexico and make their way to the US border. Those few hundred people who have announced openly that they intend on breaking the laws of not only Mexico but the US, who have handlers that are funded by shady non-profits (read Soros money) that coordinate these pawns with radios and cell phones, look very well cared considering they are supposedly walking hundreds of miles with children, and can be seen carrying take away containers of food and "designer" bottled water, enjoy praise from the media and front page coverage.

File this under why no one takes the media seriously anymore.

[grb]

File this wacko fantasy rant under "why no one takes Jimmy the Dane seriously anymore"

PS : Soros ?!? Really ?!? Are you trying to look stupid?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

File your comment under "leftielites haven't a clue about what the unwashed masses think".

[grb]

And file your response under "(indecipherable name) libels the unwashed masses". They really don't deserve Jimmy's stream-of-consciousness bullshit, neither as source or intended target.

(they're better than that, whatever their hygienic state)

[bernard11]

leftielites haven't a clue about what the unwashed masses think".

Stupid is stupid. If some "unwashed masses" think Soros is plotting some sort of takeover of the country they're idiots, and you shouldn't be defending that bullshit.

[Michael P]

Huh. Nobody mentioned a Soros takeover of the country before you. Are you privy to some leftielite secrets on the topic?

[Davedave]

The neo Nazi above literally just accused Soros of bankrolling fake migrants.

It's amusing the views of your fellow travellers are so vile that even you realise it's best to lie and deny rather than defend.

[Michael P]

I can tell the difference between the two ideas. I wonder why you can't. Probably the same reason that your fellow travelers cry antisemitism whenever anyone points out Soros's terrible ideas or their consequences.

[Sarcastr0]

Sounds like Dr. Ed with his 'Joe Sixpack agrees with my crazy take' nonsense.

There is no sleeping giant, no unwashed masses, no silent American. Not in the way the right invokes them - the idea that they are speaking for a secret majority.

If you need to make up your populous, maybe you're not actually a party with the best interests of the public at heart.

[benji]

I miss Dr. Ed.

[Jimmy the Dane]

I worked on a boat for about a year when I wanted a change of pace many years ago. As part of our operation we would bait traps. I felt a little bad that the bait was so obviously in the trap knowing that the prey would just fall for it easily because that was their nature. Years later I would realize the same thing works for programmed lefties.

Here is exhibit 101. Simply point out the obvious, that these caravans are being coordinated, supported, and organized by a third party then throw out the, probably next obvious extension, Soros is funding them in part or wholly, and watch the lefties go crazy. And you know what you say is true when they respond much like grb did above.

If it were as crazy as this internet commenter wants you to think why not try to refute it. The obvious answer is he can't because it is true. It is also that truth that gets them really mad and they take it out on their poor keyboard.

Do some free thinking their grb. The truth is out there.

[David Nieporent]

I'm not sure that anti-semitic conspiracy theories should really be called "the obvious."

[bernard11]

Fuck you, Jimmy.

Your ideas are from outer space.

How can anyone "refute" your claim that the

"caravans are being coordinated, supported, and organized by a third party then throw out the, probably next obvious extension, Soros is funding them in part or wholly, and watch the lefties go crazy. And you know what you say is true when they respond much like grb did above."

You are deranged. Do you actually practice law? I take pity on your clients.

[Jimmy the Dane]

Who said anything about Soros and jewish conspiracies? Soros funds lots of left wing stuff? Are all those initiatives, as you seem to allege also part of some Jewish conspiracy? Just curious. How about all those DA's he helped get elected? Is going soft on crime part of the Jewish cabal conspiracy that you seem to believe exists?

Is it really that hard to believe that Soros would be funding open border NGO's that are supporting these migrant caravans? I don't think so and neither do those who have observed and researched these. They are not spontaneous groups of people who decide to just walk to the US border. They have handlers and observers that provide logistical support and even immigration lawyers upon arrival. Who funds them? Would it be a surprise that the guy who can be traced back to funding many many left wing things also throws in a few bucks for that? Not really.

Just another example of how liberals are knee jerk angry keyboard warriors programmed to respond with hate and vitriol when confronted with red pill truths.

[grb]

JtD : Your original comment above had two elements :

(1) That the media (somehow) mis-covered the caravans. But what exact do you claim here? The media covered these groups with relentless intensity when they numbered a few thousand, egged-on by constant right-wing hysteria. Please remember this was when Trump said we needed to call up the army to repel an "invasion". By the time the caravans dwindled in numbers to a few hundred, the coverage had dwindled as well.

