Latest Thu, 20 Jul 2023 07:00:39 -0400 en-US hourly 1 Today in Supreme Court History: July 20, 1990 Thu, 20 Jul 2023 11:00:39 +0000 7/20/1990: Justice William Brennan resigns.

Justice William Brennan

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Brickbat: Barking Orders Thu, 20 Jul 2023 08:00:38 +0000 A Labrador retriever with its face in the grass.

The Lorain, Ohio, police department says it is investigating after Officer Elliott Palmer shot and killed a family's Labrador retriever mix named Dixie. Bodycam video that started after Palmer was already on the scene shows a woman standing in a residential yard trying to control at least three dogs. One dog walked up to Palmer. But Palmer pointed at it and possibly spoke (Palmer had his bodycam muted), and it walked away. Another dog broke away from the woman and ran up to Palmer, who shot the dog and continued to fire at it as the dog limped away.

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Thursday Open Thread Thu, 20 Jul 2023 07:00:54 +0000 The post Thursday Open Thread appeared first on

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Court Rejects Online Activist Eugene Gu's #TheyLied Libel Suit Over Abuse Allegations in The Verge Wed, 19 Jul 2023 23:30:06 +0000 From New York trial judge Shlomo Hagler's opinion released today in Gu v. The Verge: (you can also read Gu's argument to the contrary, and the underlying article):

Plaintiff Dr. Eugene Gu, appearing pro se in this media defamation case, is an online activist involved in a series of controversies, ranging from a Congressional investigation into research use of human fetal tissue, to online debates about racial discrimination and white supremacy, to a federal lawsuit challenging former President Trump's use of Twitter to block critics. Dr. Gu claims, on Twitter and elsewhere, to be the victim of retaliation, harassment, and online bullying for his activism, while his critics, on Twitter and elsewhere, claim that he is the bully and harasser.

In this action, Dr. Gu challenges a news profile about him which was published on March 5, 2019 … by defendants Vox Media, LLC, and its reporter, Laura Yan …. The Article chronicles Dr. Gu's rise to fame and the controversies in which he has been embroiled, including interviews with Dr. Gu and a number of his critics. Dr. Gu contends that seven discrete statements within the Article are defamatory, and asserts claims for defamation and intentional infliction of emotional distress….

Dr. Gu is a doctor and an outspoken social justice advocate on Twitter. On his Twitter account, @eugenegu, he has more than 443,000 followers. He posts regularly about his experiences as an Asian American in the medical field, his activism on Twitter, and retaliation and online harassment he has received in response.

Dr. Gu has also published opinion pieces, appeared on camera for interviews, and been the subject of numerous press reports on these topics (see e.g. Democracy Now interview transcript [NYSCEF Doc No. 11], at 8 ["I took the knee to fight against the very racism that I was the victim of …. And I was punished for it"]; Independent article [NYSCEF Doc No. 12], at 3 [discussing "Republican war on medical research involving fetal tissue" and Congressional subpoena]; Buzzfeed article [NYSCEF Doc No. 12] [discussing viral Tweet in support of Colin Kaepernick]).

Dr. Gu has also appeared as a named plaintiff in a widely publicized lawsuit challenging former President Trump's practice of blocking critics on Twitter as a violation of his and other Twitter users' First Amendment rights….

On February 20, 2018, Yan contacted Dr. Gu, identifying herself as a freelance writer from Brooklyn who wanted to do a profile or story on him. Dr. Gu agreed to an interview, and spoke with Yan via Skype on February 22, 2018, and then again on April 2, 2018. Dr. Gu alleges that most of the discussion was about activism for Asian American issues that he was involved in on social media.

Dr. Gu further alleges that, in May 2018, he discovered that Yan was publicly communicating on Twitter with an anonymous user claiming to be a physician called #MedTwitter. This anonymous user went by various Twitter handles including @nefariousMD, @nefariousBFT, and @thephoenixMD1. Dr. Gu alleges that, on multiple occasions, this anonymous account harassed him with racial epithets about his Asian American heritage, false accusations of domestic violence, and ganged up with other physicians on #MedTwitter to publicly ask him to commit suicide, and donate his organs to these physicians for further study. On June 7, 2018, Gu emailed Yan, explaining that, because of her tweets to anonymous user @nefariousMD, @thephoenixMD1, and @ñcfariousBFT who are believed to be the same individual, he would terminate communication with Yan, and pursue a defamation lawsuit if any malicious article resulted from baseless accusations without evidence.

The ensuing Article was published on the Vox Media website The Verge on March 5, 2019, and is entitled, "The Strange Case of Eugene Gu," with the subheading, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." The Article starts with an overview of Dr. Gu's rise to fame on Twitter, including his growing number of followers, a viral tweet showing Dr. Gu taking a knee to protest white supremacy, and his participation in the First Amendment challenge to the President's Twitter practices. Next, the Article states that "Gu had learned just how powerful the platform [Twitter] could be …. Eventually, the same platform that built him up would threaten to be his undoing."

The court concludes that some of the allegations were substantially true and some were opinions, and thus weren't actionable as defamation or as intentional infliction of emotional distress; here's an excerpt (though you can also read the whole opinion):

Dr. Gu challenges the Article's subheading, which reads, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." … Here, the subheading is a fair summary of the content in the Article, which reports on the various allegations of verbal, domestic, and sexual abuse that have been levied against Dr. Gu. As such, it is not actionable…. "If the headline is a fair index of an accurate article, it is not actionable" ….

Moreover, this statement is substantially true, because Dr. Gu does not dispute key factual statements that the subheading merely summarizes. The Article describes allegations of domestic violence, claims of sexual misconduct, and reports of online harassment surrounding Gu, as well as his response to these allegations….

Finally, even if the court were to construe the first statement as endorsing the veracity of these allegations, rather than just reporting on their existence, the statement would still be protected as non-actionable opinion based on disclosed facts. New York courts recognize an important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based, or one that does not imply the existence of undisclosed underlying fact. The Article here fulfils those requirements, setting forth the facts supporting the suggestion that there is "a history of abuse," and that "each reader may draw his own conclusion." …

The Second Statement, "Warning: this piece contains descriptions of sexual assault," is also non-actionable opinion…. [A] reasonable reader would consider this statement in context, and understand that it was an alert to readers who may be sensitive to certain subjects, commonly known as a trigger warning…. At most, a reasonable reader would understand this to be defendants' opinion that some readers might find portions of the story about a disputed sexual encounter uncomfortable, not any statement of fact about Dr. Gu that could be proven true or false….

The third, fifth and sixth statements identified by Dr. Gu are not actionable because they are not capable of a defamatory meaning as a matter of law:

"'Eventually, the same platform that built him up would threaten to be his undoing.'

'Maybe it was how easily Gu sounded indignant during our interviews, or the tense, charged terms he used to describe the alleged discrimination he suffered, or how, in every narrative, he was always the victim.'

'You're the only person in the world I can talk to,' Gu told her. 'If it wasn't for you, I might have killed myself tonight.'"

.In the amended complaint, Dr. Gu does not suggest any reason why these statements would "expose the plaintiff to public contempt, ridicule, aversion or disgrace," and no reasonable reader would understand them as such. There is nothing inherently defamatory about being characterized as "indignant" or being a victim, nor is it defamatory to say that Dr. Gu was threatened by the very platform that made him famous. Indeed, the third and fifth statements are also clear expressions of an opinion (that Twitter would threaten to undo Gu or that Gu played the victim), supported by the facts in the Article, and not actionable on that ground as well.

Likewise, with regard to the potential suicide reference, this statement is not defamatory as a matter of law, as millions of people in the United States suffer with mental health issues on a daily basis, and thus "does not arouse in the mind of the average person in the community an evil or unsavory opinion [] or expose plaintiff to public hatred, contempt, or aversion." Rather, such a statement would tend to induce sympathy or empathy in the mind of the average reader….

The statement regarding @NefariousMD and his publication of allegations of domestic violence against Dr. Gu is also not actionable under New York's fair report privilege for discussions of court records:

"I tweeted at an especially ardent critic, the (now deleted) @NefariousMD, asking for his perspective on Gu. @NefariousMD often posted screenshots of an unsettling piece of Gu's past: a series of arrest citations, including filed restraining orders and allegations of domestic violence" …

Court files from Dr. Gu's divorce show that his ex-wife sought and obtained a Temporary Restraining Order for domestic violence prevention against Dr. Gu on February 9, 2015, and that the order remained in place until March 9, 2015, when she declined to pursue the matter further….

The final statement upon which the amended complaint asserts a claim is also substantially true and/or protected as opinion:

"Back at Gu's apartment, he started 'pawing' at her while she tried to refuse. She tried to push him away. He kept at it. "It was just like that until he passed out. That's when I got up, turned on the shower, and was crying."

Such a statement might potentially be actionable as a statement of false fact if, for example, a plaintiff denied that an incident occurred. But here Dr. Gu does not deny his relationship with Allison, the in-person visit, or that they had a sexual relationship . The only dispute is how the two parties to that encounter characterized the interaction. Dr. Gu has contended—as defendants reported—that "Allison was the seducer, and he the unwilling victim." Dr. Gu only takes issue only with Allison's characterization of their tryst—i.e., that he was "pawing" at her, that she tried to push him away—but this is opinion, based on disclosed facts, and is not actionable. The Article explains the basis for Allison's opinion, provides Dr. Gu's response, and discusses the contradiction in the two individuals' opinions. Indeed, the author even describes her own conflict over including the "unresolved questions from [Dr. Gu's] past." This statement is therefore protected opinion, and thus cannot properly provide the basis for his defamation claim….

The court also concluded that, in any event, Gu was a limited purpose public figure and thus had to show defendants made their statements knowing they were false or at least likely false, something that Gu hadn't adequately alleged:

New York courts have found plaintiffs to be limited purpose public figures based on their political activities, solicitation of press coverage, and involvement in public controversies (see e.g. James, 40 NY2d at 423 [dancer became a limited purpose public figure by participating in interviews about and "welcome[ing] publicity regarding her performances"]; Blum v State of New York, 255 AD2d 878, 880 [4th Dept 1998] [former professor was a limited purpose public figure with regard to his public dispute with law school]; see also Perks v Town of Huntington, 251 F Supp 2d 1143, 1168-69 [ED NY 2003] [plaintiff became limited purpose public figure by giving press conferences and availing himself of the media to report harassment claims]).

Here, Dr. Gu has plainly "thrust [him] self into the public spotlight and sought a continuing public interest in [his] activities," by writing; appearing on camera; granting press interviews; and tweeting extensively about his social activism, racial discrimination against Asian Americans, and the retaliation and harassment he claims to have endured in response. Accordingly, Dr. Gu has clearly sought the public spotlight, and is thus a limited purpose public figure as it relates to his activism and the harassment and bullying surrounding it—precisely the issues explored by the Article….

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Why Did Scientists Suppress the Lab Leak Theory? Wed, 19 Jul 2023 22:21:54 +0000 Reason on YouTube and Facebook Thursday at 1 p.m. Eastern for a discussion with Matt Ridley of new documents that reveal how and why scientists downplayed the possibility of a COVID lab leak scenario.]]> fauci_andersen

A widely cited paper dismissing the COVID lab leak theory "expressed conclusions that were not based on sound science or in fact," wrote the authors of a recent House of Representatives committee report entitled "The Proximal Origin of a Cover-Up."

"The question is why," ask the authors.

For a deep exploration of that question and the wider implications of its possible answers, join Reason's Nick Gillespie and Zach Weissmueller on Reason's YouTube channel or Facebook page, where they'll discuss the lab leak theory with Matt Ridley, science writer and co-author of Viral: The Search for the Origin of Covid-19, this Thursday at 1:30 pm ET. 

Sources cited in this interview:

YouGov: Two-thirds of Americans believe COVID-19 originated in a lab:

Early February 1 draft of Proximal Origin paper:

House Oversight Committee evidence:

Nature: "Proximal origin of SARS-CoV-2":

Kristian Andersen's written statement to Congress:

Redacted vs. unredacted Fauci email:

Wall Street Journal: U.S.-funded scientist among three researchers who fell ill amid early COVID-19 outbreak:

Unredacted Fauci email:

House Oversight Committee report on Proximal Origin paper:

Shi/Baric paper on gain-of-function research:

Shi group created 8 chimeric SARS CoVs in 2017:

RFK Jr. on bioweapons:

RFK Jr. response to New York Post reporting:

BMC Medicine: The genetic susceptibility of populations to COVID-19


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    District Court Strikes Down Race Preference in USDA's and SBA's Contracting Schemes Wed, 19 Jul 2023 21:30:11 +0000 From Judge Clifton Corker's opinion today in Ultima Servs. Corp. v. U.S. Dep't of Agric. (E.D. Tenn.) [UPDATE: link fixed]:

    This case concerns whether, under the Fifth Amendment's guarantee of equal protection, Defendants the United States' Department of Agriculture ("USDA") and the Small Business Administration ("SBA") may use a "rebuttable presumption" of social disadvantage for certain minority groups to qualify them for inclusion in a federal program that awards government contracts on a preferred basis to businesses owned by individuals in those minority groups.

    The court generally answers this "no"; here's an excerpt, though if you're interested in the details you should read the whole opinion:

    "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws." United States v. Windsor (2013); see also Bolling v. Sharpe (1954); Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) ("The Fifth Amendment, of course, does not itself contain a guarantee of equal protection, but instead incorporates, as against the federal government, the Equal Protection Clause of the Fourteenth Amendment."). Courts, therefore, "evaluate equal protection claims against the federal government under the Fifth Amendment just as [they] would evaluate equal protection claims against state and local governments under the Fourteenth Amendment."

    To satisfy the compelling-interest prong [of the strict scrutiny applicable to race classifications], the government must both identify a compelling interest and provide evidentiary support concerning the need for the proposed remedial action. The Supreme Court has held that the government has a compelling interest in "remediating specific, identified instances of past discrimination that violated the Constitution or a statute." Students for Fair Admissions, Inc. Additionally, the government must present goals that are "sufficiently coherent for purposes of strict scrutiny."

    Defendants assert that their use of the rebuttable presumption in the 8(a) program is to remedy the effects of past racial discrimination in federal contracting. But Defendant USDA admits it does not maintain goals for the 8(a) program. And Defendant SBA admits that it does not require agencies to have goals for the 8(a) program. Defendants also do not examine whether any racial group is underrepresented in a particular industry relevant to a specific contract in the 8(a) program. Without stated goals for the 8(a) program or an understanding of whether certain minorities are underrepresented in a particular industry, Defendants cannot measure the utility of the rebuttable presumption in remedying the effects of past racial discrimination. In such circumstances, Defendants' use of the rebuttable presumption "cannot be subjected to meaningful judicial review." The lack of any stated goals for Defendants' continued use of the rebuttable presumption does not support Defendants' stated interest in "remediating specific, identified instances of past discrimination[.]"If the rebuttable presumption were a tool to remediate specific instances of past discrimination, Defendants should be able to tie the use of that presumption to a goal within the 8(a) program.

    Even if Defendants stated a sufficiently compelling interest, they still must demonstrate "a strong basis in evidence" to support the use of the race-based rebuttable presumption…. Recently, the Sixth Circuit addressed a challenge similar to the one Ultima raises here. In [that case], the Sixth Circuit reviewed the way in which Defendant SBA distributed coronavirus relief funds to help restaurants impacted by the coronavirus pandemic. Defendant SBA distributed the funds on a first come, first served basis. But during the first 21 days that the funds were available Defendant SBA distributed funds to priority applicants, which included restaurants that were "socially and economically disadvantaged." To determine which restaurants qualified as socially and economically disadvantaged, Defendant SBA relied on the same statutory and regulatory framework at issue here—particularly, the race-based rebuttable presumption. The plaintiff, a white, male 50% owner of a restaurant, sued to end Defendant SBA's racial preferences in distributing funding and sought a temporary restraining order and preliminary injunction. The district court denied both of the plaintiff's motions, and the plaintiff appealed those denials. The Sixth Circuit concluded that the plaintiff had a likelihood of success on the merits of his claims and that Defendant SBA's rebuttable presumption likely was unconstitutional because it did not serve a compelling interest and was not narrowly tailored….

    Michael Rosman and Michelle Scott (Center for Individual Rights) and M. Dale Conder, Jr. (Rainey, Kizer, Reviere & Bell P.L.C.) represent plaintiff. I am on the CIR Board of Legal Advisors, though I wasn't at all involved with this case.

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    Tennessee Public School Sued After Suspending A Student Over Instagram Memes Wed, 19 Jul 2023 20:36:58 +0000 I.P.'s instagram posts

    Last year, a Tennessee high school suspended a junior for three days as punishment for a series of playful Instagram posts lampooning the principal. According to a new lawsuit, that suspension was unconstitutional.

    Referred to in the lawsuit as I.P., the student, who attends Tullahoma High School in Tullahoma, Tennessee, made several Instagram posts while off campus. The posts were humorous depictions of Jason Quick, the school's principal. The photos, according to the student, were intended to lampoon Quick's reputation as a strict and humorless administrator. For example, In one post, a photo of Quick holding a box of produce has the text "my brotha" added to it. In another, Quick's face is placed over a picture of an anime cat. 

    The posts didn't disrupt school, but Quick ordered the student to receive a five-day suspension. The punishment was later downgraded to a three-day suspension when I.P. suffered a severe panic attack after being informed of the five-day suspension. School officials justified the suspension by claiming that the student had violated school policies barring students from posting pictures that "result[] in the embarrassment, demeaning, or discrediting of any student or staff" and are "unbecoming of a Wildcat."

    According to the lawsuit, the school maintained I.P.'s punishment even when given a legal letter informing them that they were violating his First Amendment Rights under Mahanoy Area School District v. B.L. The 2021 Supreme Court decision held that public schools cannot punish students for non-disruptive off-campus expression.

    On Wednesday, I.P. filed a lawsuit with the Foundation for Individual Rights and Expression, a First Amendment nonprofit. The suit challenges the school's social media policies as unconstitutionally vague and argues that school administrators had no legal right to suspend him for his off-campus Instagram posts.

    "I.P.'s posts are protected First Amendment expression because they satirized a government official and did not create material disruption, cause substantial disorder, or invade the rights of others at school. The posts likewise did not cause Defendants to reasonably forecast such a disruption," reads the 48-page complaint. "There is no legitimate, let alone compelling, state interest in prohibiting students from engaging in non-disruptive speech about school staff or other students outside school hours and away from school property.

    While stuffy administrators might not like it, public schools don't get to act as around-the-clock censors of students' speech. Once students are off school grounds, their public schools have no right to punish them for expression that doesn't cause a substantial disruption at school—even if they find that expression offensive or embarrassing.

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    Mike Rowe: The Missing 7.2 Million Male Workers Wed, 19 Jul 2023 20:29:29 +0000 Dirty Jobs host is freaked out by the number of men who have dropped out of the workplace.]]> Mike-Rowe-Podcast-Thumbnail

    Today's guest is Mike Rowe, the bestselling author, Emmy winner, and podcaster best known for his stint hosting The Discovery Channel's long-running Dirty Jobs, where he performed the sort of work we all rely on but don't want to think about too much.

    From cleaning septic tanks to putting hot tar on roofs to disposing of medical waste, he's done it all—and loves to talk about the value of the hard, honest work that he thinks is devalued by a society fixated on sending everyone to college. I caught up with Rowe at FreedomFest, an annual gathering held this year in Memphis. 

    We talked about how his mikeroweWORKS Foundation matches young people interested in learning trades with employers dying for applicants, why men continue to fall further behind women in school and work, and how Rowe's booze brand Knobel Spirits, named after his maternal grandfather, is fueling his nonprofit's impact.

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    SDNY "Believe[s]" In Dictum That President An "Officer of the United States" for purposes of Federal Officer Removal Statute Wed, 19 Jul 2023 20:29:13 +0000 In May, Seth Barrett Tillman and I discussed on Lawfare whether the President was an "Officer of the United States" for purposes of the federal officer removal statute. The New York District Attorney argued that Trump was not an "Officer of the United States." And Trump countered that he was an "Officer of the United States"–at least for purposes of the federal officer removal statute.

    Today, the District Court granted the District Attorney's motion to remand the case to the Federal Court. There are three paragraphs that discuss this "officer" issue:

    The parties assume, and I hold, that Trump, although not presently a federal officer, can remove a case otherwise qualified for removal. It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority.

    The more difficult question is whether a President is an "officer … of the United States" within the meaning of§ 1442(a)(l). The People argue that the Supreme Court has interpreted federal statutes referring to an "officer of the United States" to include appointed, but not elected, officers. See Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) ("The people do not vote for the 'Officers of the United States."' (quoting U.S. Const. art. II,§ 2, cl. 2)); United States v. Mouat, 124 U.S. 303, 307 (1888) ("[A] person in the service of the government" who does not "hold[] his place by virtue of an appointment … is not, strictly speaking, an officer of the United States."). Trump notes that the D.C. Circuit previously allowed him to remove a civil action to federal court under § 1442 while in office, K&D LLC v. Trump Old Post Off LLC, 951 F.3d 503, 505 (D.C. Cir. 2020), and cites to several cases permitting federal officer removal for elected members of Congress, see Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 412-415 (D.C. Cir. 1995); Williams v. Brooks, 945 F.2d 1322, 1324 n.2 (5th Cir. 1991); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988).

    I believe that the President should qualify as a "federal officer" under the removal statute but, as is evident from the discussion below, the proposition is dictum, unnecessary for the decision that I reach.

    It is unusual for an opinion to use the verb "believe," rather than conclude or determine. There is also no analysis here. I'm not sure how much weight we can place in this dictum, if any.

    In any event, the issue is clearly preserved for appeal. (Remember, remand orders for the federal officer removal statute can be appealed.)

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    The Southern Poverty Law Center Makes Millions Trafficking Hate Wed, 19 Jul 2023 19:45:41 +0000 John Stossel is seen next to the word "hate"

    The Southern Poverty Law Center (SPLC) just released a report claiming there are 1,225 hate and anti-government groups in America. These groups cause "fear and pain [in] Black, brown, and LGBTQ communities." 

    The SPLC lists such groups on its "hate map." 

    I once believed the Center. Well-meaning people still do. Apple once gave them $1 million.

    But what donors don't know is that today, the SPLC smears good people, not just "haters." 

    Ayaan Hirsi Ali grew up Muslim in Somalia, but now she criticizes radical Islam, and sometimes (maybe this is what really bothers the SPLC) fraternizes with American conservatives. The Center put Hirsi Ali on its list.

    The Center also smears the Family Research Council. I sometimes disagree with the Council. But they don't belong on a "hate map."

    "When they don't agree with you politically, they're going to list you as a 'hater,'" says council Executive Vice President Jerry Boykin in my new video.

    "You are a hater!" I tell him. "You hate gays."

    "No, I don't hate gay people!" he responds. "I know gay people, and I've worked with gay people." The Council merely opposed gay marriage, an opinion they shared with Joe Biden, Barack Obama, and Bill and Hillary Clinton.

    One man became so enraged by what the SPLC wrote, he went to the Council's headquarters to kill people. He shot a security guard. Fortunately, that wounded guard stopped him before he could shoot anyone else.

    "He told the judge that he was there to kill as many of us as possible because we were a 'hate group,'" says Boykin.

    The Center also smears the Ruth Institute, a Christian group that believes adoption agencies should first try to place children with straight couples.

    I told Ruth Institute President Jennifer Morse that she must be "a hater."

