The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Sex Crimes

You're 18 and Having Sex with 14-Year-Old? No Problem (in Arkansas). But Better Not Show Your Genitals!

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From Kidd v. State, decided today by the Arkansas Court of Appeals, in an opinion by Chief Judge Brandon Harrison, joined by Judges Rita Gruber and Kenneth Hixson:

Kidd and M.C. met at a private high school with ten to fifteen students. She [Kidd] was a senior. He [M.C.] was in ninth grade. Kidd was about three years, nine months older. They exchanged DMs (direct messages) on Snapchat, Instagram, and Pinterest. The conversations went where one might guess.

During Spring Break in March 2021, the two had sexual intercourse at least seven times, mostly in Kidd's parked car. She was then eighteen; he was fourteen. M.C.'s parents found out. The prosecution that followed revealed that virtually everyone involved had made some mistaken assumptions about what sexual conduct between Kidd and M.C. was or was not prohibited by Arkansas law.

Kidd had assumed that, because of her and M.C.'s ages, sexual intercourse with M.C. was a crime. She told him in one message that if she became pregnant with his baby, she would have to give birth in jail. M.C.'s parents also believed sexual intercourse between Kidd and M.C. was illegal, and testified so at the bench trial.

In truth, it was not a crime for Kidd to "engage in sexual intercourse" with M.C.—at least it was not a sexual assault, the crime she probably had in mind (and which the State might rather have charged). It would have been second-degree sexual assault for Kidd, who was "eighteen years of age or older" to engage in "sexual contact with another person who is [l]ess than fourteen (14) years of age." But M.C. was fourteen. It would have been fourth-degree sexual assault if, at "twenty (20) years of age or older" she had "[e]ngage[d] in sexual intercourse or deviate sexual activity" or "sexual contact" with a person under sixteen. But Kidd was younger than twenty.

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Free Speech

Should Universities Ban "Advocacy of Genocide"?

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This question has been in the news recently, in light of the recent House Committee hearings on "Holding Campus Leaders Accountable and Confronting Antisemitism." A few thoughts on my part:

[1.] There's no "advocacy of genocide" exception to the First Amendment, or to the contractual promises of student free speech that many private universities rightly implement.

[2.] Indeed, as I've argued before, it is important that students be free to debate what is proper to do in war, and what wars are just. War involves mass killing, in some wars by the millions. I think some such killing is atrocity and some is just. But different people draw the lines differently, and that is a matter that is quite rightly up for debate.

For instance, some people label the Israeli invasion of Gaza as "genocide." I think they're wrong, both as a moral matter and as a matter of international legal norms (such as they are). I think Israel is entitled to kill as many Hamas fighters as it can, and if Hamas hides behind civilians, then Israel is entitled to kill the civilians to get to Hamas. Likewise, I think the U.S. was quite right to kill many German and Japanese civilians in the course of fighting the German and Japanese militaries.

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Free Speech

Alabama Basketball Player's Libel Lawsuit Against New York Times Can Go Forward

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From today's decision by Judge Scott Googler (N.D. Ala.) in Spears v. New York Times Co. (for more on the earlier correction in the case, see here):

On the night of January 14, 2023, Spears and his two high school friends, Dylan Serafini and Esai Morse, went to the popular student gathering area called "The Strip" located on University Boulevard in Tuscaloosa, Alabama, following the Alabama-LSU basketball game. At the time, Spears was a freshman at The University of Alabama and played guard on the Alabama basketball team. At 12:30 a.m., Spears and his friends met up outside of Houndstooth Bar with one of Spears's teammates, Brandon Miller, and were also joined at some point by the team's student manager, Cooper Lee. After meeting up, they drove to Moe's Original BBQ in downtown Tuscaloosa where they stayed until 1:40 a.m. While at Moe's BBQ, Spears FaceTimed another teammate, Jaden Bradley, who invited Spears and his friends to join Bradley and others.

