The Volokh Conspiracy

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

The Volokh Conspiracy

Politics

The Proposed New MENA "Racial" Classification and the Jews

Arab and Iranian activist groups are trying to get the Biden administration to impose a new MENA classification; it would have some surprising effects on American Jews.

|

[Cross-posted from my blog at The Times of Israel]

The Biden administration is considering adding a new "Middle Eastern and North African" racial classification to the US Census. If this classification gets written into law, it will inevitably spread to college applications, civil rights forms, and other documents that ask Americans to indicate their race.

What would this mean for the American Jewish community? Will Israeli Americans be part of the MENA classification? Mizrahi Jews? Ashkenazi Jews who feel closer ties to their Middle Eastern heritage than to their more recent European places of origin? Why add a new classification to begin with?

As discussed in my new book, Classified: The Untold Story of Racial Classification in America, through the late twentieth century, most immigrants to the United States from Arab countries were Christians from Lebanon, along with a smaller number of Muslims and Jews. After some uncertainty early in the early twentieth century, American law and custom ultimately treated these immigrants and descendants as "whites." For example, actors such as Danny Thomas played "white" roles and co-starred with white leading ladies without controversy–something that would have been unthinkable for black or east Asian Americans.

In the late 1970s, when the federal government created our modern racial classification scheme, Arab Americans were placed in the white classification, along with Iranians, Afghans, Berbers, Jews, Chaldeans, Armenians, and others. This decision attracted no controversy, as the overwhelming majority of Arab Americans self-identified as white.

Nevertheless, in the 1980s, Arab American organizations lobbying for the US census to recognize a new Arab or Middle Eastern racial category. They hoped enumerating the Arab American population would increase its visibility and political clout, and perhaps plant the seeds for eligibility for affirmative action. Samer Khalaf, national president of the American-Arab Anti-Discrimination Committee, explained, "The MENA category was a bit of a compromise for us. In a perfect world we'd have an Arab category."

The lobbying efforts were unsuccessful, in part because of an unresolved debate over whether Israeli Americans would be included in the MENA classification.

In the meantime, more Muslims from Arab countries began immigrating to the US. A new generation of Muslim Arab American progressive political activists self-identified as "people of color." The media generally accepted this designation. For example, Congresswoman Rashida Tlaib and activist Linda Sarsour, both Muslims of Palestinian Arab descent, have been widely described, and describe themselves, as "women of color."

In Sarsour's case she attributes her "person of color status" despite her pale complexion to the fact that she wears a hijab, which causes others to see her an outsider to mainstream America. This raises the question of why Haredi Jews do not get "people of color" status based on their more dramatically non-mainstream religious garb.

In the early 2010s, the Census Bureau again began studying whether it should add a MENA category to the 2020 census. The proposed MENA classification would apply to "a person having origins in any of the original peoples of the Middle East and North Africa. This includes, for example, Lebanese, Iranian, Egyptian, Syrian, Moroccan, Israeli, Iraqi, Algerian, and Kurdish."

Census Bureau researchers reported that Israeli American and Jewish organizations told them that American Jews did not want to be included in the MENA category because they identify their ethnicity as Jewish, not Middle Eastern. The latter response, however, is beside the point, because there is no "Jewish" category on census and other forms; most Jews would have the choice between identifying themselves as white or as MENA. Many Mizrahi Jews (Jews of recent Middle Eastern and North African descent) would check the MENA box, as would many Israeli immigrants.

At least some Ashkenazim consider themselves to be descendants of a group indigenous to the Middle East. And if the MENA classification developed into an affirmative action category, Jews would have an incentive to identify themselves as MENA.

The Trump administration ultimately killed the new MENA classification. The failure to adopt a new MENA category resulted in part from lobbying by conservative political activists opposed to what they saw as further balkanization of the population. Another factor was the relative lack of enthusiasm from the grassroots for a new MENA racial category. Some Middle Eastern Americans were content being categorized as white; others thought any new category should be ethnic, not racial.

Arab American groups and their Iranian American allies are trying again in the Biden administration. American Jews should oppose this change, for several reasons. First, the groups pushing this change are, to say the least, not friends of the American Jewish community. They want a MENA classification primarily so that Americans of Middle Eastern Muslim descent can get official victim status, including eligibility for affirmative action. They also hope for a certain immunity from criticism. Already, when people criticize the likes of Sarsour and Tlaib for antisemitic and anti-Israel statements, the latter's defenders question how critics indulge in "white privilege" and dare attack "women of color."

Relatedly, as noted above many American Jews will adopt the MENA classification, leading to communal tensions with other MENA Americans as Jews take a share of whatever gains the others believe are "supposed" to go to them.

Finally, our current classification scheme is already incoherent, arbitrary, and divisive. An additional "racial" classification, especially for a group that is internally very diverse and fits no sensible definition of a "race," will just make matters worse.