    "I like gay people!" she laughs. "I have no problem with gay people! That's not the issue…. There could be cases where the best person for a particular child would be their Uncle Harry and his boyfriend…. But we owe it to the children to give them the best we can, which generally is a married mother and father."

    When the SPLC put the Institute on its hate map, its bank cut them off.

    "You're an organization that promotes hate, violence…," wrote the bank. "Therefore we're not doing business with you."

    The Ruth Institute and Family Research Council are still on the hate list.

    "There's no appeal. I sure don't know how you get off," Morse complains.

    I suspect the Center keeps its hate list long to bring in lots of money.

    The Center pays some of its people more than $400,000 a year.

    "More than my entire annual budget," Morse says. "So yeah, whatever they're doing—it pays."

    It sure does. Harper's Magazine once reported that the Center was the richest civil rights group in America, one that spends most of its time and energy trying to raise more money. 

    They promised they'd stop fundraising once their endowment reached $55 million. But when they reached $55 million, they raised their goal to $100 million, saying $100 million would allow them to "cease costly fundraising."

    But when they reached $100 million—they didn't cease. They collected $200 million. Then $400 million. Now they have $730 million.

    Yet they still raise money.

    "Much of which is in offshore accounts in the Caymans," says Boykin. 

    It's true. You can see it on their tax forms.

    Today the SPLC even smears groups like Moms for Liberty and Moms for America, calling them anti-government extremists because they oppose sexually explicit content in schools, and seek school board seats to try to "stop…school districts [from] disregarding the opinions of parents." 

    Give me a break. The Center puts Moms for America on its "hate map," but not Antifa, the hate group that beats up people on the right. 

    Today the Southern Poverty Law Center is a hate group itself.

    It's a left-wing, money-grabbing smear machine.


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    Does Trump's 'Alternate' Electors Plan Justify Criminal Charges Against Them and Him? Wed, 19 Jul 2023 19:25:53 +0000 Donald Trump stands at podium in front of flags

    Former President Donald Trump yesterday said he had received a letter from the Justice Department indicating that he is a "target" of Special Counsel Jack Smith's investigation of efforts to overturn Joe Biden's victory in the 2020 presidential election. That revelation came the same day that Michigan Attorney General Dana Nessel, a Democrat, announced charges against 16 Republicans who had identified themselves as the state's voter-selected electors in certificates they signed on December 14, 2020.

    That maneuver, which was part of a seven-state plan to prevent congressional certification of the election results, also figures in the expected federal charges against Trump, who may yet face state charges in Michigan and Georgia in connection with the same scheme. But the state and federal charges require an intent to defraud or another improper purpose, which could be a difficult element to prove. It raises the question of whether Trump sincerely believed that systematic fraud had deprived him of his rightful victory and that he was pursuing legitimate remedies for what he mistakenly perceived as a grave injustice.

    One of the likely federal charges against Trump is obstruction of an official proceeding—in this case, the January 6, 2021, tally of electoral votes. A potential justification for that charge, which is a felony punishable by up to 20 years in prison, is that Trump, by encouraging Republicans in Michigan and six other battleground states to falsely present themselves as their states' true electors, "corruptly" obstructed the congressional ceremony. Several Republican members of Congress cited those "alternate" electors as a reason for objecting to the Biden slates, and Trump repeatedly pressured Vice President Mike Pence, in public and in private, to delay or block the tally on the same basis in his capacity as president of the Senate.

    Pence resisted those entreaties, saying the Constitution did not give him the power that Trump wanted him to exercise. That position enraged Trump and his supporters, including the protesters whose riot disrupted the electoral vote count, some of whom expressed a desire to "hang Mike Pence." Pence, who is now competing with Trump for the 2024 Republican presidential nomination, yesterday said "history will hold him to account for his actions that day." But he is skeptical of attempts to hold Trump criminally liable.

    "I hope it doesn't come to that," Pence said. "I'm not convinced that the president acting on bad advice of a group of crank lawyers that came into the White House in the days before January 6 is actually criminal."

    Pence, like the other Republican contenders facing off against a former president with a commanding lead in the polls, is loath to offend Trump's supporters. The point he raises is nevertheless important, because federal prosecutors would have to prove beyond a reasonable doubt that Trump acted "corruptly" when he encouraged the "alternate" electors and pressured Pence.

    The "bad advice" that Pence mentioned came from "crank lawyers" like Rudy Giuliani, who may face Georgia charges for his role in the alternate-electors plan. Another important influence was John Eastman, who at the time was a Chapman University law professor. During conversations with Trump and his staff, Eastman conceded that Pence's intervention would violate the Electoral Count Act, but he argued that the statute was unconstitutional.

    It is plausible, given everything we know about Trump, that he favored advice from lawyers who told him what he wanted to hear. It is also plausible, although by no means clear, that he honestly believed he had won reelection and eagerly latched onto any claim, no matter how specious, that reinforced his conviction. If so, it is hard to see how he acted "corruptly," because he thought his purpose was proper.

    The state charges against Michigan's would-be electors present a similar puzzle. They face eight felony counts, including various forgery-related charges, all of which hinge on intent. Conspiracy to commit forgery, for example, requires a scheme to "falsely make, alter, forge, or counterfeit a public record, with intent to injure or defraud." The 16 defendants did that, Nessel says, by signing "fraudulent 'Certificates of Votes'" identifying themselves as Michigan's electors. But if they honestly believed that the official results were decisively corrupted by tricky election software, phony ballot dumps, or other kinds of chicanery—meaning they were in fact the true electors—it is doubtful that they had an "intent to injure or defraud."

    That defense is arguably supported by historical precedent for dueling slates of electors, each of which claimed to be the genuine article. After the 1960 presidential election, for example, there was a dispute about whether John F. Kennedy or Richard Nixon had won Hawaii. As Politico noted in its 2022 account of that dispute, it has become a touchstone for Republicans who argue that Trump's "fake electors" (as The New York Times reflexively calls them) did nothing improper, or at least nothing criminal.

    "Nixon had prevailed by just 140 votes, according to the initial results, which were certified by the governor," Politico noted. When Democratic and Republican electors met on December 19, 1960, a recount was underway, and both groups signed certificates that they sent to Washington, D.C. Although they did not reflect the official results, the Democrats' certificates unambiguously identified them as "duly and legally appointed and qualified" Electoral College members. They did not mention Nixon's certified victory or the recount.

    In five of the seven states that Trump's supporters identified as disputed in 2020, the would-be electors did essentially the same thing. But in Pennsylvania and New Mexico, Politico reported, they "included a caveat: their votes would only be counted if ongoing court battles broke in favor of Trump."

    Kennedy, who did not need Hawaii's three electoral votes to win the national contest, "prevailed by an eyelash when the recount concluded on Dec. 28, 1960," Politico noted. "A newly sworn-in governor certified the Kennedy victory and transmitted a new slate of Electoral College certificates—signed by the same three Democrats who falsely claimed to have won two weeks earlier."

    Those three electors were legitimate, a state judge, Ronald Jamieson, concluded on January 4, 1960. He "said it was important that those electors met and gathered on Dec. 19, 1960, as prescribed by the Electoral Count Act."

    Two days later, Nixon, then vice president, oversaw the congressional count of electoral votes: "He acknowledged receiving all three sets of certificates: the GOP slate, the uncertified Democratic slate and the certified Democratic slate. He then agreed that the newest one—the Democrats certified by Gov. William Quinn—should be counted, even though they were certified weeks after the required meeting of the Electoral College." That slate, Nixon said, "properly and legally portrays the facts with respect to the electors chosen by the people of Hawaii." No one faced criminal charges over the Democrats' seemingly fraudulent December 19 certificates.

    In contrast with what happened in 1960, when there was a genuine, fact-based dispute about the outcome in Hawaii, the self-certified Trump electors in Michigan relied on unsubstantiated fraud claims that were never accepted by election officials or the courts. But they may have imagined that a similar scenario would play out, this time involving multiple states and much bigger stakes. However far-fetched that expectation may have been, Jamieson's retroactive validation of the Kennedy electors' premature certificates and Nixon's acceptance of their votes may have lent credence to the idea.

    Under Michigan's forgery statutes, in any case, what really matters is whether the defendants believed their conduct was a legitimate way to preserve objections they thought were well-grounded. If so, their intent was not "to injure or defraud"; it was to correct the consequences of a massive fraud, albeit an imaginary one.

    "I'm very disappointed in the attorney general's office," a lawyer for one of the Michigan defendants told the Times. "This is all political, obviously. If they want to charge my client, how come they didn't charge Trump and the Trump lawyers that he sent here to discuss with the delegates what to do?"

    That may yet happen. Nessel said her investigation is ongoing, and Fulton County, Georgia, District Attorney Fani T. Willis is considering charges against Trump and his lawyers based on their attempts to reverse Biden's victory, including the alternate-electors scheme. But those potential prosecutions would face a similar obstacle, and so would federal charges based on the same conduct.

    Were Giuliani and Eastman true believers? They certainly acted as if they were. What about Trump? I honestly don't know; there is evidence pointing in both directions. But when the evidence is mixed or ambiguous, prosecutors may have a hard time making their case beyond a reasonable doubt.

    The post Does Trump's 'Alternate' Electors Plan Justify Criminal Charges Against Them and Him? appeared first on

    ]]> 84
    Mike Rowe on Well-Paying Dirty Jobs, Nonprofit Whiskey, and Male Decline Wed, 19 Jul 2023 18:30:19 +0000 Mike-Rowe-Thumbnail-C

    Mike Rowe is a bestselling author, Emmy winner, and podcaster best known for his stint hosting The Discovery Channel's long-running Dirty Jobs, where he performed the sort of work we all rely on but don't want to think about too much.

    From cleaning septic tanks to putting hot tar on roofs to disposing of medical waste, he's done it all—and loves to talk about the value of the hard, honest work that he thinks is devalued by a society fixated on sending everyone to college. I caught up with Rowe at FreedomFest, an annual gathering held this year in Memphis. 

    We talked about how his mikeroweWORKS Foundation matches young people interested in learning trades with employers dying for applicants, why men continue to fall farther behind women in school and work, and how Knobel Whiskey, named after Mike's maternal grandfather, is fueling his nonprofit's impact.

    Photo Credits: U.S. Fish and Wildlife Service Southeast Region, CC BY 2.0, via Wikimedia Commons; Franze; Paul Souders / Danita Delimont Photography/Newscom; Bill Vaughan/Icon SMI 726/Bill Vaughan/Icon SMI/Newscom; Tom Williams/Roll Call Photos/Newscom; CHAD CAMERON/UPI/Newscom.

    Music Credits: "Robot Revolt," by Alex Growl via Artlist.

    The post Mike Rowe on Well-Paying Dirty Jobs, Nonprofit Whiskey, and Male Decline appeared first on

    ]]> 9
    DeSantis Unironically Frets About 'Criminalizing Political Differences' Wed, 19 Jul 2023 17:15:33 +0000 zumaamericasthirtyeight166747

    During a Tuesday interview with CNN, Florida Gov. Ron DeSantis, a Republican, was asked by anchor Jake Tapper to respond to the breaking news that former President Donald Trump could face a federal indictment for his role in instigating the January 6 riot at the U.S. Capitol.

    DeSantis' response was a revealing one.

    "If [special prosecutor] Jack Smith has evidence of criminality," asked Tapper, "should Donald Trump be held accountable?"

    "Here's the problem," DeSantis replied. "This country is going down the road of criminalizing political differences, and I think that's wrong." A few moments later, DeSantis complained about the Department of Justice and the FBI being "weaponized against people they don't like." Eventually, he also got around to saying that he hopes Trump won't be indicted because it "won't be good for the country."

    Leave aside, for now, the bigger questions about whether another Trump indictment would be good for the country—or, for that matter, good for DeSantis' own presidential aspirations.

    Focus on the first part of DeSantis' answer—the part about how criminalizing political differences is wrong. Tapper didn't seize on that moment, but it would have been interesting to see him follow up by asking DeSantis how that position fits with the Florida governor's extensive track record of wielding the power of the state against those with whom he has political disagreements.

    Indeed, the weaponization of the state against those on the political left is the central theme of DeSantis' entire campaign. He proudly boasts that Florida is "where woke goes to die," and has banned schools in Florida from teaching anything that state education bureaucrats might deem to be "critical race theory." Regardless of how he might define the terms "woke" and "critical race theory," there's no denying that his objections to them are purely political.

    You could say the same thing about DeSantis' decision during the pandemic to ban private businesses from requiring that workers and customers wear masks. And about his ongoing feud with The Walt Disney Company, Florida's largest employer, which has accused DeSantis of orchestrating an unconstitutional "targeted campaign of government retaliation" after Disney's then-CEO, Bob Chapek, spoke out against DeSantis' so-called "Don't Say Gay" law, which banned discussions of gender identity in public elementary school classrooms (the law was later broadened to include most classrooms up to grade 12).

    That's a political disagreement about another political disagreement—and in both cases, DeSantis has aimed to limit the free speech rights of his opponents. While that may not quite rise to the level of "criminalizing political differences," which is what DeSantis accused the Justice Department of doing, DeSantis clearly has no qualms about exercising state power in political fights.

    In his recent book, DeSantis makes clear that he would continue to use state power against his political opponents if elected president. "An American revival," DeSantis writes, "requires that corporations are treated as political actors when they use their economic power to advance an ideological agenda." Later in the same chapter, DeSantis imagines various ways in which "the political branches [of government] can protect individual freedom from stridently ideological private actors" by limiting what those private actors can do or say.

    The idea that government should intervene to protect some private individuals from the free speech being exercised by other private individuals is both nonsensical and probably unconstitutional. As The Atlantic's Conor Friedersdorf has written about DeSantis' misunderstanding of the value of freedom: "Neither my freedom nor yours requires the state to protect us from an entertainment company urging the state legislature to repeal a bill, or a beer company putting a trans influencer on a can, or whatever else DeSantis regards as a pathology. Indeed, we remain free in part because the First Amendment prevents the state from engaging in that sort of viewpoint discrimination."

    Much of what DeSantis has done in Florida and promised to do if elevated to the presidency is jarringly at odds with his criticism on Tuesday of Trump's pending indictment. When you line that moment up against DeSantis' campaign rhetoric, he seems to be saying that the problem with Trump's possible indictment is merely that the state has been weaponized against the wrong person.

    But that's the root of the contradiction at the center of DeSantis' campaign: Advocating for greater powers to be wielded against your political foes always creates the opportunity for your political foes to wield that same power against you and your allies.

    The way out of that trap is not to double down on illiberalism—even though that's what much of the populist right sees as necessary—but to do exactly what DeSantis said on Tuesday: oppose the criminalization of political differences.

    Now let's see if he can apply that same idea more broadly.

    The post DeSantis Unironically Frets About 'Criminalizing Political Differences' appeared first on

    ]]> 67
    Why Did Joe Biden Stop Talking About the Deficit? Wed, 19 Jul 2023 14:15:11 +0000 dpaphotossix400848

    At times last summer, it seemed like the only thing President Joe Biden wanted to talk about was the federal budget deficit.

    "We're on track to cut the federal deficit by another $1.5 trillion by the end of this fiscal year. The biggest decline ever in a single year, ever, in American history," Biden claimed during a May 2022 press conference. Later that same month, in Wall Street Journal op-ed touting his economic program, Biden wrote that the deficit would fall by $1.7 trillion and repeated the "largest reduction in history" claim. That talking point was still getting heavy rotation in September when the president bragged on 60 Minutes about his deficit-cutting powers.

    And this wasn't Biden shooting from the hip. It was a clear messaging strategy from the White House's communications apparatus, which pushed out "fact sheets" to reporters and shareable graphics on social media emphasizing the apparently falling budget deficit.

    Of course, as Reason (and other outlets) clarified, the falling deficit was not the result of anything the president had done. There had been an unprecedented amount of federal spending in 2020 and 2021 due to the COVID-19 pandemic, and that spending drove the budget deficit to record highs: over $3.1 trillion in 2020 and more than $2.7 trillion in 2021.

    Compare this chart, from the Treasury Department, with the misleading one the White House shared on Twitter, to understand the subterfuge:

    As the pandemic passed and federal spending returned to more normal levels, so did the annual budget deficit. (In fact, the deficit would have fallen further last year if not for Biden's policies, thanks to things like the infrastructure bill and last year's federal budget.)

    Anyone knowledgeable about the federal budget or capable of reading a Congressional Budget Office (CBO) report could have told you that last year's $1.38 trillion deficit—the largest in more than a decade, if you ignore the two pandemic years—was not actually an indication that the federal deficit was shrinking. The White House has lots of people like that working for it, but the Biden administration chose for political reasons to push a different narrative, a false one, that ignored important context and relied on misleading statistics.

    So how's the budget deficit looking after the first three quarters of the current fiscal year? "The federal budget deficit was $1.4 trillion in the first nine months of fiscal year 2023," the CBO reported last week. That's "$875 billion more than the shortfall recorded during the same period last year." The CBO projects that the deficit will ring in around $1.5 trillion when the current fiscal year wraps up on September 30.

    Funny that Biden doesn't want to talk about that.

    It's less funny that he's also ignoring the trajectory of the federal deficit in future years. Rather than shrinking, the gap between federal revenue and federal spending is on course to widen dramatically in the coming decades. That means the federal government will have to take on more debt, and the rising cost of that debt will "slow economic growth, drive up interest payments to foreign holders of U.S. debt, elevate the risk of a fiscal crisis, increase the likelihood of other adverse effects that could occur more gradually, and make the nation's fiscal position more vulnerable to an increase in interest rates," the CBO warned last month.

    Tellingly, Biden has opposed the two small steps that have been taken toward shrinking the deficit so far this year.

    First was the passage of the debt ceiling deal, which included some discretionary spending caps that will marginally reduce future budget deficits. Biden successfully blocked a House Republican attempt to impose stricter spending caps as part of that deal and refused to include entitlement spending—the real driver of long-term deficit growth—in the negotiations.

    Then came the Supreme Court's decision to strike down Biden's expensive student loan forgiveness plan. That ruling will reduce the 2023 deficit by about $400 billion, according to estimates by the Committee for a Responsible Federal Budget, a nonprofit that advocates for reducing deficits.

    Strangely enough, the collapse of Biden's student loan forgiveness scheme might cause this year's budget deficit to fall slightly lower than last year's, which Biden had been so eager to brag about. (In last week's update on the deficit, the CBO said it was unsure about that because the administration is still trying to push through another expensive student loan policy that will allow borrowers to make smaller payments.)

    That ought to prove that all the talk about deficit reduction was merely political opportunism for the president. Biden was eager to take credit for a falling federal deficit that had nothing to do with his policies, but he has no apparent interest in the difficult tradeoffs that will be necessary to actually curb the federal government's addiction to debt.

    The post Why Did Joe Biden Stop Talking About the Deficit? appeared first on

    ]]> 128
    Judge Glock on "Climate Liberalism" Wed, 19 Jul 2023 14:08:31 +0000 Climate Liberalism Cover

    The Manhattan Institute's Judge Glock has a favorable review of Climate Liberalism: Perspectives on Liberty Porperty & Pollution over at Law & Liberty. Here is a taste:

    A recent collection of essays edited by Jonathan Adler seeks to answer the question of whether "classical-liberal principles" can provide a distinctive perspective on climate change. After reading Climate Liberalism, I think the answer is no, they cannot. Insofar as government is going to respond to climate change, this book shows that the classical liberal or even libertarian response will look a lot like the modern liberal response.

    Yet the book is a success at demonstrating, first, how contemporary responses to climate change can be fit into a classically liberal perspective, and, second, how much the free-market response to environmental problems in general has come to inform modern liberals' response, including their response to climate change. If classical liberals are going to wrestle with this issue, this book should make them comfortable that they can do so in their own tradition and without falling into anti-capitalist extremes.

    I take the point, but I might shift the emphasis. Yes, I believe some contributions to the book suggest that classical liberals need to think about how government should respond to the threat of climate change more than whether it should respond. I further agree that climate change (like, perhaps, national security and disease) requires the consideration of governmental actions that classical liberals would generally (and rightly) resist. But I also believe—and hope the book helps suggest—that a classical liberal perspective is useful in evaluating competing climate policy options, both in terms of what sorts of policies may be effective and what sorts of policies are most compatible with a concern for individual liberty.

    As Glock notes, the book focuses on political theory and policy, not science, and there is a reason for that.

    The book makes a wise decision to separate the question of the science of climate change from the political question of what to do about it. Since there is no "classical liberal science" just as there is no "socialist science," this book does not try to contribute to that debate. But, as several authors note, even if one thinks the scientific consensus on climate is open to question, and even if one brings an appropriate humility to our ability to imagine the future, that provides little reason to pretend there could not be any costs to climate change, or at least that there could not be some risk to it.

    For myself, a classical liberal skepticism of centralized governmental action, combined with an appreciation for how slow and brittle regulatory measures can be, cautions strongly against the sort of regulatory measures favored by progressives, particularly when there are alternative ways to mitigate the threat of climate change. A revenue-neutral carbon tax, for instance, leaves individuals and firms free to respond to energy prices along any margin they wish, providing incentives for emission reduction where such reductions can be achieved efficiently and with only a minimal reduction in the degrees of freedom individuals and firms have to act. Such a policy also avoids the fatal  conceit of regulators and planners who think they know when and in what form emission reductions should be achieved. Even an imperfectly calculated tax can fulfill this purpose, and significantly more effectively than the regulatory alternative.

    Glock's review concludes:

    Insofar as there is a single message in this book, it is the simple but powerful reminder that a classically liberal perspective demands humility—humility about how well policymakers can understand humanity's well-being and also about the ability of government to improve that well-being. But the book also reminds us that humility does not mean indolence. Just as classical liberals or libertarians cannot punt on the issues of national defense or public safety and merely gesture to the free market, despite some heroic attempts at trying, they also cannot pretend any attempt at addressing climate change is beyond the ideological pale. Climate change will remain a political issue, which means it will involve weighing evidence, trying to align public and private incentives, and coming to a political agreement on complex and almost unknowable issues. The best tradition of classical liberalism has done that in other spheres, and it can do it here.

    I appreciate the engagement and the kind words for the book and the project it represents.

    The post Judge Glock on "Climate Liberalism" appeared first on

    ]]> 266
    Sen. Chris Murphy Wants the Government To Help You Make Friends Wed, 19 Jul 2023 13:30:48 +0000 man in Uncle Sam hat looking friendly

    Is there any social issue that elected officials don't think they can solve? Loneliness is a highly complex phenomenon, produced by an interplay of cultural components and personal psychological attributes. One senator thinks he can fix it with bureaucracy and "public awareness."

    On Tuesday, Connecticut Democratic Sen. Chris Murphy announced the introduction of his "National Strategy for Social Connection," a bill that would create "a federal office to combat the growing epidemic of American loneliness, develops anti-loneliness strategies, and fosters best practices to promote social connection," as Murphy put it.

    The idea that the federal government can solve loneliness is naive and laughable. If there is an "epidemic of loneliness" in America—a big if—its causes are surely so diverse that no group of bureaucrats is going to dislodge it. And certainly not with the silly solutions Murphy proposes.

    Murphy's bill would create an "Office of Social Connection Policy to advise the president on loneliness and isolation," order federal agencies to implement a "national strategy on social connection," and start a public awareness campaign to educate people about fostering connections.

