Latest Thu, 21 Mar 2024 16:13:11 -0400 en-US hourly 1 The Government Can't Save India's Suffering Farmers Thu, 21 Mar 2024 20:13:11 +0000 Protesting farmers run away from tear gas shells used by the police near Shambhu border that divides northern Punjab and Haryana states, some 200 kilometers (120 miles) from New Delhi, India, Wednesday, Feb.21, 2024. The protesting farmers began their march to the Indian capital last week, but their efforts to reach the city have been blocked by authorities. | Rohit Lohia/ZUMAPRESS/Newscom

Thousands of Indian farmers continue to protest and demand legislation that would guarantee minimum crop prices for their yields, reinvigorating a 2020 debate that led the country to repeal several agricultural laws that farmers unions claimed were hostile to their livelihoods.

Core to the protesters' long list of demands is the push to enshrine into law a minimum support price (MSP), a staple of Indian economics where the federal government recommends price floors in an attempt to safeguard profit. It is currently advisory, not binding. The protesters—which the government has sought to stymie with displays of force, restrictions on the right to assembly, and online censorship—are also urging legislators to extend the MSP to all crops, not just the ones deemed essential.

But while it's true that farmers in India are legitimately struggling, their demands are divorced from certain unfortunate economic realities.

From August 2020 to December 2021, the Indian central government faced off against a coalition of farmers unions—mostly from the state of Punjab—over three contentious farm bills, drawn up with the goal of agricultural market reform and modernization. The bills would have broadly advanced steps to reduce government intervention in India's agricultural industry, which, as of 2022, makes up 43 percent of Indian labor. In essence, the farm bills aimed to make it easier for customers and contractors to directly purchase from producers, rather than through a public mechanism.

Many farmers feared those bills would get rid of the MSP and that the modernization of agriculture would empower corporations to control their livelihoods. Hundreds of thousands of farmers participated in demonstrations that involved sit-ins, traffic obstruction, and even suicides. Amid sustained pressure, the bills were ultimately repealed.

Narendra Modi, the prime minister of India, stood by the bills but apologized for failing to convince farmers of their utility. "Whatever I did was for farmers," Modi said in a statement. "What I am doing is for the country." 

But as the debate over market reform ramps up again, an important point is flying under the radar: Despite employing nearly half of the country's work force, the agricultural industry in India—the world's fastest-growing G20 economy—has consistently contributed less than 20 percent of the nation's gross domestic product (GDP) since 2002. Though India's economy has expanded rapidly, many farmers have resisted changing occupations, and some have struggled to afford educational opportunities—leaving the profession oversaturated and other job markets undersaturated.

It gets worse: Though its agricultural industry is bloated with labor, India ranked 111th in the 2023 Global Hunger Index. The Public Distribution System in the country, which primarily supports the MSP, has been unable to efficiently distribute food and is riddled with corruption, undermining the very reason it exists.

Many farmers in India produce low yields due to circumstances mostly beyond their control: unreliable weather, a lack of diversity in crops, poor infrastructure, growing farmer debts, and antiquated agriculture practices. To put it plainly, Indian farmers rely on government aid because agriculture is simply not a sustainable market in the country. Enshrining the MSP into law would officially subsidize a struggling, overfilled sector with no end in sight.

Farmers' other demands include axing a 2020 bill that made room for private investment in electricity to withdrawing from free market agreements with the World Trade Organization. It is increasingly clear that the farmers' demands, while stemming from a place of real suffering, are fundamentally opposed to any semblance of a free market.

That's no secret. The New York Times explicitly referred to MSP as "social insurance," while a BBC article said the farm bills would relax laws that "have protected farmers from the free market for decades."

In February, the government offered a five-year plan to guarantee income for certain crops through the MSP, but it wasn't enough. The farmers declined. "After the discussion of both forums, it has been decided that if you analyze, there is nothing in the government's proposal," said Jagjit Singh Dallewal, one of the major protest leaders. "This is not in the favor of farmers."

But contra Dallewal, it is highly questionable that the MSP, which was introduced in the 1960s to address food shortages, is helping farmers consequentially. "MSP as currently implemented may not play a significant role in reducing agricultural commodity price market volatility," according to an analysis by researchers at the University of Illinois at Urbana-Champaign. "If MSP does not significantly decrease price volatility, then the benefits of the MSP program for farmers are unclear."

There is little to gain and much to lose when considering the government buying crops at fixed rates cannot possibly provide farmers a long-term solution to their very concrete poverty. Those much-maligned, erstwhile farm bills would have taken conservative steps toward liberalizing India's agricultural economy. Enacting the MSP as law, on the other hand, would be a massive step back for one of the world's major economies on the rise.

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]]> 25 Protesting farmers run from tear gas shells used by the police in February about 120 miles from New Delhi, India.
Maurice Jimmerson Was Locked Up for 10 Years Without a Trial. He's Finally Free. Thu, 21 Mar 2024 19:46:25 +0000 Maurice Jimmerson hugs someone | Atlanta News First

Maurice Jimmerson, a Georgia man who languished in jail awaiting trial for more than a decade, has finally been released. Jimmerson has been in jail since 2013 after a series of bureaucratic hurdles prevented him from receiving a speedy trial.

Jimmerson was one of five people arrested by Albany, Georgia, police on suspicion of committing a double murder in 2013. Two of Jimmerson's co-defendants were tried and acquitted in 2017, but Jimmerson himself remained behind bars.

It's not entirely clear why Jimmerson spent so much time in jail. Last year, Gregory Edwards, the Dougherty County district attorney, told Atlanta News First that the delay was attributable to the lingering effects of the COVID-19 pandemic, a 2021 courthouse flood, and a previous judge's decision to try Jimmerson and his co-defendants separately. 

Making the situation worse, Jimmerson was left without a lawyer to represent him for over eight months after his public defender requested to be released from Jimmerson's case so he could travel frequently to seek medical care for his infant daughter. 

Jimmerson finally got a new lawyer last June after criminal defense attorney Andrew Fleischman saw local news coverage of Jimmerson's case and decided to step in pro bono. Jimmerson finally got a trial in July 2023, but it ended in a hung jury.

"You talk about getting hostages out of other countries like North Korea or Iran," Fleischman told Reason in June. "And the average time is six years. We talk about those countries having failed puppet justice systems with no expectation of due process. And yet we have Americans in this country waiting 10 years for an opportunity to force the state to prove its case. And that to me is outrageous."

With a new team of lawyers, Jimmerson negotiated his release as part of a plea deal. While Jimmerson still maintains his innocence, he pled guilty to aggravated assault and possession of a firearm—and was sentenced to 30 years probation, with 11 years time served. He was released Wednesday afternoon.

According to Atlanta News First, Jimmerson's pretrial detention is likely among the longest in United States history.

"We should not punish people before they have been convicted of a crime," said Fleischman. "The process of indicting somebody is just telling 16 to 22 strangers a story for which there is no rebuttal….And to hold somebody for 10 years on just that story—it's a violation of due process."

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Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks Thu, 21 Mar 2024 19:30:23 +0000 File photo of Julian Assange | Fotogramma/ROPI via ZUMA Press

Federal prosecutors are pursuing a deal to allow WikiLeaks founder Julian Assange to avoid espionage charges and instead plead guilty to the misdemeanor of mishandling classified data. The Wall Street Journal first reported on the talks between U.S. authorities and Assange's lawyers on Wednesday. The independent outlet Consortium News then confirmed that it had learned the same details "off the record" several months ago.

Assange has been detained in Britain for five years awaiting extradition, and the Journal reported that he "would likely be free to leave prison shortly after any deal was concluded" due to time served.

Although it's not a done deal, the proposal is good news for the First Amendment, because it avoids setting a precedent that allows the U.S. government to treat journalists as spies.

Attorney General Merrick Garland still has to sign off on any deal, according to the Journal. And Assange's brother Gabriel Shipton told Consortium News that Assange is dead-set against signing a deal that would require him to come to the United States, due to worries that the U.S. government could change the terms at the last minute.

After the news broke, Assange's lawyer Barry J. Pollack stated, "We have been given no indication that the Department of Justice intends to resolve the case." Pollack didn't deny that negotiations were happening, and accusing the other side of being unserious could be a negotiating tactic.

But both sides have a strong incentive to avoid a trial. In addition to saving Assange from significant jail time, a plea deal could allow the Biden administration to wriggle out of a self-inflicted political conundrum.

WikiLeaks became a thorn in the U.S. government's side in the early 2010s when it published classified data provided by former Army intelligence analyst Chelsea Manning, including a database of U.S. diplomatic cables and a video of a U.S. Army helicopter gunning down a news crew in Iraq.

The Obama administration prosecuted Manning but decided not to prosecute Assange because of the "New York Times problem." Even though WikiLeaks is not a traditional newspaper, its activities are legally not so different from The New York Times and other news organizations, which often publish stories based on leaked classified information.

Indeed, Assange partnered with the Times, The Guardian, and other international outlets for the "Cablegate" leaks. When the Trump administration finally decided to prosecute Assange for espionage in 2019, the Times editorial board called the case a weapon "aimed straight at the heart of the First Amendment."

Because of Assange's case, a bipartisan group in Congress is pushing for a law to overhaul the Espionage Act completely.

With a misdemeanor plea deal, prosecutors could avoid a fight over the Espionage Act and the First Amendment, without looking like the Biden administration backed down. As the Journal put it, putting Assange on trial "would throw a political hot potato into the lap of the Biden administration."

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Will the Supreme Court Let Sylvia Gonzalez Sue the Political Enemies Who Engineered Her Arrest? Thu, 21 Mar 2024 19:15:57 +0000 Sylvia Gonzalez outside of the Castle Hills, Texas sign | Institute for Justice

Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was driven from public life by a trumped-up, politically motivated arrest aimed at punishing her for engaging in advocacy protected by the First Amendment. On Wednesday, the U.S. Supreme Court considered what sort of "objective evidence" she needs to prove that claim.

The case, Gonzalez v. Trevino, hinges on how to read the Court's 2019 decision in Nieves v. Bartlett, which added "a narrow qualification" to the general rule that the existence of probable cause is enough to defeat a retaliatory arrest claim. In "circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so," Chief Justice John Roberts wrote for the majority in Nieves, "an unyielding requirement to show the absence of probable cause could pose 'a risk that some police officers may exploit the arrest power as a means of suppressing speech.'"

Roberts cited jaywalking as an example. "At many intersections, jaywalking is endemic but rarely results in arrest," he wrote. "If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."

In such a case, Roberts noted, "probable cause does little to prove or disprove the causal connection between animus and injury." The Court therefore allowed a plaintiff who claims he was arrested in retaliation for constitutionally protected speech to present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

That is what Gonzalez, who is represented by the Institute for Justice, says happened to her. In 2019, Gonzalez, then a 72-year-old retiree, won an upset victory in a city council election after campaigning on a promise to seek City Manager Ryan Rapelye's replacement. Toward that end, she organized a petition that a resident presented to Mayor Edward Trevino on May 21, 2019, at the first city council meeting that Gonzalez attended.

The ensuing debate about Rapelye's performance continued at a meeting the next day, during which Gonzalez sat next to Trevino, who as mayor presides over city council meetings. After that meeting, according to Gonzalez's Supreme Court petition, she "picked up the papers strewn around her sitting area and put them in her binder," which she left on the table as she crossed the room to converse with a constituent.

"A few minutes later," the petition says, "a police officer in charge of safety at the meeting tapped Gonzalez on her shoulder and explained that the mayor wanted to talk to her. The police officer escorted Gonzalez to the mayor," who "was still at his seat next to Gonzalez's." Trevino "then asked Gonzalez, 'Where's the petition?' Gonzalez responded, 'Don't you have it? It was turned in to you yesterday.' At the mayor's prompting, Gonzalez looked for the petition in her binder and to her surprise found it there. Gonzalez then handed the petition to the mayor," who "volunteered to Gonzalez that she 'probably picked it up by mistake.'"

That was not the end of the matter. Trevino and Police Chief John Siemens, Rapelye's allies, used the briefly missing petition as the basis for a criminal investigation that took nearly two months. "Three weeks into the unfruitful investigation," Gonzalez's petition says, Siemens "deputized an attorney and his friend," Alexander Wright, "to take over as a 'special detective.'" A month later, Wright filed an arrest affidavit that charged Gonzalez with violating Section 37.10(a)(3) of the Texas Penal Code, which applies to someone who "intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record."