So what's your point on this? Answer: You have none. You're so busy with your childish butt-hurt snowflake victimhood whining about the media, you forgot to be coherent. Once again, a reminder : It was your side, the Right, that DEMANDED non-stop coverage of this silly circus. My side, the Left, said it would turn out to be nothing. We were correct, not you.

(2) That there was some nefarious "deep-state" conspiracy behind the "caravans" and it was run by Soros. But this is just imbecilic bullshit on your part. You have no evidence. You have no motive. You have no logic framework in which your wild theories could be true. You have no clue.

Red Pill Truths? That's apt, because what you claim to believe at any moment is usually just right-wing porn - sordid cartoon-grade entertainment. You might as well get your "beliefs" from cheesy movies, since you don't give a damn whether anything you say is plausible or true. If you have any evidence of your grassy-knoll conspiracies, then please put-up.

Otherwise, why not leave these comments to adults?

[gormadoc]

"How can anyone "refute" your claim"
I can, having seen refugees/illegal immigrants (whatever you'd like to call them) in Mexico. If they were supported/funded/coordinated, why were they wasting their time trying to perform in Mexican streets for money and being accosted by angry Mexicans rather than just getting driven to the border and walking across? It's quite sad to watch.

[Intelligent Mr Toad]

Let's be fair. When he typed "Soros", it was probably a typo. He meant to type "Rothschild".

[Sarcastr0]

There are meaner, dumber, and crazier commenters here. But Jimmy is the least serious poster here by a longshot.

Like a child wearing mimicking what he thinks an argument is like.

[Jimmy the Dane]

Says the guy who just outright lies about what people says so he can create a strawman that is easier for his feeble brain to dispute.

[Archibald Tuttle]

Oh boy. Oh boy. I can't wait for the CA State Police to kettle technique on San Francisco.

[Drewski]

Not a substantive comment, but am I the only one bothered by the word "forfeit" gradually taking on a meaning opposite to the traditional one? If I rob a bank, I don't say the bank stole a thousand dollars to me.

[gormadoc]

Well, we have to make sure everyone knows the property owner voluntarily gave up their property. It's not like the government just pillages property.

[Holden C]

Eugene Volokh is a dishonest and hypocritical person who supports the continued lack of regulation of the internet to harm cyberstalking victims.

For years, Eugene Volokh has worked endlessly to strike down state, Federal laws and proposed legislation that would have cracked down on cyber-stalking, cyber-harassing, doxing, malicious cyber-bullying, invasions of privacy.

Eugene’s First Amendment absolutist approach is extremely dangerous and dishonest. He fails to highlight that many of his papers have been funded by Google. He is likely being funded by Big Tech to spew an “absolutist” view of Free Speech so cyberstalkers, cyberharassers, and online criminals can continue to terrorize and ruin victims’ lives without repercussion, as Eugene gets paid behind the scenes by Google for working to strike down legislation.

It is probably not a coincidence that Eugene Volokh’s analysis NEVER considers the impact to the victims who have NO legal recourse thanks in no small part to Eugene Volokh’s lobbying to strike down any laws that would protect victims, even if they hold online harassers accountable.

Online harassment is a CRIME. It is malicious, intentional, and destroys lives. Online criminals should not be able to hide behind “free speech” while destroying people’s lives in the process. Eugene NEVER talks about the plight of the victims and the need to balance “Free Speech” with other rights, including the RIGHT TO BE FREE FROM HARASSMENT and RIGHT OF PRIVACY.

Eugene is a dishonest “professor” who is actually being paid by Big Tech to keep the internet as unregulated as possible so Google can maximize its profits at the expense of innocent victims who have their lives ruined.

Prove me wrong Eugene. Since when have you ever taken into consideration the impact to VICTIMS of cyberstalking? You purposely ignore this aspect of the crime because you are being bribed by Big Tech.

Hypocritically, Eugene Volokh CENSORS my posts here while he fights for the FREE SPEECH rights of cyberstalkers and online criminals to harm their victims in whatever way they see fit.
Eugene Volokh is a total hypocrite and totally dishonest person.

[David Nieporent]

Online harassment is a CRIME. It is malicious, intentional, and destroys lives. Online criminals should not be able to hide behind “free speech”

If it's free speech, then it isn't a crime, and they aren't criminals.

At least you've stopped claiming that the EU and Hong Kong are countries.

[Davy C]

Complaining about online harassment while repeatedly posting insults about someone isn't a good look.

You claim that Volokh is taking bribes. OK, but what if this blog was anonymous? You'd have to dox him first before you could show that. You should, and do, have a First Amendment right to do so. (I mean, he has every right to kick you off of his blog, but the government shouldn't be able to arrest you for it.)