    "Similar to existing national guidelines on nutrition, sleep, and physical activity, the Office would issue research-based best practices on how to better engage and connect with our local communicates," Murphy's summary of the bill states.

    U.S. nutrition guidelines, of course, have a long history of being ridiculously unscientific and plagued by cronyism. And whatever one thinks about nutrition and physical activity guidelines today, there's no denying that Americans are massively overweight and way too sedentary. So, I'd hardly call these things models of efficacy.

    In fact, national guidelines on how to be less lonely are bound to work about as well as nutrition and physical fitness guidelines have: not at all.

    The whole project seems designed to create work for people at federal agencies (and ostensibly good press for Murphy). They would be tasked with coming up with ways to promote "social connection" in areas including "transportation, housing, health, education, and labor," just like officials across federal agencies are now ordered to consider things like equity, race, and sustainability when designing or enacting any policies. Everything would take a little longer and cost a little more, with likely no discernible difference in the actual lives of Americans.

    The most tangible thing Murphy's plan would do is give more money to the Centers for Disease Control and Prevention (CDC) to study loneliness—another effort that seems destined to increase government budgets but have little real-world impact on isolation or social connection.

    Moving beyond the pointlessness of Murphy's proposal, there's also something a little creepy and dystopian about it. The federal government is meant to concern itself with national security and monetary policy, not whether Americans have enough friends.

    What's next, a national trivia-night network? Social wellness screenings on public buses? Federal subsidies for bowling leagues?


    Ohio Republicans introduce bill to ban drag shows in public. A new anti-drag performance bill introduced by Ohio Republicans is "similar to Tennessee's," reports WCMH. That Tennessee law was recently declared unconstitutional. But since when do crusading public officials let little things like constitutionality stop them from enlisting taxpayers in a culture war? Hence Ohio House Bill 245, introduced Monday, which would ban "adult cabaret performances" from public places.

    The bill defines "adult cabaret performances" as material "harmful to juveniles or obscene" featuring either "topless dancers; go-go dancers; exotic dancers; strippers" or "entertainers who exhibit a gender identity that is different from the performers' or entertainers' gender assigned at birth using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers; or other similar performers or entertainers who provide entertainment that appeals to a prurient interest." Such performances could only take place in "a nightclub, bar, juice bar, restaurant, bottle club or similar establishment" that regularly features performances or art of a sexual nature.

    "Reps. Josh Williams (R-Sylvania) and Angela King (R-Celina) are proposing the bill with the support of 41 out of 67 Ohio House Republican representatives," notes WCMH:

    The 43 lawmakers outline the following penalties if entertainers are found violating the proposed law:

    A misdemeanor of the first degree if a performance occurs in the presence of a juvenile under the age of 18.

    A felony of the fifth degree if the performance is "obscene."

    A felony of the fourth degree if the performance is "obscene" and occurs in the presence of a juvenile under the age of 13.


    You can now celebrate "Taco Tuesday" freely (unless you live in New Jersey). The phrase "Taco Tuesday" was trademarked by the fast food chain Taco John's, but Taco Bell filed a petition with the U.S. Patent and Trademark Office to cancel the trademark. Taco John's said Tuesday that it would no longer fight the petition because doing so was too costly. From the Wall Street Journal:

    Taco John's has owned the trademark on Taco Tuesday since 1989 in every state except New Jersey. Gregory's Restaurant & Bar, a restaurant in the Jersey Shore city of Somers Point, owns the trademark in New Jersey.

    Taco Bell filed a separate petition in May seeking to cancel Gregory's trademark as well. Greg Gregory, whose family owns Gregory's, said in June the restaurant would attempt to defend its trademark.

    Any restaurant in the U.S. except in New Jersey can now legally use Taco Tuesday now that Taco John's has given up defending its trademark. Previously, Taco John's would send cease-and-desist letters to restaurants that used the term.


    • "Last week, House members investigating origins of Covid-19 accidentally released a trove of Slack chats and emails between the authors of Nature's seminal paper from March 17, 2020, The Proximal Origin of SARS-CoV-2," notes Racket News. That's the Nature paper that declared "it is improbable that SARS-CoV-2 emerged through laboratory manipulation." Now, Racket has "obtained a full complement of the 'Proximal Origins' communications examined by the House Select Subcommittee on the Coronavirus Pandemic, revealing a story far worse than previously believed."

    • "Biden's latest student loan scheme has a bigger price tag than originally projected," warns Reason's J.D. Tuccille.

    • Damon Linker gives us "a spot check on how the populist/nationalist right is doing around the world in the summer of 2023."

    • "The Illinois Supreme Court upheld a measure on Tuesday eliminating cash bail in the state," reports The New York Times. "The Illinois law, which went beyond similar bail overhauls in other states, was part of a national push to reduce jail populations and end a system in which wealth can determine whether a defendant returns home to await trial."

    • Here's Jesse Singal with a good diatribe about confusing "sex," "gender," and "gender identity."

    • "Colleges—and the law—are impairing student education and resilience through too many accommodations," suggests Discourse magazine.

    • New research finds school principals are more likely to call moms than dads, when contact information for both parents is listed and no preference is indicated. When a message indicated that dad had "a lot of availability" and mom did not, "74% of the time when a call is made, it is to dad; but still, 26% of the time, mom is called," notes Emily Oster. When the availability note is reversed, "90% of the time, mom was called."

    The post Sen. Chris Murphy Wants the Government To Help You Make Friends appeared first on

    ]]> 428
    Conservatives Should Not Be Surprised By Justice Kavanaugh's Voting Pattern With Chief Justice Roberts Wed, 19 Jul 2023 13:00:44 +0000 Seven-Sky v. Holder.]]> For a generation, legal conservatives chanted, "No more Souters." This mantra arose in the wake of the nomination of Justice David Souter, who turned out to be a consistent liberal vote. After NFIB v. Sebelius, the Obamacare case, conservatives adopted a new mantra: "No more Robertses." Never again would conservatives select a Justice who would rewrite a law in the name of judicial restraint. Yet, to replace Justice Kennedy, President Trump managed to select a Justice who has voted with Chief Justice Roberts nearly 95% of the time! Roberts and Kavanaugh are cut from the same cloth. And Kavanaugh consistently votes with Roberts, and the Court's three progressives, to form a majority. But this voting pattern should not come as a surprise. Like with Justice Gorsuch, Judge Kavanaugh's jurisprudence-under-pressure was on full display.

    Flash back to 2011, as the constitutional challenges to the Affordable Care Act were trickling up to the Supreme Court. One of the cases, Seven-Sky v. Holder landed before Judge Kavanaugh on the D.C. Circuit Court of Appeals. The other two judges on the panel (Silberman and Edwards) upheld the ACA's individual mandate. This provision, the panel found, could require people to purchase health insurance based on Congress's power to regulate interstate commerce. But Judge Kavanaugh took a very different path based on Congress's taxing power. The analysis here is very complex. Indeed, I devoted an entire chapter of my 2013 book on the Obamacare litigation to Kavanaugh's approach. (You can read an excerpt here.) To over-simplify things, there are four things to know about Kavanaugh's opinion. 

    First, Kavanaugh found that the court lacked jurisdiction because the "tax" that enforced the ACA would not be collected until 2014. Critical to that jurisdictional analysis, however, was a finding that the Affordable Care Act in fact imposed a tax, rather than a penalty. Kavanaugh repeatedly referred to a "tax penalty." Having found that the court lacked jurisdiction, Judge Kavanaugh should have simply ended his opinion. But he didn't. He never does. He always keeps writing.

    Second, Kavanaugh made a comment in dicta about how the ACA could be put on a surer footing. Specifically, Congress could make "just a minor tweak" to the law, and "eliminate the legal mandate language." Rather than penalizing people who failed to comply with the individual mandate, people without insurance could simply pay a tax to the IRS. The law would shift from a mandate enforced by a penalty, to a choice that resulted in a tax. This change would not be merely one of semantics. This alternative law would be grounded in Congress's broad taxing power, and would avoid the thorny question of whether the federal government could require people to engage in a commercial transaction. 

    Third, the federal government expressly invoked Judge Kavanaugh's opinion before the Supreme Court. The Solicitor General argued that no "minor tweak" was needed because the ACA was "materially indistinguishable from Judge Kavanaugh's proposed revision." The argument tracked many of Kavanaugh's observations about how the ACA operates. In the reply brief, the Solicitor General then built on Judge Kavanaugh's observation, and wrote the Court should not construe the ACA to "create[] an independent legal obligation." Rather, the government contended, the ACA as drafted gave people a choice: purchase insurance or don't purchase insurance. And if they chose the latter option, they would have to pay a tax.

    Fourth, Judge Kavanaugh's decisions planted the seeds for Chief Justice Roberts's saving construction. Shortly after the case was argued, Harvard Law School Professor Laurence Tribe observed that it was "considerably more plausible to see the law being upheld under the taxing power, as Judge Kavanaugh suggested it would be [as] if the law were interpreted this way." Tribe was right. To save the law, Roberts read the Affordable Care Act in the same fashion as Kavanaugh's tweaked version. Under the so-called "saving construction," the law did not actually impose a mandate to  purchase insurance, but instead merely taxed the uninsured. 

    For my book, I interviewed a senior DOJ official who relayed that "Judge Kavanaugh's opinion convinced the Solicitor General's office that the 'tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.'" DOJ credited Judge Kavanaugh with the "assist" for the argument that would save Obamacare.

    Judge Kavanaugh's opinion in Seven-Sky was like a carbon copy of his nascent Supreme Court jurisprudence. First, his lodestar is avoiding controversy, especially in polarized cases. During oral argument, Kavanaugh analogized the Obamacare litigation to the New Deal clash between the Supreme Court and President Roosevelt. He asked, "[W]hy should a court get in the middle of that and risk being another 1935 situation"? Now, Justice Kavanaugh's consistent voting pattern with the Chief Justice reflects a similar mode of avoiding controversy. Public perception pervades all aspects of his judging. Indeed, in his recent remarks to the Eighth Circuit judicial conference, Kavanaugh cited his decisions in Allen v. Milligan and Moore v. Harper as evidence that the Court is not "partisan." In both cases, Kavanaugh voted with the Court's progressive wing. To paraphrase Chief Justice Roberts, the Court as an "institution" functions better when there are fewer 5-4 cases, where all the conservatives vote together. And that is apparently how Kavanaugh defines the Court's legitimacy.

    Second, Kavanaugh can never fully remove himself from the political process. He consistently offers compromises as a way to signal moderation. In Seven-Sky, he felt compelled to offer Congress advice on how to modify a statute, even after finding that the court lacked jurisdiction. But why? His efforts to reach out to resolve issues that are not properly before the Court are flatly inconsistent with any professed fidelity to judicial restraint. Yet, to this day, Justice Kavanaugh routinely writes concurrences that purport to settle issues that are not properly before the Court, especially in high profile cases involving abortion and guns.

    Third, Kavanaugh employed Roberts-esque dexterity to avoid difficult legal questions. After Justice Kennedy announced his retirement, SCOTUSBlog observed that Kavanaugh in Seven-Sky was "willing to look for artful ways to avoid deciding questions he does not want to decide." Artful? More like inventive. None of the parties raised the specific taxing power argument he relied on. Indeed, during oral argument in Seven-Sky, Judge Edwards asked Beth Brinkmann, who headed DOJ Civil Appellate, whether she had read the obscure provision of the tax code that Judge Kavanaugh was asking about. She replied, "No." Rather, Kavanaugh developed a convoluted argument based on the tax code all by himself–an argument that allowed him to duck the most consequential constitutional question in a generation. SCOTUSBlog concluded that Kavanaugh "recognized that the litigation over the ACA was politically fraught for both the judiciary as a whole and for individual judges who might have aspirations to higher courts, and so he decided to find a way out." Kavanaugh surely knew that his future Supreme Court nomination would hinge largely on that decision, and like Chief Justice Roberts, Kavanaugh found a way to avoid striking down the statute. Indeed Kavanaugh apparently had such aspirations for some time. I wrote the chapters of my book with some precision in order to provide a complete record, should Kavanaugh ever be nominated to the Supreme Court. And so it came to be. 

    Justice Kavanaugh is performing just as Judge Kavanaugh's record would have predicted. His record was in plain sight for all to see. Recently, Senator Mitch McConnell observed, "Those who have paid attention to his earlier career are familiar with [Kavanaugh's] restrained, case-by-case jurisprudence." (Kavanaugh was not McConnell's preferred pick after Justice Kennedy announced his retirement.) Indeed, at least with regard to Obamacare, Judge Kavanaugh was to the left of his former boss, Justice Anthony Kennedy. The Court's longtime swing vote would have invalidated the entire Affordable Care Act. Those who were responsible for selecting Justice Kavanaugh were no doubt aware of Seven-Sky, but recommended him nonetheless. But we have at least some evidence that Kavanaugh initially met some resistance.

    In May 2016, then-candidate Donald Trump released a list of eleven possible candidates to fill the seat caused by Justice Antonin Scalia's passing. Indeed, two names were glaringly absent from that initial list: Judges Brett Kavanaugh of the D.C. Circuit Court of Appeals and Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Both were well-known appointees of President George W. Bush. I can only conclude that Kavanaugh's omission was deliberate–perhaps due to Seven-Sky v. Holder. At the time, the Wall Street Journal Editorial Board wrote that Trump should add Kavanaugh to the list, who "could replace some of the conservative intellectual heft that the Court has lost in Justice Scalia." The Journal did not mention Gorsuch. 

    In September 2016, Trump would release the second iteration of the list, now with 21 names. This time, Gorsuch made the cut. But Kavanaugh was still missing. Again, I can only conclude this omission was deliberate. In November 2016, after the election, the Wall Street Journal editorialized once again that Kavanaugh should be added to the list. In January 2017, shortly after the inauguration, President Trump nominated Gorsuch to fill the Scalia vacancy. Ultimately, no one on the initial list would be nominated to the Supreme Court. 

    Ten months later, in November 2017, President Trump released the third iteration of his list, which ballooned to twenty-five names. Two conspicuous names made the cut. At long last, Judge Kavanaugh was included. I don't think Kavanaugh had done anything over the prior year to warrant his inclusion. Rather, whatever resistance there was to Kavanaugh on prior lists was overcome. At the time, I thought Kavanaugh was at last added so he could be nominated to the Court. And so he was. When liberals came out in full force to oppose Kavanaugh's confirmation, I chuckled. The worst thing that could have happened to the left would have been for Kavanaugh to have withdrawn. Just about anyone else on the Trump list would have been to Kavanaugh's right, but without the baggage. Nevertheless, he persisted.

    Another name was added to the November 2017 list: Amy Coney Barrett, who was confirmed to the Seventh Circuit Court of Appeals only seventeen days earlier. I will discuss Justice Barrett in the next post.

    The post Conservatives Should Not Be Surprised By Justice Kavanaugh's Voting Pattern With Chief Justice Roberts appeared first on

    ]]> 46
    "Busting the Durable Myth that US Self-Defense Law Uniquely Fails to Protect Human Life" Wed, 19 Jul 2023 12:57:37 +0000

    T. Markus Funk, who has written extensively on self-defense law, has an article with this title here (in The Champion, the magazine of the National Association of Criminal Defense Lawyers); here's the abstract:

    The cases of Jordan Neely, Ahmaud Arbery, Kyle Rittenhouse, and George Alan Kelly brought the long-simmering national debate about self-defense to a full boil. Member of the legal commentariat quickly offered their takes on all aspects of these flashpoint cases, further sparking spirited discussion.

    The disrupting note in the constant drumbeat of lawyers, legislators, academics, reporters, and other legal observers, however, is the claim that US self-defense law is exceptionally severe by international standards and comparatively underappreciative of the value of human life and the need to prevent violence.

    The problem with this narrative is that it fails to recognize that US self-defense law is, in fact, very much within the international mainstream and, in many respects, is significantly more protective of attackers and more carefully calibrated to reduce overall societal violence than the self-defense laws of many other nations. As this article argues, in terms of impact, such erroneous claims seriously distract from the much-needed debate over US self-defense law's deeper public policy and moral grounding.

    Much worth reading.

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    ]]> 151
    Court Unseals and Depseudonymizes Student's Settled First Amendment Lawsuit Against University Wed, 19 Jul 2023 12:01:56 +0000 From Doe v. Amar, decided yesterday by Judge Sue Myerscough (C.D. Ill.), in response to my motion to unseal and depseudonymize; this is the case I blogged about in April:

    [T]his case arises out of Mr. Doe's tenure as a student at the University of Illinois College of Law. On November 18, 2022, Mr. Doe filed this suit pursuant to 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint alleged that Defendants—all officials, employees, and trustees of the University of Illinois—violated Mr. Doe's First, Fifth, and Fourteenth Amendment rights. According to Mr. Doe, Defendants did so by compelling him to meet with the University's Behavioral Intervention Team (BIT), retaliating against him for exercising his right of free speech, and subjecting him to an unconstitutionally vague code of conduct….

    On December 5, this Court denied Mr. Doe's motion for a preliminary injunction in a written order. Noting that "the possibility of a sanction is not the same as its guarantee," the Court found that Mr. Doe's allegations of irreparable harm were too speculative to justify preliminary injunctive relief. Mr. Doe then moved for reconsideration of several of the Court's orders, including the Court's decision to deny Mr. Doe the ability to litigate under a pseudonym. The Court denied that motion, too. The Court found that "none of the reasons for sealing the record or proceeding pseudonymously were present in this case," and that in any event Mr. Doe "had waived the request to keep [his identity] sealed because he … referred to himself" in his pleadings and exhibits.

    On December 7, Mr. Doe filed a notice of interlocutory appeal as to the Court's order on his motion for injunctive relief. While that appeal was pending, the Illinois Supreme Court imposed a one-year suspension on Mr. Doe's attorney, Justin K. Schwartz, for neglecting client matters and keeping unearned fees. Mr. Doe then retained new counsel. In March 2023, the parties "engaged in mediation … [and] reached a settlement agreement and mutual release of claims."

    On April 19, the parties jointly moved to "seal the Court record for this matter in its entirety and replace Plaintiff's name with 'John Doe.'" In the alternative, the parties asked that the Court "reconsider its denial of Plaintiff's Motion to Proceed Under Pseudonym, permitting pseudonym treatment for 'John Doe,' and allowing Plaintiff to file redacted exhibits." The Court granted the former request in a text order dated April 28, 2023. As a result, the docket is now wholly sealed, and the caption renders Plaintiff's name as "John Doe."

    On May 2, the parties made a similar request of the Seventh Circuit. The Seventh Circuit denied their motion the next day.

    That court's two-sentence order read as follows: "Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals. The Supreme Court held in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), that settlement does not justify vacatur."

    The court concluded that I had standing to intervene, to vindicate my "right of access as a member of both 'the press and the general public.'" And it reconsidered its earlier grant of pseudonymity and decision to seal, though it allowed redactions from several exhibits:

    Nearly every extant authority cautions against pseudonymous litigation. "Lawsuits are public events," and "[t]he risk that a [party] may suffer some embarrassment is not enough" to justify anonymity. And the public "has a right to know who is utilizing the federal courts that its tax dollars support." "The use of fictitious names" in federal litigation accordingly "is disfavored." Therefore, this Court "has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." A party seeking to proceed anonymously must show, against the backdrop of "exceptional circumstances," that any harm done by disclosing his identity "exceeds the likely harm from concealment." …

    The parties contend that rescinding Mr. Doe's pseudonymous status would be unwarranted. They argued before that their settlement "constitutes new information which was not available" in November, when Mr. Doe first moved to litigate as "John Doe." The parties further argued (1) that Mr. Doe "faces immense reputational damage and irreparable harm to his future legal career if this Court denies [him] pseudonym status"; (2) that Mr. Doe was prejudiced by his prior counsel's "improper legal advice" and decision to file certain exhibits without redaction; and (3) that Mr. Doe "likely would have discontinued his lawsuit once he was denied pseudonym status" but never was offered a chance to do so.

    These considerations, while certainly cause for the parties' concern, do not overcome the strong presumption against pseudonymity. Embarrassment is "not a compelling basis for a waiver of the general rule that parties to federal litigation must litigate under their real names." The Court notes as well that Mr. Doe's identity as the plaintiff here has been a matter of public record for some time. So even if retroactive pseudonymity were warranted—and even if the Seventh Circuit had not rejected the very concept—the parties' request would be futile. Professor Volokh's motion to depseudonymize is granted….

    The cat is out of the bag on Plaintiff's identity. But whether to seal all or part of the record is a closer call. The parties previously contended that there are "sufficient grounds to seal the entire record in this case." They argued that "this case has been litigated to the fullest extent in the public domain." They also argued that "Plaintiff's privacy interests in this case"—implicated by "allegations of mental health, paranoia, and [threats to] school safety"—trumped "the presumption that judicial records be open to the public." "Given that Plaintiff disputes" the accusations of misconduct underlying this case, the parties contended "there can be no public interest" in unencumbered access to the record.

    "The parties to a lawsuit are not the only people who have a legitimate interest in the record compiled in a legal proceeding." Accordingly, those records "that affect the disposition of federal litigation are presumptively open to public view." …

    Upon further consideration, the parties have not shown good cause to seal the entire record. Previously, the parties' "lead reason" was "the parties' agreement." "Allowing such an agreement to hold sway," however, "would be like saying that any document deemed provisionally confidential to simplify discovery is confidential forever." Such a notion simply cannot be squared with the public-access right or the weight of diametrically opposed Circuit precedent. The Clerk, therefore, will be directed to unseal the docket.

    Even so, the Court declines to sustain Professor Volokh's motion to unseal in its entirety. The Court is mindful of the negligible public interest in otherwise private educational and mental-health records. The Court finds that certain filings fall under that umbrella and so should be filed with redactions or maintained under seal….

    The parties previously asked the Court to allow them to refile eleven docket entries under seal …. Many of these documents are referenced in the Court's prior orders and the parties' briefings, so the public's interest in reading them in detail is appreciably small. Others simply are "highly embarrassing to the average person yet somehow pertinent to this suit," and so are similarly suitable for filing with redactions. The Court finds that documents 1-3, 1-6, 1-7, 5-1, 7-1, 7-3, 7-4, and 9-1 satisfy that standard. Accordingly, the parties shall jointly file redacted versions of these documents as soon as practicable. The unredacted versions still on the docket will remain under seal.

    As for the remaining documents … the Court concludes that neither Plaintiff's privacy interests nor the possibility of embarrassment outweighs the presumption of public access. [One] is a memorandum written by Plaintiff in which he advocates for bumping up an A- in his Constitutional Law course to an A or an A+. [A second] is an email from Plaintiff to several Defendants informing them of this litigation. And [a third] is Plaintiff's first motion for reconsideration—a filing presumptively subject to public disclosure. Beyond the fact of Plaintiff's commendable performance in a rigorous course, none of these documents contain proprietary or sensitive information. Because "[a]ny doubt whether material should be sealed should be resolved in favor of disclosure," the Court declines to seal these filings….

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    Today in Supreme Court History: July 19, 1949 Wed, 19 Jul 2023 11:00:37 +0000 7/19/1949: Justice Frank Murphy dies.

    Justice Frank Murphy

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    ]]> 46
    Biden's Latest Student Loan Scheme Has a Bigger Price Tag Than Originally Projected Wed, 19 Jul 2023 11:00:25 +0000 Protesters stand outside the U.S. Supreme Court building with signs calling for President Biden to continue trying to cancel student loan debt.