After declining the invitation to go out, Spears and his friends drove back to his dorm room while Miller and Lee drove to The Strip in Miller's car. At 1:48 a.m., Spears FaceTimed Bradley again to see where they had gone, which is when Spears learned that there had just been a shooting on The Strip and bullets had struck Miller's windshield. Later that day, Tuscaloosa police investigated the incident and interviewed members of the basketball team who were out the night before, including Spears. Police ultimately charged two men in relation to the shooting. No one else, including Spears, was charged.

In its investigation of the incident, The Times learned that surveillance video showed two people "were struck by bullets in the crossfire," and that a "detective also made note of an unidentified passenger in Miller's car." In March, a confidential source "familiar with the case" purportedly told The Times that Spears was the unidentified passenger in Miller's car at the time of the shooting.

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Animals

Does Divorcing Spouse's Euthanizing Family Pet Violate Court Orders Preventing Disposal of "Property"?

No, says a judge, applying New York law.

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From C.M. v. E.M., decided last week by Justice Edmund Name of the Nassau County (N.Y.) trial court:

[T]he principal issue raised on these motions is whether or not the euthanasia of a family companion animal during the pendency of a matrimonial action is violative of the Automatic Orders. There can be no doubt that the loss of a family pet or companion animal can be devastating. But the principal question before the Court is a narrow one. The Court concludes, after examining the text of the Automatic Orders, reviewing the Legislative history and underlying purpose of the enactment of Automatic Orders, considering the evolution of case-law with respect to companion animals and the Legislative history behind DRL [Domestic Relations Law] § 236(B)(5)(d)(15), and reviewing the purpose of the Defendant's application, that the euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action. While the Defendant may have other remedies at law—both civilly and criminally—the narrow and drastic remedy of contempt of court the Defendant seeks here is not one of them….

The Defendant [husband] argues that the Plaintiff [wife] vindictively violated the Automatic Order by putting their beloved family pet, B., to death without reason, necessity or justification. The Defendant argues that B. was an emotional support dog whose custody had not been determined. The Defendant argues that the Plaintiff did not discuss B.'s medical condition nor provide the opportunity for the Defendant to spend time with B. before the dog's death. The Defendant argues that he is suffering extreme emotional distress because of B.'s death. The Defendant seeks compensation for this loss in the amount of $1,500 as punitive damages….

The Plaintiff argues that the Defendant was not an emotional support animal, could no longer walk without a severe limp, had "too many" masses to count, and was on significant pain medication since July, 2023. The Plaintiff argues that she was given a prescription for a tranquilizer for the dog, transported the dog to the Vet, and at the Vet appointment, the dog lunged at the Vet. The Plaintiff argues that the Vet recommended euthanasia….

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"Strangers on the Internet" Podcast Episode 49: Exclusive Interview with Author L.L. Kirchner

How far can a spiritual journey take you?

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The forty-ninth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features an exclusive interview with award-winning screenwriter and author L.L. Kirchner.

L.L., who has written the memoirs Blissful Thinking: A Memoir of Overcoming the Wellness Revolution (available here) and American Lady Creature: (My) Change in the Middle East (available here), takes my co-host and me through the whirlwind of her life in this episode you will not want to miss. While living in Qatar, L.L. received a phone call from her husband announcing that he wanted a divorce. Afraid that she would spiral back into substance addiction, L.L. promptly decided to take a spiritual journey to India where she quit smoking cigarettes as soon as she landed and threw herself into yoga and meditation, even visiting a sex cult at one point.

L.L. tells it all, from the start of her eventually babysitting-funded alcoholism that started at age ten (later on adding other drugs) to the dating column and matchmaking experiment she ran for an alternative newspaper. After some online dating adventures of her own in NYC, did she really end up finding love with Florida Man?? Come find out!

L.L. Kirchner

Supreme Court

Supreme Court Dismisses ADA Tester Standing Suit as Moot

The Supreme Court's first decision of the term does not decide very much.