Contrary to Gonzalez's claim that she accidentally picked up the petition, Wright alleged that she deliberately moved it. He implied that she was worried about complaints that she had collected signatures "under false pretenses." His affidavit cited Gonzalez's agitation against Rapelye as evidence of her offense. "From her very first meeting in May of 2019," it said, Gonzalez "has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired." That plan, Wright explained, "involved collecting signatures on several petitions." He complained that Gonzalez had visited a resident's house to "get her signature on one of the petitions under false pretenses" by "misleading her" and "telling her several fabrications regarding Ryan Rapelye."

Instead of seeking a summons, the usual approach in Bexar County for nonviolent misdemeanors, Wright sought an arrest warrant. And instead of referring the matter to the district attorney's office, Wright presented his affidavit directly to a judge—a procedure that Gonzalez's petition says is generally "reserved for emergencies or violent felonies." That meant the warrant "wasn't in the satellite booking system, so Gonzalez could not be booked, processed, and released without jailtime." That is why Gonzalez, who "turned herself in as soon as she learned about the warrant," ended up behind bars for a day, "handcuffed, on a cold metal bench, wearing an orange jail shirt, and avoiding the restroom, which had no doors."

Bexar County District Attorney Joe Gonzales, according to Gonzalez's petition, "dropped the charges as soon as he learned about them." Trevino et al. nevertheless achieved what Gonzalez says was their goal all along. "Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest," the petition says, that "she gave up her council seat and swore off organizing petitions or criticizing her government."

In a September 2020 complaint that she filed in the U.S. District Court for the Western District of Texas, Gonzalez said Trevino, Siemens, and Wright had violated her First Amendment rights by orchestrating her arrest in retaliation for her opposition to Rapelye. She noted that "the statute has never been used to arrest a person in an analogous situation."

Based on Nieves, U.S. District Judge David Alan Ezra ruled in March 2021 that Gonzalez could proceed with her lawsuit. A divided panel of the U.S. Court of Appeals for the 5th Circuit disagreed, ruling in July 2022 that Gonzalez's lawsuit was doomed by her failure to cite other cases in which people had not been arrested for conduct similar to hers.

"Were we writing on a blank slate," Judge Kurt D. Engelhardt wrote in the majority opinion, "we may well agree" that "the Constitution ought to provide a claim here, particularly given that Gonzalez's arrest was allegedly in response to her exercise of her right to petition." But "Nieves requires comparative evidence," he said, "because it required 'objective evidence' of 'otherwise similarly situated individuals' who engaged in the 'same' criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short."

Speaking for Gonzalez during Wednesday's oral arguments, Institute for Justice attorney Anya Bidwell said the 5th Circuit's understanding of "objective evidence" was too narrow. "Nieves does not blind courts to all but one type of objective evidence of causation," she said. Under the 5th Circuit's reading, she added, Trevino could have gone on TV and "announced that he was going to have Ms. Gonzalez arrested because she challenged his authority," and "the existence of probable cause would make this evidence legally irrelevant." Bidwell argued that courts should be allowed to consider "evidence of causation" such as "the fact that two police officers looked into Ms. Gonzalez and thought there was nothing warranting an arrest, that a prosecutor dismissed the charges, [and] that a special detective walked a warrant under an emergency procedure designed for fleeing suspects to put away a lady in her 70s."

Unsurprisingly, Justice Neil Gorsuch seemed inclined to agree with Bidwell. Gorsuch dissented in Nieves, saying it gave police officers too much leeway. "Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," he wrote. "If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."

Gorsuch reiterated that point while questioning Lisa Blatt, the attorney representing Trevino. According to one estimate, he said, there are "over 300,000 federal crimes," and "I can't imagine how many there are at the state and local level. And you're saying they can all sit there unused, except for one person who alleges that I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment, and that's not actionable?"

Justice Elena Kagan echoed Gorsuch's concern. "The 5th Circuit understood this rule to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested," she said. "Justice Gorsuch is saying…that has got to be wrong. Whatever else you want to put into this bucket, you should be able to say they've never charged somebody with this kind of crime before" without having to "go find a person who has engaged in the same conduct." The point of Nieves, she said, is that if "you were arrested for something that somebody who hadn't engaged in your speech activities would not be arrested for," you can use "solid, objective evidence" of that to "get over the probable cause bar."

Kagan asked Blatt to imagine a video of a meeting in which Trevino et al. talk about "how they can get back at Ms. Gonzalez" by arresting her because she "moved this piece of paper." She asked Blatt if such a video, which "seems like pretty good objective evidence to get you over the probable cause bar," would count as "objective evidence" of retaliation. Blatt resisted answering the question, but ultimately her answer seemed to be no. "I worry where you're going," she said, because a judge might then be free to consider any evidence he thinks is "pretty relevant" to the question of whether "she was picked on."

Justice Sonia Sotomayor—who, like Gorsuch, dissented in Nieves—also was sympathetic to Bidwell's argument. Sotomayor noted that "the 5th Circuit is the only circuit that's demanding a specific kind of comparison-based evidence." And she suggested there was at least some evidence of that sort in this case, since Trevino "violated the same statute by taking the petition home and keeping it overnight."

Sotomayor noted that the 7th and 9th circuits have taken a broader view of "objective evidence" than the 5th Circuit, and she wondered if those rulings led to "an explosion of litigation." Not according to an analysis by the National Police Accountability Project, Bidwell said: Out of 178 cases, it found, only 17 survived motions to dismiss or motions for summary judgment.

Blatt argued that siding with Gonzalez would invite every arrestee to claim retaliation. "I really would advise every criminal to put a political bumper sticker on their car," she said, drawing laughter. Without the shield provided by probable cause, she said, retaliation claims would have a paralyzing effect on police officers, because they "literally could never arrest without worrying about getting sued."

Justice Ketanji Brown Jackson seemed skeptical, saying, "I thought that was the point of qualified immunity," which bars federal civil rights claims unless they allege violation of a "clearly established" right. Justice Amy Coney Barrett also seemed to think Blatt's warning was overblown. "I don't think it would be the case that anybody who was arrested could make this charge and then get on to discovery," she said, "because then you'd still have to survive a motion to dismiss." Gonzalez "has all of this evidence for retaliation," Barrett said. "Not everybody who's arrested is going to have the kind of evidence she has on that score."

When Blatt described Gonzalez's alleged offense as "theft," Sotomayor objected. "This wasn't charged as a theft," she noted. "The crime that was charged here was a crime of moving a document, and all it required was a general intent to move it. The defense was, 'I moved it accidentally.'…There are charges brought for stealing government documents, and there are charges that are brought for moving government documents. And [the latter has] never happened in a situation like this."

Speaking as "a former prosecutor," Sotomayor said "we probably wouldn't have brought the charges" in such a case "even if it was intentional…because 'no harm, no foul.'" In Gonzalez's case, she noted, "Two police officers wouldn't charge it; one public prosecutor didn't charge it. In the end, even with a warrant, the charges were dropped….When there's a dispute about things like this, people are not arrested in this way."

Bidwell also argued that the Nieves rule was "designed for a representative case of in-the-field law enforcement," not for decisions by mayors or situations where charges are filed after lengthy investigation and consideration. Under the 5th Circuit's reading, she said, the rule "insulates all government officials," including "the thin-skinned bureaucrat scouring for a crime to pin on his critics."

Kagan thought that distinction was relevant under Nieves. "I agree with you that the split-second arrest seems to be a key part of the Court's reasoning," she told Bidwell. But Kagan worried that "dividing the world into split-second arrest cases versus other cases is going to be a very difficult thing to do." Bidwell said Nieves would apply "as long as probable cause and arrest arise" within an "initial lawful encounter."

Four justices seemed decidedly less receptive to overturning the 5th Circuit. Roberts emphasized that Nieves affirmed "a very strong general rule that had been well-established" while drawing "a very narrow exception." Clarence Thomas, who disagreed even with that "very narrow exception" in Nieves, said he shared Blatt's concern about giving every suspect an excuse to challenge his arrest.

Samuel Alito said Nieves addressed "causal complexity" that could extend beyond "an on-the-spot arrest." Although "the fact pattern here" is "unusual," Brett Kavanaugh said, "the crime's prosecuted on occasion." He added that "the evidence suggests probable cause that someone intentionally stole a document…and did it with a motive because concerns [had] been raised about her role in getting the signatures on the petition."

Bidwell closed by emphasizing that "political retaliation is dangerous." The First Amendment "has to mean something," she said. "Mayors should not be allowed to launder animus through warrants."

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The National Debt Is a National Security Issue Thu, 21 Mar 2024 17:50:24 +0000 U.S. currency with red ink | Illustration: Lex Villena; Midjourney

It's a dangerously addictive habit that threatens to ruin our children's lives and undermine America's national security—and this week Congress finally acknowledged as much, although it remains unclear if lawmakers have the guts to do anything substantial.

No, I'm not talking about TikTok. I'm talking about the $34.6 trillion national debt.

The Senate unanimously approved a resolution on Wednesday calling the debt "a threat to the national security of the United States" and calling expected future budget deficits "unsustainable, irresponsible, and dangerous."

"We have more than doubled our national debt in just ten years," said Sen. Mike Braun (R–Ind.), who sponsored the resolution. "America is moving down a dangerous and unsustainable path of reckless spending and the federal government has yet to take it seriously."

The passage of a nonbinding resolution on the Senate floor is several steps short of actually addressing the federal government's addiction to borrowing—but, as they say, recognizing that you have a problem is the first step toward solving it.

And the approval of that resolution was timely. Later on Wednesday, the Congressional Budget Office (CBO) published its latest long-term budget projections. The report shows that annual budget deficits are on pace to grow from an expected $1.6 trillion this year to $2.6 trillion in 2034, $4.4 trillion in 2044, and $7.3 trillion in 2054.

As a result of those rising budget deficits, the national debt will continue to accelerate upward. The CBO projects that the federal government's debt will total $114 trillion by 2054. The debt is already roughly the size of the nation's economy and is expected to surpass the all-time high of 106.4 percent of gross domestic product (GDP) by 2028. By the end of the 30-year projection, the debt is estimated to reach 166 percent of GDP.

"Such large and growing debt would have significant economic and financial consequences," the CBO warns. "Among its other effects, it would slow economic growth, drive up interest payments to foreign holders of U.S. debt, heighten the risk of a fiscal crisis, increase the likelihood of other adverse outcomes, and make the nation's fiscal position more vulnerable to an increase in interest rates."

Higher interest rates are already having a significant effect on the federal budget. This year, payments on the existing debt will total an estimated $870 billion, which is more than the Pentagon's budget. Debt payments have jumped by 32 percent since 2023, thanks to higher interest rates and a larger pile of debt.

The new CBO report shows that debt payments will be one of the fastest-growing parts of the budget for the foreseeable future, along with the twin old-age entitlement programs of Social Security and Medicare. By 2051, interest payments will be the single largest line item in the federal budget.

If there's a sliver of good news to be found in the new CBO projections, it is that the situation looks slightly less dire than it did last year. That improvement is due to higher expected levels of immigration and stronger estimates of future economic growth—not because of anything that policy makers in Washington have done. (If anything, they seem determined to prevent those improvements from coming to pass, whether by limiting immigration or regulating the economy more strictly.)

We should also keep in mind the usual caveats here: The CBO does not account for the possibility of recessions, natural disasters, wars, or other unpredictable events that could cause the federal government to borrow more heavily than current law expects. The past 30 years have included 9/11, the war on terror, the Great Recession, and the COVID-19 pandemic, so it seems pretty likely that the next three decades will include at least a few emergencies that drive deficits higher.

"There is no way to look at these eye-popping numbers without realizing we need to make a change," Maya MacGuineas, president of the Committee for a Responsible Federal Budget, which advocates for lower deficits, said in a statement about the CBO report. "And yet we have lawmakers promising what they won't do: I won't raise taxes, I won't fix Social Security, I won't pay for all the things I do want to do. And so we continue on this dangerous path."

Indeed, on Thursday, Speaker of the House Mike Johnson (R–La.) told reporters that he supports plans for a so-called "fiscal commission"—which could propose some solutions to Congress' budgeting problems—but only if the agency could not suggest tax increases or cuts to entitlement programs.