    With his original plan for writing off billions of dollars in student loans undone by the Supreme Court, President Biden has a more modest workaround in mind. But that scheme, based on adjustments to existing income-driven repayment plans, faces not only renewed legal challenges and a bureaucratic gauntlet on its way to implementation, but estimates that the ultimate price tag will be $475 billion—much higher than originally expected. In other words, be ready for an already spendthrift federal government to burden taxpayers with yet more debt.

    "The Department of Education (Department) today will begin notifying more than 804,000 borrowers that they have a total of $39 billion in Federal student loans that will be automatically discharged in the coming weeks," the U.S. Department of Education announced last Friday. "In total, the Biden-Harris Administration has approved more than $116.6 billion in student loan forgiveness for more than 3.4 million borrowers."

    "It's now the most generous repayment program ever," commented President Biden.

    As Reason's Emma Camp noted when the plan was announced, "Under most IDR plans, borrowers pay a specific percentage of their income each month for a set number of years—usually 20 or 25 years—after which their remaining balance will be forgiven. Previously, payments were required to be on time and in full in order to count toward cancellation." With the Biden administration's "Saving on a Valuable Education" (SAVE)-branded changes, many borrowers will be considered to have satisfied the requirements for forgiveness according to a broader set of circumstances, including late or partial payments, during periods of forbearance and deferment, and because of economic hardship.

    Hefty Price Tags

    Writing off loans comes at a price. The broader original loan forgiveness plan was estimated by the Congressional Budget Office to cost $400 billion, while the University of Pennsylvania's Penn Wharton Budget Model pegged it to cost at least $605 billion – with a warning that "total plan costs could exceed $1 trillion."

    But the Supreme Court said that larger proposal abused the concept of discretion in applying existing law without seeking legislative changes through Congress. "The Secretary's plan has 'modified' the cited provisions only in the same sense that 'the French Revolution "modified" the status of the French nobility'—it has abolished them and supplanted them with a new regime entirely," Chief Justice John Roberts wrote in the court's majority decision.

    That leaves us with the Biden administration's consolation prize for those seeking debt forgiveness. While not as far-reaching as the first plan, it's still spendy.

    A Modest-Ish Proposal

    "We estimate SAVE will incur a net cost of $475 billion over the 10-year budget window," the University of Pennsylvania's Penn Wharton Budget Model announced this week. "About $200 billion of that cost will come from payment reduction for the $1.64 trillion in loans already outstanding in 2023. We estimate that about 53 percent of the current loan volume will move to SAVE after it goes active in July 2024, implying that about $869 billion will be subject to enhanced subsidies under SAVE. The remainder of the budget cost, or about $275 billion, comes from reduced payments for about $1.03 trillion in new loans that we estimate will be extended over the next 10 years."

    An earlier estimate by Penn Wharton had put the cost of Biden's income-driven repayment plans at "between $333 to $361 billion over the 10-year budget window." The higher new cost estimate takes into account the administration's final regulations, which were published on July 10.

    The Congressional Budget Office (CBO) estimated in March that the "new income-driven repayment plan would increase the government's costs for federal student loans originated through 2033 by $230 billion." But that estimate also predated the publication of SAVE's final regulations. The CBO has yet to update its estimate for the plan's costs.

    A Deep Sea of Red Ink

    A price tag of $475 billion is less than the $605 billion projected for the scheme rejected by the Supreme Court, let alone the trillion-dollar-plus worst-case scenario envisioned by Penn Wharton, but it's a hefty chunk of change for a government that, year after year, spends well beyond its means. The latest U.S. Treasury Department Monthly Treasury Statement shows that the federal government borrowed almost $1.4 trillion in the nine months since Fiscal Year 2023 began last October. That's more than was borrowed in all of Fiscal Year 2022, though that year's red ink was also quite impressive.

    Officially, total U.S. national debt is now $32.54 trillion.

    "Our debt addiction of more than $5 billion per day will be hard to come down from, but it is vital that we do so for both current and future generations," comments Maya MacGuineas, president of the Committee for a Responsible Federal Budget. "As of this month, we've now spent more on interest on the debt than we did for the entire previous fiscal year, and we are projected to spend more on interest payments in the next decade than we will on the entire defense budget. We're on track to have interest be the single largest line item in the budget by 2051 – larger than our two current biggest programs, Social Security and Medicare."

    In the context of such overwhelming debts and deficits, it might be tempting to ask, what's another $475 billion among fellow countrymen who don't like each other very much? But that's not how we dig ourselves out of this hole. In May, during the debt ceiling debate (remember that?), I tried my hands at a few online tools that let Americans make decisions for balancing the federal budget. The tools varied in assumptions and overall quality, but (spoiler alert!) no approaches for eliminating red ink involved multi-hundred-billion-dollar giveaways.

    The SAVE plan and its associated costs aren't yet fixed in stone. Among other considerations, it's likely to face a new round of lawsuits from people concerned that the administration is yet again making expensive policy decisions without seeking congressional approval. However, the financially less-ambitious scheme is also not as creative in its legal gymnastics as the original proposal and may not be so vulnerable to challenge.

    So, the estimated $475 billion price may stand as an addition to the federal government's already excessive financial undertakings. It's a generous proposal, all right, not just in terms of taxpayer money, but also in the burden it places on the country's shaky financial future.

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    Brickbat: Keeping an Eye On You Wed, 19 Jul 2023 08:00:34 +0000 Female mime pretending to zip her mouth shut.

    The French Parliament has passed a law that allows the police to remotely activate cameras, microphones, and GPS on cellphones and other electronic devices. Lawmakers said the police will only be able to use those powers to snoop on those suspected of crimes punishable by a minimum of five years in prison. It is the latest step by the French government to use technology to increase its power. Two years ago, it expanded the use of drones to keep an eye on suspects. And in June, following riots after police shot a teenager dead during a traffic stop, President Emmanuel Macron said the government should have the power to shut down social media during civil unrest.

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    ]]> 30
    Methanol-Tainted Liquor and Xylazine-Tainted Fentanyl Illustrate the Same Prohibitionist Peril Wed, 19 Jul 2023 04:01:53 +0000 An Iranian artist's death from methanol poisoning illustrates the lethal consequences of prohibition.

    When the celebrated Iranian artist Khosrow Hassanzadeh died of methanol poisoning this month, everyone but his country's most ardent theocrats recognized that prohibition was the problem. Yet when the Biden administration unveiled its plan to address the "emerging threat" of fentanyl mixed with the animal tranquilizer xylazine last week, it claimed prohibition was the solution.

    In reality, these two hazards are manifestations of the same familiar phenomenon. When governments try to stop people from consuming politically disfavored intoxicants, they make consumption of those substances more dangerous by creating a black market in which purity and potency are highly variable and unpredictable.

    The danger to which Hassanzadeh succumbed is caused by bootleggers' sloppy distilling practices and reliance on industrial alcohol that is unsafe for human consumption. Hassanzadeh thought he was drinking aragh, a traditional Iranian spirit distilled from raisins, which he obtained from a supplier he mistakenly trusted.

    During the COVID-19 pandemic, Iran saw a sharp increase in methanol-related deaths and injuries, including permanent blindness, thanks to a combination of folk beliefs about the preventive properties of alcohol and an ethanol shortage caused by the sudden demand for hand sanitizer. In recent months, Iranian authorities have noted another surge in such casualties.

    While the proximate cause of the more recent trend is unclear, the root cause is obvious: Iran's ban on alcohol consumption by Muslims forces drinkers to rely on illicit sources that sell iffy and possibly poisonous liquor. In a legal market, people who buy distilled spirits do not have to worry about methanol contamination.

    "Khosrow was taken from us because of the lack of social freedoms," Nasser Teymourpour, a fellow artist, observed on Twitter after his friend's death. "You took Khosrow from us."

    Although drug warriors are keen to overlook the fact, the same analysis applies to Americans who die after consuming black-market drugs of unknown provenance and composition. The alarm about xylazine in fentanyl, which compounds the danger of fatal respiratory depression and may increase the risk of serious and persistent skin infections, is just the latest illustration of this predictable peril.

    Before the federal government was warning us about xylazine in fentanyl, it was warning us about fentanyl in heroin. Both dangers are caused by laws that make drug use a potentially deadly crapshoot.

    Fentanyl is much more potent than heroin, so it is easier to smuggle, and can be produced much more cheaply and inconspicuously since it does not require opium poppies. Xylazine has similar advantages: It is an inexpensive synthetic drug that can be produced without crops. And unlike fentanyl, it is not classified as a controlled substance, so it is easier to obtain.

    The emergence of fentanyl as a heroin booster and substitute made potency even harder to predict. The consequences can be seen in record numbers of drug-related deaths.

    The government aggravated that situation by restricting the supply of legally produced, reliably dosed opioids, which drove nonmedical users toward more dangerous substitutes and left bona fide patients to suffer from unrelieved pain. Despite this recent experience with the perverse effects of prohibition, the Biden administration is confident that it can lick the xylazine menace by stepping up efforts to "reduce and disrupt the illicit supply chain and go after traffickers."

    Whether it is vitamin E acetate in black-market THC vapes, MDMA mixed with butylone, levamisole in cocaine, or fentanyl pressed into ersatz pain pills, prohibition reliably makes drug use more hazardous. Sometimes that effect is intentional.

    During Prohibition, the federal government required that industrial alcohol be mixed with methanol to discourage diversion. While critics called the resulting deaths "legalized murder," Anti-Saloon League leader Wayne Wheeler argued that "the person who drinks this industrial alcohol is a deliberate suicide," even while conceding that it would cost "many lives" to "root out a bad habit."

    Iran's rulers seem to have a similar attitude. Joe Biden, a longtime drug warrior who now claims to embrace "harm reduction," should reject that lethal logic.

    © Copyright 2023 by Creators Syndicate Inc.

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    ]]> 71
    Sweden Learns That NATO Has Strings Attached Tue, 18 Jul 2023 20:47:58 +0000 Diagonal cuts of Swedish flag, NATO flag, Turkish flag together

    Sweden wants to join NATO to protect itself from Russia. Unfortunately, NATO admission will require Sweden—and the U.S.—to make significant concessions to Turkey.

    On July 7, Turkish President Recep Tayyip Erdogan agreed to "ensure ratification" of Sweden's application to join NATO in Turkey's parliament, according to NATO Chief Jens Stoltenberg. 

    This deal comes amid additional reports of acquiescence to Turkish demands, including Swedish support for the country's European Union (E.U.) accession process and the U.S. working to provide Turkey with $20 billion worth of F-16s and 79 modernization kits for existing aircraft.

    Joining NATO requires each of its 30 member states to vote in favor of Sweden's accession, allowing Turkey to hold the process hostage. 

    "Turkey has a weak hand to play in all of this, but they've tried to play it to the point where they can extract the most out of this situation," says James Ryan, director of research and Middle East programs at the Foreign Policy Research Institute. "I really think there's an understanding between Biden and Erdogan that it's a quid pro quo, and probably the Swedish accession will go through and the sale will go through shortly thereafter."

    Since confirming their intention to join NATO over a year ago, Sweden has had to conform to Turkey's complaints—which include claims that Sweden harbors member of the Kurdistan Worker's Party (PKK), issues with anti-Islam protests in Sweden, and the lack of arms exports—to gain its support for joining the alliance. 

    To accommodate these concerns, Sweden has passed a new stricter anti-terror law, extradited a supporter of the PKK, and reversed a ban on exporting military equipment to Turkey. "Sweden has amended its constitution, changed its laws, significantly expanded its counterterrorism cooperation against the PKK, and resumed arms exports to [Turkey]," said Stoltenberg in a press release.

    However, these reforms raise questions about the humanitarian consequences of appealing to Turkey due to the Erdogan regime's poor human rights record and erosion of judicial independence

    "I would be concerned about extradition deals with Turkey universally; in part because the Turkish justice system has been by and large politicized and co-opted by Erdogan," explains Ryan. "The likelihood that anyone who Turkey sees as a terrorist could get a fair trial is very low."

    This fact especially applies to Kurds, who have faced discrimination as part of crackdowns on the PKK.

    "More broadly, Erdogan has a habit of labeling any Kurds not under his thumb as PKK: Bomb a Yezidi village and kill women and children? No problem, they were PKK operatives. Attack a Kurdish farm in Sinjar? The farmers were PKK," wrote Michael Rubin, a senior fellow at the American Enterprise Institute. "It is a Turkish fiction in which neither Sweden nor any other NATO member should indulge, especially as Turkey continues to indulge, harbor, and arm real terrorists."

    Turkey has also proved to be an unreliable ally to U.S. interests in the region. In 2020, the U.S. sanctioned Turkey for purchasing S-400 missile systems from Russia after it barred Turkey from receiving F-35s over concerns about the missile systems' intelligence collection. Turkey has used F-16s to bomb hundreds of civilians and over 1,000 American-allied Kurdish fighters in northern Syria.

    "While the White House pressures its allies in Congress to allow an F-16 sale to Turkey to move forward, it has done little to stop Turkey's far more destabilizing and destructive behavior toward its neighbors," explained Rubin in a 19FortyFive article. "Not only does Erdogan openly threaten Greece, but Turkey's occupation of Cyprus nears its 50-year mark, Turkish forces and proxies occupy chunks of Syria and Iraq, and Turkey continues an unjustified blockade against Armenia."

    Unfortunately for Sweden, protecting itself from one authoritarian military regime will require placating one farther away. 

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    ]]> 72
    Georgia Supreme Court Declines Donald Trump's Request To 'Quash' Grand Jury Report Tue, 18 Jul 2023 20:01:09 +0000 Former President Donald Trump, shrugging, at the June 2023 Faith and Freedom Coalition conference.

    Facing possible indictment in Georgia for his efforts to overturn the results of the 2020 election, former President Donald Trump asked the state's highest court to step in on his behalf. On Monday, the court unanimously declined to do so.

    Last week, Trump's legal team filed a petition with the Supreme Court of Georgia, against Fulton County District Attorney Fani Willis and Judge Robert McBurney of the Atlanta Superior Court. The filing sought to disqualify Willis from involvement in the unfolding case against Trump.

    In February 2021, Willis opened a criminal investigation into Trump's conduct after the 2020 election—specifically, his January 2, 2021, phone call to Georgia Secretary of State Brad Raffensperger in which he was recorded pressuring Raffensperger to "find 11,780 votes" to win Trump the state. The following year, Willis impaneled a special grand jury with the power to issue subpoenas, expanding her investigation to include any attempts to "disrupt the lawful administration of the 2020 elections" in Georgia. McBurney is the Superior Court judge overseeing the grand jury's proceedings.

    The grand jury interviewed around 75 witnesses before concluding in January. While its report has not been fully released, the available evidence indicates bad news for Trump: Willis recently signaled that indictments may be unsealed in August.

    In the July 13 filing, Trump asked the court to compel McBurney to "quash" the grand jury's report, "bar its use in regular grand-jury proceedings," and "bar the use of any evidence obtained" in the process "in any subsequent proceedings." It also asked the court to prevent Willis from any further involvement in Trump's case.

    On Monday, less than a week after Trump's complaint was filed, the Georgia Supreme Court decided unanimously against him. In an unsigned five-page decision, the court declined to rule on the merits of many of Trump's arguments, contending instead that his filing was improper. Instead of petitioning the superior court and "appeal[ing] from any adverse decision," the judges wrote, Trump was skipping ahead and asking the higher court to "step in and allow him to circumvent the regular judicial process." And while Trump accurately claims that the court would have the legal authority to step in, "he
    makes no showing that he has been prevented fair access to the ordinary channels."

    Trump's filing cited a litany of complaints, from claiming the law authorizing special grand juries was too "vague" and, therefore, "facially unconstitutional under the 14th Amendment" and the Georgia Constitution, to alleging that Willis has an "impermissible and actual conflict of interest." (Last year, Willis hosted a fundraiser for a Democratic candidate for lieutenant governor after already having named the candidate's Republican opponent, state Sen. Burt Jones, a "target" of her investigation. McBurney barred the grand jury from targeting Jones or issuing subpoenas to him, though he declined to do the same for any other targets of the investigation.)

    The filing even complains that the process has gone too fast, observing that "criminal processes, particularly in Georgia, can be ponderously slow," and the fact that this case would proceed so quickly is "grossly unrealistic."

    Much of Trump's complaint also hinges on the novelty of the situation. "That this case is extraordinary goes almost without saying," it states. "No prosecutor, state or federal, has ever indicted a former president for conduct committed while in office." In that respect, Trump is correct: It is indeed novel and unprecedented for a former president to be indicted. But that by itself doesn't mean that an indictment is unwarranted. Publicly available evidence of a defeated incumbent leaning on a state official to "find" enough votes for him to carry that state is also novel and unprecedented.

    As Eric Boehm wrote in the July 2023 issue of Reason, the Georgia case "could be important in setting clear standards for how much pressure future presidents can exert on state and local election officials."

    The Georgia case is just one of several across the country that pose serious legal risk to Trump. In April, the former president was indicted in Manhattan over 2016 hush money payments to pornographic actress Stormy Daniels. And a federal grand jury in Washington, D.C., is considering whether Trump, in his actions after the 2020 election, may have committed federal crimes.

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    ]]> 112
    What Would It Mean for Taiwan's President To Visit the White House? Tue, 18 Jul 2023 19:43:35 +0000 Taiwan on a map with a yellow pin

    Presidents of Taiwan have visited the U.S. 29 times since the first visit in 1994, the most recent being current President Tsai Ing-wen's visit to New York City and Los Angeles in the spring of this year. However, no Taiwanese president has ever visited the White House.

    A few weeks after U.S. Secretary of State Anthony Blinken reaffirmed U.S. support for the "one China" policy, Lai Ching-te, vice president of Taiwan and presidential candidate for the Democratic Progressive Party (DPP), announced that a White House visit would be a symbolic measure of Taiwan's progress toward further autonomy. 

    "When the president of Taiwan can enter the White House, the political goal we are pursuing will have been achieved," Lai told a group of supporters on July 10.

    Only 13 countries, most of which are small island nations, officially recognize Taiwan's government. The U.S. has had unofficial relations with Taiwan, officially the Republic of China, since 1979, when it withdrew its recognition in favor of Mainland China, officially the People's Republic of China. The one China policy was established by the 1972 Shanghai Communiqué, which claimed "that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China."

    The Biden administration has hosted leaders from other Asian democracies, including Japan and South Korea, and even plans to host Israeli Prime Minister Benjamin Netanyahu, who has faced criticism for controversial judicial reforms.

    "It's the goal of any head of state, president, or other government leaders to be able to walk in the halls of the White House," says Thomas Shattuck, manager of the Global Order program at the University of Pennsylvania's Perry World House. "But when you put these comments in a Taiwan context, then obviously it becomes somewhat controversial or newsworthy because Taiwan's president is not able to do that."

    Lai's goal of visiting the White House aligns with his vision of preserving peace in the Taiwan Strait, which emphasizes building diplomatic relations with democracies. "The third pillar is based on forming partnerships with democracies around the world," wrote Lai in The Wall Street Journal. "Record numbers of parliamentarians, nongovernmental organizations, think tanks and official delegations have visited Taiwan, showing that despite Communist Party pressure, we do not stand alone."

    Lai has used strong rhetoric about the autonomy of Taiwan's foreign relations in the past. In a January press conference, he called himself a "pragmatic worker for Taiwan independence" but clarified that this stance doesn't deviate from Taiwan's current arrangement with China. "I would like to reiterate that Taiwan is already an independent and sovereign nation and thus we do not have a need to further declare Taiwan independence," he noted.

    The island of Taiwan is a sovereign democracy with a substantial degree of economic freedom that many world powers formerly treat as a disputed territory belonging to Mainland China. 

    "This would be an undeniable acknowledgment of Taiwan's sovereignty, even in the absence of formally reestablishing diplomatic relations. A U.S. president open to such a meeting would signal that relations with the fellow democracy are worth the inevitable greater conflict with China it would bring," explains Timothy Rich, director of the International Public Opinion Lab at Western Kentucky University. "From the Taiwanese perspective, this would also be the end of the decades of isolation, of being treated as second-class, as not a sovereign equal."

    "The upsides to high-level exchanges between the United States and Taiwan are firstly that it [is] an important demonstration [of] US leadership in supporting a democratic ally and for countering China's persistent efforts to isolate Taiwan and its leaders internationally," says Russell Hsiao, executive director of the Global Taiwan Institute.

    But the potential for conflict between the U.S. and China has made U.S. policy makers wary of hosting this type of visit. It could put both Taiwan and the U.S. at risk, especially since the U.S. plans to defend Taiwan militarily in an invasion.

    "A formal diplomatic visit, however, would immediately worsen U.S. relations with China and would likely be interpreted as an intention to keep Taiwan separate from China permanently, [an] act that could result in military conflict," says Rich. "Unfortunately, I cannot imagine a situation in which a U.S. president would welcome such a diplomatic visit while the current regime is in power in China."

    When former Speaker of the House Nancy Pelosi visited Taiwan last August, China responded with a comprehensive military demonstration that included warplane and warship maneuvers across the median line and ballistic missile strikes that landed in Taiwan's waters. 

    "This move seriously violates the one-China principle, maliciously infringes on China's sovereignty and blatantly engages in political provocations, which has aroused strong indignation among the Chinese people and widespread opposition from the international community," said Chinese Foreign Minister Wang Yi regarding the visit.

    Because of China's aggression, the Taiwanese people don't seem to be as enthusiastic about diplomatic visits as their politicians. According to a January survey by the Brookings Institute, 62 percent of respondents said that Pelosi's visit "made Taiwan less secure."

    A Taiwan presidential visit to the White House is a commendable goal but remains impractical unless the threat of a Chinese invasion wanes. 

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    ]]> 31
    Are Petitions for Certiorari Declining? Tue, 18 Jul 2023 16:05:26 +0000 There were only 1,252 paid petitions for certiorari filed with the Supreme Court in October Term 2022. This is well below the average number submitted during the prior five-year and ten-year periods (1,645.8 and 1593.8 respectively), as Michael Migiel-Schwartz notes in an interesting SCOTUSBlog post. Is this a trend?

    Migiel-Schwartz writes:

    This year's decline is substantial: a 21.2 percent decrease from the previous 15-year average, and a 23.9 percent decrease from the previous five-year average. Even compared with the 2019-20 term's 1,478 petitions, it marks a more than 15 percent decrease. . . .

    It is difficult to draw meaningful conclusions based on these numbers alone, and it is possible that the 2022-23 term is a one-year blip. The downturn does not seem to be the result of declining merits decisions in the federal courts of appeals. Although they too have decreased in recent years, that decrease has been slow and fairly steady from 2012 through 2023 — not the sudden drop seen this year in the Supreme Court's paid docket.

    Whatever the cause of this term's decline, the average of 1,589 is consistent with a longer-term trend downward noted in 2007 by David Stras. "Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981," Stras wrote. "However, beginning in 1994, or at about the time of greatest decline in the Court's plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994."

    It will be interesting to see whether the precipitous drop in petitions filed last term is a temporary blip, to which Covid-19 may have contributed, or is part of a larger trend. Among other things, the change in the Supreme Court's composition could be altering the calculus for potential filers, but it is not clear why this would produce an overall decline in cert petitions, as opposed to a shift in what sorts of petitions are filed. (That is, if there are fewer opportunities for progressive interests it would seem these could be offset by increased opportunities for conservative interests.)