Administrative Law

West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?

The Court did not engage with the doctrine directly (as opposed to simply creating an exception to it). How, in fact, would the case have been decided under Chevron?

|

The Supreme Court's June 2022 decision in West Virginia v. EPA will be remembered for its endorsement of the "major questions doctrine." The new doctrine, as would have been obvious to all participating justices, is designed to function as an exception to the Chevron doctrine, so named for Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984).

By contrast, this would not be apparent to the casual reader, since Chevron was never mentioned by Chief Justice Roberts in his opinion for the Court, or in the enthusiastic concurrence by Justice Gorsuch. It was mentioned in passing in Justice Kagan's dissent, but not to suggest that the Court should have reviewed the matter under Chevron.

Silence about Chevron is the order of the day in the Supreme Court. The Court last applied the doctrine in 2016, and it appears that the Court cannot decide what to do about it, although it still gets invoked with some frequency in the lower courts.

In order to assess the significance of the major questions exception, it will be useful to consider how the case would have been decided under the Chevron doctrine, as it came to be understood by the Court in the run up to West Virginia. After all, one cannot fairly judge an exception without understanding the doctrine from which the exception is carved out. This is my purpose in this third blog post in this five-post guest series (here were the first and the second).

Read More

Baseball Libel

|

From Gabbert v. Star Tribune Media Co., LLC, decided yesterday by the Minnesota Court of Appeals (Judge Francis Connolly, joined by Presiding Judge Michelle Larkin and Judge Jill Flaskamp Halbrooks):

Following an incident at an August 2018 Twins game in Target Field, the Twins issued a trespass notice banning appellant Jason Gabbert from Target Field for a year. Appellant brought a negligence action against the Twins, seeking to prevent enforcement of the ban (the 2018 litigation). The Twins moved for summary judgment, and the district court granted the motion on the ground that the Twins were a private entity leasing Target Field and could issue trespass notices as they wished.

The Star Tribune newspaper published items by reporters Randy Furst and Rochelle Olson and columnist Patrick Reusse, as well as letters by Gail Van Der Linden and Susan Seim; plaintiff sued the newspaper and the letter writers, but the court held he had no case. As to the Furst and Olson articles,

The most significant item that appellant claims is defamatory is the Furst Report, published on November 15 and 16, 2018, in the online and print versions of the Star Tribune. Furst interviewed appellant and quoted him several times in the report. The headline of the online version was, "Twins fan banned from Target Field over pursuit of baseballs goes to bat to stay at games"; an introductory paragraph in smaller type read, "Twins officials say Jason Gabbert, who chases baseballs thrown to fans in stands, has been disruptive, but he disagrees. One judge has already backed the team." The district court concluded that "[t]he statements from the Furst Report materials … are fair and accurate statements as to the 2018 Litigation and are subject to the fair reporting privilege" because they fairly reflect appellant's disagreement with the Twins' evidence, and his disagreement with the substance of those statements "do[es] not defeat application of the privilege."

Read More

Free Speech

Important Case About #TheyLied Libel Lawsuits Against Federal Employees

|

From Hockenberry v. U.S., decided today by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Nancy Moritz and Paul Kelly:

Hockenberry is a Captain in the United States Army and Kalas is an Army Reserve Captain. In 2016, Hockenberry and Kalas were employed as attorneys at Fort Sill near Lawton, Oklahoma. Hockenberry was a special victims prosecutor and Kalas was a civilian legal assistance attorney. Beginning in May 2016, Hockenberry and Kalas became involved in a consensual sexual relationship. In August 2016, Kalas made statements accusing Hockenberry of sexual assault and other misconduct to work colleagues, an officer with the Lawton Police Department, and a Sexual Assault Response Coordinator at Fort Sill. The Army brought formal charges of sexual and physical assault against Hockenberry under the Uniform Code of Military Justice. The charges were referred to a general court-martial [and led to an acquittal on all charges -EV].

Hockenberry sued Kalas in Oklahoma state court for, among other things, libel, but the U.S. "certified under 28 U.S.C. § 2679 that Kalas was acting within the scope of her federal employment when she made such statements":

The United States argued … that, under Army Command Policy and the Army's rules of professional conduct applicable to attorneys, Kalas was required to report to appropriate Army personnel a fellow soldier's sexual assault and other misconduct. It asserted that Army policy also recognizes that victims of sexual assault may confide in friends or family members before making an official report. As to Kalas's report to the Lawton Police Department, the United States claimed that, under Army procedures, persons seeking a Military Protective Order ("MPO") are advised to also seek a civilian protective order. In addition, once an MPO was issued against Hockenberry, the Army was required to notify appropriate civilian authorities because Kalas did not reside on the military installation and an MPO is not enforceable off base….