[Holden C]

According to Eugene Volokh, America is a better nation if:

1. People are allowed to post naked pictures of others online as a form of revenge, because Eugene Volokh views these postings as "valuable free speech."

2. Stalkers should be able to post private information to torment victims and control their lives online, even when the victims have done nothing wrong to the stalkers, and the stalkers are stalking out of mental illness or desire for control. Eugene Volokh views the cyberstalker's crimes as "precious free speech."

3. Maliciously doxing someone for the intent of harassing them online should be legal, and even celebrated, as Eugene Volokh views this as "precious free speech" that the "public just needs to know." No consideration to the victim or the malice of the harasser.

Is this the world you want to live in? Where a total free-for-all occurs online with no legal accountability and no civility? Apparently, Eugene wants it. More likely than not, he is paid by Google to peddle this dangerous "neoliberalism" because he gets paid behind the scenes as a form of bribe by Big Tech.

[Holden C]

Section 230 of the CDA is nothing more than state-sponsored cyber-terrorism. The USA has become a country that uses "liberalist" nostrums (like the ones peddled by Eugene Volokh) to harm citizens and encourage cyber-stalking and cyber-terrorism.

According to Eugene Volokh (EV), the USA would be a better nation if:

1. People are allowed to post naked pictures of others online as a form of revenge, because Eugene Volokh views these postings as "valuable free speech."

2. Stalkers should be able to post private information to torment victims and control their lives online, even when the victims have done nothing wrong to the stalkers, and the stalkers are stalking out of mental illness or desire for control. Eugene Volokh views the cyberstalker's crimes as "precious free speech."

3. Maliciously doxing someone for the intent of harassing them online should be legal, and even celebrated, as Eugene Volokh views this as "precious free speech" that the "public just needs to know." No consideration to the victim or the malice of the harasser.

Is this the world you want to live in? Where a total free-for-all occurs online with no legal accountability and no civility? Apparently, Eugene wants it. More likely than not, he is paid by Google to peddle this dangerous "neoliberalism" because he gets paid behind the scenes as a form of bribe by Big Tech.

Eugene Volokh talks a big talk about "Free Speech" but THE GUY CENSORS MY POSTS HERE, he has deleted several of them.

What happened to your FREE SPEECH Volokh? All of a sudden you change the rules when you become called out for your hypocrisy?

[David Nieporent]

I mean, this guy is mentally unbalanced, but out of curiosity I went back and checked on that first numbered point. At least at one point, EV argued that narrow revenge porn laws would be acceptable under the 1A. So this guy isn't even correct.

[gormadoc]

"THE GUY CENSORS MY POSTS HERE, he has deleted several of them"
Because they're annoying and irrelevant, not because you have a decent argument.

[BadLib]

I'm against asset forfeiture without a conviction of the person(s) associated with the assets and I'm in favor of legalizing all drugs (but, of course, not relieving anyone of criminal responsibility for what they do while on drugs or expecting society to pay for medical problems that arise from using recreational drugs).

However, asset forfeiture seems to be legal and, at the federal level, clearly marijuana is not. Everyone involved in the "legal" marijuana trade in states that have "legalized" it knows that what they are doing is still against federal law. Hence, I have a hard time getting very exercised because the Feds are using asset forfeiture against criminals violating federal drug laws.

If a bunch of states passed a law making it legal to assassinate any Democratic President who set foot in the state, surely no one would think that the federal laws against assassinating the President should not be enforced within the sate.

[benji]

You should read the case, the state is rather specifically using federal cooperation to get around state laws since it means they can get a cut of the funds versus none.

[Brett Bellmore]

The problem is that the federal laws in this case exceed the authority the Constitution gave Congress. Would have been struck down already if not for "but, drugs!" jurisprudence.

And the problem with civil forfeiture is that it's a work around to deny the accused their presumption of innocence. So I don't particularly CARE if the accused are unsympathetic.

"If a bunch of states passed a law making it legal to assassinate any Democratic President who set foot in the state, surely no one would think that the federal laws against assassinating the President should not be enforced within the sate."

Obvious equal protection violation. A state could, I think, repeal its laws against murder, but it can't repeal them only in regards to a specified group.

[tkamenick]

"And the problem with civil forfeiture is that it's a work around to deny the accused their presumption of innocence. So I don't particularly CARE if the accused are unsympathetic."

I agree, but one of the problems with the fight against CIVIL asset forfeiture is a lot of the participants in the fight (intentionally or not) lump together civil and criminal asset forfeiture and say "LOOK HOW MUCH ASSET FORFEITURE THERE IS"