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Today the U.S. Supreme Court issued its first decision in an argued case this term: Acheson Hotels v. Laufer. In an opinion by Justice Amy Coney Barrett, the justices concluded that the case had become moot due to the plaintiff's decision to voluntarily dismiss her suits. Accordingly, the Court vacated the judgment below and remanded the case back to the U.S. Court of Appeals for the First Circuit with instructions to dismiss the case as moot. The Court was unanimous, but Justices Thomas and Jackson each wrote separately concurring in the judgment.

Acheson Hotels had the potential to be a significant standing case. Here's how Justice Barrett described the case at the outset of her opinion.

Deborah Laufer has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. As the sheer number of lawsuits suggests, she does not focus her efforts on hotels where she has any thought of staying, much less booking a room. Instead, Laufer systematically searches the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. §12101 et seq. Ordinarily, the hotels settle her claims and pay her attorney's fees. But some have resisted, arguing that Laufer is not injured by the absence of information about rooms she has no plans to reserve. Only plaintiffs who allege a concrete injury have standing to sue in federal court. Laufer, these hotels have argued, is suing to enforce the law rather than to remedy her own harms.

Laufer was a serial suit filer. Indeed, as Justice Barrett noted, Laufer "singlehandedly generated a circuit split" on whether she satisfied the requirements for standing.

The case became moot after Laufer voluntarily dismissed her pending claims after her lawyer, Tristan Gilespie, was sanctioned by a federal court for alleged unethical conduct in his handling of these cases.

Although the Court could have proceeded to resolve the standing question presented in the case -- standing, like mootness, is jurisdictional -- a majority of the Court concluded dismissing the case on mootness grounds was the more prudent course. While Acheson Hotels raised the prospect that dismissing the case could invite strategic behavior, the Court gave Laufer the benefit of the doubt, while cautioning it might not exercise its discretion in the same way in a future case. It also vacated the judgment below, erasing Acheson Hotel's loss below.

Justice Thomas concurred in the judgment, arguing that the Court should have instead dismissed the case on standing grounds. As he summarized at the close of his separate opinion:

Standing ensures that courts decide disputes over violations of a person's rights, not a defendant's compliance with the law in the abstract. Because Laufer has not asserted a violation of a right owed to her, she has no standing to bring her Reservation Rule claims. The Court should not have avoided reaching that conclusion due to Laufer's eleventh hour tactics. I respectfully concur in the judgment because I would vacate and remand, with instructions to dismiss for lack of standing.

Justice Jackson also concurred in the judgment, but on different grounds. She agreed with the majority that the case should be dismissed as moot, but suggested the Court was wrong to vacate the decision below. While acknowledging that the Courts disposition was "consistent" with the Court's "established practice" of vacating the decision below when a case becomes moot due to the unilateral action of the party that prevailed below, she expressed her disagreement with the practice. Contrary to the presumption underlying the Court's approach to vacatur under United States v. Munsingwear, Justice Jackson noted that, in her view, "there is nothing inherently inequitable about not being able to pursue an appeal." Thus, Justice Jackson explained, she "would ordinarily not agree to the imposition of the vacatur remedy that was not fully discussed, much less established."

The Court's disposition in Acheson Hotel leaves open some significant questions of standing law. In recent years the Court has adopted a more restrictive approach to standing, most notably in TransUnion v. Ramirez, but there is no unanimity among the Court's conservative justices about how far to go on cutting back the scope of Article III standing, or on the theoretical basis for limiting judicial review. Addressing such questions, and related concerns about whether states should receive special solicitude under Article III, will be left to future cases.

There Ought to Be a Country / Western Song About This

The father's heirs "dispute the distribution of a 1978 Ford pickup truck."

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From Estate of Kemmer, decided today by the Montana Supreme Court, in an opinion by Justice Beth Baker:

The surviving adult children of decedent Ronald Glen Kemmer—Travis, Becky,
Collette, and Ronda—dispute the distribution of a 1978 Ford pickup truck ….