Based on this theory, the U.S. removed the action to federal court and substituted the U.S. as the defendant. Now the U.S. is generally immune from tort lawsuits under sovereign immunity; and while the Federal Tort Claims Act waives that immunity in part, it expressly excludes libel claims. The substitution of the U.S. as a defendant would thus be fatal to Hockenberry's claims, assuming that Kalas was indeed acting within the scope of federal employment. But the court of appeals concluded that the district court should have conducted an evidentiary hearing on that scope-of-employment (SOE) question, and in particular to evaluate Hockenberry's claims that Kalas's accusations stemmed only from a personal desire to harm Hockenberry:

Read More

Free Speech

Harassment Allegations Lead to Potentially Viable Libel Lawsuit

|

From Tika v. Jack, decided today by Judge Norman Moon (W.D. Va.):

The plaintiff and defendant dated for two months. When their relationship deteriorated, the defendant allegedly began sending the plaintiff abusive text messages. Then, when in her telling, the plaintiff blocked his phone, the defendant sent the plaintiff's employer—a D.C. government agency—emails saying that the plaintiff had been using her work phone to harass him, trespassed on his property, and had made him and his daughter fear for their lives. The defendant also forwarded the plaintiff's employer numerous private text messages she and the defendant had exchanged. The plaintiff now fears that her employment has been put in jeopardy and alleges that she has suffered significant emotional distress at having such lies about her told to her employer….

The court held that plaintiff had alleged enough to proceed on her defamation claim:

Defendant … contends that the allegations in the complaint and Plaintiff's admissions demonstrate that the messages he sent were "substantially true," and that at best there were "[s]light inaccuracies" in his email to Plaintiff's employer. Defendant notes, for instance, that Plaintiff admitted calling or texting Defendant multiple times, including once with her government cell phone, and argues that he "could very well have viewed that behavior as harassment." … allegations on this motion to dismiss, Plaintiff nonetheless expressly alleged that she did not "use[ ] her DC government procured cell phone to send [Defendant] harassing messages." Moreover, Defendant's contrary statement to Plaintiff's employer that Plaintiff used her government cell phone to send him harassing messages is not made "substantially true" by Plaintiff's admission that she sent "one" innocuous text message to him that her "personal phone had crashed and she would not be able to text him that moment."

Nor does Plaintiff's admission that she went to Defendant's home to gather her belongings, render it "substantially true" that, as Defendant conveyed, Plaintiff was "trespassing" on his property. At this stage of the case and accepting the truth of Plaintiff's allegations in her complaint and drawing all reasonable inferences in her favor—as this Court must—Defendant has not shown the "substantial truth" of his statements such as would defeat the defamation claim as a matter of law.

Trying another tack, Defendant argues that statements at issue in his emails were nothing more than "statement[s] of opinion." Defendant specifically contends that the heading of his first email, "Harassment of Taxpayer," was "a constitutionally protected expression of opinion." … [But t]he heading "Harassment of Taxpayer" in the subject line of Defendant's first email is reasonably read in conjunction with the body of the email which states that Plaintiff "used her DC government procured cell phone to send me harassing messages," and that Defendant had "asked her repeatedly to cease and desist, however, she has not."

Read More

Breaking Down Joan Biskupic's Latest Reporting On The Dobbs Leak

|

Here we are, one month after Dobbs. The leaker has not yet come forward. Indeed, we have no clue who the leaker may be. David Lat suggests that the Politico reporters may not even know who the leaker is! I was patiently waiting for something, anything, from Supreme Court reporters that would shed light on this issue. And, this morning, Joan Biskupic of CNN published a piece titled "The inside story of how John Roberts failed to save abortion rights."

A preliminary note on sourcing. Biskupic relies on "multiple sources familiar with negotiations told CNN." This sourcing is similar to her 2020 reporting, which relied on "multiple sources familiar with the inner workings of the court." I find it remarkable that anyone with inside information would talk to Biskupic after the massive leak investigation. I think it is safe to presume that Biskupic's sources are people who are not subject to the leak investigation. Perhaps the Justices made some comments to friends, who then relayed the information to Biskupic.

There are three primary strands of Biskupic's reporting. First, Chief Justice Roberts tried to persuade Justice Kavanaugh to join his middle position, and save Roe.  Second, the leak made it harder for the Chief Justice to operate. Third, after the leak, Roberts's efforts were unsuccessful. Nothing here is particularly earth-shattering.

The biggest reveal does not concern the leak itself. Rather, Biskupic reports on Justice Kavanaugh's vote at conference:

Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices' conference session soon afterward. But the 2018 appointee of former President Donald Trump who had been confirmed by the Senate only after expressing respect for Roe has wavered in the past and been open to Roberts' persuasion.

When did Biskupic learn this fact? Did she learn it at some point after the conference? After the leak? Sometime after the term concluded? The use of the phrase "CNN learned" does not reveal the timing.