That approach guarantees that the federal government will have to continue borrowing heavily to make ends meet. Despite the Senate's declaration that the national debt is a national security risk and the CBO's attempts to sound the alarm about the federal government's fiscal trajectory, there's still a major shortage of elected officials who want to take the problem seriously.

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Texas SWAT Team Held Innocent Family at Gunpoint After Raiding the Wrong Home Thu, 21 Mar 2024 17:36:01 +0000 SWAT Team | Illustration: Lex Villena; Midjourney

A Texas SWAT Team raided an innocent family's house in 2019, barging into the family's home and holding them at gunpoint before realizing they were at the wrong address. But when the family sued, officers were granted qualified immunity. 

In a request for additional review filed earlier this month, the Institute for Justice (I.J.), a civil liberties law firm, seeks to challenge that, arguing that police had more than enough opportunities to know they were raiding the wrong home.

On an evening in March 2019, a Waxahachie, Texas, SWAT Team, led by Lt. Mike Lewis, burst into Karen Jimerson and James Parks' home. According to legal documents, "Lewis ordered his SWAT team to 'break and rake'" the family's home, "smashing through windows, detonating a flashbang grenade, and kicking down the door with guns drawn."

After causing considerable damage to the family's home, police held them at gunpoint, including the couple's three children. But the officers didn't have a warrant for a no-knock raid on the family's house. Instead, their next-door neighbor was the intended target.

It shouldn't have been difficult to tell which home the officers were supposed to raid—there were major differences in the neighboring houses' appearance. The house police had obtained a warrant for was surrounded by a chain link fence, had a detached garage, and a front porch, and had its address painted to the curb and onto a pole holding up the porch. In contrast, Jimerson and Parks' home had no porch, no detached garage, no fence, and a huge wheelchair ramp leading to the home's front door.

Karen Jimerson sued Lewis in 2020, arguing that his actions violated her family's Fourth Amendment rights. After a lengthy legal battle, the 5th Circuit Court of Appeals granted Lewis qualified immunity on appeal, ruling that because he did more than "nothing" to verify that he had the correct house, he was entitled to immunity. 

The three-judge panel found, "If an officer takes some steps to identify the correct house before executing the warrant, he is entitled to qualified immunity," I.J. summarized, "even if he fails to employ the information learned in taking these steps."

However, according to I.J., the steps Lewis took to verify the correct address were minimal—"reviewing the warrant, searching a website, speaking with DEA agents, and briefly looking at the Jimersons' house before ordering officers to storm it"—and nearly all occurred before he arrived at the scene of the raid.

"Lewis's decision to order the raid was obviously unconstitutional," I.J. wrote in a document requesting that the case be heard by the full slate of 5th Circuit judges. "All adults know they cannot waltz into a stranger's house without confirming it's the one they have permission to enter."

This case is far from the first time police have barged into the wrong address with disastrous consequences. In 2022, other Texas cops held an innocent couple at gunpoint after raiding the wrong house. In 2018, police in Bexar County, Texas, burst into the wrong address while conducting a no-knock drug raid—and kept searching the home, even after they realized their mistake. Beyond Texas, a 2023 report found that Chicago cops accidentally raided the wrong house almost two dozen times between 2017 and 2020.

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Don't Make Journalism School Free Thu, 21 Mar 2024 17:10:08 +0000 Graduates throwing their caps in the air | Hxdbzxy |

The New York Times recently published an opinion piece by Graciela Mochkofsky, dean of the City University of New York's Craig Newmark Graduate School of Journalism. She argued that churning out more journalism degree holders could help revitalize a dying industry, and that making such educational programs free is one way to do that.

"Journalists are essential just as nurses and firefighters and doctors are essential," she wrote. "And to continue to have journalists, we need to make their journalism education free."

Even setting aside the fact that nurses and doctors do not generally attend school for free—and that firefighters get training, not master's degrees—this diagnosis still makes very little sense. First, it's not clear that the market is asking for more journalists, and thus explicitly encouraging additional entrants into the field is a dubious proposition. Second, even if producing more journalists is a socially desirable goal, subsidizing journalism school is a poor way to achieve this. Indeed, it's perhaps something of an open secret among actually established journalists that majoring in journalism is often a mistake—and pursuing a graduate degree in journalism is an even worse one.

Mochkofsky likened journalists to doctors and firefighters, but the profession has far more in common with the latter than the former. Journalism is akin to a craft or a trade; it is distinctly unlike science. Aside from some minimal abilities that should be acquired during primary education—i.e., competent writing—the technical skills required to do it are best learned on the job from seasoned professionals during the course of an internship. These skills are not so complicated that they must be studied in a classroom with textbooks and formal instructors.

I've always found that writing itself is much like exercising: If you do it regularly, you get stronger and better at it, and if you stop doing it, you get weaker and worse at it. News stories aren't meant to be observed under a microscope; the best way to learn how to write them is to just start doing it.

In her 2021 book Bad News: How Woke Media Is Undermining Democracy, Batya Ungar-Sargon argued that over the course of the 20th century, journalism morphed from a respectable middle-class trade into an exclusively upper-class vocation as credentialism took hold. This transformation has not been good for the industry; the media now disproportionately consist of young people with exceedingly progressive and occasionally hostile views, and that's because journalism is increasingly the province of well-educated and wealthy elites.

It's true that making journalism school free would alleviate the latter problem, but it still robs aspiring journalists of vital years of their lives that they could spend actually practicing journalism. This creeping tendency in public policy to make ordinary work impossible unless and until would-be workers obtain a bunch of certificates is deeply pernicious, and contributes to the country's underemployment problem. Let J-school be the province of a small subset of academically inclined writers—most aspiring journalists need an apprenticeship, not a degree.


Skeptical SCOTUS

This week, the Supreme Court heard oral arguments in Murthy v. Missouri, a case that will determine whether federal agencies unconstitutionally pressured social media companies to censor speech. Justice Ketanji Brown Jackson received much criticism for appearing to despair that the First Amendment might stop the government from doing just that, but in truth, a clear majority of the justices seemed skeptical that the feds' actions had crossed a line.

A loss for the plaintiffs would be deeply unfortunate. This case represents the Supreme Court's best chance to prevent jawboning by the White House, the Centers for Disease Control and Prevention, the FBI, and the Department of Homeland Security. These government entities did not merely ask social media platforms to take down contrarian speech—they implicitly and explicitly threatened to harm the companies if they did not comply.

We discussed the case on Rising with Twitter Files author Matt Taibbi. Watch below:


Worth Watching

It's time to start a re-watch of House of the Dragon. HBO just released two trailers for the hotly anticipated second season of the Game of Thrones prequel, which takes place a century and a half before the original series. While the later seasons of GoT were plagued with plotting issues, godawful dialogue, major inconsistencies, and even production errors, HotD's first season was as good as Thrones at its best. The second season will depict the Targaryen civil war: a bloody battle for the throne fought between two factions of the famed dragon-riding family. (If HotD has one flaw, it's that one side—Team Rhaenyra (Emma D'Arcy)—is about a thousand times more sympathetic than the other side, at least for now.)

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Peter Moskos: What Does Good Policing Look Like? Thu, 21 Mar 2024 16:45:05 +0000 Just Asking Questions podcast.]]> Just Asking Questions background with a headshot of Peter Moskos and the words "What does good policing look like?" in black | Illustration: Lex Villena

Are American cities crime-ridden hellscapes right now? Have cities rebounded from pandemic-era homicide spikes? Why do subway shootings in New York and carjackings in D.C. keep making the news?

"I think a lot of this has to be disaggregated: There is a public order problem, and there is a violent crime problem, and they're not necessarily the same problem," Peter Moskos, a professor at John Jay College of Criminal Justice in New York City and former Baltimore cop, tells Reason's Zach Weissmueller and Liz Wolfe on the latest episode of Just Asking Questions.

They discussed the pros and cons of broken-windows policing, how "soft-on-crime" district attorneys affect the cities they're tasked with keeping safe, and whether New York City should become more like Singapore by cracking down on petty crimes.

Watch the full conversation on Reason's YouTube channel or on the Just Asking Questions podcast feed on Apple, Spotify, or your preferred podcatcher.

Sources referenced in this conversation:

  1. "More Americans See U.S. Crime Problem as Serious," by Jeffrey F. Jones in Gallup
  2. Crime Data Explorer
  3. "Crime Trends in U.S. Cities: Mid-Year 2023 Update," by the Council on Criminal Justice, which tracks rates of homicide and other major crimes in 37 select cities.
  4. New York City's Metropolitan Transportation Authority's December 2023 crime report
  5. "The correlation between more police enforcement and fewer shooting incidents in NYC," by Peter Moskos
  6. Fifty years of officer-involved shooting data, compiled by Peter Moskos

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After Nearly 20 Years, They Finally Freed the Frozen Cherry Pie Thu, 21 Mar 2024 15:45:02 +0000 Cherry pie | Msphotographic |

Frozen cherry pie manufacturers have finally been liberated from one of the most unnecessary Food and Drug Administration (FDA) regulations. And it only took nearly 20 years of lobbying!

On March 14 ("Pi Day," of course), the FDA announced that "standards of identity and quality" for frozen cherry pies that were implemented in 1971 were revoked as of April 15. These standards of identity mandated how many cherries needed to be in frozen cherry pies (25 percent by weight) and how blemished they were permitted to be (only 15 percent) in order to be included in these pies.

What made these standards unusual, even taking into account the reams of FDA regulations that exist, is that these regulations applied only to cherry pies, and specifically to frozen cherry pies. Fresh cherry pies did not have to meet these standards. Frozen apple pies did not have to meet these standards. Only these pies did.

There are costs to these regulations, to be clear. There's an entire complicated compliance process the FDA implemented in 1971 to make sure manufacturers put the right amount of high-quality cherries into pies.

What was absent from all of this was any evidence that Americans needed the federal government's protection from lower-quality frozen pies. The American Bakers Association submitted a petition to the FDA all the way back in 2005 to see if this rule could be revoked.

Eventually the FDA agreed and announced plans for a rule change. As an example of how long it takes for even the tiniest amount of deregulation to happen, this initial announcement came in December 2020, under former President Donald Trump's administration. But that was just the announcement of the pending rule change; the whole lengthy process wasn't actually completed until March 2024.

The FDA explained when it announced the change was finally coming:

No standards of identity and quality exist for any other types of frozen fruit pies, or for any non-frozen fruit pies, including non-frozen cherry pie. We conclude that the standards of identity and quality for frozen cherry pie are no longer necessary to promote honesty and fair dealing in the interest of consumers.

Reason covered the announcement of the change back in 2020, noting at the time, "The reality is that it's not 1971 anymore, and innovations in both agriculture and food preparation have given Americans more options and competition, such that people don't actually have to settle for crappy frozen cherry pies." If some pie manufacturer decides to put out unpalatable cherry pies now that the government has eased the rules, consumers can simply buy somebody else's, or even make their own much more easily than they could have in 1971.

It has taken nearly 20 years to eliminate a petty food regulation that doesn't really serve a purpose, one that advancements and improvements in the marketplace had already rendered obsolete.

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Thursday Open Thread Thu, 21 Mar 2024 15:29:37 +0000 The post Thursday Open Thread appeared first on

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"Spam Private Eye" Can't Constitutionally Be Required to Get Real Private Eye License, Thu, 21 Mar 2024 15:16:47 +0000 From Fink v. Kirchmeyer, decided last week by Judge Rita Lin (N.D. Cal.):

Joel Fink operates a business called "Spam Private Eye" where he reviews his clients' "junk" emails and identifies ones that might violate California's anti-spam law [and can thus support lawsuits seeking statutory damages -EV]. In July 2023, the California Bureau of Security and Investigative Securities (the "Bureau") cited Fink for acting as an unlicensed private investigator.

The court concluded that the regulation was "a content- and viewpoint-neutral regulation of professional conduct" and thus "subject to rational basis review, requiring only a showing that the licensing requirements are rationally related to Fink's fitness to conduct his business." But, though "[t]hat is a low bar," "the private investigator licensure law fails to clear that low bar as applied to [Fink]":

Specifically, he has shown a gross mismatch between the highly burdensome requirements of the licensing regime, which require him to undertake 6,000 hours of largely unrelated training, and the State's marginal interest in regulating his review of his clients' "junk" emails, which are highly unlikely to be sensitive.