    The longer term drop in paid petitions for certiorari is significant, but is far less than the decline in the size of the Court's merits docket. So while the decline in petitions could contribute to the shrunken merits docket, it does not appear to be the driver. The Court is hearing fewer cases than it used to because it is choosing to hear fewer cases. So unless the justices decide to start hearing more cases, or Congress intervenes, we are likely stuck with a smaller Supreme Court docket, whether or not paid petitions for certiorari decline.

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    ]]> 36
    Venice, Trieste, Slovenia, and Croatia Tue, 18 Jul 2023 15:32:06 +0000 My wife and I just came back from visiting our older son, who has been on a college work-study this Summer in Venice and Trieste, and then taking a trip to Slovenia (Ljubljana, Bled, Postojna Cave) and Croatia (Pula, Rovinj, Plitvice Lakes, Split, Dubrovnik). It was a delightful trip, even beyond just seeing our son. A few thoughts:

    1. Most impressive man-made sight: Venice. Yes, it's full of tourists, but there's a reason for that. A City of Islands, a citypelago, unlike most other places on earth.
    2. We spent three days in Venice, but no-one offered us any Dogecoin.
    3. Most impressive natural sight: Postojna Cave in Slovenia. Glorious.
    4. Leibniz cookies, continental Europe's answer to the Fig Newton.
    5. Best meals, from cheapest to most expensive: Geco Pub in Trieste; Ćiri Biri Bela in Split; Arsenal in Dubrovnik; Bled Castle Restaurant in Slovenia.
    6. In Trieste, we stayed on Viale 20 Settembre. (a) What's the significance of September 20? (b) That street name, unsurprisingly, is seen in many Italian cities; why is it somewhat ironic in Trieste?
    7. It was very easy to get around in English (admittedly, in the relatively touristy places we visited), and the people were generally very friendly.
    8. Dubrovnik in Croatia was once the Republic of Ragusa, with the motto "Non bene pro toto libertas venditur auro," meaning "Liberty isn't worth selling for all the gold in the world." Good sentiment! Also, winter is coming.

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    ]]> 37
    The FTC Doubles Down, Down, Down Tue, 18 Jul 2023 14:16:57 +0000 This episode of the Cyberlaw Podcast kicks off with coverage of a stinging defeat for the FTC, which could not persuade the courts to suspend the Microsoft-Activision Blizzard acquisition. Mark MacCarthy says that the FTC's loss paves the way for a complete Microsoft victory, as other jurisdictions begin to trim their sails. We credit Brad Smith, Microsoft's President, whose policy smarts likely helped to construct this win.

    Meanwhile, the FTC is still doubling down (and down) in its pursuit of aggressive legal theories. Maury Shenk explains the agency's investigation of OpenAI, which raises issues not usually associated with consumer protection. Mark and Maury argue that this is just a variation of the tactic that made the FTC the de facto privacy regulator in the U.S. I ask how policing ChatGPT's hallucinatory libel problem, which the FTC seems disposed to do, constitutes consumer protection, and they answer, plausibly, that libel is a kind of deception, which the FTC does have authority to regulate.

    Mark then helps us drill down on the Associated Press deal licensing its archives to OpenAI, an arrangement that may turn out to be good for both companies.

    Nick Weaver and I try to make sense of the district court ruling that Ripple's XRP is a regulated investment contract when provided to sophisticated buyers but not when sold to retail customers in the market. It is hard to say that it makes policy sense, since the securities laws are meant to protect retail customers more than sophisticated buyers. But it does seem to be at least temporary good news for the cryptocurrency exchanges, who now have a basis for offering a token that the SEC has been calling an unregistered security. And it's clearly bad news for the SEC, signaling how hard it will be for the agency to litigate its way to the Cryptopocalypse it has been pursuing.

    Andy Greenberg makes a guest appearance to discuss his WIRED story about the still mysterious attack that gave Chinese cyberspies the ability to forge Microsoft authentication tokens.

    Maury tells us why Meta's Twitter-killer, Threads, won't be available soon in Europe. That leads me to reflect on just how disastrously Brussels has managed the EU's economy. Fifteen years ago, the U.S. and EU had roughly similar GDPs, about $15 trillion each. Today, EU GDP has scarcely grown, while U.S. GDP is close to $25 trillion. It's hard to believe that EU tech policy, which I've dubbed EUthanasia, hasn't contributed to continental impoverishment, which, Maury points out, is so bad it's even making Brexit look good.

    Maury also explains the French police drive to get explicit authority to conduct surveillance through cell phones. Nick offers his take on FISA section 702 reform. And Maury evaluates Amazon's challenge to new EU content rules, a challenge that he thinks has more policy than legal appeal.

    Not content with his takedown of the Ripple decision, Nick reviews the week's criminal prosecutions of cryptocurrency enthusiasts. These include the Chinese bust of Multichain, the sentencing of Variety Jones for his role in the Silk Road crime market, and the arrest of Alex Mashinsky, CEO of the cryptocurrency exchange Celsius.

    Finally, in quick hits,

    Download 468th 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 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.

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    ]]> 0
    Poll: 44 Percent of Millennials Want To Make Misgendering a Crime Tue, 18 Jul 2023 13:30:56 +0000 young woman in rainbow flag sweater

    "Referring to someone by the wrong gender pronoun (he/him, she/her) should be a criminal offense," millennials say in a new poll. Americans, particularly younger Americans, often lament that our country has such problems with policing and mass incarceration. But when it comes to decriminalizing or lessening penalties for things that put people in cops' crosshairs, few want to give an inch unless the crime in question involves cannabis. Meanwhile, way too many express enthusiasm for creating criminal prohibitions on anything they wish wouldn't happen.

    Case in point: a new Newsweek poll on misgendering. In the poll—given to 1,500 eligible voters in the U.S. in early July by Redfield & Wilton Strategies—people were asked whether "referring to someone by the wrong gender pronoun (he/him, she/her) should be a criminal offense."

    A shocking percentage of younger survey respondents said that it should.

    Younger millennials were the most likely to support criminal penalties for misgendering, with 44 percent of 25- to 34-year-old respondents in favor and just 31 percent saying misgendering should not be a crime.

    But support for criminalizing misgendering was also strong among older millennials and Gen Z, though the younger group was less gung-ho about it:

    • Some 38 percent of 35- to 44-year-old respondents said it should be a crime, while 35 percent disagreed.
    • Some 33 percent of 18- to 24-year-old respondents said it should be a crime, while 48 percent disagreed.

    Among survey respondents overall, 19 percent said misgendering should be criminalized. Nearly two-thirds—65 percent—said it should not be criminalized, while 12 percent neither agreed nor disagreed and 4 percent said they didn't know.

    Calling people by their preferred pronouns is certainly the kind thing to do, just as it is to call people by their preferred name or honorific. Conversely, deliberately misgendering someone is a jerk move.

    But the purpose of criminal law isn't to punish people for being jerks, and it's a perverted society that thinks everything offensive or bad must be criminalized.

    In this particular case, criminalizing misgendering would also run into First Amendment concerns. Forcing someone to use particular pronouns under threat of criminal penalty would be government-compelled speech, which our Constitution frowns upon.

    The Newsweek survey results are disturbing, but we may be able to chalk some of it up to social desirability bias. People want to answer survey questions in a way that makes them look good. Asked the pronoun crime question in isolation and the abstract, some respondents may have responded affirmatively as a means to signal disapproval for misgendering people and support for transgender acceptance. Faced with a specific, real-world proposal to criminalize misgendering, perhaps (hopefully!) not quite so many people would be on board.


    Iowa court halts 6-week abortion ban. Just a few days after Iowa Gov. Kim Reynolds, a Republican, signed a strict abortion ban into law, a Polk County district court has put the law on hold. The suspended measure would make most abortions illegal after six weeks of pregnancy. From The New York Times:

    Joseph Seidlin, a district court judge in Polk County, said that the new ban would be suspended while the larger legal case against it moved forward. He said in his ruling that the plaintiffs who filed a lawsuit against the ban, including the American Civil Liberties Union, Planned Parenthood and other abortion providers, were likely to succeed on the merits of their case.

    That means that abortion in Iowa is once again legal up to around 22 weeks of pregnancy, at least for now.

    In his ruling, Seidlin wrote that "there are good, honorable and intelligent people—morally, politically and legally—on both sides of this upsetting societal and constitutional dilemma."


    Income inequality is shrinking. After the Great Recession, "predictions of economic decline took over," notes Yascha Mounk at The Atlantic. "America, a country long known for its inveterate optimism, came to dread the future—in which it now appeared that most people would have less and less."

    American discourse was rife with concerns about stagnation and rising income inequality. Yet "the reasons for economic pessimism have started to look less convincing than they once were," notes Mounk:

    The U.S. economy, [MIT economist David] Autor wrote in a highly influential paper in 2010, is bifurcating. Even as demand for high-skilled workers rose, demand for "middle-wage, middle-skill white-collar and blue-collar jobs" was contracting. America's economy, which had once provided plenty of middle-class jobs, was splitting into a highly affluent professional stratum and a large remainder that was becoming more immiserated. The overall outcome, according to Autor, was "falling real earnings for noncollege workers" and "a sharp rise in the inequality of wages."

    Autor's past work on the falling wages of a major segment of the American workforce makes it all the more notable that he now sounds far more optimistic. Because companies were desperately searching for workers at the tail-end of the pandemic, Autor argues in a working paper published earlier this year, low-wage workers found themselves in a much better bargaining position. There has been a remarkable reversal in economic fortunes.

    "Disproportionate wage growth at the bottom of the distribution reduced the college wage premium and reversed the rise in aggregate wage inequality since 1980 by approximately one quarter," Autor writes. The big winners of recent economic trends are precisely those groups that had been left out in preceding decades: "The rise in wages was particularly strong among workers under 40 years of age and without a college degree."

    Even after accounting for inflation, Autor shows, the bottom quarter of American workers has seen a significant boost in income for the first time in years. The scholar who previously wrote about the "polarization" in the U.S. workforce now concludes that the American economy is experiencing an "unexpected compression." In other words, the wealth gap is narrowing with surprising speed.

    And Autor isn't the only economist noticing this.

    While many Americans hang on to beliefs that income inequality is rising, "the intellectual basis for the thesis has begun to wobble," Mounk points out. More here.


    • "Georgia's Supreme Court on Monday denied Donald Trump's bid to halt the Fulton County district attorney's probe into whether the former president and his allies interfered in the state's 2020 presidential election," reports NBC News.

    • "Based on his private statements to colleagues, we know that former Fox News personality Tucker Carlson did not believe Trump lawyer Sidney Powell's wild claims about systematic fraud in the 2020 presidential election," notes Reason's Jacob Sullum. Yet Carlson "was singing a different tune [Sunday] at the Turning Point Action Conference in West Palm Beach, Florida."

    • Pop star John Legend, an Ohio native, is attempting to rally people against an August ballot measure that would make it harder to amend the state's constitution. The Republican-backed measure comes in response to efforts to put an abortion-supportive amendment on the ballot this fall.

    • Legal scholar James Grimmelmann talks about how various content moderation proposals "might hold up under US federal communication privacy regimes including the Wiretap Act, the Stored Communications Act, and the Communications Assistance for Law Enforcement Act (CALEA)."

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    ]]> 645
    More on Standing in the 303 Creative Case Tue, 18 Jul 2023 13:12:08 +0000

    "This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. … As our cases explain, the 'chilling effect' associated with a potentially unconstitutional law being 'on the books' is insufficient to 'justify federal intervention' in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right."

    Whole Women's Health v. Jackson (2021) (majority opinion)

    No one contends that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary "when the penalties for disobedience are . . . so enormous" as to have the same effect "as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights." 209 U. S., at 147.

    Whole Women's Health v. Jackson (2021) (Sotomayor, J., concurring in part and dissenting in part) (joined by Justices Kagan and Breyer)

    A couple of weeks ago I posted an article (here) criticizing the Court's decision in the website designer's case (303 Creative v. Elenis) granting Lorie Smith standing to pursue her claim in federal court. My argument, in essence, was that Lorie Smith suffered no "concrete injury" whatsoever, that the case was entirely hypothetical make-believe ("If she does this, and the State of Colorado does that, then her constitutional rights will have been violated"), and that the penalties for disobeying the statute were not "so enormous" as to justify pre-enforcement review of her hypothetical claim.

    Incidentally, those of you who disagree with my contention that the Court is in the process of completely dismantling the standing requirement in federal courts should take a look at the colloquy between Justices Roberts and Kagan in the student loan case, Biden v. Nebraska, another late-Term case in which the Court allows a plaintiff (the State of Missouri) to proceed with its challenge despite having suffered no injury whatsoever.

    The following is a response authored by John Ohlendorf and David Thompson of Cooper, Kirk in Washington DC, authors of an amicus brief in the 303 Creative case on behalf of Young Americas Foundation in support of Lorie Smith, taking issue with my post (and several others which had been similarly critical of the Court's standing analysis in the case).  I've reprinted it below in full (saving my response to their comments for a subsequent post).

    After the Supreme Court issued its landmark decision in favor of free expression in 303 Creative LLC v. Elenis at the end of the last Term, a curious thing happened: several commentators, including Professor Post, published sharply worded criticisms of the decision not based on its interpretation of the First Amendment as barring the application of Colorado's Anti-Discrimination Act (CADA) to the Petitioners' speech, but over an issue that was not even contested before the Supreme Court at the merits stage—whether the Petitioners, 303 Creative and its owner Lorie Smith, had standing to sue. We confess to being puzzled by these criticisms—not only because we thought the Petitioners' standing was a slam-dunk (for reasons we laid out in an amicus brief we filed before the Court on behalf of the Young America Foundation), and not only because the other side apparently thought so too, given the Respondents' decision not to dispute standing before the Court (and the failure of Justice Sotomayor's to mention the issue in her dissent). The most puzzling part of these criticisms is their failure to meaningfully engage with what we thought was the most straightforward reason Ms. Smith and her company had standing to challenge Colorado's Act: the direct, imminent, and undisputed injury that the Act's "Communication Clause" inflicted on Ms. Smith's speech. In this post, after briefly discussing the background of the case, we explain why this injury unquestionably gave Ms. Smith standing to challenge the Act. We also argue the posts by Professor Post and others also fail even on their own terms to cast any doubt on the Petitioners' standing.

    Lorie Smith and the Colorado Anti-Discrimination Act.

    As explained in the Supreme Court's decision, Lorie Smith is a digital artist who "offers website and graphic design, marketing advice, and social media management services" through her business, 303 Creative. She recently "decided to expand her offerings to include services for couples seeking websites for their weddings," and while she "provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation," she conscientiously objects to creating content that "contradict[s] her own views," including "her belief that marriage should be reserved to unions between one man and one woman."

    Ms. Smith has not yet begun designing websites for weddings, but on September 21, 2016, she received a request from an individual who identified himself as "Stewart," who expressed interest in Ms. Smith doing design work for his upcoming wedding with "Mike." This request has been the center of some post-decision controversy—an article in The New Republic alleges that the request may have been contrived by someone other than Stewart, but Ms. Smith's attorneys insist they believed it to be genuine. Neither the Supreme Court or the Tenth Circuit relied on this request in assessing Ms. Smith's standing, but given the controversy, we will return to it below.

    Whether or not an actual gay couple named Stewart and Mike wished to have Ms. Smith design content for their wedding, she certainly feared that once she expanded into the wedding business she would likely be approached to design for gay weddings. And she also feared that Colorado would interpret its broadly worded Anti-Discrimination Act as compelling her to do that design work, in spite of her religious objections. That law, CADA, contains two clauses that are particularly relevant. First, the "Accommodation Clause" makes it unlawful for any person to withhold the "services" of "a place of public accommodation" on the basis of "sexual orientation." In a series of decisions—including the State's well-known prosecutions of cake-baker Jack Phillips—Colorado has interpreted that language as forbidding creative professionals from declining to provide wedding-related services promoting same-sex weddings. Second, and importantly for our analysis, CADA's "Communication Clause" bans a person from even communicating the intent to provide services in a way that violates the Accommodation Clause.

    Because of these two clauses, Ms. Smith feared she would face liability if she were to even publicly announce her plan to expand into the wedding design space (along with her religious objections to designing for same-sex weddings). Before announcing her plans, she accordingly brought a preenforcement challenge to CADA, seeking to clarify her First Amendment rights. The Supreme Court, of course, ultimately agreed with Ms. Smith that CADA could not be applied to compel her to design websites expressing views that "defy her conscience."

    Ms. Smith's Standing Under the Communication Clause

    The post-decision commentary surrounding Ms. Smith's standing has largely ignored CADA's Communication Clause. Professor Post does not mention it at all. But we think Ms. Smith's injury under this Clause secures her standing beyond any reasonable dispute.

    Begin with the basics. It has long been black-letter law that an individual need not actually violate an unconstitutional law and then face prosecution to test the law's validity. Rather, most constitutional litigation today takes place on a preenforcement basis—with a plaintiff seeking declaratory and injunctive relief against a law that is reasonably chilling the exercise of her constitutional rights. Under the test set out in Susan B. Anthony List v. Driehaus, such a plaintiff has standing if she "alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder."

    Ms. Smith's injury under the Communication Clause checks all of these boxes. She squarely alleged that she wished to post an announcement that she was expanding into the wedding design space and explaining her religious convictions about marriage. That course of conduct is obviously "affected with a constitutional interest"; indeed, the Tenth Circuit aptly referred to web design as "pure speech." Nor is there any doubt that Colorado interprets CADA as proscribing this speech, and that there is a credible risk that it would prosecute Ms. Smith for publishing her intent to create wedding websites for opposite-sex weddings only. In fact, the State admitted as much at oral argument before the district court (see here at App. 1-147–48). And just witness the State's aggressive prosecution of Jack Philips and his Masterpiece Cakeshop under the same statute. In short, Ms. Smith's injury under CADA's Communication Clause is as clear a case of preenforcement standing as we've seen.

    Critically, Ms. Smith's standing to challenge the Communication Clause also necessarily gives her standing to challenge CADA's Accommodations Clause. The two clauses work in tandem: the Accommodations Clause bars an individual from denying service on certain bases, and the Communication Clause bars her from communicating the intent to deny service on those bases. The Communication Clause is thus nothing more than an enforcement mechanism implementing the Accommodations Clause: the substantive conduct that, under the Communication Clause, a person cannot say she will do—denying certain goods or services—is the very conduct that the Accommodation Clause forbids her to do. And the sole purpose of preventing a person from publishing their intent to deny service is to stop the denial itself. Indeed, prohibiting the communication of the intent to engage in such practices would be utterly pointless if the practices themselves were not prohibited by the Accommodation Clause.

    An injury under the Communication Clause thus necessarily grants standing to challenge both Clauses. That is because, in the jargon of standing, the "injury-in-fact" of not being able to publish your intent to deny services is "fairly traceable" not only to the Communication Clause but also to the Accommodations Clause. The whole reason the Communication Clause bars Ms. Smith from saying that she would decline to create websites for same-sex weddings is that the Accommodation Clause bars her from declining to create such websites in the first place. If there were no bar on denying services, there would perforce be no bar on communicating the denial, and no injury; hence, that injury is traceable to the original cause.

    The Supreme Court recently explained and applied precisely these principles in Federal Election Commission v. Ted Cruz for Senate. (Full disclosure: our Firm also represented Senator Cruz in that case.) In that case, Senator Cruz challenged a provision of the Bipartisan Campaign Reform Act ("BCRA") that capped, at $250,000, the amount of loans from a candidate to his own campaign committee that could be repaid by the committee with funds raised after the election. This statutory provision was implemented by a regulation promulgated by the FEC, which largely duplicated the statutory restriction but also added a few additional implementing details, including a rule requiring repayment within 20 days after the election of any portion of a candidate loan exceeding $250,000. While the FEC argued that Senator Cruz's injury ($10,000 in unpaid candidate loans arising out of the 2018 election) was purportedly caused only by the regulatory 20-day rule, the Court held that Senator Cruz also had standing to challenge BCRA itself, because his injury was fairly traceable to the statutory provision the regulation had been promulgated to implement. If there were no statutory limit on repaying loans, there would perforce be no regulation implementing that limit, and no injury—hence, Senator Cruz's injury was traceable to the original cause.

    While the Supreme Court's decision in 303 Creative does not extensively discuss standing, we read it as clearly consistent with this line of reasoning. The Court explained that the "Communication Clause . . . prohibits any speech inconsistent with the Accommodation Clause," and that in fact "Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls with its authority to apply the Accommodation Clause." Because Ms. Smith's injury under the former "stands or falls" with the constitutional validity of the latter, it is fairly traceable to both.

    As noted above, Professor Post's criticisms of Ms. Smith's standing do not treat with the Communication Clause at all; but another widely circulated blog post, by attorney Adam Unikowsky, does address Ms. Smith's injury under the Clause in passing. His arguments are unpersuasive. Unikowsky claims Ms. Smith's injury under the Communication Clause illustrates "how this is a fake case" because most graphic designers "don't enter the wedding website design business while proudly and publicly proclaiming on their websites that they won't serve same-sex couples." That is inconsistent with the stipulated facts below, which state (here at pages 188a-189a) that Ms. Smith had a sincere religious desire to post her statement in an effort to be honest and transparent about what services she offered. And in any event,  Ms. Smith's motives for wishing to be upfront about her religious beliefs are irrelevant. For even if Ms. Smith only wished to publish her religious beliefs "in order to manufacture standing," as Unikowsky speculates, that would not affect her standing; as the Cruz case also explained, "we have made clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred." Indeed, as Cruz pointed out, a contrary rule would be inconsistent with several landmark civil rights cases that allowed plaintiffs to willingly subject themselves to racially discriminatory laws in order to challenge them.

    Unikowsky seeks support for his "self-inflicted" argument in Clapper v. Amnesty International USA, where he says "the Court held that if a plaintiff lacks standing to challenge a government action on the ground that it's too speculative, it can't manufacture standing by taking precautions against that speculative action and then alleging standing based on those precautions." But Cruz discusses and expressly distinguishes Clapper from the situation here. In Clapper, Cruz explains, the plaintiffs' "problem . . . was that they could not show that they had been or were likely to be subjected to [the challenged surveillance] policy in any event." Here, there is no question that Colorado interprets the Communication Clause as proscribing the announcement Ms. Smith wishes to publish, or that there is a credible threat that they would enforce the Clause against her.

    Finally, Unikowsky also endorses the district court's backwards reasoning that the intertwined nature of the Communication Clause and the Accommodation Clause, rather than giving Ms. Smith standing to challenge both, somehow strips away her ability to challenge even the Communication Clause. That is plainly incorrect under the settled legal principles discussed above.

    In short, given the Communication Clause's clear bar on Ms. Smith's proposed (and constitutionally protected) speech, there can be no serious doubt that she had standing to challenge that the Supreme Court's decision arose out of a genuine "case or controversy."

    Ms. Smith's Standing Directly Under the Accommodation Clause

    While the argument above suffices to guarantee Ms. Smith's standing, we also think she clearly had standing directly under the Accommodation Clause, and that the arguments by Professor Post and Mr. Unikowky miss the mark. There is no real dispute that Ms. Smith wishes to design wedding websites (for opposite-sex weddings), or that this "course of conduct" is "affected with a constitutional interest." Instead, the controversy centers around whether or not there was a "credible threat" that Colorado would enforce the Accommodation Clause against her.