Later in the piece, Biskupic elaborates on the pre-leak state of play:

While no other justice revealed interest in that Roberts' option at oral arguments or in the weeks that followed, sources told CNN that there was still an air of possibility behind the scenes, based on Roberts' past pattern and the knowledge that justices have previously switched votes at the 11th hour.

Roberts, sources told CNN, might have some opening, even if slim.

This phrasing strongly suggests that Biskupic received the information while the "opening" still existed. That is, in March, Roberts "might have some opening." This word choice implies that Biskupic's sources revealed the information to her after oral arguments, but before the Politico story.

It would not be surprising if Biskupic learned this information early on. After all, leaks were floating around the swamp. Remember, the Wall Street Journal reported that Roberts was trying to "turn" votes. I speculated that the Journal had a leak. And Biskupic states, without any equivocation, that the WSJ "previously obtained inside information about conservative votes."

If Biskupic knew about the conference vote at the time, why would she not report it? In July 2020, Biskupic published many conference votes. Perhaps she is comfortable releasing information about private conferences after the term is concluded, and all the cases are resolved. Maybe reporting on the conference vote for a still-pending case crosses some journalistic threshold? But had the conference vote been published, Roberts would have had less room to negotiate. Indeed, Biskupic reports that the Politico story constrained Roberts's ability to strike a compromise. She writes:

To the extent that liberals had hoped that the original vote by conservatives would change, that hope faded. Meanwhile, CNN has learned, Politico's disclosure accelerated the urgency of the conservative side to try to issue the opinion before any other possible disruptions.

Indeed, after the leak, the "conservatives" wanted to release the opinion quicker:

Multiple sources told CNN that Roberts' overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.

Biskupic seems to support a conservative leak theory--that is, a conservative leaked the opinion to lock in the votes. The fact that no liberal has yet come forward, and claimed the plaudits, as David Lat suggests, casts doubt on the liberal-leaker theory. Still, I think that the purpose of the leak was to destroy the Court, and not to shift votes.

"Professional Historians" Who File Amicus Briefs Are Motivated As Well

|

For decades, critics have argued that originalism as a doctrine cannot resolve contemporary questions of constitutional law. However, now that the majority of the Supreme Court is decidedly originalist, the criticism has shifted. In the wake of Bruen, there has been a common refrain: the conservative Court cherry picked history to support its result. After all, professional historians support Justice Breyer's dissent.

I am grateful that the narrative has evolved. Historians cannot simultaneously argue that originalism is bunk and that originalism supports a particular position. They have to pick one side. And those historians who argue that originalism supports a particular position undermine those historians who maintain that originalism is not a valid jurisprudence.

Yet, many historians claim that they are uniquely qualified to engage in constitutional originalism. And, by contrast, untrained, non-professional historians lack those qualifications. Allison Orr Larsen, for example, criticizes the conservative Justices for relying on amicus briefs written by "motivated groups that are pressing for a particular outcome," while disagreeing with "the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately."

These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, "The truth of history does not flow from its usefulness." But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.

Larsen does not use the phrase "biased," but she does use the word "motivated" throughout her piece. Here, she channels the concept of motivated reasoning. Non-historians who file originalist briefs are more at risk of motivated reasoning,  while trained and disciplined historians who file originalist briefs are less at risk of motivated reasoning.

I'll admit, my view of professional historians is, well, biased by the Emoluments Clauses litigation. In an amicus brief, tenured professors of legal history at elite institutions claimed that Alexander Hamilton signed a document. They were incorrect. Seth Barrett Tillman and I responded with declarations from experts who have authenticated Hamilton's signature. The legal historians withdrew their claim and sincerely apologized. Yet, to this day, the legal historians have never explained how and why they reached their conclusion. Or, to use Larsen's framing, what was their motivation to make the claim in an amicus brief?

Everyone is subject to motivated reasoning especially in high-profile litigation, such as those cases involving guns, abortion, even emoluments. No one--not even a professional historian--is infallible.

Free Speech

Parties Can't Seal Entire (Settled) Case Despite Risk of "Reputational Damage and Embarrassment"

"[W]e apply the strongest presumption of public access to the Memorandum Opinion issued by this Court ..., which, as an official decision of the Court, is considered the 'quintessential business of the public's institutions,' and is 'core to the transparency of the court's decisionmaking process.''"

|

From Friday's decision by Judge James Boasberg in Kartte v. Davis:

Defendant Trevor Davis hired Plaintiff Felix Kartte in 2020 to work at Davis's security-consulting companies. Over the course of Plaintiff's brief employment and in the period following, Defendant allegedly called him offensive names, made threats, shared false information about him with third parties, and invented claims of extortion. Plaintiff thus sued, alleging, inter alia, defamation, discrimination, and fraudulent misrepresentation. After over six months of litigation, the parties reached a settlement agreement.

They now seek to seal the entire case record. The Court denies that Motion because the documents at issue are judicial records that bear a strong presumption in favor of public access, which the parties have not overcome here….