As a result, the court issued a preliminary injunction against the Bureau's applying the law to Fink, reasoning:

The district court in Cornwell v. Hamilton (S.D. Cal. 1999) addressed a similar as-applied constitutional challenge to a licensing scheme under California law, and the Court finds the reasoning in that case persuasive. The plaintiff in Cornwell was an African hair braider who asserted that she should be permitted to lock hair for compensation without fulfilling California's cosmetology licensing requirement. Becoming a licensed cosmetologist required undergoing a 1600-hour cosmetology curriculum and passing a licensing exam. In granting the plaintiff's motion for summary judgment on her Due Process and Equal Protection claims, the district court found that the plaintiff could not "reasonably be classified as a cosmetologist as it is defined and regulated presently," and "[e]ven if [she] were defined to be a cosmetologist, the licensing regimen would be irrational as applied to her because of her limited range of activities," which overlapped only minimally with the types of activities covered in the state's principal training curriculum and examination.

Here, Fink is likely to show that, as in Cornwell, the private investigator licensure law as applied to him would be irrational given the limited scope of his "investigative" activities. To become a licensed private investigator, Fink is required to have at least three years of experience in "investigation work," which is narrowly defined to include work as: (1) a sworn law enforcement officer; (2) military police; (3) an insurance adjuster; (4) a person employed by either a licensed private investigator; (5) a person employed by repossessors in limited capacities; (6) an arson investigator; (7) an investigator for a public defender; and (8) an investigative journalist. Fink would also have to pass an examination, which covers topics including: conducting interviews, asset searches, and surveillances; performing background checks and due diligence analyses; tracking individuals to locate missing or hard-to-find persons; evaluating incident scenes to gather factual evidence related to damage, loss, or injury; preparing for and providing litigation support; and participating in court proceedings.

The legislative history for the 2017 amendments to the licensure law indicates that the California Legislature imposed licensing requirements on private investigators because they "play a unique role in that their job is to delve into an individual's personal information, history, and behavior" and they "have a unique ability [to] interact with consumers' sensitive information." But on the record before the Court, there is no evidence that Fink handles sensitive client information or that he is providing services beyond reviewing his clients' junk emails. The entirety of Fink's "investigation" is reading his clients' self-identified spam emails, which by definition are unlikely to contain any sensitive information, and compiling and creating PDFs of the emails that might violate California's anti-spam law. Fink avers that he does not conduct surveillance, investigate crimes done or threatened against the United States, attempt to locate lost or stolen property, investigate the causes of fires or other property damage, carry a weapon, or operate under a pseudonym. Moreover, Fink is not involved in any of the subsequent litigation that his clients may choose to pursue with their own attorneys (who have a duty of candor toward the courts), other than receiving a percentage of any recovery on a contingency basis

Licensing regimes will often require knowledge of areas not part of a licensee's specific practice. However, Fink's situation presents an extraordinary case. He is in a particularly unusual position because of the minimal overlap between his limited "investigative" activities and the full scope of private investigative conduct contemplated by the Legislature. Fink's business of reviewing inherently non-sensitive spam emails does not appear to implicate the Legislature's concerns about privacy and deceptive practices motivating the oversight of more traditional private investigators, despite that Fink's conduct technically falls within the scope of the licensure law.

Requiring Fink to undertake 6,000 hours of training as, say, an arson investigator or investigative journalist is not rationally related to his capacity or fitness to read his clients' junk emails and identify the ones that may violate the anti-spam law. Accordingly, Fink is likely to succeed in showing that the private investigator licensure law as applied to him fails rational basis review….

Andrew Heller Ward and Dylan Moore of Institute for Justice, as well as Bretton Laudeman and Brendan P. Cullen of Sullivan & Cromwell LLP, represent plaintiff. Lawyers from the Institute for Justice also won Cornwell v. Hamilton (S.D. Cal. 1999), the case cited as a precedent here.

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#TheyLied Libel Lawsuit Over Ex-Student's Allegations of Rape Can Go Forward, Thu, 21 Mar 2024 14:04:27 +0000 From Erikson v. Xavier Univ., decided Monday by Judge Matthew McFarland (S.D. Ohio):

Erikson was a tenured Associate Professor of Art for Defendant Xavier University for nearly a decade until his termination in October 2022. This case primarily revolves around the events leading up to Plaintiff's termination; a former student's [Witt's] allegation that Plaintiff had raped her and the investigative and administrative actions that Xavier took in response to her formal complaint.

Plaintiff began speaking with … Witt[] during the latter half of 2019. Although Witt had graduated from Xavier in 2013, she was not a Xavier employee and had no other relationship with Xavier. After communicating over several months and meeting on multiple social occasions, Witt suggested that she spend the night at Plaintiff's house on December 31, 2019. That night, Witt visited Plaintiff at his house and the two had sex. Plaintiff alleges that the sex was consensual.

A little over two years later, on February 5, 2022, Witt contacted Defendant Kelly Phelps—a professor at Xavier who chaired the Department of Art from 2012 through 2019. Witt told Phelps that she believed Plaintiff had raped her. Phelps "urged Witt to report the allegation but warned her that [Plaintiff] is 'white, and male, [and] got privilege on his side."

On February 24, 2022, Plaintiff was notified that Witt had filed a formal complaint with Xavier alleging that Plaintiff had violated Xavier's policy by raping her on December 31, 2019. Plaintiff "vehemently denied" the accusation. Additionally, Plaintiff informed Xavier that any investigation into Witt's formal complaint would breach the terms of Xavier's Harassment Code and Accountability Procedures ("HCAP") for several reasons: "(1) at the time of the incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitations for filing complaints."

Xavier held an HCAP hearing regarding the rape allegations on July 22, 2022 and July 25, 2022. During the hearing, "the panel embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." The panel allowed witnesses to make vague references to allegations of Plaintiff's conduct beyond the scope of Witt's complaint and permitted hearsay testimony by witnesses without personal knowledge. Moreover, the panel ignored testimony that Witt had consented to the sexual activity. The panel ultimately found Plaintiff responsible for raping Witt and recommended terminating him from Xavier. The panel attributed the rape to an "imbalance of power" between Plaintiff and Witt, which stemmed from the fact that Plaintiff is a male whose position in life and at the University seemingly granted him status and power. This power allowed Plaintiff to overwhelm Witt's ability to resist his actions. Xavier terminated Plaintiff in October 2022.

Plaintiff sued Witt for defamation and Xavier for sex discrimination under Title VII and Title IX, claiming that "Xavier's actions and/or omissions surrounding the investigation and hearing of Witt's false allegations of rape, including numerous procedural irregularities, were attributed to gender bias"; the court concluded that, if plaintiff's allegations were factually correct, they could indeed lead to legal liability for defendants. (As is usual with decisions on a motion to dismiss, the court did not decide whether the allegations were actually correct.) A few excerpts:

Plaintiff alleges that, during his hearing, the panel "embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." Xavier argues that this is insufficient to demonstrate gender bias because "[t]he failure to use a condom is not an inherently gender-based issue." But, Plaintiff has alleged that this "moral tirade" was made against him "as a male." This specific allegation, which must be accepted as true and construed in the light most favorable to Plaintiff, adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff [also] alleges that the hearing panel attributed "the rape to an 'imbalance of power' between Witt and [Plaintiff] stemming from the fact that [Plaintiff] is a male whose position in life and at the University seemingly granted him status and power which allowed him to overwhelm Witt's ability to resist his actions." Xavier contends that such an imbalance of power is "not inherently gender-related" but was relevant to the panel's decision making. But, again, the Court must view this allegation in the light most favorable to Plaintiff. The Court accordingly finds that this specific allegation adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff's allegations of clear procedural irregularities by Xavier further support a plausible inference of sex discrimination. Plaintiff alleges that Xavier's investigation breached the terms of the HCAP policy because "(1) at the time of the alleged incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitation for filing complaints." Simply put, Plaintiff alleges that the investigation itself was outside the scope of HCAP and thus constituted a procedural irregularity….

The HCAP contains a two-year limitation for filing complaints but provides that "[t]he Affirmative Action Officer may grant a reasonable extension of any time period established in these guidelines, except where otherwise noted." The alleged rape occurred on December 31, 2019, and Plaintiff received notification of Witt's complaint on February 24, 2022. So, Xavier's extension beyond the statute of limitations was approximately two months. While the HCAP recognizes that complaints over the two-year mark may cause difficulty in investigating and adjudicating the claim, "reasonable extensions" are permitted under the procedures. This delay does not, by itself, constitute a clear procedural irregularity but remains relevant.

Turning to the HCAP's scope, the "HCAP applies when an employee … is accused of violating Xavier's harassment policies by a student, employee, contracted employee, or third party (i.e., visitor to campus)." Because the "visitor to campus" phrase is preceded by "i.e.," this suggests that the scope of third parties in this clause is limited to visitors to campus. See i.e., Merriam-Webster, (defining "i.e." as "that is"); cf. e.g., Merriam-Webster, (defining "e.g." as "for example"). Courts may look to a phrase following "i.e." as limiting the scope of the preceding term. Witt was not a current student or employee of Xavier, and the alleged rape did not occur on campus or at a university-sponsored event. The HCAP language accordingly supports Plaintiff's allegation—at least at this point of litigation—that the investigation into Witt's complaint was a clear procedural irregularity….

And, as to the defamation claim:

Truth is an absolute defense to defamation…. Witt argues that Plaintiff's defamation claim should be dismissed because Xavier's hearing panel found that Plaintiff was responsible for raping her. But, Witt does not cite any case law for the proposition that a university panel's finding is decisive in this context. Plaintiff alleges that he and Witt "engaged in consensual sex" and disputes Xavier's finding that he raped Witt. At this stage of the litigation, the Court must take the well-pleaded facts in Plaintiff's Complaint as true [and thus may not grant the motion to dismiss on the grounds that Witt's statements were true -EV]….

Witt next argues that Plaintiff's defamation claim should be dismissed because Witt's statements are covered by qualified privilege…. Qualified privilege applies when the publication is "fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned." In order for a publication to enjoy such qualified privilege, five elements must be satisfied: (1) the statement was made in good faith, (2) there was an interest to be upheld, (3) the statement was limited in its scope to this purpose, (4) a proper occasion, and (5) publication made in a proper manner to proper parties only. A plaintiff seeking to overcome qualified privilege must set forth facts to plausibly support that the statement was made with actual malice[,] … defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." …

Witt stated that she believed Plaintiff had raped her, and Plaintiff denies this by alleging that they had engaged in consensual sex. Witt would have had direct personal knowledge regarding whether her statement was true or not. So, accepting the allegations in the Complaint as true, Plaintiff has sufficiently pled that Witt made the statement with actual malice. Therefore, the Court cannot dismiss Plaintiff's defamation claim against Witt.

Marc D. Mezibov and Susan Lawrence Butler (Mezibov Butler) represent plaintiff.

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$160K Libel Verdict for Ex-Student Based on Professor's Research Misconduct Allegations Thu, 21 Mar 2024 13:41:54 +0000 In Rossi v. Dudek (D. Utah), plaintiff sued her former professor for libel, based on his allegations that she had committed research misconduct. Such allegations of misconduct that are made within an employer or an educational institution are often "conditionally privileged," which means (to oversimplify) that liability is only allowed when there's a showing of (1) knowing or reckless falsehood, (2) a motivation of personal hostility, or (3) communication to people who don't have a professional reason to know about the controversy. Last week, the jury rendered a $160K verdict in Rossi's favor, and Monday Judge Ted Stewart refused to set aside the verdict, holding that the jury could find that the conditional privilege didn't apply:

Dr. Jeffrey Botkin, the Vice President for Research Integrity at the University of Utah during the time Plaintiff was a student, testified that it was his job to determine if enough evidence had been produced to open an investigation into potential research misconduct. Dr. Botkin testified that Defendant could not articulate a sufficient rationale for his concerns, that his concerns lacked specificity, and he did not provide specific evidence to support his allegations of research misconduct. Accordingly, Dr. Botkin concluded there was not sufficient evidence to initiate an investigation at that time.

Dr. Botkin testified that he communicated that information to Defendant. Defendant then testified that, following this determination by Dr. Botkin and Dr. Botkin's reminder to keep concerns confidential, he [presumably Defendant -EV] continued to express his concerns about research misconduct with committee members, people in his lab, and family members.

