From Florida Administrative Law Judge Gary Early's Oct. 31 recommended order in Turnage v. Bob Evans Restaurant, LLC, considering the question "Whether Respondent discriminated against Petitioner in a place of public accommodation due to his race or sex through an act of sexual harassment in violation of section 760.08, Florida Statutes":
On January 3, 2024, Petitioner, through his counsel, Bernard R. Mazaheri, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) alleging that Respondent, Bob Evans Restaurant, LLC, discriminated against him by serving him a pancake "shaped into a penis and balls." {A photograph of the pancake was included in the Charge of Discrimination. Unless Petitioner was advised that it was intended to depict a penis, it could just as easily be a pancake-based representation of an elephant, or when viewed from a different angle, the capitol building of the state of Florida.} …
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, the Supreme Court is conferring this very day about whether to take up Baker v. City of McKinney, which asks the question: If a SWAT team blows up an innocent person's house to apprehend a fugitive, who pays for the damage? The unlucky homeowner or the public as a whole? Defying fairness, justice, and 150 years of Supreme Court precedent, last year the Fifth Circuit went with the former. Click here to learn more.
This week on the Short Circuit podcast: A 20-word victory at SCOTUS about walking on the wrong side of the road.
An Introduction To Constitutional Law Video Library: Dred Scott v. Sandford (1857), The Slaughter-House Cases (1873), Bradwell v. Illinois (1873), U.S. v. Cruikshank (1876), Strauder v. West Virginia (1880), The Civil Rights Case (1883), Yick Wo v. Hopkins (1886), Plessy v. Ferguson (1896)
In this closed case, plaintiff George Kersey, who represents himself, argued that the political stance of the Republican National Committee is inconsistent with its name. The Court dismissed the case as frivolous ….
Kersey tried to appeal, and to decide whether he was entitled to, the court had to consider whether to waive the filing fee (based on Kersey's poverty). No, said the court, because "Kersey's appeal is frivolous":
No reasonable person could believe that his claim, which argues for the Republican Party to change its name to better align with its platform, has any legitimate legal basis. The Court previously explained that political parties have the First Amendment right to choose their own names, ideologies, and candidates.
Seems quite correct for me, as to Republicans, Democrats, Libertarians, Peaceniks & Freedomers, and even the Rhinoceroses.
On Tuesday morning, I woke up with some apprehension. No, not about the presidency, but about the judiciary. I was fearful that if Harris had prevailed, with majorities in both houses, the Supreme Court as we knew it would be gone. Through so-called judicial "reform," the long-standing nine-member Court would either be expanded, or tiered through term limits. Who on the left would oppose it? While the former approach is clearly within Congress's powers, the latter approach would be unconstitutional. Such a law would create a clash with the Court. And your guess is as good as mine about what would happen. Look how quickly the Mexican Supreme Court folded. There would also likely be expansion of lower court judges. When Steve Calabresi proposed this idea during the early Trump Administration, I vigorously opposed it. Thankfully, this idea never came to pass. But had Harris tried this approach, who on the left would oppose it? All we would hear would be noise about the Fifth Circuit, buttressed by a never-ending series of tweets, substacks, and podcasts. At that point, familiar debates about originalism and vacatur would become quite pointless. Much of my work in the field of constitutional law would amount to little. I do like teaching Property!
Tuesday was a very long day. I deliberately did not watch any cable news until about 8:00 ET when polls started to close on the east coast. With my many monitors, I was simultaneously watching CNN, FOX, MSNBC, CBS News, and keeping an eye on the NY Times "needle." Every few moments I would turn the volume on from a different channel. As the evening wore on, the Fox correspondents started to smile more while the MSNBC correspondents started to look more dour. By midnight, it became pretty clear that Trump would prevail. I stayed up till about 3:00 in the morning after President Elect Trump's victory speech.
As I watched that speech, my concerns for the judiciary evanesced--for at least four more years. I don't pretend for a moment that efforts to destroy the Court have magically vanished. They will simply lie in wait until power is reclaimed. Indeed, the foundation for Court "reform" will continue, unabated, over the next four years. There will be a never-ending series of tweets, substacks, and podcasts about the "illegitimate" Court and the "corrupted" Justices. Make no mistake about the object of those outputs.