    Professor Post, for example, suggests that the risk of enforcement depends on four different contingencies:

    1. Smith would have had to actually open up a wedding website to the public;
    2. Having done so, Smith would have had to receive a request from a same-sex couple for wedding-related web design/hosting services;
    3. Having received such a request, she would have had to refuse to provide the services requested, services that she would happily provide to a heterosexual couple; and
    4. Given her refusal to provide services at her website requested by a same-sex couple that she would have provided to a heterosexual couple, the Colorado Commission on Civil Rights would have to decide to file a CADA claim against her, based on that refusal, for violating CADA.

    This list is far less formidable than it is made to appear. The first contingency is no contingency at all—Ms. Smith squarely alleged she intended to go into the wedding design space, and Colorado stipulated to the fact (see here at pages 186a-187a)—and Professor Post expressly concedes that the fourth contingency would also be met if the others are. So really we are talking about two contingencies: that Ms. Smith would receive a request to design for a same-sex wedding and would turn it down. And in point of fact, that final contingency is also not in dispute: for Colorado also expressly stipulated, in the district court, that Ms. Smith "will decline any request to design, create, or promote content that . . . promotes any conception of marriage other than marriage between one man and one woman." So at the end of the day, the only link in the chain of Ms. Smith's injury directly under the Accommodation Clause that is meaningfully contingent is receiving a request to provide content design services for a same-sex wedding. With respect to Professor Post, we do not think it is plausible to claim that "the likelihood of that happening [is] somewhere between 'low' and 'virtually non-existent.' " Jack Philips and Barronelle Stutzman of Arlene's Flowers would certainly agree with us.

    Accordingly, we do not think Ms. Smith's standing under the Accommodation Clause—again, even setting aside her standing under the Communication Clause—is in any reasonable doubt. And that is before one even considers the 2016 request for wedding design services by a couple identified as Mike and Stewart. That is likely why neither the the Tenth Circuit nor the Supreme Court placed any weight on that request in analyzing standing. But given the controversy surrounding that request, it is worth considering how the matter would stand if the 2016 request had in fact been the lynchpin of Ms. Smith's standing—and if, as The New Republic's reporting has alleged, the request was a fake.

    To begin, Ms. Smith's attorneys have stated that they believed the request was genuine, and we are not aware of anyone coming forward with any reason to doubt that representation. Under CADA, however, that reasonable belief is all that is necessary to assure Ms. Smith's standing. That is so because CADA squarely prohibits Ms. Smith from denying services not only based on a prospective customer's actual "sexual orientation," but also on her "perception thereof"—that is, her reasonable belief that the prospective customer has a particular sexual orientation. It thus matters not at all whether Mike is an actual man who wishes to marry another man named Stewart; all that matters is that Ms. Smith reasonably believed that was the case.

    Unikowky does not address this point, but he might respond by arguing that Ms. Smith's belief that the request was genuine was not a reasonable one, because she should have made more of an effort "checking whether Stewart and Mike were fake." The trouble with this assertion is that an investigation into Stewart's and Mike's sexual orientation could itself have subjected Ms. Smith to liability under CADA. Unikowsky resists this conclusion, arguing interrogating a prospective customer about his sexual orientation would amount to no greater violation of CADA's Accommodation Clause than simply refusing the request. But that ignores that such an investigation (by contrast to simply refusing the request through failing to respond) would also have risked violating yet another of CADA's restrictions—barring any statement that "directly or indirectly . . . indicates . . . that an individual's patronage . . . is unwelcome, objectionable, unacceptable, or undesirable because of . . . sexual orientation." Ms. Smith quite understandably did not wish to expose herself to additional liability under this clause by interrogating the requestor about his sexual orientation.

    Accordingly, Ms. Smith reasonably took the request from Stewart at face value, and that is all that is necessary for CADA's Accommodation Clause to kick in and restrict her speech. She thus had standing to challenge CADA several times over. The critics of the decision would do better to take a page from Justice Sotomayor's dissent and train their fire elsewhere.

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    Conservatives Should Not Be Surprised By Justice Gorsuch's Opinion in Bostock Tue, 18 Jul 2023 13:00:08 +0000 Kastl v. Maricopa County Community College District.]]> By virtually any measure, today's Supreme Court is the most conservative bench in modern history. Replacing Justice Antonin Scalia with Justice Neil Gorsuch, rather than Merrick Garland, or someone to his left, preserved the balance of the Court. Getting Justice Anthony Kennedy to retire, and replacing him with Justice Brett Kavanaugh, in many regards, moved the Court to the right. And replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett right before the tumultuous 2020 presidential election proved to be the coup de grâce. On paper at least, there is a 6-3 conservative majority for the first time in nearly a century. 

    Still, as I have documented elsewhere, Justices Kavanaugh, Barrett, and to a lesser extent Gorsuch, have voted to the left of Justices Thomas and Alito. The three Trump appointees are simply not as conservative as they could have been. But conservatives should not be surprised by President Trump's Supreme Court picks. Their track record–both what they did and did not do–have predicted their views on the high court. This post will discuss Justice Gorsuch. Future posts will focus on Justices Kavanaugh and Barrett.

    In June 2020, many conservatives were stunned by Justice Gorsuch's majority decision in Bostock v. Clayton County. He found that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees because of their sexual orientation or gender identity. This case was 6-3, with Chief Justice John Roberts, and the progressives in the majority. Justices Thomas, Alito, and Kavanaugh dissented. This decision came as something of a shock to the right. Indeed, Senator Josh Hawley of Missouri warned that Bostock may "represent[] the end of the conservative legal movement." (The rumors of the movement's death were greatly exaggerated.)

    Bostock was not a one-off for Justice Gorsuch with regard to federal protections for LGBT people. In several other lesser-profile cases, he parted company with Justices Thomas and Alito. First, in Idaho Department of Correction v. Edmo, the Ninth Circuit held that denying transition treatment for a transgender inmate was unconstitutional. Idaho asked the Supreme Court for an emergency stay of the lower court ruling. Only Justices Thomas and Alito would have granted that relief. Later, Edmo was provided the transition treatment and the case ostensibly became moot. Justices Thomas and Alito would have vacated the lower court's decision. Justice Gorsuch was once again silent, letting this precedent of the Ninth Circuit stand. (Justice Kavanaugh was confirmed one week before certiorari was denied, so he likely did not participate in that case.)

    Second, Gloucester County School Board v. Grimm involved a transgender student and bathrooms at a public school. The Fourth Circuit held that both Title IX and the Equal Protection Clause of the Fourteenth Amendment prohibited denying transgender students access to the restrooms assigned to the opposite biological sex. By the time the cert petition reached the Supreme Court, the Biden administration had adopted the Fourth Circuit's reading of Title IX, in light of Bostock. However, rather than resolving whether the Department of Education was correct, the Supreme Court simply denied certiorari. Justices Thomas and Alito would have granted the petition. Justice Gorsuch was silent, as were Justices Kavanaugh and Barrett, letting this precedent of the Fourth Circuit stand

    Third, in Kincaid v. Williams, the Fourth Circuit held that the Americans with Disabilities Act required a prison to accommodate an inmate's gender dysphoria. On appeal, the Supreme Court denied certiorari. Justices Alito and Thomas would have granted the petition right away, finding there was "no good reason for delay." Justice Gorsuch, as well as the other two Trump appointees, let the precedent of the Fourth Circuit stand. 

    Should Bostock, Edmo, Grimm, and Kincaid have been surprises? Not really. In 2008, then-Judge Gorsuch sat by designation on the U.S. Court of Appeals for the Ninth Circuit. He heard Kastl v. Maricopa County Community College District on a panel with appointees by Presidents Carter and Clinton. The case concerned Rebecca Kastl who "presented full-time as female." After "complaints that a man was using the women's restroom," Kastl was banned "from using the women's restroom until she could prove completion of sex reassignment surgery." The Ninth Circuit had previously held that California law prohibited discrimination against "transgender individuals" based on the "victim's real or perceived non-conformance to socially-constructed gender norms." That opinion was authored by the liberal lion of the Ninth Circuit, Judge Stephen Reinhardt. The Kastl panel then extended that state law doctrine to Title VII. Gorsuch agreed with the Carter and Clinton appointees to extend that Reinhardt precedent to Title VII. Under Gorsuch's view, federal law had all along barred "impermissible gender stereotypes" of a transgender individuals. One such impermissible stereotype was the notion that bathrooms can be assigned based on a person's biological sex. Kastl was an unpublished, non-precedential three-page order. But it was cited by many district court opinions, as well as a case from the Eleventh Circuit. Here Judge Gorsuch decided an important question of federal law in a drive-by fashion.

    Throughout his entire career, Justice Gorsuch has read the protections of federal law broadly–including the Equal Protection Clause, Title VII, Title IX, and the ADA–to broadly protect LGBT rights. Bostock, Edmo, Grimm, and Kincaid should not have been a surprise for anyone who read Kastl. And those who were responsible for nominating Gorsuch were no doubt aware of Kastl, and recommended him nonetheless.

    The post Conservatives Should Not Be Surprised By Justice Gorsuch's Opinion in <i>Bostock</i> appeared first on

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    Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award Tue, 18 Jul 2023 12:57:50 +0000 From Regenold v. Ohio State Bd. of Ed., decided Friday by Judge James Graham (S.D. Ohio.):

    Plaintiff Daniel P. Regenold brought this lawsuit over a modest but important matter. He had requested to speak for no more than five minutes at a public meeting of the Ohio State Board of Education., but the Board denied his request. The Board said that it had already closed the book on the topic he wished to address – critical race theory in Ohio education. Board President Laura Kohler notified Regenold that the Board had addressed the topic at prior meetings and passed a final resolution on the matter at least nine months earlier.

    Regenold filed suit …, seeking a preliminary injunction and asserting that the Board violated his rights under the First Amendment …. He alleged that the Board's decision to deny his request to speak was an overbroad, content-based restriction. Pointing to the language of the Board's applicable policy on conducting public meetings, Regenold argued that critical race theory remained an "issue of general interest" for which the Board's policy promised that the public would always have the right to speak.

    Regenold's request for injunctive relief became moot about six months later when the Board allowed him and others to speak on critical race theory at public meetings. Later, defendants made an offer of judgment under Federal Rule of Civil Procedure 68, which Regenold accepted. The Court entered Judgment for plaintiff in the amount of $1,000….

    Defendants concede that plaintiff is a prevailing party who is entitled to an award of attorneys' fees and costs. Judgment was entered in plaintiff's favor on his § 1983 claim, which entitles him to an award under 42 U.S.C. § 1988(b). Defendants' offer of judgment included "costs and attorneys' fees to be determined by the Court."

    Defendants also do not contest the amount of costs. Plaintiff seeks costs of $2,033.27, which include the filing fee and transcript fees.

    But defendants did argue, among other things, "that plaintiff should not be able to recover attorneys' fees for the [37.0] hours expended on plaintiff's motion for a preliminary injunction, which was unsuccessful in defendants' view." The court disagreed:

    The motion for a preliminary injunction sought an order requiring defendants to allow plaintiff to speak for up to five minutes at a public meeting of the State Board of Education…. The Court disagrees with defendants' characterization of the motion as "unsuccessful." The motion raised significant First Amendment issues and was supported by a substantial body of case law. Plaintiff brought the motion in a thoughtful fashion, designed to vindicate his right to free speech in a public forum. Though the Court did not need to rule upon the motion, it may well have granted the motion, and ultimately plaintiff received precisely the relief he sought.

    The Court also disagrees with defendants' statement that the action of "third parties" is what achieved relief for plaintiff. By "third parties," defendants seem to be referring to certain Board members who were not named as individual defendants in the complaint and who, after the lawsuit and motion were filed, voted in favor of allowing plaintiff and others to speak on critical race theory at the Board's public meetings. However, the Board itself was named as a defendant, and it was an action of the Board (through its voting members) which provided the relief plaintiff requested. See State Bd. Of Educ. Sept. 21, 2021 meeting, available at at 1:12:35 to 1:15:07 (going into executive session for "the purpose of conferring with legal counsel about matters that are the subject of pending or imminent court action").

    Defendants argue that the Court cannot, under binding case law, treat plaintiff's motion for a preliminary injunction as the catalyst for the Board's vote to allow plaintiff to speak. Defendants cite Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Resources (2001). In Buckhannon, the Supreme Court held that a "catalyst theory" cannot be used to establish that a party is the prevailing party for purposes of being entitled to a fee award under federal civil rights statutes. It takes more than the filing of an action and the defendant making concessions in order for a civil rights plaintiff to be the prevailing party. The Supreme Court required that the trial court must create an "alteration in the legal relationship of the parties" in order for the plaintiff to be a prevailing party. One way a trial court can accomplish that end is to enter judgment in plaintiff's favor, no matter how small the amount of damages.

    Defendants' argument is of no avail here. Plaintiff is not asserting a catalyst theory to establish that he is the prevailing party. Indeed, the judgment entry in his favor, which awarded him $1,000 in damages, suffices under Buckhannon to establish plaintiff as the prevailing party.

    Plaintiff instead is using a catalyst-type argument to support the reasonableness of expending hours in moving for a preliminary injunction. The Court agrees that it was reasonable for plaintiff to expend legal resources on pursuing preliminary injunctive relief, considering that an opportunity to speak was the primary relief he was seeking and that the Board had formally denied him of that opportunity before he filed suit. See Clark v. Sims (D. Md. 1995) ("[O]nce a party has been otherwise found to be a prevailing party, [a] catalyst theory remains available for consideration as a factor in arriving at the actual amount of the fee award, if any."); Lucas v. Guyton (D.S.C. 1995) ("agree[ing] entirely" with the analysis in Clark)….

    Accordingly, … [p]laintiff is awarded $88,996.00 in attorneys' fee and $2,033.27 in costs, for a total award of $91,029.27.

    Plaintiff is represented by Curt Hartman and Christopher Finney.

    The post Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award appeared first on

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    First Amendment Claim of Professor Fired Over Article Claiming Race-Based Genetic IQ Differences … Tue, 18 Jul 2023 12:06:29 +0000 From Judge Dan Aaron Polster's decision Friday in Pesta v. Cleveland State Univ. (N.D. Ohio):

    This case concerns the Plaintiff's First Amendment rights to academic freedom, freedom of speech, and freedom of association as a professor at Cleveland State University ("CSU"). The Plaintiff alleges that the Defendants violated his constitutional rights when they investigated and fired him for advancing a "genetic hypothesis of the cause of the racial IQ gap" between black and white Americans in a published academic article….

    The Plaintiff, Bryan Pesta …, was a Professor in the Department of Management at CSU. Professor Pesta received tenure at CSU in 2010 and promotion to full professor in 2016. In March 2022, CSU fired Professor Pesta….

    In August 2019, the Plaintiff co-authored and published in the peer reviewed journal, Psych, an article entitled "Global Ancestry and Cognitive Ability." The article essentially concluded that an IQ gap between white and black Americans was, at least in part, hereditary and the result of genetics. This conclusion is called a "hereditarian hypothesis." … In conducting research for the article, the Plaintiff used National Institute of Health ("NIH") data that consisted of over 9,000 individuals' actual DNA samples. The Plaintiff's article concluded that this data supported the belief that "genetics played a role in the mean differences in general intelligence between White and Black Americans."

    The Plaintiff acknowledges that the article "proved controversial." In the aftermath, CSU students and faculty, along with non-affiliated individuals and groups, publicly criticized the article and petitioned CSU to discipline Professor Pesta. One notable critic was Dr. Kent Taylor …. In April 2021, Dr. Taylor—a UCLA Professor of Pediatric Medicine—wrote President Sands and alleged that the article's "[u]se of NIH data for studies of racial differences in this way [was] both a violation of data use agreement and unethical."

    At some point after the article's publication but before the Plaintiff's firing, CSU removed online access from its website to Professor Pesta's prior academic work. Specifically, CSU removed the online link to Professor Pesta's 2008 published article, "Black-White differences on IQ and grades: The mediating role of elementary cognitive tasks" from its "Engaged Scholarship at CSU" website. CSU never provided a website link to the Plaintiff's article "Global Ancestry and Cognitive Ability."

    In Spring 2021, CSU formed a committee to investigate Professor Pesta…. Later that same month, the committee contacted Dr. Taylor and then interviewed him in October 2021. Dr. Taylor took issue with the final sentence of the article's abstract that read, "Results converge on genetics as a potential partial explanation for group mean differences in intelligence." In email correspondence with the committee, Dr. Taylor wrote, "In my opinion, this statement conflicts with the NIH policy NOT-OK-07-088 on taking care that data avoids stigmatization of US population sub-groups." Dr. Taylor further explained during his interview why he believed that the Plaintiff's use of the NIH data violated the NIH data use agreement, why it was unethical, and why he was professionally opposed to Professor Pesta's research into the hereditability of intelligence traits.

    In January 2022, the committee issued a report that recommended terminating Professor Pesta. Provost Bloomberg accepted the committee's recommendation and fired the Plaintiff ….

    Prof. Pesta sued, and the court allowed his claim to go forward:

    A First Amendment retaliation claim requires the Plaintiff to prove three elements, that: (1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action; and (3) the adverse action was motivated at least in part in response to the exercise of his constitutional rights. The Plaintiff's firing satisfies the second element. The Defendants' arguments center on the first and third elements.

    Under the first element, courts determine whether protected First Amendment speech is at issue by applying the "longstanding Pickering-Connick framework," which involves two additional questions: A) whether the Plaintiff was speaking as a citizen, on a matter of public concern; and B) whether the Plaintiff's interest in doing so outweighs the individual Defendants' interest in promoting the efficiency of the public services they perform through their employees.

    The first sub-element is met. The Defendants do not dispute that the Plaintiff was speaking as a citizen and addressing a matter of public concern.. The Court agrees. The Plaintiff spoke as a citizen—and not as a CSU employee—because his speech occurred publicly, outside his office, and his expressions were not made pursuant to his duties as a CSU professor. Moreover, his speech addressed matters of public concern because the subject matter broadly related to communities' social and racial concerns. See Meriwether v. Hartop (6th Cir. 2021) ("When speech relates to any matter of political, social, or other concern to the community, it addresses a matter of public concern." (internal quotations and citation omitted)).

    The second sub-element is the crux of the Defendants' argument. They contend that the Plaintiff has not alleged facts sufficient to establish that his interests outweigh the Individual Defendants' interests in executing their public services efficiently. Specifically, the Defendants argue that they had "adequate justification" to fire the Plaintiff and that the Plaintiff himself appears to concede that his termination resulted from unethical research methods, not "for exercising his First Amendment right to publish on race-based issues." The Plaintiff disputes this assertion and maintains that he "plausibly alleged that his research constituted controversial speech by an academic" that "fit[s] within the core of the area protected by the First Amendment."

    While the Plaintiff's speech relates to academic scholarship, his interests center on his right as a private citizen to write publicly on contentious academic topics without retaliation from his employer. The Plaintiff was a state employee, but he nevertheless retained the right to speak as a citizen. See Garcetti v. Ceballos (2006) ("The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.").

    The individual Defendants' interests center on upholding CSU's academic standards and integrity, ethical code of conduct, and professional reputation. This naturally extends to ensuring that academic instructors—especially a tenured professor—use sound research methodologies. Essentially, the weighing of interests turns on the reason CSU investigated and fired the Plaintiff, and that question is a factual one that requires discovery.

    Both sides dispute why Professor Pesta was fired, and neither side provided the Court with his termination letter. Certainly, evidence of the Plaintiff's unethical or unsound practices for proposing, conducting, and reporting research could affect CSU's operation and could tip the scale in the Defendants' favor. See Meriwether v. Hartop ("[A] school's interest in limiting a teacher's speech is not great when those public statements are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally."). The Plaintiff contends that he did not use unethical and unsound research techniques, but that the Defendants fired him for his viewpoint.

    At this [motion-to-dismiss] stage, construing the complaint in the light most favorable to the Plaintiff and accepting his allegations as true, the Plaintiff has alleged sufficient facts that his interests outweigh the individual Defendants' interests. Accordingly, the Plaintiff has satisfied the first element—and the two Pickering-Connick sub-elements thereunder—and the second element of a First Amendment retaliation claim.

    Moving to the third element, the Plaintiff has alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire Professor Pesta for exercising his constitutional rights. The Defendants maintain that "[i]t is clear from the face of his Complaint that Pesta was investigated and terminated for misrepresenting to the NIH how he would use the data he requested in violation of NIH policy and basic research ethics." The Court disagrees.

    The Plaintiff alleges that the Defendants never provided an online link to his controversial article, removed online access to his other works before rendering an official decision to fire him, waited more than a year and a half to investigate his alleged wrongdoing, and initiated an investigation only after weathering considerable public criticism. Accepting these allegations as true, the Plaintiff alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire him for his protected speech. While this analysis may change with additional facts after discovery, at this point, the Plaintiff satisfies the third element.

    Sounds generally right to me. Several circuit courts have concluded that the First Amendment generally protects public university professors from being disciplined based on the viewpoints expressed in their scholarship; the Sixth Circuit is one of them. And while professors can indeed be disciplined pursuant to viewpoint-neutral rules forbidding research misconduct (falsifying data, failing to get patients' informed consent to various procedures, and so on), it seems to be quite contested here whether such rules were really violated and whether any such violation—as opposed to the viewpoint that Pesta expressed—was the basis for the firing.

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    No Pseudonymity for #TheyLied Plaintiff Suing for Libel and Invasion of Privacy Over Rape Accusations Tue, 18 Jul 2023 12:01:47 +0000 From Judge Nina Wang yesterday in Doe v. Roe (D. Colo.); note that I filed an objection to plaintiff's motion for pseudonymity:

    According to the allegations in the Complaint …, Plaintiff and Defendant dated for nearly a year while enrolled at Tulane University …. After their relationship ended in October 2021, Defendant complained about Plaintiff's behavior to Tulane, which issued mutual no-contact orders the next month. Defendant also sought a protective order in Louisiana state court, claiming that Plaintiff stalked, harassed, shoved, and threatened her.

    In both proceedings, Defendant did not claim that Plaintiff sexually assaulted her. Plaintiff and Defendant agreed to a state court order, pursuant to which Tulane's no-contact order became permanent, and Plaintiff agreed to withdraw from Tulane and cease all contact with Defendant. Plaintiff alleges that he never sexually assaulted Defendant, and that he left Tulane voluntarily.

    In August 2022, following a "period of reflection," Plaintiff enrolled in Front Range Community College in Boulder, Colorado, although he planned to transfer to the University of Colorado ("CU Boulder") after his first year there. At CU Boulder, Plaintiff rushed and sought to pledge an unspecified fraternity, and paid its dues.

    Shortly after the fraternity received his bid in September 2022, Defendant sent text messages to the fraternity's social chairs claiming, among other things, that Plaintiff transferred schools "not through his own choice, but because he was kicked out of Tulane for rape and stalking"; "sexually assaulted and raped [Defendant] countless times"; "forced [Defendant] into very uncomfortable sexual situations, forcing [her] to do painful things which [she] objected to"; "was abusive in every way"; "ha[d] been physically violent with [Defendant]"; "threatened [Defendant's] friends and family and attempted to cut [her] off from every person in [her] life"; and was "a threat to every woman's safety on [CU Boulder's] campus."