Defendant also testified that accusations of research misconduct are serious and highly damaging to a scientist's reputation. Other witnesses … Defendant testified he did not like Plaintiff, did not trust her, and did not want to work with her. Defendant testified that Plaintiff's comments regarding his lack of availability to her caused him to believe she falsified her data, but there has been testimony from several witnesses … that Defendant failed to follow up to verify the truthfulness of his accusations and failed to produce specific evidence of his accusations. Defendant testified that he never tried to verify if his accusations of research [presumably meaning "research misconduct" -EV] were false, despite his access to all the data stored on Plaintiff's laboratory computer within Defendant's laboratory.

Defendant further testified that, even after Dr. Botkin's instruction to keep concerns about research misconduct confidential, he continued to share his concerns with people beyond the Research Integrity Office and the thesis committee. Defendant testified that he shared his research misconduct accusations with his daughter Amanda while she was a student at Harvard University, Dr. Kevin Staley at Harvard University, and other members of his lab, who did not have a legitimate role in resolving the dispute….

Based upon this evidence, the Court finds that Plaintiff has presented sufficient evidence such that a reasonable jury could find that any applicable privileges have been abused by common law malice, actual malice, and/or excessive publication.

The court also concluded, for similar reasons, that defendant couldn't claim governmental immunity.

Ryan B. Hancey and Adam Lee Grundvig (Kesler & Rust) represent plaintiff.

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American Nightmare Thu, 21 Mar 2024 13:30:40 +0000 American Flag blowing in the breeze | Joshua Hoehne / Unsplash

Are the kids all right? The annual World Happiness Report was released this week and for the first time in the decade-plus that the report has gone out, the U.S. failed to rank in the top 20 happiest countries.

The findings, which rely on Gallup polling data on self-reported happiness, show that it's Americans 30 and under who are responsible for bringing the average down. "Americans 30 years and younger ranked 62nd globally in terms of well-being," reported The Wall Street Journal, "trailing the Dominican Republic, Brazil and Guatemala. Older Americans ranked 10th." (The Nordics, a handful of Western European nations, Costa Rica, and Lithuania all rank above us in overall happiness rankings not separated by age.)

"Today's young people report feeling less supported by friends and family, less free to make life choices, more stressed and less satisfied with their living conditions," per a report editor's comment to Axios. A possibly representative tweet:

This comes on the heels of Jonathan Haidt's lengthy Atlantic feature "End the Phone-Based Childhood Now," which attributes mental health problems to cultural and technological shifts that have pivoted kids away from play and toward being plugged into their devices.

Some of this may be attributable to younger generations struggling to find meaning in their lives—possibly a temporary failure, not one that will plague them for the rest of their days—and taking for granted the massive gains that alter the world they've inherited. Or it is possible that they're legitimately unwell, en masse, or it could be some combination of all of the above.

But it's worth mulling the gains we've made. Work today is—on average—safer, less physically arduous, and more intellectually stimulating than the work of 30 or 50 years ago. Money kinda sorta buys some level of happiness, and our level of wealth and economic freedom in America is nothing to sniff at. "As many traditional, tangible sources of suffering disappear, the expectation that we should feel good all the time increases; when we don't, we suddenly start talking in psychiatric terms, even though stress and sadness are part of a good life," wrote Johan Norberg for Reason last year.

None of that is to dismiss legitimate reasons why youths in particular might be struggling: Schools have reported massive pandemic-induced learning loss and greater issues with disciplinary infractions. Math test scores and reading proficiency rates are in trouble across the United States. But it's possible that too much hay is being made of the happiness report, and that some of the problem lies with young adults' expectations. After all, it's the former Soviets that have seen massive gains in the happiness rankings—perhaps in part because their material conditions have drastically improved, but also because people appreciate the fact that prosperity and abundance are not certainties.

Copycat states: Earlier this week, Reason covered S.B. 4, the law that has not gone into effect yet but is being held up in court, which would allow Texas law enforcement to arrest those who've illegally crossed the southern border. On Tuesday, Iowa lawmakers passed a copycat piece of legislation that would make it a state crime for an illegal immigrant to enter Iowa after having been deported.

Now other states are toying with similar legislation. Louisiana, Oklahoma, Kansas, and Missouri are all considering similar bills, but the success of this strategy largely depends on what happens to the Texas law, the legality of which will most likely be weighed by the Supreme Court. Republican lawmakers in West Virginia, Mississippi, and Arizona have all attempted to pass similar laws but have faced opposition—like, in Arizona's case, a Democratic governor's veto—that thwarted their efforts.

Each state setting its own deportation policy seems unlikely to hold up legally, but that's not to say stunt bills won't work to curry favor with Republican voters and further embarrass the Biden administration, which has struggled to get the border influx under control.

Scenes from New York: More information may come out about this viral dispute between a property owner and some alleged squatters, but it's a pretty stunning example of what happens when a society fails to enforce property rights:


  • Though roughly 200,000 people left Hong Kong from the middle of 2019 to 2022, they've been somewhat replaced by mainland Chinese working professionals flocking to the island, where they can have slightly more political freedom than they're accustomed to and fetch higher pay. "If China is a big ship, then Hong Kong is a lifeboat," Will Wu, a banker who moved from the mainland, told The New York Times. It's a good thing mainland Chinese feel this way, because most Hongkongers feel like the boat is taking on water.
  • "Today, the teen babysitter as we knew her, in pop culture and in reality, has all but disappeared." (From The Atlantic.)
  • Possible updates coming in Julian Assange's legal saga (which Reason has covered on Just Asking Questions):

  • Did the pandemic change our eating habits and expenditures in a lasting way? Signs seem to point toward yes:

  • "The Swiss National Bank unexpectedly cut its key interest rate by 25 basis points, moving months ahead of global peers as policymakers try to prevent gains in the franc," reported Bloomberg. "The SNB's move foreshadows possible easing later this year by the Federal Reserve and European Central Bank, taking upward pressure off the franc and lessening the need for officials to resort to interventions that might further swell their large balance sheet."
  • Somali pirates are back.
  • Problems with forensics:

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Harlan Institute-Ashbrook Virtual Supreme Court Finalists Thu, 21 Mar 2024 13:00:11 +0000 Moody v. NetChoice.]]> The topic for the 12th Annual Harlan InstituteAshbrook Virtual Supreme Court competition is Moody v. Netchoice. We have now held the Round of 8 and the Round of 4. The teams were superb. Truly, these high school students could compete in any law school moot court competition. The championship round will be held next month in Washington, D.C.

Round of 4

Round of 4 Match #1:  Team #17038 v. Team #16886

Round of 4 Match #2: Team #17485 v. Team #17050

Round of 8

Round of 8 Match #1: Team #17038 v. Team #16974

Round of 8 Match #2: Team #17067 v. Team #17050

Round of 8 Match #3: Team #16985 v. Team #16886

Round of 8 Match #4: Team #17485 v. Team #17350

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Brief Opposing Pseudonymity in Ohio Libel Case Thu, 21 Mar 2024 12:52:06 +0000 I thought I'd pass along this friend-of-the-court brief that I just filed a couple of days ago in the Ohio Court of Appeals (Doe v. Roe), with the help of invaluable local counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) and UCLA LL.M. student Bhavyata Kapoor.

[* * *]

This is a garden variety defamation lawsuit of the sort that is routinely litigated in the parties' own names. Many defamation litigants would prefer to avoid being linked with the accusations over which they are suing—just as many plaintiffs and even more defendants would prefer to avoid being linked with the allegations in many kinds of cases, allegations that may reflect badly on one or both parties. But our legal system has chosen to adopt a strong norm of public access to court records, including to the names of the parties, so that the public and the press can better supervise how the legal system operates. And this is not one of the rare cases in which an exception from this norm is warranted. The trial court thus did not abuse its discretion in ultimately deciding to deny pseudonymity. See Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 18, __ N.E.3d __ (2d Dist.) ("[A] trial court's ruling regarding a party's request to proceed pseudonymously will not be overturned absent an abuse of discretion.") (cleaned up)….

[I.] There is a strong presumption against pseudonymous litigation

"It is the rare exception for a litigant to be allowed to proceed anonymously." State ex rel. Cin. Enquirer v. Shanahan, 166 Ohio St.3d 382, 391 (2022). "Civ.R. 10(A) requires plaintiffs to provide their names and addresses in the captions of their complaints." Id. at ¶ 30. "The rule ensures that judicial proceedings will be conducted in public, and it supports the principle that 'the public have a right to know who is using their courts.' The public's right to know a litigant's identity derives from the United States and Ohio Constitutions and the common law." Id. at ¶¶ 30-31 (cleaned up) (quoting Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997)).

The right of access to parties' names is a facet of the broader right of access to court records more generally. "[I]dentifying the parties to the proceedings is an important dimension of publicness." Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. The right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch," Company Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir.2014), and that includes the presumption against pseudonymity, id. at 273-74. Ohio law is consistent with federal law on this strong presumption against pseudonymity. See id. at ¶ 31 (citing federal appellate cases in explaining Ohio law).

In particular, the names of the parties are often key to investigating the case further—for instance, by helping reporters and researchers who are considering writing about the case (and who are thus "oversee[ing] and monitor[ing] the workings" of the court system in the case) answer questions such as:

  • Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant?
  • Is there evidence that the litigant is untrustworthy, perhaps in past cases or in past news reports?
  • Do past cases brought by the same litigant reveal similar allegations made by the litigant, which past authorities have concluded were not corroborated?
  • Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
  • Was the incident that led to the lawsuit covered or investigated in some other context? For instance, if the plaintiff is suing for libel, wrongful firing, or wrongful expulsion based on accusations that the plaintiff had committed a crime, had the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out?
  • Is there online discussion by possibly knowledgeable people about the underlying incident?
  • Is there some reason to think the judge might be biased in favor of or against the litigant?

Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around. The parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1370-71 (2022).

Indeed, based on some public records searches using the addresses included in the trial court docket in this case, it appears to amicus that the parties had litigated against each other before in a matter that may be related to their family relationship. Indeed, this litigation appears to have yielded five Court of Appeals (Eleventh District) opinions, plus one U.S. District Court opinion, and nine short orders from the Ohio Supreme Court. Any coverage of how this case progresses could thus be enriched by the backstory that the previous litigation provides.

But in the absence of the parties' names in the record, such a link with past litigation is merely conjecture and potentially unreliable. Indeed, if the parties' names aren't in the public record, any reporter writing about this case likely cannot take advantage of the fair report privilege in drawing the likely link to the past litigation. The norm of open access is meant to allow the public and the press to comment on cases safely and based on fact, rather than at some risk and based on conjecture. More broadly, "the public (not just the [intervenors] in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself." Cin. Enquirer, 166 Ohio St. 3d at 392.

And defamation cases are fully governed by the presumption of public access to party names. See, e.g., Cin. Enquirer, 166 Ohio St. 3d at 389-90 (refusing to allow pseudonymity in a libel case); Doe v. Doe, 85 F.4th 206, 217 (4th Cir.2023) (likewise). Indeed, defamation cases especially implicate the First Amendment, because the defendants may argue that their speech is true and thus constitutionally protected. It is thus especially important that the public be able to monitor how courts deal with defamation litigation.

Naming the parties also helps promote accuracy of the judicial process. See Volokh, supra, 73 Hastings L.J. at 1384-92. A named witness "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account." Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y.2015), aff'd, 672 F. App'x 48, 52 (2d Cir.2016); see also Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174 (E.D.N.Y. Oct. 14, 2020). "Public access creates a critical audience and hence encourages truthful exposition of facts, an essential function of a trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983) (so stating in opposition to sealing generally).

Likewise, "it is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of other witnesses.'" Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y.2006) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 596-97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties.")); see also Rapp v. Fowler, 537 F. Supp. 3d 521, 531 & n.56 (S.D.N.Y.2021) (same); Doe v. Univ. of Vermont, No. 2:22-CV-144, 2022 WL 17811359 (D.Vt. Dec. 19, 2022) (same). If the parties are allowed to proceed pseudonymously, this opportunity for witness testimony may be lost.

[II.] The presumption against pseudonymity is not rebutted here

As with Doe v. Doe, 85 F.4th at 217, "[t]his case is no different than a garden variety defamation case, and it does not present the exceptional circumstances necessary for Appellant to proceed by pseudonym." In considering whether the presumption against pseudonymity is rebutted, courts consider "(1) whether the plaintiff seeking anonymity is suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiff to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; … (4) whether the plaintiff is a child," Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 17, and "whether threats of retaliation have been made against the plaintiff and the potential prejudice to the opposing party," id. at ¶ 17 (cleaned up).