Where does that leave us now? The most imminent question is what happens to the Solicitor General's cases that are currently pending before the Supreme Court. Most of the federal cases are not particularly controversial, so there should be no changes. But for high-profile matters, there may be "presidential reversals." (I wrote about these flips in a 2018 article.) "Upon further reflection" is code for "upon further election." The most obvious candidate is Skrmetti. When the case was granted, I observed that the Court only took the government's petition. And this grant would leave open the possibility that a Trump DOJ could flip sides, and support the Tennessee law. At that point, what happens? A DIG? Munsingwear? Does the Court appoint an Amicus? Let the ACLU take over the case? Or does the Trump DOJ let the case ride, and see if the Court upholds the law. The case will be argued in December. I'm sure all eyes will be on Justice Gorsuch to see what he does. We remember the fallout to Gorsuch's questions in Bostock.
Stephen Kotkin is a preeminent historian of Russia, a fellow at Stanford University's Hoover Institution and Freeman Spogli Institute for International Studies, and the author of an acclaimed three-volume biography of Joseph Stalin. (The third volume is forthcoming.) Kotkin has also written extensively and insightfully on geopolitics, the sources of American power, and the twists and turns of the Trump era. Executive Editor Justin Vogt spoke with Kotkin on Wednesday, November 6, in the wake of Donald Trump's decisive victory in the U.S. presidential election.
You've written a number of times for Foreign Affairs about the war in Ukraine and what it means for the world and for American foreign policy. So let's start with an obvious question. It's impossible to know, of course, but what do you imagine Russian President Vladimir Putin is thinking right now, with Donald Trump poised to return to the White House for a second term?
I wish I knew. These opaque regimes in Moscow and Beijing don't want us to know what they think. What we do know from their actions as well as their frequent public pronouncements is that they came to the view that America was in irreversible decline. We had the Iraq War and the shocking incompetence of the follow-up, where Washington lost the peace. And we lost the peace in Afghanistan. We had the 2008 financial crisis and the Great Recession. We had a lot of episodes that reinforced their view that we were in decline. They were only too happy to latch onto examples of their view that the United States and the collective West, as they call it, is in decline and, therefore, their day is going to come. They are the future; we are the past.
Now, all of that happened before Trump. True, it looks like Trump is potentially a gift to them, because he doesn't like alliances, or at least that's what he says: allies are freeloaders. But what happened under Biden? It's not as if American power vastly increased under Biden, or under Obama, for that matter. So Trump may accelerate what Moscow and Beijing see as that self-weakening trend. But he's unpredictable. They may get the opposite. And they have revealed a lot of their own weaknesses and poor decision-making, to put it mildly.
On Ukraine, Trump's unpredictability could cut in many directions. Trump doesn't believe one thing or the other on Ukraine. And so in a way, anything is possible. It may turn out to be worse for Ukraine, but it may turn out to be better. It's extremely hard to predict because Trump is hard to predict, even for himself. You could even have Ukraine getting into NATO under Trump, which was never going to happen under Biden. Now, I'm not saying that's going to happen. I'm not saying there's even a high probability—nor am I saying it would be a good thing, or a bad thing, if it happened. I'm just saying that the idea that Trump is some special gift to our adversaries doesn't wash with me. And he may surprise them on alliances and on rebuilding American power. It might well cut in multiple directions at once.
OK, but if you had to give Ukrainian President Volodymyr Zelensky advice right now, what would it be? …
Veritas had been suspended from Twitter for including an interview subject's house number; CNN "suggested on-air that Twitter banned Veritas for 'promoting misinformation.'"
Today's Eleventh Circuit decision in Project Veritas v. CNN, written by Judge Elizabeth Branch and joined by Judges Andrew Brasher and Ed Carnes, involves CNN's coverage of Twitter's suspension of Project Veritas:
On February 11, 2021, Veritas tweeted a video showing its reporters trying to interview Guy Rosen, then a Facebook vice president, outside a residence. Neither the video nor the text of the tweet accompanying the video contained any information related to the street, city, or state where the attempted interview took place. That said, a house number could be seen in the background of the video. That same day, Twitter suspended the official Veritas account on the grounds that the video violated Twitter's policy against publishing private information (informally known as a "doxxing" policy).