"Evidence shows … several Heirs had sentimental attachment" to the pickup:

Ronda and Collette testified that at the August 2019 gathering [three months after Ronald Kemmer's death] there was an offer from the PR [the Personal Representative of the Estate, namely Travis,] to Collette to purchase the truck for $10,000, which would be deducted from her share of the estate. The Heirs dispute whether they reached agreement about the disposition of the truck. They submitted various e-mail and text messages between them to support their respective positions. All agree, however, that no written agreement for Collette to purchase the truck for $10,000 was made or signed at the August 2019 gathering.

When the disposition of the truck had not been resolved, the PR held an auction among the Heirs. Collette and Becky both bid on the truck; Collette submitted the highest bid of $21,120. Because Collette then failed to timely respond to the PR on the potential distribution, however, the PR distributed the truck to Becky for the second highest bid amount of $21,000. After Becky made payment, the PR made final distribution of the truck to Becky and filed a verified petition to close the Estate.

Collette and Ronda petitioned the District Court to remove Travis as the personal representative and to void the PR's distribution of the truck to Becky.

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Israel

Court Rejects Lawsuit Seeking to End American Aid to Israel

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From Friday's decision by Magistrate Judge Virginia DeMarchi in Nguyen v. U.S. (N.D. Cal.):

Ms. Nguyen alleges that after hearing about the Hamas attacks on Israeli civilians on October 7, 2023, she did "some research" on the internet and "learned that Israel is an apartheid government" and that "the U.S. government … has been supporting this apartheid government of Israel by sending them at least $3 billions [sic] of military aid each year." She claims that U.S. aid to Israel violates the "Preamble of the Declaration of Independence," the Civil Rights Act of 1964, the Comprehensive Anti-Apartheid Act of 1986, and the First Amendment to the U.S. Constitution. Ms. Nguyen requests "$5 trillion[ ] if a WWIII erupts; however since America is in debt of $31 trillion[ ], I'll take a letter of apology [and end of U.S. aid to Israel] or $25,000 for turning in this lawsuit….

A court may authorize the commencement of a civil action in forma pauperis if it is satisfied that the applicant cannot pay the requisite filing fees. In evaluating such an application, the court should grant or deny IFP status based on the applicant's financial resources alone and then independently determine whether the complaint withstands review under § 1915(e)(2)(B).

A court must dismiss a case filed without the payment of the filing fee whenever it determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." A complaint must include facts that are "more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." A complaint is frivolous if "it ha[s] no arguable substance in law or fact." …

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What Is "Human Intelligence," in Proposed Initiative Ballot Title, as Opposed to "Computer or Artificial Intelligence"?

An interesting opinion by the Arkansas AG's office, rejecting a proposed popular name and ballot title for a draft initiative.

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In Arkansas, as in many other states, proposals for initiatives' popular names and ballot titles must be submitted to the state AG's office, which must evaluate them to make sure they fairly and accurately summarize the initiative's legal effect. The AG's office may then accept the popular name and ballot title, revise it, or reject it.

An Arkansas AG's opinion released last week (No. 2023-108) rejects the following proposal:

Popular Name

An amendment to the Arkansas Constitution to conduct all elections by paper ballots containing inherent security features which protect the integrity and authenticity of an official ballot, with vote selections marked by hand using permanent ink placed directly on the ballot by the voter (except when otherwise required by federal law), permitting the counting of election day votes only after the polls close on election day, requiring the vote count to be verified by human intelligence before certification of the vote, requiring that all elections in this State be conducted by voters selecting only one candidate or issue per race with the winner determined by which candidate or issue receives the majority plus at least one vote of the total votes, preserving the special runoff system, ensuring that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection, and allocating funding to ensure free, fair, and secure elections.