Kartte began his employment with Davis in September 2020 as the Director of European Operation of CounterAction, LLC, one of Davis's companies. Davis owns and operates both CounterAction, LLC and ToSomeone, Inc., which provide consulting services including "threat assessments, risk management, and information operations." After Plaintiff began his new position, the two parties' relationship quickly became acrimonious, with Davis firing him in a text message in November 2020. The Court's prior Opinion provides all the gory details….

The right of "public access to judicial records 'is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.'" The common-law right "antedates the Constitution," and "serves to produce an informed and enlightened public opinion." …

The parties' position that their filings are not judicial records [to which the right of access applies] is untenable. The unsealed documents on the docket have all been readily available to the Court and, for the most part, were "intended to influence the [C]ourt." For example, the Complaints, Motion to Dismiss, Opposition, Reply, and Answer and Counterclaim are archetypical attempts to persuade the Court; others such as the Motions for Extension of Time, Motion to Seal Exhibits, Motion for Leave to File a Second Amended Complaint, and Motion to Seal the Case resulted, or will result, in judicial decisions. In addition, we apply the strongest presumption of public access to the Memorandum Opinion issued by this Court on May 6, 2022, which, as an official decision of the Court, is considered the "quintessential business of the public's institutions," and is "core 'to the transparency of the court's decisionmaking process.'"

Read More

Free Speech

Lies About Science, Government, Etc. in Specific Libel or Fraud Lawsuits

|

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]

We see, then, that courts are generally allowed to determine whether a statement about an individual is true, or whether a statement said to government officials is true, or whether a statement aimed at getting money is true. They are generally not allowed to determine whether a statement about the government, or about history or science, is true (at least in the context of punishing speech, as opposed to litigating nonspeech claims). What happens, though, at the intersection of those two categories?

Say, for instance, that someone testifies before a grand jury—or even just tells government investigators—"I saw a police officer beat John Smith," even without any reference to a specific police officer. If a prosecutor believes that the witness knowingly lied, could such a statement lead to a perjury or false statement prosecution? Or say that someone makes the same claim in a fundraising letter ("Give money to the Anti-Police-Brutality Foundation, so we can deal with abuse such as the police beating of John Smith"). If a prosecutor or a consumer protection agency claims that the author knowingly lied, could such a statement lead to a fraud prosecution?

Or let's take an example of a speech that is not within an existing First Amendment exception, but that would likely be restrictable under intermediate scrutiny, the test adopted by the controlling Alvarez concurrence: Someone files an unsworn complaint with the police department, claiming the police beat him. If the prosecutor believes this is a knowing lie, could this lead to a prosecution for filing a false police report? (Three Justices of the Minnesota Supreme Court recently suggested the answer is "no."[1])

The same questions arise not just with statements alleging government misconduct, but also with statements about "history, the social sciences, the arts, and other matters of public concern." The government may not ban newspaper articles about whether or not human activity is warming the Earth, or about whether there are biological differences between the sexes' or races' cognitive faculties. But say that a scientist testifies in court that his study showed that there are or are not such biological differences (perhaps in supporting or opposing an argument that a disparity between an employer's workforce and its applicant pool stems from real differences in applicant quality and not from discrimination). Could he be prosecuted for perjury if there is evidence that he had deliberately falsified his research results?

Read More

Dusting Off Our Dusty Old Industrial Policy*

Episode 418 of the Cyberlaw Podcast

|

As Congress barrels toward an election that could see at least one house change hands, efforts to squeeze a few big bills into law are mounting.  The one with the best chance (better than I expected) would drop $52 billion in cash and a boatload of tax breaks on the semiconductor

1024px-Industrial_Trust_Building_Providence_RI

Dusty Old Trust Building, Providence

industry. Michael Ellis points out that this is industrial policy without apology, and a throwback to the 1980s, when the government organized Sematech to shore up US chipmaking. Thanks to a bipartisan consensus on the need to fight a Chinese challenge, and elimination of controversial provisions that tried to hitch a ride on the bill, there now looks to be a clear path to enactment for this bill.

And if there were doubt about how serious the Chinese challenge in chips will be, we highlight an undercovered story revealing that China's chipmaking champion, SMIC, has been making 7-nanometer chips for months without making a public announcement.  That's a diameter that Intel and GlobalFoundries, the main US producers, have yet to reach in commercial production.

The national security implications are plain. If commercial products from China are cheap enough to sweep the market, even security-minded agencies will be forced to buy them, as it turns out the FBI and DHS have both been doing with Chinese drones. Nick recommends that policymakers read his Lawfare piece showing just how cheaply the US (and Ukraine) could be making drones.

Responding to the growing political concern about national security and Chinese products, TikTok's owner ByteDance, has  increased its U.S. lobbying budget to more than $8 million a year, Christina Ayiotis tells us; that's an amount, I point out, that just about matches what Google spends on lobbying.