Factors 1 and 3 do not cut in favor of pseudonymity here, and appellants do not claim any threats of physical retaliation. Nor is "exceedingly intimate information" present here; to be sure, many people would prefer not to have their names linked with allegations of criminal behavior, especially when that might come to the attention of employers, but that is not itself a basis for pseudonymity in cases where the central factual dispute is about such allegations. Cf. A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 503 (App.Div.1995) ("Plaintiff's arguments … that he and his family might be isolated from society and that his employment would be in jeopardy are not only somewhat speculative, but any such ramifications are due to his actions and his election to institute litigation over a perceived wrong."). "[W]here the stated purpose is to avoid personal embarrassment or potential damage to future professional or economic well-being, federal courts have denied requests to proceed anonymously." Doe v. Doe, 282 Ill. App. 3d 1078, 1084 (1996). See also A.K. v. Ill. Dep't of Children & Family Servs., 2017 IL App (1st) 163255-U, ¶ 24 (refusing to allow pseudonymity in challenge to child abuse findings, because "the privacy concerns that plaintiffs raise exist in many cases in which a party is accused—perhaps wrongly—of some misconduct"). "[M]ost lawsuits will bring up matters that plaintiffs and defendants would prefer to keep private, including sometimes the identities of the parties. It is well-established, however, that only the 'exceptional circumstance' will allow a plaintiff to proceed under a pseudonym." Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 26.

Nor is this a lawsuit brought on behalf of a child, or involving exceptionally private allegations related to a child, such as allegations of sexual abuse. Rather, it is an ordinary lawsuit in which adults sue other adults for injury to themselves, though the injury stems from a statement about the children. The children's names may be redacted in such a situation. Cf. Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 36 (noting that specific factual details could be "protected … through the use of a protective order"). But such cases are routinely litigated with the adults' names disclosed, even where someone might be able to infer the child's name by knowing the adults. See, e.g., Johnson v. Brown, No. CV2012020942, 2012 WL 12542161 (C.P. Dec. 14, 2012) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's and defendant's child); Myers v. Steiner, 2011-Ohio-576, ¶ 1 (9th Dist.) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's child); Peoples v. Lang, 2009-Ohio-2693, ¶ 2 (5th Dist.) (likewise); Cox v. Cox, 2009-Ohio-1446, ¶ 2 (12th Dist.) (defamation lawsuit stemming from false allegations that plaintiff had sexually abused his stepsister when they were children).


For good reason, the Ohio civil litigation system is characterized by openness, including openness as to the names of parties. The plaintiff in this case is no more entitled to an exception from this rule than are the vast range of other litigants who routinely have to litigate under their own names, and who have to do so despite the personal and professional difficulties that such litigation may cause.

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Today in Supreme Court History: March 21, 1989 Thu, 21 Mar 2024 11:00:45 +0000 3/21/1989: Texas v. Johnson is argued.

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Online Sports Betting Giants Place Their Bets Against Growing Rivals Thu, 21 Mar 2024 11:00:45 +0000 Person holds phone in front of the Draft Kings logo on a computer screen | Photo: Timon Schneider on Dreamstime

In Las Vegas, cheating at the gambling tables can swiftly send you to jail. Yet in the world of fantasy sports betting, major companies are cheating and getting away with it: They are edging out rising competitors rather than playing fair. Their accomplice in this endeavor? None other than state legislatures. 

The online fantasy sports betting industry is experiencing tremendous growth, with 2023 revenues in the U.S. alone exceeding $10 billion. Fans of live sports have become used to the constant flow of advertisements for the leading online sports betting companies, like DraftKings and FanDuel, during commercial breaks. All this growth shows potential competitors there's money to be made in the online sports betting market.

In July 2023, the Sports Betting Alliance, a lobbying group representing DraftKings, FanDuel, and other industry leaders, asked Wyoming's attorney general to classify certain fantasy sports games as outright gambling activities. A few months later, the state issued cease and desist orders to local competitors. From Michigan to New York, at least eight other states have taken similar actions or are contemplating such measures and more states may follow suit.  

Their lobbying efforts are largely centered on having the states classify pick'em fantasy sports games—where users predict the winners of a series of matches—as games of chance (classified as gambling), rather than games of skill (not considered gambling). 

Legally, not all gambling is the same. Federal and state laws differ on the legality of online betting. Typically, online gambling in games of pure chance is illegal; while online gambling in games of skill may or may not be legal. The decision depends on state legislatures.

A good way to tell the difference between games of pure chance and games of skill: Studying can make you better at one but not the other.

There is little difference between the fantasy sports contests offered by DraftKings and FanDuel and the pick'em contests of their emerging competitors, such as PrizePicks and Underdog. In both, participants predict the performance of players, but the core mechanics vary slightly between choosing players based on statistical performance or predicting their performance relative to a benchmark set by the companies. Success in both pick'em or DraftKings' and FanDuel's primary contests involves a little bit of luck—as do most games of skill. But unlike a game of pure chance like roulette, these games offer players an opportunity to leverage their knowledge and predictive abilities on player and team performances. 

Years ago, brick-and-mortar casinos lobbied to ban online fantasy sports, viewing them as a direct threat to their businesses, similar to how online retailers challenge big-box stores. But now, the Sports Betting Alliance is using the same legal playbook that once threatened its operations against its smaller competitors.

Predatory lobbying is the ugliest form of what business experts call "nonmarket strategy"—trying to gain market advantage outside of market mechanisms. Businesses naturally dislike competition; most businesses would prefer to be a monopoly, even if it means stifling innovation and consumer choice. More competition, after all, means lower market share, revenue, and prices. Often, CEOs know that the best way to compete is not to compete at all, but instead get the government to outlaw competition. They will advocate for regulations or taxes under the guise of public interest when, in fact, they aim to benefit themselves.  

State-imposed bans on online fantasy sports betting will not eliminate these games. Instead, they will ensure that companies such as FanDuel and DraftKings enjoy a duopoly on online sports betting in the United States. When states prohibit competition, they only funnel consumer spending toward industry giants. They are being played for suckers. 

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'Emergency' Spending Is Out of Control Thu, 21 Mar 2024 10:00:11 +0000 Police officers standing near a barricade | Photo: Cooper Baumgartner/Unsplash

Emergencies are, by definition, unexpected and urgent situations requiring immediate action—except in Congress, where the term is increasingly used to justify spending decisions that should be part of the normal budget process.

Congress has authorized more than $12 trillion in emergency spending over the past three decades, according to a report released in January by the Cato Institute. About half of that total was spent in direct response to the Great Recession and the COVID-19 pandemic, but much of the other half was used for purposes that strain the definition of emergency.

Because emergency spending bypasses some of the scrutiny applied to the normal budgetary process, it has become a convenient way for lawmakers and presidents to hike spending—and add to the national debt. In 2023 alone, Congress and President Joe Biden proposed using emergency spending for many obviously nonemergency situations—including the items listed below.

  • $600 million to replace existing airplanes, intended to be operational through 2030 to begin with, used for weather forecasting
  • $500 million to cover higher-than-expected fuel costs for military vehicles
  • $347 million for prison construction and related costs
  • $278 million to accelerate ongoing construction of a new research center at the Oak Ridge National Laboratory
  • $100 million for grants to local law enforcement to protect the 2024 presidential nominating conventions

"We must not let fiscally irresponsible legislators hoodwink their colleagues and the public into accepting spending increases by slapping the 'emergency' label on them and calling it a day." —Romina Boccia, director of budget and entitlement policy, Cato Institute

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Brickbat: Misogyny on Main Thu, 21 Mar 2024 08:00:37 +0000 An unseen man sits in front of a computer screen at night. | F01photo |

German police raided homes across the nation and interrogated 45 people suspected of posting misogynistic content online on what the police called a "combating misogyny on the internet" day of action. "Today's day of action makes it clear: We consciously go into the spaces of hate, identify acts and perpetrators, take them out of anonymity and bring them to accountability," said Holger Muench, the head of Germany's Federal Criminal Police Office. The names of the suspects will now be sent to local prosecutors to decide if charges will be filed.

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Opposition to U.S. Steel Sale Shows How Similar Biden and Trump Are on Trade Thu, 21 Mar 2024 04:01:45 +0000 Logos for Nippon Steel and U.S. Steel | Andre M. Chang/ZUMAPRESS/Newscom

The Pennsylvania-based U.S. Steel company recently agreed to be purchased by the Tokyo-headquartered publicly traded company Nippon Steel. This deal makes sense to economists. It will encourage other foreign companies to invest in the U.S., creating wealth and new job opportunities, and further shoring up the U.S. economy, particularly amid inflation worries. More importantly, this deal makes sense to the owners of U.S. Steel.

And yet, in our age of government shoving its fingers into everything, President Joe Biden announced that he opposes this purchase for muddled, misguided reasons. Former President Donald Trump agrees, showing once again that when it comes to trade there is little difference between the two presidents.

Such government meddling is what American steel producers get for having clamored for decades—often successfully—that they need protection from foreign competition. The Trump steel tariffs are the latest expression of this attitude. But one stupid policy move doesn't justify a second. As soon as the announcement of Nippon's $14.1 billion deal with U.S. Steel was made public, fans of protectionism and industrial policy, including prominent policymakers, came swarming out of the woodwork to explain why the government should be able to override, or at least modify, the decision of the rightful owners of a company to sell their company to a particular buyer.

Assertions of dangers to "national security" are being used to scare Americans into thinking that a good deal for investors, employees, and the U.S. economy will somehow make America less militarily secure. This is nonsense.

Japan has been a strong ally of the U.S. for over 60 years. In a recent piece, the Cato Institute's Scott Lincicome and Alfredo Carrillo Obregon remind us that "the Defense Department doesn't currently buy from U.S. Steel, and DOD needs just 3 percent of domestic steel production to meet its procurement obligations." Furthermore, U.S. Steel, despite its historic significance, is no longer a major player in the steel industry and could benefit from Nippon Steel's investment and technology enhancements. Besides, foreign investments, including those from Japan, are typically beneficial to the domestic economy and workforce—and to the millions of Americans holding corporate shares in retirement portfolios.

According to the fearmongers, Nippon Steel, being a Japanese company, perhaps harbors secret plans to spend $5 billion above U.S. Steel's market capitalization to shutter it. Obviously, this is total nonsense. It should go without saying that investors don't purchase companies to then shut down those companies' profitable operations. Yet it needs to be said, since that's one of the main fears about the acquisition. The fact is that Nippon, by saving U.S. Steel and enhancing the domestic production of steel, will bolster our national security. Opponents of the deal ignore this reality. Yet again, the facts don't seem to matter to those who use nationalist rhetoric to oppose Americans' peaceful commercial dealings with non-Americans—in this case, even a crucial, decadeslong ally.

The business practice of buyouts is not inherently bad. Nippon Steel will save U.S. Steel and make it better through new ownership. John Tamny wrote at Forbes on March 4 that "neither bankruptcy nor buyouts signal the vanishing of businesses as much as they signal the happy, pro-employee and pro-business scenario of physical and human capital being shifted into the hands of more capable stewards." Tamny is right, and U.S. Steel is in a good position if another successful company sees value in purchasing the company to make it more efficient and productive. For all the protectionist handwringing, you'd think policymakers would recognize that this buyout will save the company from eventual bankruptcy without the deal and might secure the jobs of U.S. workers.

The merged company will be able to provide for the massive demand for high-grade steel in the United States—demand exploding in no small part because of increased domestic production of electric vehicle motors. It makes economic sense for Nippon Steel to invest in this Pennsylvania-based company to meet the growing demand for steel in the U.S.

Nippon Steel has the potential, and the incentive, to restore U.S. Steel into a strong and leading steelmaker once again, unless the U.S. government and the hordes of economic nationalists get in the way. As meddling in the dealings of successful companies increases, the American economy will suffer the creeping statism that has hamstrung so many European economies, where intrusive government control impedes private enterprise.