Ballot Title

An amendment to the Arkansas Constitution that repeals Amendment 50, § 4 and amends Amendment 50, § 2 to remove the language that permits elections to be conducted by voting machines, modify the language of Amendment 50, § 2 as well as adding new sections to Amendment 50 which effectuate a policy and practice that all elections in this State must be conducted with paper ballots containing inherent security features designed to prevent unauthorized duplication, with vote selections marked by hand using permanent ink placed directly on the ballot by the voter in a manner which ensures the secrecy of the votes cast on the ballot and the anonymity of the voter casting the ballot, requiring that no election day votes be counted or tabulated before the close of the polls on election day, requiring that the tabulation of votes be verified by human intelligence before certification of the vote, requiring that all elections for government positions or issues in this State be conducted by voters selecting only one candidate or issue per race with the winner determined by which candidate or issue receives the majority plus at least one vote of the total votes, ensuring that elections cannot be conducted in this state using an internet, Bluetooth, or wireless connection, and allocating funding to ensure free, fair, and secure elections….

The AG gives several reasons for rejecting the proposed name and title (laid out in detail here), but here are some that struck me as especially interesting:

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Making the rubble bounce in Montana

Episode 484 of the Cyberlaw Podcast

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In this episode, Paul Stephan lays out the reasoning behind U.S. District Judge Donald W. Molloy's decision enjoining Montana's ban on TikTok. There are some plausible reasons for such an injunction, and the court adopts them. There are also less plausible and redundant grounds for an injunction, and the court adopts those as well. Asked to predict the future course of the litigation, Paul demurs. It will all depend, he thinks, on the Supreme Court's effort to sort out social media and the first amendment in the upcoming term. In the meantime, watch for bouncing rubble in the District of Montana courthouse. (Grudging credit for the graphics goes to Bing's Image Creator, which refused to accept the prompt until I said the rubble was bouncing because of a gas explosion and not a bomb. Way to discredit trust and safety, Bing!)

Jane Bambauer and Paul also help me make sense of the litigation between Meta and the FTC over children's privacy and the Commission's previous consent decrees. A recent judicial decision has opened the door for the FTC to modify an earlier court-approved order – on the surprising ground that the order was never incorporated into the judicial ruling that approved it. This in turn gave Meta a chance to make an existential constitutional challenge to the FTC's fundamental organization, a challenge that Paul thinks the Supreme Court is likely to take seriously.

Maury Shenk and Paul analyze the "AI security by design" principles drafted by the U.K. and adopted by an ad hoc group of nations that showed a split in the EU's membership and pulled in parts of the Global South. As diplomacy, it was a coup. As security policy, it's mostly unsurprising. I complain that there's little reason for special security rules to protect users of AI, since the threats are largely unformed, though Maury pushes back. What governments really seem to want is not security for users but  security from users, a paradigm that diverges from decades of technology policy.

Maury requests listener comments on his recent AI research and examines Meta's divergent view on open source AI technology. He offers his take on why the company's path might be different from Google's or Microsoft's.

Jane and I are in accord in dissing California's aggressive new AI rules, which appear to demand a public notice every time a company uses spreadsheets containing personal data to make a business decision. I predict that it will be the most toxic fount of unanticipated tech liability since Illinois's Biometric Information Privacy Act.

Maury, Jane and I explore the surprisingly complicated questions raised by Meta's decision to offer an ad-free service for around $10 a month.

Paul and I explore the decline of global trade interdependence and the rise of a new mercantilism. Two cases in point: the U.S. decision not to trust the Saudis as partners in restricting China's AI ambitions and China's weirdly self-defeating announcement that it intends to be an unreliable source of graphite exports to the United States in future.

Jane and I puzzle over a rare and remarkable conservative victory in tech policy: the collapse of Biden administration efforts to warn social media about foreign election meddling.

Finally, in quick hits,

  • I cover the latest effort to extend section 702 of FISA, if only for a short time.
  • Jane notes the difficulty faced by Meta in trying to boot pedophiles off its platforms.
  • Maury and I predict that the EU's IoT vulnerability reporting requirements will raise the cost of IoT.
  • I comment on the Canadian government's deal with Google to implement the Online News Act

Download 484th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets

Free Speech

"Interfering with the Scent"

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From State v. Gardiner, decided Wednesday by the Oregon Court of Appeals (Judge Jacqueline Kamins, joined by Judges Douglas Tookey and James Egan):

A woman reported that a man knocked on her door, stabbed her in the face, and ran away. Hillsboro Police Officers and medical and fire department personnel responded to that call. In order to find the assailant, the officers deployed a K-9-unit tracking dog.