In the same vein, Nick Weaver and Michael question why the government hasn't come up with the extra $3 billion to fund "rip and replace" for Chinese telecom gear. That effort will certainly get a boost from reports that Chinese telecom gear was offered on especially favorable terms to carriers who service America's nuclear missile locations. I note that the Obama administration actually paid these same rural carriers to install Chinese equipment in the teens, as part of the 2009 stimulus law. I can't help wondering why US taxpayers should pay those carriers both to install and to remove the same gear.

In news not tied to China, Nick tells us about the House's serious progress on a compromise federal data privacy bill. It's probably still doomed, given resistance from Dems (and maybe the GOP) in the Senate. I argue that that's a good thing, given the bill's egregious effort to impose "disparate impact" quotas for race, color, religion, national origin, sex, and disability on the outcomes of every algorithm that processes even a little personal data. This is a transformative social engineering project, imposed by a single section (207) of  the bill without any serious debate.

Tina grades Russian information warfare based on its latest exploit:  hacking a Ukrainian radio broadcaster to spread fake news about Zelensky's health,  As a hack, it gets a passing grade, but as a believable bit of information warfare, it's a bust.

Tina, Michael and I evaluate YouTube's new policy on removing "misinformation" related to abortion, and the risk that this policy, like so many Silicon Valley speech suppression schemes, will start out sounding plausible and end up enforcing political correctness.

Nick and I celebrate DOJ's increasing though still episodic success in seizing cryptocurrency from hackers and ransomware gangs. It may just be Darwin at work, but it's nice to see.

Nick offers the recommended long read of the week --  Brian Krebs's takedown of the VPN malware supplier, 911.

And in updates and quick hits:

  1. That Twitter worker arrested for spying on behalf of Saudi Arabia is going to trial.
  2. GCHQ's cryptoskeptics have returned to ask how we can square end-to-end encryption with child safety. I think the answer is "Not well."
  3. GDPR's consequences are still emerging: Turns out, it means that schoolkids in Denmark won't be able to use Chromebooks or Google Workspace.
  4. And Nick takes a moment to dunk on the Three Arrows founders, whose cryptocurrency company went under in the bust and who are now giving interviews from an undisclosed location.

Listen to Episode 418 here.

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed.  Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com.

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.

* This week's title is an obscure Rhode Island tribute to the Industrial Trust Building, known to a generation of children as the 'Dusty Old Trust" building until a new generation christened it the "Superman Building." 

Administrative Law

West Virginia v. EPA: Was "Major Questions" Necessary?

A correct interpretation of the statute at issue—Section 111(d) of the Clean Air Act—does not give the EPA the authority to issue the sort of regulations at issue in the case.

|

The Supreme Court held in West Virginia v. EPA that the federal agency did not have authority to adopt what amounted to a cap-and-trade system for existing fossil-fueled power plants because this raised a "major question" of "economic and political significance" as to which Congress had not clearly delegated authority to the EPA. But a close reading of the relevant statute, Section 111 of the Clean Air Act, indicates that the EPA has no authority to issue legally binding emissions standards for existing stationary sources—period.

So the Court did not have to create a novel legal doctrine to limit the authority of the Biden Administration to adopt something like the Clean Power Plan. It could have reached the same result simply by paying close attention to the language of the statute that purportedly granted such authority. This second of five guest blog posts on the decision makes this case (here was the first one, suggesting that the decision was an advisory opinion).

We need to know a bit about the statute: When Congress adopted the modern form of the Clean Air Act in 1970, the central regulatory mechanism was a classic exercise in cooperative federalism. The Act required the EPA, in Section 109, to promulgate National Ambient Air Quality Standards (NAAQS), setting forth permissible limits on the ambient concentration of certain key air pollutants. Once these NAAQS were established, the states were required, under Section 110, to develop State Implementation Plans (SIPs), setting forth a strategy for achieving the federal standards.

The federal agency was directed to review the SIPs to make sure they were adequate, and if a state utterly failed to promulgate an adequate SIP, the EPA could step in and promulgate a plan for the state. But the core idea was that the federal government would set the air quality standards and the states would have substantial discretionary authority to develop a regulatory plan to meet these standards, taking into account the circumstances of each state.

The Act also gave the EPA authority to set direct control standards on sources in a number of situations, including emissions standards for hazardous air pollutants and for mobile sources like automobiles. And, of relevance to the issue in West Virginia, Congress gave the EPA authority, in Section 111, to establish direct controls on certain categories of new stationary sources discharging pollutants that can endanger public health and welfare.

Having instructed the EPA to establish the NAAQS and having authorized the EPA to create direct emissions standards for hazardous pollutants and mobile sources, why did Congress also give EPA authority to regulate new stationary sources? The answer is grounded in industrial policy rather than environmental policy.