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Progressive Lawyers Engage In Actual Judge Shopping In Alabama Thu, 21 Mar 2024 03:11:38 +0000 From what I've gathered, the Judicial Conference's ill-fated policy is all-but-dead. What a blunder it was. Rather than focusing on areas of bipartisan agreement like patent and bankruptcy reform, the judges leaned into a contentious, hot-button issue. I worry that the well has now been poisoned for broad reform, though I'll share some thoughts in due course about how to improve things.

For now, I'd like to highlight some actual judge shopping in Alabama. And none of this judge shopping occurred in single-judge divisions. You see, Alabama has very few Democratic-appointed district court judges. By my rough count, in the entire state, there is one active Obama nominee, and two senior appointees from Clinton and Carter. The Carter appointee, Judge Myron Thompson in Montgomery (Middle District of Alabama), is well known for ruling in favor of progressive litigants. Unsurprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson.

Which brings us to the present case. In 2022, Alabama enacted the Vulnerable Child Compassion and Protection Act, which prohibits certain medical procedures for minors. As could be expected, the law was subject to immediate challenges by all the usual suspects.

Their strategy, which was revealed in a panel report, is striking. Here is the (rough) chronology.

  1. 4/8/2022—Ladinsky complaint filed in NDAL by National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders, Southern Poverty Law Center, and Human Rights Campaign.
  2. 4/11/2022—The NDAL case was randomly assigned to Judge Annemarie Axon (Trump appointee).
  3. 4/11/2022—Walker complaint filed in MDAL by ACLU, Lambda Legal, and Transgender Law Center. The civil cover sheet marked the case as related to Corbitt v. TaylorCorbitt was a challenge to an Alabama policy regarding the listing of gender on drivers' licenses. That case had been closed in January 2021. The only lingering issue was attorney's fees. Judge Thompson presided over Corbitt. The attorneys "marked Walker related to Corbitt because they wanted Walker assigned to Judge Thompson." The attorneys admitted that "they considered Judge Thompson a favorable draw because of his handling of Corbitt and that he ruled in favor of the plaintiffs who asserted transgender rights claims."
  4. 4/12/2022 – Walker randomly assigned to Chief Judge Emily Marks (Trump appointee). Walker plaintiffs filed a motion to reassign to Judge Thompson. Counsel had also called Judge Thompson's chambers and spoke with the judge's law clerk to flag the pending motion for preliminary injunction. At that time, Walker had not been assigned to Judge Thompson. (The lawyer at first denied making such a call, but later admitted it; the panel found his testimony was "troubling.") The counsel never called Chief Judge Marks to flag the pending motion.
  5. 4/13/2022—Chief Judge Marks entered an order to show cause why the case should not be transferred to the Northern District. The parties did not oppose the transfer.
  6. 4/15/2022 – Walker reassigned to NDAL, and the case was randomly assigned to Judge Burke (a Trump appointee). That day, Judge Axon also transferred Ladinsky to Judge Burke. About two hours after Ladinsky was assigned to Judge Burke, the Walker and Ladinsky plaintiffs filed a notice of voluntary dismissal. This dismissal was made, "even though (as [counsel] admit) time was of the essence and their stated goal was to move quickly to enjoin what they viewed as an unconstitutional law, abruptly stopping their pursuit of emergency relief."
  7. 4/16/2022—Counsel for Ladinksy plaintiffs tell the press that they plan to refile their case "immediately."
  8. 4/18/2022—Judge Burke denied the TRO as moot because of voluntary dismissal, but noted the press reports that the Plaintiffs planned to refile. Judge Burke stated, "At the risk of stating the obvious, [p]laintiffs' course of conduct could give the appearance of judge shopping—'a particularly pernicious form of forum shopping'—a practice that has the propensity to create the appearance of impropriety in the judicial system."
  9. 4/19/2022—A new group of plaintiffs, led by Eknes-Tucker, filed suit in the Middle District of Alabama signed by the same lawyers who filed Ladinsky. The lawyers found new plaintiffs, because were "concerned that they would be accused of judge shopping if they filed a new action with the same plaintiffs."  The case was randomly assigned not to Judge Thompson, but to Judge Huffaker (Trump appointee).
  10. 4/20/2022—Judge Huffaker transferred the case to Judge Burke.

The panel concluded, "Behind the scenes, counsel took surreptitious steps calculated to steer Walker to Judge Thompson even before filing their motion to have Walker reassigned to him." And the lawyers "made plans and took steps in an attempt to manipulate the assignment of these cases." Ironically, the panel noted, Judge Burke ruled for the Eknes-Tucker plaintiffs in part. A Trump judge!

This sequence of events, which was well known in Alabama, proves how pernicious actual judge shopping is. And this practice has nothing to do with single-judge divisions. Skilled lawyers know how to direct cases to favorable forums. Here, they made some ill-advised statements to the press, and got caught. But in many other cases, they are not caught. I will wait to see breathless outrage on social media about this actual judge shopping. If ADF did something like this, they would be crucified.

How would the much-vaunted Judicial Conference have worked here? Who knows!? There were so many assignments and reassignments, coupled with suits filed in competing divisions, all based on random draws. These choices were deliberately made by the plaintiffs to gum up the system. Plus, the coversheet and "Related Case" gambit throws a wrench in any assignment wheel. Often, staff in the clerk's office have to decide whether to reassign a "related" case. This case involved "two cases [that were] filed in the same district and there [was] a question about whether they should be consolidated or otherwise transferred so that the same judge presides over them." Resolving this issue is "not so much a rule as a practice." It is complex, and requires some judging. It would not surprise me if judges in the trenches looked at the Judicial Conference's policy and recognized that it would be impossible to actually apply in the real world–especially in light of potential gamesmanship. After all, parties can trigger reassignment just by seeking statewide relief. Or, a case could be dismissed and re-filed, as the plaintiffs did here. Or the same complaint can be filed in multiple districts, with the hopes of getting the best draw.

The attorneys in the Alabama case work at leading law firms and civil rights organizations. They have every interest in avoiding random draws in red states. For these reasons, I suspect they would quietly oppose the judicial conference's policy.

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The RBG Leadership Awards are Rescinded Wed, 20 Mar 2024 21:12:30 +0000 A few days I go, I blogged about the rather insensitive action by the Dwight Opperman Foundation to award the RBG Leadership Awards this year to a bizarre list of honorees: Elon Musk, Rupert Murdoch, Martha Stewart, Michael Milken, and Sylvester Stallone.

On Tuesday, then Foundation backtracked and cancelled this year's award ceremony "after facing blistering criticism from her family and friends over this year's planned recipients," in the words of the NY Times.

A good move; if I'm going to chastise them for screwing up, I should applaud when they recognize their mistake and try to put things right.

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How the EPA's New Emissions Rule Is Likely To Backfire Wed, 20 Mar 2024 20:35:13 +0000 Close-up of an electric vehicle plugged in to charge. | Mykola Pokhodzhay |

This week, the federal government released new rules that would cut the number of gas-burning cars sold over the next decade. While drafted with good intentions, the move could very well backfire.

On Wednesday, the Environmental Protection Agency (EPA) announced pollution standards for new vehicles produced for model years 2027–2032. The finalized rule calls for "more stringent emissions standards" for passenger cars, SUVs, and light-duty trucks, with the explicit goal of effecting a switch to electric vehicles (E.V.s). By 2032, the rule anticipates, 56 percent of all vehicles sold in the United States will be fully electric, 16 percent will be hybrids, and fewer than 30 percent will rely solely on an internal combustion engine.

The rule was actually relaxed a bit in its final form: When the EPA first announced plans to issue new vehicle standards in April 2023, the proposal would require that 60 percent of all vehicles sold by 2030 be electric, jumping up to 67 percent by 2032.

Still, the rule risks failure, either by asking too much too soon or by prioritizing one particular technology at the expense of viable alternatives.

"A record 1.2 million electric vehicles rolled off dealers' lots last year, but they made up just 7.6 percent of total U.S. car sales," wrote Coral Davenport in The New York Times. That number represented an increase from 5.9 percent the previous year, and E.V. sales in the fourth quarter of 2023 were 52 percent higher than the same period in 2022, representing 8.1 percent of all cars sold.

But even factoring in that uptick, those numbers are not nearly enough to reach the Biden administration's pledged goal, in which more than half of cars sold within the next decade are electric. S&P Global estimates that by 2030, only one in four vehicles sold will be an E.V.—significantly less than the 44 percent the EPA forecasts.

Overall demand is also slowing down, as consumers fret over issues like range, the availability of public chargers, and the higher prices of E.V.s. Without sufficiently addressing those concerns, motorists will not make the switch in sufficient numbers to meet the EPA's timeline.

Last week, the National Automobile Dealers Association (NADA) called the administration's original timeline "too far, too fast," saying that "new vehicle buyers are not purchasing EVs in the quantities necessary for automakers to meet EPA's requirements."

In November 2023, over 3,000 automotive dealers signed an open letter to President Joe Biden, asking that he "tap the brakes" on the mandate and allow time for the market to catch up and for "the American consumer to get comfortable with the technology and make the choice to buy an electric vehicle."

Notably, the rule also favors battery electric vehicles, which use no gasoline and charge when depleted, over hybrids. The EPA expects that its emission standards will ensure 56 percent of vehicles sold in 2032 will be battery E.V.s, while 13 percent will be plug-in hybrids and only three percent will be traditional hybrids.

This, too, is shortsighted: As consumers grow increasingly wary of an all-electric future, hybrids represent an ideal transition between gas and electricity.

Traditional hybrids use a mix of gasoline and electricity, with an electric motor and a gas-powered engine sharing the task. Plug-in hybrids function the same, but the electric motor is much larger and can run on nothing but electricity for short spans of time, providing 20–50 miles of gasoline-free driving before the engine kicks in.

According to the Department of Transportation, the average American motorist drove 37 miles a day in 2021. While any electrified vehicle could handle that trip, hybrids could do so while still allowing motorists the freedom to take longer drives when necessary. While hybrids still generate more carbon emissions than E.V.s, they are a significant improvement over all-gas vehicles.

In fact, automakers have learned this lesson already. As companies like Ford and General Motors (G.M.) pledged billions of dollars to build out their E.V. fleets, Toyota hedged, remaining dedicated to hybrids. Last year, as E.V. sales slowed, Toyota outsold every single competitor, with hybrids comprising one-third of its sales. Meanwhile, Ford and G.M. have each since pared back their planned E.V. investments, and CNBC reported in December that automakers are increasingly following Toyota's lead.

And yet the EPA's new rule not only deprioritizes hybrids, but it may very well skew the market against them. "The EPA's insistence on mandating EVs, to the exclusion of other alternatively-fueled vehicles, greatly reduces consumer choice," the NADA wrote. "This policy will likely cause manufacturers to produce fewer of these alternative vehicles and will increase their cost, thereby dissuading consumers from considering their purchase."

While a switch from gasoline to a more environmentally friendly source of energy is laudable, even perhaps necessary, the transition should be driven by the free market. Implementing a mandate based on an arbitrary timeline is destined to fail, especially since the mandate ignores that hybrids offer a plausible intermediate technology.

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Another Judge Says Illegal Immigrants Have Second Amendment Rights Wed, 20 Mar 2024 20:15:12 +0000 An image with shades of black, cream, gray, and orange that is fragmented with shadowed figures and guns and the U.S. Constitution | Lex Villena; Midjourney

In a decision earlier this month in U.S. v. Carbajal-Flores from the U.S. District Court for the Northern District of Illinois, Eastern Division, Judge Sharon Johnson Coleman concluded that you can't always and under every circumstance prohibit people in the country illegally from legally possessing weapons.

The factual background of the prosecution of Heriberto Carbajal-Flores, as explained in Judge Coleman's decision: "On June 1, 2020, Carbajal-Flores possessed a handgun in the Little Village neighborhood of Chicago, Illinois. Carbajal-Flores contends that he received and used the handgun for self-protection and protection of property. Because of Carbajal-Flores' citizenship status, he was charged with violating of 18 U.S.C. § 922(g)(5), which prohibits any noncitizen who is not legally authorized to be in the United States from 'possess[ing] in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.'"

Judge Coleman granted a motion to dismiss the charges against Carbajal-Flores, by declaring that such a blanket prohibition against weapons possession for a category of people can't withstand scrutiny under current Second Amendment doctrine.

Carbajal-Flores has been on pre-trial release and "has consistently adhered to and fulfilled all the stipulated conditions of his release," the decision explains. "Pretrial Services has conducted numerous employment visits at various sites, and Carbajal-Flores consistently provides the necessary documentation to verify his income when requested. A criminal record check conducted through the National Crime Information Center reflects no new arrests or outstanding warrants."