But CNN "suggested on-air that Twitter banned Veritas for 'promoting misinformation.'" Veritas sued CNN for defamation, and the Eleventh Circuit allowed the claim to go forward ("Taking the allegations of the complaint as true, as we must at the pleadings stage"):
We start by comparing the pleaded truth with the alleged defamation. The pleaded truth is that Twitter suspended the account of Veritas for doxing— publishing "private information [of another] without [his] consent." The alleged defamation is that [CNN anchor] Cabrera suggested on-air on February 15 that Twitter suspended Veritas's account for "promoting misinformation." Recall that Cabrera stated the following on-air:
That social media companies were "cracking down to stop the spread of misinformation and to hold some people who are spreading it accountable";
"For example, Twitter has suspended the account of Project Veritas …."; and
"[T]his is part of a much broader crackdown, as we mentioned, by social media giants that are promoting misinformation." …
[U]nder New York law, a defamatory statement is substantially true [and thus not actionable] if "the overall gist or substance of the challenged statement is true." Thus, the relevant question is whether the "gist" or "substance" of being suspended for "promoting misinformation" is the same as being suspended for "publishing private information of another without their consent." We conclude that it is not.
If you have been following the debate about universal or nationwide remedies, you know that a lot of attention is currently being paid to the Administrative Procedure Act and vacatur. One of the most recent articles on this question is The Truth of Erasure: Universal Remedies for Universal Agency Actions, by T. Elliot Gaiser, Mathura Sridharan, and Nicholas Cordova. I have just published an analysis and response at Notice & Comment, the blog of the Yale Journal of Regulation, and you can read it here.
Sexual assault accusers have long sought anonymity in the courts and in the media. The flood of complaints during the #MeToo movement ushered in a much broader societal understanding of their fears of retribution and social stigmatization, and protocols in the American media that withhold accusers' names became even more entrenched ….
Securing anonymity in civil court can be much more challenging.
So far, at least two judges in Federal District Court in Manhattan have rejected requests from plaintiffs to remain anonymous in lawsuits against Mr. Combs, who has denied sexually abusing anyone….
I have long advocated using May 1 for this purpose. But November 7 is a worthy alternative candidate, which I am happy to adopt if it can attract a broad consensus.
Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea. But I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.
As detailed in my May 1 post from 2019, November 7 is probably the best such alternative, and over time it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-Communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can avoi such objections, and thereby attract broader support.
The November 7 option is not without its own downsides. From an American standpoint, one obvious one is that it will sometimes fall close to election day, as is the case this year. On such occasions, a November 7 Victims of Communism Day might not attract as much attention as it deserves, because many will - understandably - be focused on electoral politics instead. Nonetheless, November 7 remains the best available alternative to May 1; or at least the best I am aware of.
For that reason, I am - once again - doing a Victims of Communism Day post on November 7, in addition to the one I do on May 1. If November 7 continues to attract more support, I may eventually switch to that date exclusively. But, for now, I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third option should a good one arise.
In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and based many of their institutions and policies on the Soviet model.
Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:
The Black Book of Communism estimates the total number of victims of communist regimes at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had equally horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why most of the horrors perpetrated by communist regimes were intrinsic elements of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. The latter probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is probably inevitable in a socialist economic system in which the government controls all or nearly all of the economy.
While the influence of communist ideology has declined greatly since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's socialist policies have resulted in political repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere. Recent events in Venezuela also highlight the dangers of "democratic socialism." While most communist regimes have taken power by force, ignorance about the history of communism and socialism could enable such movements to take power by democratic means and then eventually shut down democracy, as has actually happened in Venezuela. Victims of Communism Day can help combat such ignorance.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal war on Ukraine is primarily based on Russian nationalist ideology, rather than that of the Soviet Union. Nonetheless, the failure of post-Soviet Russia to fully reckon with its oppressive Soviet past is likely one of the reasons why Putin's regime came to power, and engaged in its own atrocities.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has become less and less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression). The government's brutal repression of the Uighur minority, and escalating suppression of dissent, even among Han Chinese, are just two aspects in which it seems bent on repeating some of its previous atrocities. Under the rule of Xi Jinping, the government has also increasingly reinstated socialist state control of the economy.