Many members of Congress were concerned that states with relatively clean air would use the discretion they enjoyed in establishing SIPs to set relatively lax environmental standards, in an effort to induce industry to relocate to the state. To prevent this outflow of industry from dirty air states to clean air states, Congress directed the EPA to establish mandatory emissions standards for new stationary sources of air pollution that would apply everywhere in the Nation. Since new sources would have to comply with these standards anywhere, there would be no incentive to relocate for environmental reasons.

Read More

Free Speech

Court Makes It Easier for Plaintiffs to Win Libel Lawsuits Against #MeToo Claimants

A potentially very important 2-1 decision today from the Minnesota Court of Appeals, which held that such a #MeToo post wasn’t on a “matter of public concern,” and was thus less protected by the First Amendment.

|

From today's decision of the Minnesota Court of Appeals in Johnson v. Freborg, by Judge Lucinda Jesson, joined by Presiding Judge Peter Reyes, with a partial dissent by Judge Sarah Wheelock:

Respondent Kaija Freborg identified appellant Byron Johnson in [a Facebook] post as one of three dance instructors who had sexually assaulted her. Johnson sued Freborg for defamation, and Freborg moved for summary judgment. The district court granted summary judgment to Freborg because it determined that her statement was true and involved a matter of public concern. Because the record, viewed in the light most favorable to Johnson, reveals a material issue of disputed fact regarding the veracity of Freborg's statement, and because the dominant theme of the statement did not involve a matter of public concern, we reverse and remand….

Here are some of the facts:

Johnson is a dance instructor and event promoter. Freborg was the director of a bachelor's program in nursing and assistant professor at Augsburg college, until she relocated to California. She worked as a staff nurse for 17 years before receiving a doctorate in nursing from Augsburg in 2011, after which she spent ten years as a professor.

Freborg took a dance class instructed by Johnson in 2011. The parties began to communicate outside of the dance class a few months after meeting. In 2012, the parties' relationship became sexual. Freborg and Johnson agree that this stage of their relationship was consensual. The relationship lasted until around 2015. The only occurrence before 2015 that Freborg characterized as nonconsensual was an unsuccessful attempt by Johnson to videotape a sexual encounter between the couple.

In early 2015, Freborg attended a party at Johnson's house. She claims that Johnson "approached her while she was intoxicated and alone, grabbed her hand and put it down his pants onto his genitals without [her] consent." Johnson admitted to approaching Freborg while she was intoxicated and placing her hand on his genitals, but he also maintained that he "never engaged in any non-consensual activities with" Freborg.

In May 2015, the parties communicated by text message about the incident. In the exchange, Freborg told Johnson of her recollection that he had approached her while she was intoxicated and put her hand under his shirt and pants. Johnson replied: "If you say so, I definitely don't remember it going that way." Freborg replied, "I do." The parties' relationship ended in 2015 following this incident.

Five years later, in July 2020, Freborg posted a public message on her Facebook profile. In her post Freborg said:

Feeling fierce with all these women dancers coming out. So here goes … I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors: Byron Johnson, Saley Internacional, and Israel Llerena. If you have a problem with me naming you in a public format, th[e]n perhaps you shouldn't do it [three shrugging-person emojis]

#metoo #dancepredators {Freborg "tagged" all three individuals referenced in the post, meaning that the post was linked to their individual Facebook accounts.}

Later that day, Freborg edited her post and replaced the statement "I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors," with the statement "I've experienced varying degrees of sexual assault** by the following dance instructors." Freborg explained that she edited her post after receiving feedback. The second post read:

Feeling fierce with all these women dancers coming out. So here goes … I've experienced varying degrees of sexual assault** by the following dance instructors: Byron Johnson, Saley Internacional, and Israel Llerena. If you have a problem with me naming you in a public format, th[e]n perhaps you shouldn't do it [three shrug emojis]

#metoo #dancepredators

** I was given feedback from a good friend of mine about how words like rape from a white woman can be triggering for black men. {Johnson is Black and Freborg is White.} I want to respect the black men out there reading this and so I have changed the wording on this post. These are important discussions to have and I appreciate the incredible friends I have who are willing to support me and also call me out. Thank you!! [folded-hands emoji]

Johnson responded by posting a message as a comment on Freborg's post. Johnson stated that he was confused and that he "categorically den[ied]" Freborg's accusation. Freborg responded, saying that she was "not interested in any kind of manipulative cat and mouse game with" Johnson and characterized his professed confusion as an attempt to gaslight her. {In a response to an interrogatory, Freborg explained that she understands the term "gaslighting" to mean "the use of tactics such as lying, deflecting blame, blame-shifting, and twisting or reframing conversations to psychologically manipulate someone into questioning their sanity."} A few days later, Freborg deactivated her Facebook account. Before then, her post received 182 comments….