Defendant approached the area on foot and began filming. At one point, while defendant was present, a bicyclist rode through the area after being told to wait 30 seconds by an officer. Defendant had some interactions with officers, and each of them told him to stay clear of the "dog track." {According to officer testimony, the police dog is "trained for [tracking] fresh human odor" through footprints or air scent. Each dog track is never "exactly the same" because factors like weather temperature and wind direction affect a track. During a track, the dog-handler's primary focus is to observe the dog's behavior as it searches for scents, while other officers provide cover for the dog-handler.} Defendant was arrested after he disobeyed Edwards' order to leave the area because defendant continued to walk parallel to the dog track, thereby "interfering with the scent" and interfering with the duties of the police officers….

Defendant claimed this "violate[d] his constitutional right to film police activity," but the court disagreed. First, the court applied the Oregon courts' framework for dealing with free speech challenges under Article I, section 8 of the Oregon Constitution:

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Free Speech

College Student's Claim Alleging Baseball Coach Violated First Amendment Can Go Forward

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From Chief Judge Michael Urbanski's opinion posted yesterday in Peyton v. Kuhn (W.D. Va.):

[The Amended Complaint alleges the following:] Peyton was recruited to play baseball for Radford University ("Radford") by Radford's former baseball coach, Joe Raccuia, who was replaced by Kuhn prior to Peyton's matriculation. Peyton found many of Kuhn's actions objectionable, such as: grouping the lockers of minority players, such as Peyton, together; informing all players that they were required to stand during the national anthem in order to remain in good standing; directing only the players of color to get haircuts prior to team pictures; prohibiting players from attending a racial justice rally on campus; referring to an Asian American player on the team as "Kim Chi," rather than by his name; and assisting white players in finding summer league placements, but not assisting Peyton. Kuhn did not play Peyton in any baseball games during the 2020–2021 season.

Peyton was directed to inform Kuhn of his ongoing mental health concerns and believed Kuhn responded inappropriately to his disclosure. Peyton then reported this and the previous incidents to Radford's athletic department. Kuhn subsequently asked Peyton whether Peyton had lodged a complaint against him. When Peyton's parents became involved, Kuhn urged them to disenroll Peyton from Radford and stated, in front of others, that "these parents want me fired." Several days later, Kuhn took the players out of earshot of other athletic staff members to "curse them out."

Despite assurance from Radford's athletic director that Peyton would not face retaliation for raising concerns about Kuhn, Peyton was taken off the active lineup, prohibited from participating in live batting practice, and prevented from traveling with the team.

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Free Speech

"Hate Nickels Because They Are Not Dimes"

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In MCAD v. Kahalas, decided Nov. 17 by Massachusetts Commission Against Discrimination Hearing Officer Jason Barshak, complainant Ambroise claimed she was racially harassed and then fired because of her race and because of her complaints about the harassment. (Ambroise was a paralegal at Kahalas's law office; she had graduated from law school, but hadn't passed the bar, in four tries. Ltayf, Ellison, Calloway, and Clancy were other support staff, and Welsh and Bongiorno were lawyers.) Here are the hearing officer's findings of facts:

"HATE NICKELS BECAUSE THEY ARE NOT DIMES COMMENT"

On or about November 3, 2017, Ambroise was working late in the paralegals' room. Kahalas saw her and said to Ambroise that he was going to call her nickels, because she hates nickels, because they are not dimes, and asked if she was trying to get ahead ("hate nickels because they are not dimes comment"). I credit Kahalas' testimony that he was making a joke that he had made for years. Kahalas explained its meaning. The joke was that one who hates nickels because they are not dimes is a person who wants to make more money. Based on Kahalas' credible testimony concerning what he said to Ambroise, I do not credit Ambroise's testimony to the extent it implies Kahalas only said that he was going to call her nickels.