Here in the West, some socialists and others have attempted to whitewash the history of communism, and a few even attribute major accomplishments to the Soviet regime. Cathy Young has an excellent critique of such Soviet "nostalgia" in a 2021 Reason article.
In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the return to favor of the only ideology with an even greater number of victims.
Right now, Harris is at about 67M (N.Y. Times data), but about 45% of California votes aren't yet included in that tally, plus 30% of Oregon votes, 35% of Washington votes, 35% of Arizona votes, and some more in other states. Given that so far the 54% of California votes that have been counted are split 5.6M for Harris to 3.9M for Trump, that suggests the remaining 46% will add roughly 4.8M to Harris's tally and roughly 3.3M to Trump's.
I went through the N.Y. Times map and entered the data from the states which weren't listed as >95% reporting, and projecting from current totals, it seems like Harris is likely to get probably about 9M more, for a total of about 76M. Trump's popular vote will likewise grow considerably beyond his current 72M, to about 79M. That expected split (76M to 79M) might be compared to the 2020 final results, which favored Biden by 81M to 74M; it thus appears that we will ultimately see a likely swing of about 5M votes, give or take a million or so, I'd guess.
I mention this because I've been seeing people suggesting that the decline from Biden's 81M to Harris's 67M is highly suspicious. But, again, that doesn't make much sense, because that's comparing final 2020 totals to far-from-final 2024 totals.
Of course, I'd love to see more reliable estimates than my quite rough calculations. UPDATE: The University of Florida Election Lab estimates that 158.5M ballots were counted, which suggests that there are 19.5M ballots left to count; that's higher than my estimate of 16M left over, but still consistent with the broad point that the current totals are far from final.
The State Law of 1791 moved the county seat in Sussex County from Lewes to a more centrally located area of the county, later naming the town Georgetown after one of the leading voices in relocating the county seat further inland. At that time, voters were required to go to the courthouse in Georgetown to cast their votes for local, state, and federal office. Two days later, voters returned to hear the results read out and certified. This was the birth of the unique Delaware tradition—Return Day.
Since 1812, Return Day has been celebrated in Georgetown. Both successful and unsuccessful candidates descend on the town to close out election season in Delaware in a show of unity. Members-elect and their opponents, Democrats and Republicans for both state and local office come together for the parade through town, former opponents riding together in carriages and floats (though the losers are traditionally seated backwards), before hearing the official Sussex County vote tally in front of the courthouse. After the votes are read, everyone buries the hatchet—literally. State party leaders bury a literal hatchet in sand from Lewes, Delaware, the original county seat, officially ending the campaign cycle in Delaware. Other activities of the day include an ox roast, free to all assembled, games, and opportunities to meet elected officials.
I like that. Thanks to Harry Baumgarten for the pointer.
I liked this piece (by someone who "voted reluctantly for Harris"), and thought I'd pass it along. An excerpt:
How, indeed, did Democrats lose so badly, considering how they saw Donald Trump — a twice-impeached former president, a felon, a fascist, a bigot, a buffoon, a demented old man, an object of nonstop late-night mockery and incessant moral condemnation? The theory that many Democrats will be tempted to adopt is that a nation prone to racism, sexism, xenophobia and rank stupidity fell prey to the type of demagoguery that once beguiled Germany into electing Adolf Hitler.
It's a theory that has a lot of explanatory power—though only of an unwitting sort. The broad inability of liberals to understand Trump's political appeal except in terms flattering to their beliefs is itself part of the explanation for his historic, and entirely avoidable, comeback….
Why did Harris lose? There were many tactical missteps …. But these mistakes of calculation lived within three larger mistakes of worldview. First, the conviction among many liberals that things were pretty much fine, if not downright great, in Biden's America—and that anyone who didn't think that way was either a right-wing misinformer or a dupe. Second, the refusal to see how profoundly distasteful so much of modern liberalism has become to so much of America. Third, the insistence that the only appropriate form of politics when it comes to Trump is the politics of Resistance —capital R.
There's more, though paywalled, sorry to say. I think the "inability … to understand Trump's political appeal except in terms flattering to their beliefs" point is a particularly important one, because it describes a facet of human nature that's broadly shared by many people of all political views.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
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