In support of a motion for summary judgment after Johnson sued for defamation,

Freborg attached Johnson's responses to her requests for admission, including one in which he admitted approaching her at his home while she was intoxicated, grabbing her hand, and placing it on his genitals. She also produced text messages in which the parties discussed a separate occasion during which Johnson tried to record the two during a sexual encounter without her consent….

The trial court held that Freborg's statement was true, but the court of appeals concluded that a reasonable jury could conclude that it was false:

Read More

Free Speech

Court Voids Injunction Blocking Newspaper from Publishing Erroneously Released Names of Police in Shooting

The Florida "Marsy's Law," which protects crime victims, doesn't affect the analysis, even if police officers are treated as victims of the person they shot (who they say was threatening them with a knife).

|

From Sarasota County Sheriff's Office v. Sarasota Herald-Tribune Co., decided June 27 by Judge Charles E. Williams (Fla. Cir. Ct.), the brief factual background (some periods between sentences added in these quotes, since the order apparently inadvertently omitted them):

On April 1, 2022, deputies of the Sarasota County Sheriff's Office …, including Deputy Doe #1 and Deputy Doe #2, arrived at an apartment to serve a court-ordered writ of possession for the removal of Jeremiah Evans from the apartment. After the deputies' non-forcible entry, Mr. Evans exhibited a knife and refused to leave. Deputies commanded Mr. Evans to drop the knife, but he refused to do so Deputies then "tased" Mr. Evans, but he stood and advanced toward the deputies while holding the knife in front of his body in a threatening manner. Mr. Evans approached to within eight feet of the deputies and Deputy Doe #2 discharged a firearm, striking him. Medical help was summoned, but Mr. Evans died from the gunshot wound.

On June 1, a Sarasota Herald Tribune reporter (Melissa Perez-Carrillo) made a public records request for a copy of a prosecutor's letter about the incident, and the prosecutor's office released the letter with the officers' last names unredacted. On June 7, Perez-Carrillo asked for the first name, and the Sheriff's office then concluded that the "last name was released in error because the deputy is a crime victim under Marsy's Law entitled to confidentiality." The Sheriff's Office then sought and got a temporary injunction (from Judge Charles E. Roberts), which was issued on June 10 and barred the newspaper and the reporter "from publishing and/or otherwise further disseminating the personal information of Deputy Doe #1 or Deputy Doe #2 including but not limited to their names."

Unconstitutional, holds Judge Williams:

Read More

Free Speech

"Only an Official with Skin as Thin as Rice Paper Could Find That Insulting"

|

From Myers v. City of Centerville, decided Thursday by the Sixth Circuit (Judge Richard Suhrheinrich, joined by Judges Karen Nelson Moore and Eric Clay):

By nearly all accounts, James Myers was a model employee for the City of Centerville, steadily climbing the Police Department's ranks over three decades to become a detective sergeant. In 2015, however, Myers started causing headaches for the City's bigwigs—in a smalltown, Frank Serpico sort of way. He reported several serious allegations of misconduct among the Department's upper brass, some of which have yet to be fully investigated.

{[In particular, i]n October 2018, Myers learned that Brad Kavalunas, a longtime employee of the City's Public Works Department "with whom [Myers] was familiar," was fired for actions and speech that the City deemed "bigot[ed]" and harassing. Although Myers was not involved in any investigation leading to Kavalunas's termination, Kavalunas asked him for "a character letter." Myers obliged, writing a letter off-the-clock and at home; that letter, which the parties dub the "Brannon Letter," was later given to Manager Davis by Kavalunas's attorney.} … The City … suspend[ed] Myers without pay for five days. Not long thereafter, the City fired Myers, allegedly for secretly recording a meeting between him, City Manager Wayne Davis, and Police Chief Matt Brown.

Myers sued, claiming he was retaliated for his speech, including the letter supporting the Public Works acquaintance; here's the court's analysis, which for procedural reasons is focused on the suspension based on the letter:

Read More

Free Speech

Could Lies About "Election Procedures" Generally Be Punished?

|

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]

Much of the concern about generally punishing lies during elections, though, stems from the broad range of lies that could be covered and the potential controversies about what is the truth and what is a factual claim and what is opinion. Narrower restrictions might pose fewer problems.

This is particularly so with regard to lies about the when, where, how, and who of elections: For instance, lies about when polls close, where one can vote, whether one can vote online, by mail, and the like, and who is eligible to vote.[1] These lies can generally be narrowly defined and tend to be easily verifiable; and many such lies are likely to happen shortly before the election,[2] when established alternative institutions—election officials, candidates, the media, and others—might not have the time to undo the effects of the lie.

To be sure, the distinction between such statements and political lies more broadly is not completely sharp. New York Times v. Sullivan the allegation about Rev. King having been arrested seven times by the police was also a narrow and easily verifiable claim, and yet that too was seen as categorically not punishable. Moreover, there will sometimes be controversy about whether a particular statement is an obvious joke, as with this meme, which is the foundation of a criminal prosecution:[3]

Read More

More