    The fraternity "terminated" Plaintiff immediately, based on Defendant's allegedly defamatory claims, and refused to refund a deposit he paid. Plaintiff's college friends "cancelled him." Additionally, fraternity members "spread [Defendant's] malicious lies to numerous other students on campus, who proceeded to bully and ostracize [Plaintiff]." Plaintiff was ultimately "forced to withdraw" from CU Boulder "and return home to California." Meanwhile, Defendant has returned to Tulane, where she continues to "publish[] her false and malicious lies to numerous students there." Seeking damages, Plaintiff has brought three claims arising out of these allegations: defamation, intrusion on seclusion, and unreasonable disclosure of private facts.

    The Complaint identifies the Parties with pseudonyms—"John Doe" for Plaintiff and "Jane Roe" for Defendant…. Plaintiff has filed the Motion to Restrict … [seeking permission to proceed pseudonymously]. {Plaintiff states that he "anticipates later moving for a Protective Order requesting that Defendant be prohibited from ever disclosing his identity." That contemplated relief is not before the Court at this time.} … Defendant joins Professor Volokh in opposing pseudonymity and further notes that she "will allege that she was sexually assaulted in her counterclaims," and "is choosing to proceed using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." …

    The United States Court of Appeals for the Tenth Circuit … has explained that "identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. It is subject to a decision by the judge as to the need for the cloak of anonymity." To justify use of a pseudonym, "the risk that a plaintiff may suffer some embarrassment is not enough." … "… [A]nonymity in court proceedings may sometimes be warranted, but it is limited to 'exceptional circumstances,' such as cases 'involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity.'" Most recently, the Tenth Circuit discussed these standards in considering whether a district court erred in denying a plaintiff's request to proceed under a pseudonym where the underlying circumstances implicated an alleged sexual assault. See Luo v. Wang (10th Cir. 2023)….

    [T]he allegations at issue are sensitive and personal in nature, in that they involve details of the Parties' sexual relationship. At the same time, … Defendant opposes pseudonymity, and … takes the position that the "public has a keen interest in [this case's] subject matter, including in examining the use of litigation by perpetrators of sexual assault to curtail the #MeToo movement and to silence speech about sexual misconduct that has proven so critical in changing norms that have for far too long allowed sexual abuse to continue unabated." …

    Next, Plaintiff appears to overstate the likelihood of physical harm. The initial Motion to Restrict referred only to the "academic," "financial," "mental," "emotional," "reputational," and "psychological" harm suffered by Plaintiff. Only in his Reply, once confronted with the applicable legal framework, does Plaintiff invoke "physical manifestations of emotional harm," based on alleged bullying and harassment, as well as increased attention to this case. Plaintiff cites several paragraphs of the Complaint to show that he has suffered or will suffer physical harm, but, upon review, the closest the Complaint gets is alleging generally that CU Boulder students "proceeded to bully and ostracize" Plaintiff. Even if the Court assumes that the bullying at issue had a physical component—which does not necessarily follow from the surrounding allegations, or the pairing with the word "ostracize"—the Complaint alleges in no uncertain terms that Plaintiff responded by "withdraw[ing] and return[ing] home to California." Plaintiff thus faces no further risk of harm at CU Boulder, physical or otherwise, by his own account.

    With regard to the public discourse, Plaintiff speculates that denial of pseudonymity will result in "inevitable public attention," which will make physical harm likely. However, Plaintiff does not explain why that is so, and the case Plaintiff cites for support is distinguishable. In it, the court observed that the threat of harm to the movant was "all the more serious given that this case has drawn significant media attention, which means many people across the country are aware of Roe's accusations against plaintiff," and "some responses to the media's reporting on this case have been vitriolic." Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016). Here, in contrast, Plaintiff recognizes (albeit in supporting a different argument) that the subject matter of this case has not been "publicized in any newspapers or online fora," and "there is nothing about his status that would heighten any public interest beyond the normal public interest in any judicial proceedings."

    Third, Plaintiff does not seek injunctive relief in the Complaint, and the alleged injury involving his time at CU Boulder has already occurred. See Luo (district court did not abuse its discretion in "concluding that the injury [plaintiff] litigated against—[defendant's] previous alleged defamation and disclosure of her private information— would not be incurred because of the disclosure of her identity"). Plaintiff seeks damages for past conduct by Defendant. Plaintiff's argument that "prevailing in this litigation would be undermined if he were required to reveal his identity," ignores that by prevailing in this litigation, Plaintiff will have proven the defamatory nature of Defendant's previous statements and will likely want to publicize his own name. As the United States District Court for the Eastern District of North Carolina observed, "[i]t would be fundamentally unfair for [a] plaintiff to be able to 'clear his name' and wield a potential judgement against [his accuser] to his advantage but hide under a shield of anonymity if unsuccessful." Doe v. Doe (E.D.N.C. 2023).

    The Court also acknowledges that pseudonymity could potentially prejudice Defendant in light of her stated intention to litigate a counterclaim for sexual assault "using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." Indeed, unlike other cases, Plaintiff is not seeking to proceed pseudonymously so as to match his accuser's pseudonymous status.

    For all these reasons, this Court concludes that Plaintiff's arguments supporting pseudonymity fail to overcome the strong presumption of public access. Chalmers v. Martin (D. Colo. 2021) ("The supposed harm from being the target of a lawsuit alleging sexual abuse is not enough to justify shrouding this case with a veil of secrecy."). As the Volokh Response points out, libel cases concerning sexual assault are routinely brought in plaintiffs' own names. Although, in some respects, Plaintiff's "desire [to proceed under a pseudonym] is understandable, our system of dispute resolution does not allow it."

    The result seems correct to me, for reasons given in this amicus brief my students and I field in the pending Doe v. Doe (4th Cir.). That case, which also deals with whether a libel plaintiff could sue anonymously, is the appeal of the Doe v. Doe (E.D.N.C. 2023) case cited by Judge Wang. For more on this general issue, see my The Law of Pseudonymous Litigation. You can also read, in this case, plaintiff's Complaint and his motion for pseudonymity.

    The post No Pseudonymity for #TheyLied Plaintiff Suing for Libel and Invasion of Privacy Over Rape Accusations appeared first on

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    Today in Supreme Court History: July 18, 1942 Tue, 18 Jul 2023 11:00:35 +0000 7/18/1942: Justice George Sutherland dies.

    Justice George Sutherland

    The post Today in Supreme Court History: July 18, 1942 appeared first on

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    A Decade After Bankruptcy, Is Detroit Better? Tue, 18 Jul 2023 10:00:01 +0000 topicspolicy

    If there is a lesson from Detroit's 2013 bankruptcy, it's that going broke can only take a city so far. Municipal bankruptcy is a process that gets a city out of debts that it can't pay. But city residents don't get better services when those debts are canceled.

    There are some things that ought to surprise people about city finances. When Detroit filed for bankruptcy in July 2013, residents found out that the group the city owed the most money to was not banks or bondholders or city contractors—it was the city's pensioners. Former city employees accidentally became Detroit's largest creditors because the city didn't have enough money to pay them what they were owed.

    This should not be. When governments promise to pay their employees pensions, they should set aside enough money to pay for them. This keeps the cost of pensions on current taxpayers and doesn't push the costs into the future.

    Michigan has a constitutional requirement that public officials properly pre-fund pensions, but that did not happen in Detroit. This wasn't a simple mistake. Multiple Detroit pension officers and advisers were sent to prison for bribery.

    So Detroit retirees got their pensions cut in bankruptcy. The city no longer pays for retiree health insurance. Retirees instead rely on coverage from the Obamacare exchanges and any subsidies they may be eligible for there, plus Medicare when eligible. Pensioners would have gotten a better deal had the people managing their investments not been corrupt and exploited their positions to benefit themselves.

    During the bankruptcy, Detroit had a weird situation with its art collection. The works hanging in the Detroit Institute of Arts (DIA) were not owned by the museum; they were owned by the city government. A bankruptcy court isn't going to let a normal person keep a $100 million Bruegel the Elder masterwork when it's asking creditors to take a haircut. But things worked out differently in Detroit.

    A mediator put together a deal to give the DIA the city's collection, and in return the city got some extra payments from state taxpayers and from local foundations to be put in the pension fund. The city hasn't been putting revenue in its pension fund since bankruptcy; the state and foundations have. Whether the city can afford this obligation when those payments end this summer is a big question.

    An important step in emerging from bankruptcy was for the court to certify that the city's bankruptcy plan was "feasible"—that the city would not fall back into insolvency shortly after going through bankruptcy court. City officials hired a high-priced consultant who wrote a 226-page report on the subject, concluding that it was difficult to say.

    Sure, the projections looked fine. But Detroit was lacking some of the basics that it needs to operate like a normal institution. "The lack of accounting and financial information systems confounds virtually every city operation and makes it difficult to perform even basic analysis or performance monitoring," the consultant noted. "The city has accumulated dozens of non-integrated systems which make it impossible to obtain the timely and reliable systemic information necessary for efficient operations and informed decision-making."

    It's still unclear that the city has fixed this basic problem. If there's progress on this, it is hard to see.

    Perhaps this is why city officials still get charged with corruption. That includes one police officer who had commanded the city's Public Integrity Unit. You can't steal thousands unless you mismanage millions.

    People don't want to live next to vacant, decaying buildings, and the city has torn down a lot of them, not without controversy. Some contractors used dirt containing arsenic to fill in the void that was left by home demolition.

    Investors build buildings in downtown and midtown, but often with money and tax preferences from state and local governments. Healthy real estate markets ought to require no special subsidies for development.

    The public school district is terrible—fourth grade reading proficiency is the nation's absolute lowest among city school districts—but parents don't have to send their kids there and most of them don't. The majority of students in Detroit now go to charter schools.

    The city's economic trends remain miserable. It's still losing people. The city population dropped from 700,000 people to 620,000 people since bankruptcy.

    Detroit remains the poorest city in America, and that competition is not especially close. The Motor City's poverty rate is 31.8 percent. The next closest city is Memphis, at 24.2 percent. The national average is just 12.6 percent. Median household income is just $34,800, which is half of the national average.

    Only 39.6 percent of Detroit residents were working in 2022, compared to the 62.2 percent national average.

    The people living in the city are subject to an inordinate amount of crime. More than a quarter of Detroit residents said that they have been victims of vehicle theft, home or auto break-in, property vandalism, or physical violence in the past year, according to a survey by the University of Michigan. That's in a single year, not over a person's lifetime in the city. While such surveys are not performed in every city, a Bureau of Justice Statistics report on crime victimization in 2020 found that 0.93 percent of Americans had suffered a violent crime and 6.19 percent of households experienced a property crime. What is unfathomable in much of America remains a part of everyday life in Detroit.

    A functioning city government can respond to crime and reduce it. Competent city management can improve the quality of life for Detroiters. But there's no policy that Washington or Lansing lawmakers can put in place to force city officials to manage their services better. It's something that has to come from city voters holding their own city government officials accountable.

    Better city services may not even be necessary to help Detroiters do better. Other cities have corrupt officials without falling to Detroit's level of poverty and decay. If the city government doesn't get better, maybe other institutions can overcome its defects.

    Detroit has many problems, and bankruptcy solved only one: the city's inability to pay its pensioners and other creditors. It didn't make the city more prosperous, more functional, or less corrupt. Detroit continues to earn its reputation as a poor, dysfunctional city.

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    Brickbat: Too Rough Tue, 18 Jul 2023 08:00:56 +0000 Police officers in the background with a security camera in the foreground.

    Former Wilmington, Delaware, police officer Samuel Waters faces up to eight years in prison after being convicted of assault, official misconduct, falsifying business records, and felony tampering with public records. Waters slammed a suspect's head against a plexiglass window during an arrest at a convenience store. Waters did not turn his bodycam on and lied about the incident in his report. But everything was captured by the store's security camera.

    The post Brickbat: Too Rough appeared first on

    ]]> 19
    Debating the Legacy of Justice John Marshall Harlan Tue, 18 Jul 2023 01:13:16 +0000 After the Supreme Court invalidated the use of race in college admissions in SFFA v. Harvard, NYT columnist Jamelle Bouie wrote a column questioning the legacy of Justice John Marshall Harlan. The Supreme Court majority's reliance upon language from Harlan's opinion, Bouie suggested, might not be as anomalous as some of the Court's critics would like to think. Though credited with the claim that "the Constitution is colorblind," Harlan was no anti-racist.

    The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan's lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. "There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," wrote Harlan, who would have struck down a Louisiana law establishing "equal but separate" accommodations on passenger railways.

    But there's more to Harlan's dissent than his most frequently cited words would lead you to believe. When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It's not that segregation was wrong but that, in Harlan's view, it was unnecessary. . . .

    Harlan's brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. "Blacks and whites could be 'equals before the law,'" notes Hutchison, "but that did not mean they were equals in any other respect — in the social realm, racial inequality would rule 'for all time' if the nation remained blind to race 'in view of the Constitution.' "

    This column prompted an extensive reply from Peter Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero in Politico. His reply begins:

    There is no high court for historical injustices, no tribunal to which a historical figure can appeal when their reputation is maligned. Yet simple fairness and the need for a balanced view of the past require some attempt at reputational justice. Even in death, people should reap what they sow. It's a question that would have interested the Supreme Court Justice John Marshall Harlan, who served from 1877 to 1911. With his religious values, unusual sense of how judicial opinions shape American destiny and his many dissents that appealed to future generations, Harlan believed in the long judgment of time.

    But he might have shuddered at the thought of his own reputation in the dock.

    Harlan's fame rests as the sole dissenter in case after case that took away the rights that Black people were granted in the post-Civil War amendments to the Constitution. Those dissents not only inspired African American leaders in his time but provided an early roadmap for the victories that Black lawyers won in the 20th century. The fact that even one — though only one — white judge had seen the law in terms of its effect on Black people kept hope alive in the Black community. From church pulpits, he was hailed as a prophet in his time.

    Canellos rejects Bouie's interpretation of Harlan, suggesting it results from wrenching Harlan's views out of context and transposing them into contemporary debates.

    Bouie suggests that the notion of a purely color-blind Constitution can be used to cement white privileges in the law. Fair enough. He also goes on to suggest that this was what Harlan intended to do.

    A closer look at Harlan's Plessy dissent, and the wider arc of his career, does not support that contention. . . .

    Harlan was, indeed, far-sighted, but it's not credible to suggest his main concern was preserving racism at home while shielding it from critics abroad. His concern for the plight of Black people was straightforward and sincere, a feeling that Black people had been denied their legal rights as Americans. They had gotten a rotten deal. And concerns over white America's treatment of Black people were reflected in almost every aspect of his life during his years on the bench.

    After a fairly thorough survey of Harlan's record (covering far more column inches than Bouie had at his disposal in the NYT) Canellos concludes:

    It is commonly said that all such figures were "of their times." Certainly, their words and actions should be judged in the context of their times, including the prejudices that attached to that period. But that doesn't mean that every person is fated to share those biases, or that anyone whose work responds to the peculiar challenges of their era must be held in suspicion.

    In Harlan's case, his willingness to acknowledge the wrongs done to Black people helped sustain faith in the legal system at one of its worst hours. His actions convinced Marshall, Motley and others that it was possible to persuade white judges to enforce the rights of Black people; imagine the disgrace to the system if every white judge had refused to uphold the Civil Rights Act of 1875, or if every white judge had rallied around the separate-but-equal doctrine.

    It seems to me that the injury to public discourse in failing to recognize those who broke the mold or stood apart — or in seeming too eager to discredit them — is precisely that it forecloses the possibility of exemplary behavior. If John Marshall Harlan was a prisoner of his times, so are we prisoners of ours. And that serves to extinguish hope for a better world.

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    ]]> 25
    'Bidenomics,' Like All Industrial Policy, Sucks Mon, 17 Jul 2023 20:41:41 +0000 Joni Ernst, R-IA, holds a poster on "Bidenomics"

    In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman appraise the current state of "Bidenomics" as well as the self-described No Labels centrist movement.

    0:58: Assessing Bidenomics

    24:03: The No Labels movement

    39:42: Weekly Listener Question

    47:43: Over-the-counter birth control!

    53:14: This week's cultural recommendations

    Mentioned in this podcast:

    "'Bidenomics' Is Nothing New," by Veronique de Rugy

    "Turns Out 'Bidenomics' Means Top-Down Economic Control," by Peter Suderman

    "Joe Biden's Endless River of Debt and Regulation," by Nick Gillespie

    "Joe Biden's $11 Trillion Plan to Bankrupt America," by Nick Gillespie

    "The Fantasy of a 2020 Independent Centrist," by Matt Welch

    "John Avlon: 'How the Lunatic Fringe Is Hijacking America,'" by Nick Gillespie

    "On Independence Day, Find Common Ground Over Freedom," by J.D. Tuccille

    "All Birth Control Pills, Not Just One, Should Be Over the Counter," by Jeffrey A. Singer

    "What if the government banned birth control?" by Nick Gillespie, Elizabeth Nolan Brown, and Scott Winship

    "Review: Mission: Impossible—Dead Reckoning Part One," by Kurt Loder

    "Robert F. Kennedy Jr.: COVID, Ukraine, Bitcoin, Guns, Free Speech, and More," by Nick Gillespie and Zach Weissmueller

    "Milan Kundera's Eternal Feud With Václav Havel," by Matt Welch

    Send your questions to Be sure to include your social media handle and the correct pronunciation of your name.

    Today's sponsor:

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    Audio production by Ian Keyser; assistant production by Hunt Beaty.

    Music: "Angeline," by The Brothers Steve

    The post 'Bidenomics,' Like All Industrial Policy, Sucks appeared first on

    ]]> 37
    Will SCOTUS Be the Mountain Valley Pipeline's MVP? Mon, 17 Jul 2023 20:26:12 +0000 After years of legal and political wrangling, it appeared the Mountain Valley Pipeline was nearing completion. fewer than four miles of the 300-plus-mile project remain to be completed and Congress endorsed the pipeline's completion. Section 324 of the Fiscal Responsibility Act of 2023 expressly called for the approval of all remaining permits, ratified all prior federal agency permits, and constrained further judicial review of such permit approvals.

    The U.S. Court of Appeals for the Fourth Circuit appears not to have gotten the message. Despite the fact that Congress had stripped the Fourth Circuit of any jurisdiction over cases challenging the pipeline's permits, last week the court issued two orders staying additional construction and approvals from the U.S. Forest Service and Fish & Wildlife Service.

    On Friday, Mountain Valley Pipeline filed an emergency application with Chief Justice Roberts asking the Supreme Court to vacate the stays. The brief, filed by former Solicitor General Donald Verelli, explains why the Fourth Circuit's actions lacked any legal basis.

    The argument that apparently convinced the Fourth Circuit to enter its stays is that Congress lacks the constitutional authority to intervene and effectively end the legal challenges to the pipeline's construction. As this academic amicus brief puts it, Congress may not "direct the result in pending litigation without amending substantive law." The problem is that Congress has substantively amended the law—declaring these permits valid, rather than telling the Fourth Circuit to so conclude—and deprived the Fourth Circuit of jurisdiction to consider the question (vesting such jurisdiction in the D.C. CIrcuit instead).

    It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case—and that is what it did.

    Not only is the Fourth Circuit wrong to think there is a basis for continuing to hold up the Mountain Valley Pipeline, it lacks the jurisdiction to consider the question. It is well established that Congress retains the power to shift or strip federal jurisdiction, even from pending cases, and even if that disadvantages one party to the litigation. (See, e.g., Ex parte McArdle in which the Supreme Court upheld legislation stripping the federal courts of hearing particular habeas claims, even though that doomed McArdle's habeas petition.) Such a move may seem like dirty pool, but it is well within Congress's power to do.

    The legal merits of this dispute seem rather clear. The only question is whether the Supreme Court will consider the Fourth Circuit's actions to be sufficiently egregious to justify a "shadow docket" order vacating the stays or providing other extraordinary relief.

    The post Will SCOTUS Be the Mountain Valley Pipeline's MVP? appeared first on

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    Monday Open Thread Mon, 17 Jul 2023 20:24:15 +0000 The post Monday Open Thread appeared first on

    ]]> 677
    No Pseudonymity for Non-Citizen Challenging Law Limiting Non-Citizens' Participation in Voter Registration Mon, 17 Jul 2023 20:18:24 +0000 From Chief Judge Mark Walker's opinion yesterday in Hispanic Federation v. Byrd (N.D. Fla.); the pseudonymous plaintiff is apparently a lawful permanent resident:

    {This case involves a constitutional challenge to a newly-enacted law regulating third-party voter registration organizations. Plaintiff Doe seeks to proceed anonymously to avoid retaliation or harassment considering their immigration status and due to the "elevated political climate" concerning immigration more broadly.}

    Ordinarily, parties referred to in a complaint must be identified by their real names. The Federal Rules of Civil Procedure specifically provide that "[t]he title of the complaint must name all the parties." Similarly, courts have long recognized that "[l]awsuits are public events" and that the public has a "legitimate interest in knowing all of the facts involved [in a case], including the identities of the parties." …

    The Eleventh Circuit has made clear that pseudonyms may only be used in "exceptional" cases, and that there is "a strong presumption in favor of parties' proceeding in their own names." That presumption can only be overcome where the party seeking to proceed pseudonymously shows that they have "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" In determining whether Plaintiff Doe has such a right, this Court considers the following three factors: (1) whether they are "seeking anonymity challenging government activity," (2) whether they will be "required to disclose information of the utmost intimacy", and (3) whether they will be "compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution."

    As to the first factor, [that] Plaintiff Doe is challenging government activity … only has a neutral effect. Cf. Frank , 951 F.2d at 324 ("[T]he fact that Doe is suing the Postal Service does not weigh in favor of granting Doe's request for anonymity."); cf. also Roe v. Aware Women Ctr. for Choice, Inc., 253 F.3d 678, at 686 (11th Cir. 2001) ("[N]o published opinion that we are aware of has ever permitted a plaintiff to proceed anonymously merely because the complaint challenged government activity.").

    As to the second factor, the Eleventh Circuit has explained that "the 'information of utmost intimacy' standard applies to cases involving issues such as abortion … and prayer and personal religious beliefs." One would think that the standard covers more, but apparently it does not. Indeed, courts have denied the use of pseudonyms in cases involving matters that many would consider extremely private [citing cases involving abortion, alleged sexual assault victims, plaintiffs who were disclosing their alcoholism, attempted suicide by a police officer, abortion, and other matters].

    Here, Plaintiff Doe identifies their immigration status as information raising a privacy concern sufficient to warrant permission to proceed under a pseudonym. But this Court is not persuaded that Plaintiff Doe's temporary protected status raises the same privacy concerns as the information at issue in cases where pseudonyms have been allowed. Cf. SMU, 599 F.2d at 712–13 (collecting cases and listing "birth control, abortion, homosexuality, [and] the welfare rights of illegitimate children or abandoned families" as examples of "matters of a sensitive and highly personal nature" (footnotes omitted)). Accordingly, this factor also is of little help to Plaintiff Doe.

    Finally, the third factor does not help Plaintiff Doe either. That is, there is no information in the record suggesting that A. Doe has engaged in criminal activity or that they intend to do so. Nor have they alleged that such information may become part of this case in the future. Accordingly, none of the three factors weigh in favor of using a pseudonym.

    Of course, none of these three factors take into account Plaintiff Doe's concerns about the potential harassment and threats they face. To be clear, this Court does not intend to diminish those concerns. This Court recognizes that it has "discretion" and "should carefully review all the circumstances of a given case" before deciding "whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns."