Ambroise did not know what Kahalas meant by his comment. After speaking to a friend, she had an understanding that it was a term relative to the value of an enslaved black person. Ambroise then performed a Google search and one of the results was the Urban Dictionary, a website where people submit their own definition of cultural slang. She searched the Urban Dictionary and found about a page and a half of definitions of "nickels" with five to ten definitions per page. Nowhere under the definitions of "nickels" was there a definition with racial connotation. None of the definitions of "nickels" stated that it meant "nickels n-word" or referenced the n-word. {Witnesses used the term "n-word" to reference the word "nigger" and it is used herein to connote the same.} After the definitions of "nickels", there were words containing the term "nickel(s)" like "nickels n-word" and "nickel dollar" which had their own definitions. According to Urban Dictionary, "nickels n-word" meant a poor black person who pays in change.

At the time Ambroise heard Kahalas' comment, she did not associate it with "nickels n-word." At hearing, Ambroise admitted that she had no reason to believe that Kahalas has ever used the Urban Dictionary. It was only after speaking with a friend, and looking up the term "nickels" on Urban Dictionary that she concluded the comment had racial connotations….

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Final Post on Moore v. United States

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First, the government and the Wall Street Journal are trying to persuade the Supreme Court to decide this case extremely narrowly after very publicly calling into question the ownership by private homeowners and stockholders of the unrealized gains on their assets thus limiting the ability of owners to borrow against those gains.  This is completely unfair because word that this case was pending in the Supreme Court caused those assets to be less highly valued than would otherwise be the case.  Justice should be done to all the millions of homeowners and owners of small amounts of stock who never knew that the federal government claimed a power to tax unrealized capital gains or to impose a direct wealth tax.  The Supreme Court owes 330,000,000 Americans a clear affirmation of their right not to have unrealized capital gains or wealth directly taxed.

Second,  the Constitution requires the rule of apportionment for all "direct taxes" and not merely for "land taxes", which are a subset of the general term "direct tax."  A direct tax is a tax that falls straight on an individual and not on a transaction.  A wealth tax is such a tax.  Taxes which fall on transactions include: tariffs, sales taxes, income taxes, inheritance taxes, gift taxes, and value added taxes. Transactional taxes are indirect and need only be uniform among the states.

Third, the best evidence that wealth taxes are direct taxes are Chief Justice John Marshall's statement to the Virginia Ratifying Convention and Chief Justice Oliver Ellsworth's statement to the Connecticut Ratifying Convention to that effect.  Even Alexander Hamilton, himself, said in his brief for the United States in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) that:

"The following are presumed to be the only direct taxes.

Capitation or poll taxes.
Taxes on lands and buildings.
General assessments, whether on the whole property of individuals, or on their whole real or personal estate; all else must of necessity be considered as indirect taxes."

In other words, even Alexander Hamilton himself said that wealth taxes were direct taxes in Hylton.  Now to be fair, it is true that Hamilton sometimes said that direct taxes were only capitations or land taxes, but Hamilton was also the most nationalist member of the Philadelphia Constitutional Convention.  He favored a President and a Senate that served for life; the abolition of the states; and the federal appointment of "territorial" governors.  Alexander Hamilton was the most nationalist of the Framers at Philadelphia, and even he admitted that a wealth tax was a direct tax in his brief in Hylton v. United States.

In any event, the history of the Philadelphia Convention was deliberately kept secret so that the Constitution's meaning to the 13 State Ratifying Conventions would be the controlling original public meaning.  What happened at Philadelphia was indicative ONLY of the original intent of Framers such as Justice Patterson.  It was NOT indicative of the original public meaning of the phrase "direct tax" at all. Originalists long ago eschewed arguments from original intent in favor of arguments about the original public meaning of words.  General constitutional language like "direct taxes", "commerce among the States", laws that are "necessary and proper", "freedom of speech and of the press", and "privileges or immunities of citizens of the United States" are always construed expansively because it is after all "a constitution, which we are expounding."  Of necessity, "it lacks the prolixity of a legal code."

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