    Even so, the precedent binding this Court seems to counsel against granting the requested relief…. "The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." …. This Court finds that mere allegations of threats and harassment is insufficient to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings. This is especially true where the targets of such threats and harassment are not minors and where the subject at issue does not involve matters of utmost intimacy.

    The post No Pseudonymity for Non-Citizen Challenging Law Limiting Non-Citizens' Participation in Voter Registration appeared first on

    ]]> 1
    Tucker Carlson Lends Credence to the Stolen-Election Story He Dismissed As a Lie Mon, 17 Jul 2023 20:10:34 +0000 Tucker-Carlson-7-14-23-Newscom

    Based on his private statements to colleagues, we know that former Fox News personality Tucker Carlson did not believe Trump lawyer Sidney Powell's wild claims about systematic fraud in the 2020 presidential election. "Sidney Powell is lying," Carlson flatly stated in a November 16, 2020, text message to fellow Fox News host Laura Ingraham that came to light as a result of the defamation lawsuit that Dominion Voting Systems filed against the channel. Ingraham agreed that Powell could not be trusted: "Sidney is a complete nut. No one will work with her. Ditto with Rudy [Giuliani]."

    We also know, again thanks to discovery in the Dominion lawsuit, that Carlson had a low opinion of Donald Trump. In a November 10, 2020, text message, he called Trump's decision not to attend Biden's inauguration "hard to believe," "so destructive," and "disgusting." He was more broadly critical in a January 4, 2021, text message to his staff. "There isn't really an upside to Trump," he said, describing "the last four years" as "a disaster." Carlson was eager for a change: "We are very, very close to being able to ignore Trump most nights. I truly can't wait. I hate him passionately." The day after the January 6 Capitol riot by Trump supporters, Carlson privately called him "a demonic force" and "a destroyer."

    Carlson, who launched a new show on Twitter after Fox News fired him in April, was singing a different tune yesterday at the Turning Point Action Conference in West Palm Beach, Florida. "Why were they so mad?" he said during a giddy, meandering 44-minute speech at the pro-Trump gathering, referring to the Capitol rioters. "Why do they take the bus from Tennessee to go jump up and down in front of the Capitol?" The answer, he said, is that they were frustrated by the patronizing, dismissive response to their legitimate concerns about how the presidential election had been conducted.

    Carlson suggested it was laughably implausible that Joe Biden had received "81 million votes"—"15 million more than Barack Obama," which "seems like a lot"—especially "considering [that] he didn't campaign and he can't talk." But instead of taking that reaction seriously, Carlson said, the political and journalistic establishment told Trump's supporters to "settle down," saying, "We have the source code in the voting machine software, and we've looked at it, and it's totally on the level. We've double-checked. We wouldn't let an electronic voting [company] hide their software from us."

    The unfounded claim that deliberately corrupted Dominion software enabled Biden to steal the election, of course, was the central issue in the company's lawsuit against Fox, which the parties settled for a jaw-dropping $788 million shortly before Carlson got the boot. It was also the claim that Carlson privately dismissed as dangerous nonsense. "It's unbelievably offensive to me," he told Ingraham. "Our viewers are good people and they believe it."

    The next day, Carlson made his doubts public, albeit in less categorical terms. If what Powell said were true, he said on his show, it would be "the single greatest crime in American history." But he noted that Powell, despite repeated requests from his staff, had declined to back up her claims with evidence.

    Yet now Carlson, who was transparently craving the adulation of the Trump supporters in West Palm Beach, is reinforcing their conviction that Biden could have won the election only through a vast criminal conspiracy that Carlson publicly called unsubstantiated and privately called a lie. He apparently has swallowed any disgust he once felt at Powell et al.'s deception of "good people."

    What about the politician who persistently promoted that conspiracy theory and embraces it to this day? "Republicans elected a guy basically on the promise to blow up the Republican Party," Carlson said, which should have been cause for reflection within the GOP establishment. But mainstream Republican politicians did not take the lessons of Trump's victory to heart, he complained, and today they are abetting Biden's "perversion of leadership" vis-à-vis the war in Ukraine, a failure that Carlson said is "disgusting" because it fosters "chaos."

    In the immediate aftermath of the Capitol riot, Carlson privately viewed Trump as an agent of chaos, and not in a good way. The sooner the GOP was rid of Trump's influence, Carlson thought, the better. "Trump has two weeks left," he told his staff the day after the riot. "Once he's out, he becomes incalculably less powerful, even in the minds of his supporters."

    That is not quite the way things worked out. Trump currently is by far the leading contender for the 2024 Republican presidential nomination, about 30 points ahead of his closest competitor. And so Carlson, like the Republican politicians whose phoniness he detests, has adjusted to the reality that Trump continues to dominate the GOP. "Whatever you think of Trump," Carlson said, "he's pretty clear on this [i.e., the need for decisive leadership in foreign affairs], and they hate him for it actually. They hate him for it."

    Carlson's attempt to have it both ways regarding Trump's stolen-election fantasy was apparent from the January 26, 2021, show in which he gave MyPillow CEO Mike Lindell a forum to regurgitate that story. More than two months after Carlson had publicly rebuked Powell for making unsubstantiated claims about machine-facilitated election fraud, he interviewed Lindell, ostensibly on the subject of "cancel culture." Lindell predictably seized the opportunity to repeat the charge that Carlson had dismissed—the same charge that would eventually cost Fox $788 million.

    Lindell said "we have all the evidence" to show Dominion's complicity in election fraud and complained that "they just say, 'Oh, you're wrong.'" Instead of asking Lindell to elaborate on that "evidence," Carlson sympathized with his complaint. "They're not making conspiracy theories go away by doing that," Carlson said. "You…don't make people kind of calm down and get reasonable and moderate by censoring them. You make them get crazier, of course. This is…ridiculous."

    That comment, Fox argued, implied skepticism by referring to "conspiracy theories." Dominion argued that "a regular viewer of Carlson's would likely have thought Carlson changed his mind on the subject, given how differently he treated Lindell than he had treated Powell."

    Now Carlson is doubling down on the position he took during that interview. The real scandal, he claims to think, is not that the president of the United States refused to accept an electoral loss and instead promoted one specious claim after another in an effort to overturn, or at least cast doubt on, the outcome. The real scandal, Carlson says, is that those claims were not taken seriously enough.

    Carlson positions himself as a bold truth teller who is unafraid to tell it like it is. But his slippery handling of Trump's tall tale shows he is no more trustworthy than the politicians he despises.

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    "Strangers on the Internet" Podcast Episode 36: Therapy Speak as Relationship Abuse Mon, 17 Jul 2023 19:28:11 +0000 The 36th episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange explores how therapy language has at times been weaponized in romantic relationships.

    The Internet is abuzz with discussion about allegations by Sarah Brady, a University of Hawai'i law student, that her ex-boyfriend and celebrity Jonah Hill emotionally abused her and dressed up the abuse in therapy language. According to screenshots of text messages she posted publicly, he designated it "boundaries" that she should not post swimsuit pictures of herself on social media, model, surf with men, or interact with female friends of whom he didn't approve, among other things.

    We discuss the difference between boundaries and coercive control, the ways in which boundary speak doesn't absolve the speaker of problematic values injected into requests (or demands), and the general current trends in distorting psychological language to serve one's purposes. We also delve into what happens when a partner's mental health or other life circumstances make it difficult for them to give what the other person might actually deserve under optimal conditions. Tune in and join the discourse!

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    Homeless Veteran Sues Police After Service Dog Tased During Panhandling Arrest Mon, 17 Jul 2023 18:54:02 +0000 dog

    A homeless military veteran whose service dog was tased by North Carolina police officers and later died has filed a federal civil rights lawsuit

    Reason reported in 2021 on the case of Joshua Rohrer, who was arrested by two police officers in Gastonia, North Carolina, for panhandling after a 911 caller complained that he was "using this dog to make people feel sorry for [him]." When Rohrer argued that he wasn't doing anything illegal, the officers tackled him and tased his service dog, Sunshine. Sunshine ran away and was later hit by a car.

    "They laughed at me," Rohrer told Army Times, recounting the officers' reaction to his distress.

    Prosecutors later dropped charges against Rohrer for panhandling and resisting arrest. Now Rohrer, who has service-related post-traumatic stress disorder, is suing, arguing that the violent arrest violated his First and Fourth Amendment rights, as well as the Americans with Disabilities Act.

    In addition, the suit alleges that the Gastonia Police Department and city officials made hundreds of false and defamatory comments on Facebook about Rohrer in retaliation for speaking out following his arrest. For example, the police department repeatedly posted that Rohrer had agreed to take a plea deal before the charges were dropped. The suit argues that by posting about Rohrer's plea deal, which ultimately never happened, the department not only smeared Rohrer as guilty but also accessed and published details from his sealed case file.

    "The daily barrage and high volume of these posts, the specific targeting of Mr. Rohrer, and the fact that they reveal confidential information demonstrate a pattern of harassment that would chill a reasonable person from exercising their First Amendment rights," the suit reads.

    The lawsuit seeks punitive and compensatory damages, as well as an injunction against the city's panhandling ordinance, which it argues is facially unconstitutional under the First Amendment.

    Towns frequently use overly broad panhandling ordinances to crack down on begging and roust homeless people, despite numerous court decisions upholding a general First Amendment right to ask others for money in a public space. For example, earlier this year the Foundation for Individual Rights and Expression (FIRE), a First Amendment nonprofit, filed a lawsuit on behalf of a man who was harassed by police for holding a sign that read, "God Bless Homeless Vets."

    In one of the many Facebook posts about Rohrer's case, the Gastonia Police Department wondered: "If this is such a clear violation against the Constitution and civil rights, there should have been several attorneys willing to take this case pro-bono right? But yet, that hasn't happened. Perhaps you should ask Mr. Rohrer why [he] hasn't pursued anything further."

    The department now has its answer. Rohrer is represented by the Guidry law firm and by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University.

    "Mr. Rohrer has been—and continues to be—targeted by the Gastonia police for his constitutionally protected speech, from standing on a median accepting donations from passersby to protesting government misconduct and calling for accountability in the wake of his arrest," ICAP senior counsel Joseph Mead said in a press release. "This case is about ensuring that even members of the most vulnerable populations in our society—including people with disabilities or without housing—will be protected from government overreach and retaliation."

    A spokesperson for the City of Gastonia declined to comment, citing the pending litigation.

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    DOJ Opens Probe Into Jail Where Inmate Died Covered in Insects Mon, 17 Jul 2023 17:39:15 +0000 LaShawn Thompson's jail cell.

    Last week, the Department of Justice announced an investigation into the Fulton County jail in Atlanta. It will focus on reports of inadequate inmate living conditions, insufficient access to mental and physical health care, and violence against inmates. 

    "People in prisons and jails are entitled to basic protections of their civil rights," Attorney General Merrick Garland said in a July 13 press release. "We launched this investigation into the Fulton County Jail based on serious allegations of unsafe, unsanitary living conditions at the jail, excessive force and violence within the jail, discrimination against incarcerated individuals with mental health issues, and failure to provide adequate medical care to incarcerated individuals."

    The investigation comes in the wake of the death of LaShawn Thompson, a mentally ill inmate who died in squalid conditions in the jail's psychiatric ward last September. Thompson, who had schizophrenia, had been jailed at the facility for three months, following his arrest on a misdemeanor battery charge. 

    According to jail documents, Thompson's body was found covered in lice, bedbugs, and lesions. Graphic photos released by Thompson's family further show that his cell was extremely filthy and covered in small insects when his body was found. An independent autopsy released by Thompson's family in May listed his cause of death as "severe neglect," noting Thompson was suffering from a "severe body insect infestation."

    However, Thompson's living conditions are not rare at the Fulton County jail. According to a 2022 report by the Southern Center for Human Rights, every single inmate in the jail's psychiatric unit had either lice, scabies, or both. The report also found that 90 percent of inmates in this unit were not completing "activities of daily living" like "showering, dressing, getting out of bed, walking, and using the toilet—or receiving essential medications." Further, 90 percent of these inmates were also deemed significantly malnourished and showing signs of cachexia, a "wasting syndrome leading to the loss of muscle and fat, often seen in people with late-stage cancers."

    The Justice Department probe will focus on possible violations of the Civil Rights of Institutionalized Persons Act and the Americans with Disabilities Act and will investigate both inmate living conditions and reports of violence and excessive force against inmates.

     "The unconstitutional conditions that we see too often inside jails and prisons have no place in society today," Assistant Attorney General Kristen Clarke said in the DOJ press release. "We are committed to ensuring jail and prison facilities provide constitutional conditions, in which all people can live safely and receive medical care. Incarceration should never include exposure to unconstitutional living conditions, including the risk of serious harm from violence."

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    Progressives Should Be Grateful For President Trump's Not-So-Conservative SCOTUS Picks Mon, 17 Jul 2023 15:10:52 +0000 Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong. Consistently, Justices Brett Kavanaugh, Amy Coney Barrett, and to a lesser extent Neil Gorsuch, have voted to the left of Justices Clarence Thomas and Samuel Alito. Today, critics assail this Supreme Court as the most conservative bench in modern history. True enough. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito. 

    Look past the string of headline-grabbing conservative victories concerning abortion, affirmative action, the religion clauses, the Second Amendment, and so on. Rather, count up the 5-4 cases on the merits docket that swing left, the rejection of applications on the emergency docket brought by conservative litigants, and the denials of certiorari petitions that could have moved the law to the right. These three-dozen cases are all progressive victories snatched from the jaws of conservative defeat. On balance, progressives should be grateful for President Trump's not-so-conservative SCOTUS picks.

    The Merits Docket


    Let's start with the Supreme Court's merits docket. Justice Gorsuch has cast the deciding vote in five 5-4 cases that swung to the ideological left. First, Sessions v. Dimaya held that a federal immigration law was unconstitutionally vague. Second, Washington Department of Licensing v. Cougar Den exempted members of an Indian tribe from a tax on fuel importers. In both of these two cases, Justice Kennedy voted with the Court's conservatives in dissent. The third case, Herrera v. Wyoming, protected the right of an Indian Tribe to hunt on "unoccupied"  property. Fourth, United States v. Davis held that a criminal penalty for using a firearm during a "crime of violence" was unconstitutionally vague. The fifth case was the most significant. Justice Gorsuch wrote the majority opinion in McGirt v. Oklahoma, which held that large portions of Oklahoma, including the city of Tulsa, remain "Indian country." As a result, the state of Oklahoma could not prosecute crimes committed by members of the Creek nation. In each of these five cases, President Trump's nominee to replace Justice Scalia voted opposite the Court's four conservatives.

    After Justice Kavanaugh replaced Justice Kennedy, it should have become harder for the Court's four progressives to cobble together a majority for 5-4 cases–in theory at least. In May 2019, Justice Kavanaugh wrote the majority opinion in Apple v. Pepper, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The case held that iPhone owners could sue Apple for alleged antitrust violations. 

    In September 2020, Justice Ginsburg passed away. By the end of October, Justice Barrett was confirmed to fill the vacancy. Now, with only three progressives on the Court (Breyer, Sotomayor, and Kagan) two conservative Justices would have to swing left to form a five-member majority. Yet, the progressives would prevail in five more 5-4 decisions. In each case, Chief Justice Roberts and Justice Kavanugh joined the three progressives. First, Biden v. Texas approved the Biden administration's immigration policy. Second, Biden v. Missouri held that the federal government could mandate vaccines for health care workers. Third, Nance v. Ward ruled in favor of a death row inmate. Fourth, Torres v. Madrid allowed a plaintiff to sue police officers who shot her. Fifth, Torres v. Department of Public Safety ruled that Texas could be sued for damages.

    In June 2022, Justice Breyer retired, and was replaced by Justice Ketaji Brown Jackson. This past term, Chief Justice Roberts and Justice Kavanaugh continued to join the Court's three progressives in two prominent 5-4 cases. Allen v. Milligan held that Alabama violated the Voting Rights Act by not creating a second "majority-minority" district. And Cruz v. Arizona permitted a prisoner to challenge his conviction in federal court.

    Finally, even when Justice Kavanaugh votes with the Court's conservatives, he still pivots left. Justice Kavanaugh wrote influential concurring opinions in the landmark abortion and Second Amendment cases. These concurrences narrowed the majority opinion by resolving difficult questions that were not yet in front of the Court.

    By my count, since Justice Gorsuch's appointment, a Trump appointee has cast the decisive fifth vote in a 5-4 case that swung to the left a dozen times. To date, Justice Barrett has not cast the deciding vote in a 5-4 liberal case. But this tally only considers the Supreme Court's merits docket. The Supreme Court's emergency docket provides an even larger set of data points.


    Emergency Docket


    On the so-called "shadow" docket, five votes are needed to grant relief. Generally, these applications for emergency relief are decided by unsigned per curiam opinions. On occasion, one or more Justices will dissent from the denial or grant of relief. Since November 2020, Justices Thomas, Alito, and Gorsuch have consistently ruled together on emergency applications. Had Justices Kavanaugh and Barrett joined the conservative troika in each case, (3+2=5) full relief would have been granted.  

    In January 2021, the Harvest Rock Church and South Bay United Pentecostal Church challenged California's restrictions on in-person gatherings and singing during worship. The Court, by a 6-3 vote, ruled that the prohibition on indoor worship violated the Free Exercise Clause of the First Amendment. Justices Thomas, Alito, and Gorsuch went further, and declared unconstitutional the singing ban. Justices Barrett and Kavanaugh, however, left the singing ban in place. (This concurrence was Justice Barrett's first writing on the bench.) This 3-2 split on the emergency docket would repeat itself again and again.

    In four cases, Justices Kavanaugh and Barrett declined to cast the deciding votes that would have blocked the enforcement of vaccine mandates: Dunn v. Austin, We The Patriots USA v. Hochul, Does 1-3 v. Mills, and Dr. A. v. Hochul. Eventually, Justices Kavanaugh and Barrett also likely declined to grant certiorari in Dr. A v. Hochul. (I say likely here, and elsewhere, because the Justices did not expressly state their positions, but we can reasonably infer how they voted.) Justices Thomas, Alito, and Gorsch would have heard the case. Meanwhile, in Austin v. U.S. Navy Seals 1-26, Justice Kavanaugh and likely Justice Barrett allowed the Navy to deny religious exemptions for the vaccine mandate. 

    This 3-2 split would fracture other cases on the emergency docket. The plaintiffs in Coalition for TJ v. Fairfax County School Board asked the Supreme Court to block an affirmative action policy at an elite public high school. Justices Thomas, Alito, and Gorsuch would have granted the application. Justices Kavanaugh and Barrett were silent. In Moore v. Harper, the republican North Carolina legislature asked the Supreme Court to block the state supreme court's finding of a partisan gerrymander. Justices Thomas, Alito, and Gorsuch would have granted the stay. Justice Kavanaugh and likely Justice Barrett declined to grant relief. (In June 2023, Justices Kavanaugh and Barrett would cast the fifth and sixth vote against the North Carolina legislature on the merits docket). In Alabama Association of Realtors v. HHS, the Court declined to block the federal eviction moratorium. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred to explain why he would leave the policy in place, at least temporarily. (After the Biden administration called Kavanaugh's bluff, and continued the policy, the Court halted the moratorium by a 6-3 vote.) In NetChoice v. Paxton, Justices Kavanaugh and Barrett voted to block the enforcement of a Texas law that restricted social media sites. Justices Thomas, Alito, and Gorsuch would have allowed the regulations to go into effect.

    Since Justice Barrett's confirmation, I count thirteen cases in which she and Justice Kavanaugh could have joined Justices Thomas, Alito, and Gorsuch on the emergency docket. But the duo chose not to. By contrast, Justices Barrett and Kavanaugh likely joined the Court's progressives in Lombardo v. St. Louis. That unsigned opinion gave another appeal to the family of a prisoner who died in police custody. Justices Thomas, Alito, and Gorsuch would have allowed the case to end. Ultimately, the lower court ruled against Lombardo's family again, and the Supreme Court denied certiorari over Justices Sotomayor and Jackson's dissent. 

    Prior to Justice Barrett's confirmation in October 2023, Justice Kavanuagh was often the odd man out on the emergency docket. I count at least five cases from before the presidential election, which challenged COVID-related voting procedures: Berger v. North Carolina State Board of Elections, Wise v. Circosta, Moore v. Circosta, Andino v. Middleton, and Republican National Committee v. Common Cause Rhode Island. In each case, Justices Thomas, Alito, and Gorsuch would have granted full relief. Justice Kavanaugh did not.

    Cert Denials


    On the Supreme Court, four votes are required to grant certiorari. In rare cases, one or more Justices will dissent from the denial of certiorari. When there are three such dissents, we can reasonably infer that one more Justice was unwilling to give a "courtesy" fourth vote. Like with the emergency docket, there have been a string of high-profile cases where Justices Thomas, Alito, and Gorsuch dissented from the denial of certiorari. One more vote from a Trump appointee would have granted the petition. By my count, Justices Kavanaugh or Barrett could have been the fourth vote for certiorari in five important cases, but they chose not to.

    In 2018, the Supreme Court denied appeals from Kansas and Louisiana, which excluded Planned Parenthood from Medicaid funding. Justice Kavanaugh, who could have provided the pivotal fourth vote, was silent in these cases. Arlene's Flowers v. Washington involved a florist who declined to make floral arrangements for a same-sex wedding. After nearly seven years of litigation, the Supreme Court denied review. Justices Thomas, Alito, and Gorsuch would have granted the petition. Justices Kavanaugh and Barrett were silent. Boardman v. Inslee involved a challenge to a Washington law that granted employee information to unions. The Court denied review, but Justices Thomas, Alito and Gorsuch would have granted certiorari. Justices Kavanaugh and Barrett allowed the case to conclude. Shoop v. Cunningham presented a challenge to a two-decade old murder conviction. Justices Thomas, Alito, and Gorsuch would have granted review, and summarily reversed the lower court judgment that ruled for the prisoner. Justices Kavanaugh and Barrett said nothing. 

    In Dignity Health v. Minton, California required a Catholic hospital to perform a hysterectomy on a transgender patient. The Court denied review, over the dissents of Justices Thomas, Alito, and Gorsuch. Alas, without the votes of Justices Kavanaugh or Barret, the Catholic hospital would be forced to perform the procedure. In a related case, Roman Catholic Diocese of Albany v. Emami, New York mandated that religious employers must fund abortions through their employee health plans. Justices Thomas, Alito, and Gorsuch would have granted certiorari immediately. But Justices Kavanaugh and Barrett kicked the can down the road, and let the New York courts consider the case in light of a recent Free Exercise Clause decision, Fulton v. City of Philadelphia

    The following year, the New York appellate division ruled that Fulton did not change the relevant standard, so the Diocese lost again. And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach. 

    Meanwhile, Justices Thomas, Alito, and Gorsuch would have overruled Smith in Fulton. The relationship between Fulton and Catholic Diocese of Albany illustrates with clarity the gap between Justices Kavanaugh and Barrett on the one hand, and Justices Thomas, Alito, and Gorsuch on the other.



    Critics of the Court should be at least somewhat grateful. Had President Trump nominated three Justices in the mold of Justices Alito and Thomas, none of the nearly three-dozen cases I mentioned above would have gone to the left, none of the moderating concurrences would have been written, and many of the emergency applications would have been granted. I'm not saying that the progressive glass is half-full–but they're lucky it's not empty. On the other hand, conservatives should be thrilled, but their cup does not exactly runneth over. 

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