So he was no demonstrated threat to the persons or property of Americans, despite his status crime of possessing a weapon when a law said he could not.

Judge Coleman tried in her decision to rethink earlier motions to dismiss on Carbajal-Flores' part that had been denied in the context of both the Supreme Court's 2022 New York State Rifle & Pistol Association v. Bruen decision which suggested courts needed to consider historical analogy arguments from the Founding times to decide whether current restrictions on the rights of weapon possession can exist under the Second Amendment, and the 7th Circuit's 2023 Atkinson v. Garland decision which laid out a list of questions that tried to define how one might apply Bruen doctrine to laws against felon possession, which Judge Coleman thinks can be analogous to those against legally unauthorized noncitizen possession.

Judge Coleman decided, after considering that in the 19th century former British loyalists were on the basis of specific facts allowed to legally possess arms that others were not, that "Carbajal-Flores' criminal record, containing no improper use of a weapon, as well as the non-violent circumstances of his arrest do not support a finding that he poses a risk to public safety such that he cannot be trusted to use a weapon responsibly and should be deprived of his Second Amendment right to bear arms in self-defense. Thus, this Court finds that, as applied to Carbajal-Flores, Section 922(g)(5) is unconstitutional."

She is not, then, saying that the law against undocumented noncitizens possessing guns is always and everywhere unconstitutional, but that its constitutionality is affected by the specific facts of specific defendants.

Judge Coleman's decision that the Second Amendment applies to noncitizens such as Carbajal-Flores at least sometimes was not a wild innovation. Back in 2015, in a case out of the 7th Circuit like the Atkinson case that Judge Coleman discusses, Judge Diane Wood also decided in U.S. v. Meza-Rodriguez that in a "post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded. No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights."

Despite declaring that such noncitizens ought not be completely outside the protection of the Second Amendment, Judge Wood in that case decided the noncitizen defendant could be prosecuted anyway. After the usual throat-clearing about how no right is absolute, Judge Wood concluded that "Congress's interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support" prosecuting Meza-Rodriguez anyway. Many other courts did not and do not agree with what Wood and Coleman concluded about unauthorized noncitizens and the Second Amendment, so it's a question ripe for eventual Supreme Court consideration. Whether the "people" to whom various constitutional rights apply must always be legal citizens has been denied in various other cases involving various other constitutional rights, such as the Fourth Amendment.

In a curious case of letting culture wars or tribal considerations overwhelm legal thinking, gun law scholar and generally a tenacious defender of a hardcore interpretation of the Second Amendment John Lott is suspicious that this is just "an Obama judge acting in a very calculated way to try to create problems for interpreting the Second Amendment."

He's not alone; social networks are full of right-wing supposed Second Amendment partisans angry that this Barack Obama–appointed judge has gone too far, in the service of some scheme to either have the U.S. conquered by gun-wielding immigrant Biden shock troops or to make the Second Amendment seem absurd by overapplying it.

As always, this decision, no matter how far it goes or if other courts respect it, is not about the right to commit actual crimes against other people or their property with the weapon; it's merely about the right to possess them, the very right the Second Amendment was obviously designed to protect from government interference.

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Federal Handout to Intel Will Cost $283,000 Per Job, and That's Being Generous Wed, 20 Mar 2024 19:20:38 +0000 An Intel logo in the background with a gold dollar sign and a figurine in the foreground | zumaamericasforty850847 (RM)

American chipmaker Intel will receive up to $19 billion in corporate welfare, the White House announced Wednesday, making it likely to be the largest recipient of taxpayer-funded aid intended to boost semiconductor manufacturing.

President Joe Biden is expected to make a formal announcement of the handout later today during a campaign stop at Intel's headquarters in Chandler, Arizona. In a statement, the White House said the subsidies would include $8.5 billion in direct grants to Intel, which will also have access to $11 billion in federal loans. For all that money, Intel is expected to create 30,000 jobs.

In other words, taxpayers will pony up over $283,000 per job created—and that's counting only the $8.5 billion in direct payments to the company.

The math gets even worse if you read Intel's press release, which clarifies that 20,000 of those 30,000 new jobs will be temporary construction jobs connected to building new facilities in four states.

But the real kicker is the fact that Intel was already planning to build those facilities—which makes sense, because there is huge demand for semiconductors and the market is growing increasingly concerned about the fact that so many of the world's high-end chips are made in Taiwan and are thus under constant threat from China. According to Intel, the federal government's handout "supports Intel's previously announced plans to invest more than $100 billion in the U.S. over five years to expand U.S. chipmaking capacity."

To sum up: The federal government is spending heavily to subsidize a successful, growing industry, is asking taxpayers to foot part of the bill for investments that the private sector was already funding, and is not spending the money in a particularly efficient way. Make it make sense!

Unfortunately, this is likely only the start. The Biden administration still has $39 billion in CHIPS Act subsidies to distribute in the coming months, according to The New York Times. Even before that money is out the door—and long before anyone has had a chance to measure how effective the spending was—administration officials and top executives at chip-making companies agree that Congress should pass another round of subsidies.

"I do think we'll need at least a CHIPS 2 to finish that job," Patrick Gelsinger, Intel's chief executive, told the Times this week, echoing comments made last month by Commerce Secretary Gina Raimondo, who is overseeing the distribution of this corporate welfare.

Even if the semiconductor industry needed government handouts—which, again, it clearly does not—directly subsidizing certain projects and companies would be a poor way to go about it.

For evidence, check out a new paper from Alex Muresianu, a senior policy analyst at the Tax Foundation (and former Reason intern), that contrasts the approaches taken by the CHIPs Act vs. the 2017 Tax Cuts and Jobs Act signed by then-President Donald Trump. By reducing corporate taxes and enacting a series of supply-side reforms, Muresianu concludes, the Trump tax cuts "caused a substantial increase in investment."

"In contrast," he writes, the targeted subsidies included in the CHIPs Act "have not led to a broad increase in private investment outside of subsidized sectors."

At National Review, Dominic Pino explains why this distinction matters. "Supply-side orthodoxy and industrial policy often have a similar goal: to increase capital investment. But they go about pursuing that goal in very different ways." Neutral reforms like tax cuts reduce the cost of capital investments and allow private markets to decide how best to allocate new investments.

On the other hand, industrial policies like the grants to Intel "requires a series of bank shots," Pino writes. The government has to pick which sector of the economy to subsidize and has to choose specific winners and losers within that sector, of course. Then, it also has to decide how much to invest in each company and make sure those subsidies aren't displacing private investments—and it has to do all of that "in the absence of reliable price signals and persist through relentless pressure from advocacy groups."

Of course, specific subsidies for certain companies create something that broader reforms for the economy do not: the chance for the president to stand in front of a construction site and take credit for the jobs being created there.

Even if they are tremendously costly to the taxpayers. And even if those jobs were going to be created anyway.

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Biden Decries Criminalization of Cannabis Consumers Even As He Insists They Have No Second Amendment Rights Wed, 20 Mar 2024 19:05:47 +0000 President Joe Biden delivering his 2024 State of the Union address | Tom Williams/CQ Roll Call/Newscom

In his State of the Union address this month, President Joe Biden declared that "no one should be jailed for simply using" marijuana or "have it on their record." He amplified that message on X (formerly Twitter) that night, saying, "No one should be jailed just for using or possessing marijuana." Biden said those things on the same day that federal prosecutors in North Carolina filed a brief defending the federal ban on gun possession by cannabis consumers, whom they likened to "lunatics" and violent felons.

Biden, who during his 2020 campaign promised to "decriminalize the use of cannabis," thinks marijuana users are not doing anything that justifies arresting them. Yet his Justice Department simultaneously insists marijuana users are so dangerous that they cannot be trusted with guns even when they are completely sober—so dangerous, in fact, that they are altogether excluded from "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment. That insulting and scientifically baseless portrayal of cannabis consumers could prove to be a problem for a president who is desperate to motivate young voters by touting his supposedly enlightened views on marijuana.

'The People' Do Not Include Marijuana Users

The Biden administration has been pushing its benighted description of marijuana users in federal courts since 2022. Its argument has been rejected by several judges, including a unanimous 5th Circuit panel. Last October, Louise Flanagan, a federal judge in North Carolina, joined them when she dismissed a charge under 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms. In a March 7 brief, two assistant U.S. attorneys, David Bragdon and Sarah Nokes, urge the U.S. Court of Appeals for the 4th Circuit to overturn Flanagan's decision.

As is often true in criminal cases that raise civil liberties issues, the defendant in United States v. Alston is not exactly sympathetic. But keep in mind that the Biden administration's argument is not limited to cannabis consumers with a history of violence. It applies to all of them, even if they have never done anything to suggest they pose a threat to public safety and even if they live in states that have legalized marijuana. Judging from survey data on past-month consumption, more than 40 million Americans  qualify as "current" marijuana users, which according to the Justice Department means they have no Second Amendment rights.

This case stems from the arrest of Carlos Alston, whose crimes were not limited to marijuana use. In January 2023, Bragdon and Nokes say, a police officer approached Alston while he was "waiting in line at a restaurant drive-thru" in Henderson, North Carolina. The officer "told Alston that there were active warrants for his arrest and commanded Alston to show his hands." Alston, who was wanted on a charge of assault with a deadly weapon, "instead retrieved and pointed a firearm at the officer." The officer "drew his duty weapon and fired a shot at Alston, striking him in the lower body." Then Alston "exited his vehicle and ran from the officer," who caught him "after a brief pursuit."

Alston's car "emitted an odor of marijuana," and a search turned up "a marijuana cigarette on the passenger seat of the vehicle," along with "a plastic baggie containing approximately 26 grams of marijuana," "digital scales," and additional "plastic baggies." His criminal history "revealed a prior state conviction for possession of marijuana and a state probation revocation…resulting from a positive drug screen indicating the presence of marijuana and failure to register for drug treatment classes, among other violations." In an interview after he was taken into custody by agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Alston admitted to "using marijuana daily" and to "obtaining the firearm at issue in this case after he had been indicted" in state court for assault with a deadly weapon.

Those facts resulted in two federal gun charges: one under Section 922(g)(3) and one under Section 922(g)(n), which makes it a felony for anyone who is under indictment for a crime punishable by more than a year of incarceration to receive a firearm. Alston sought dismissal of both charges, arguing that the underlying statutes are unconstitutional. Robert Numbers, a federal magistrate judge, recommended dismissal of the first charge but not the second. In accepting that recommendation, Flanagan rejected the same arguments that Bragdon and Nokes are now asking the 4th Circuit to accept.

Bragdon and Nokes argue that marijuana users are categorically excluded from "the people" protected by the Second Amendment. That claim is hard to reconcile with the Supreme Court's conclusion that "the people" who have a right to "keep and bear arms"—like "the people" who have a right "peaceably to assemble," "the people" who have a right to be secure against "unreasonable searches and seizures," and "the people" who retain unenumerated rights under the Ninth Amendment—"unambiguously" refers to "all members of the political community." The use of that phrase in the Second Amendment, the Court said in the landmark 2008 case District of Columbia v. Heller, creates "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Attempting to overcome that presumption, Bragdon and Nokes latch onto Heller's reference to "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." From that phrase, they infer that "the people," contrary to what the Court explicitly said, are limited to Americans who are both "law-abiding" and "responsible."

Although anyone who consumes a federally prohibited substance is breaking the law, Bragdon and Nokes note that the 4th Circuit has said "law-abiding" does not mean "any person committing any crime automatically loses the protection of the Second Amendment." They also note the Justice Department's position that "individuals are not 'law-abiding' if they have committed felony-level conduct," which cannabis consumers typically have not (unless they happen to own guns!). Bragdon and Nokes instead rely on the claim that cannabis consumers are ipso facto not "responsible," which in their view means they are not part of "the people."

Cannabis Consumers Are Not 'Responsible'

According to the Justice Department, people are not "responsible" if "some characteristic or quality they possess makes their possession of firearms particularly dangerous." As Bragdon and Nokes see it, all cannabis consumers, regardless of how often they use marijuana or the circumstances in which they use it, are "particularly dangerous" in this context. The brief offers four reasons for that conclusion.

First, Bragdon and Nokes say, "drug users may mishandle firearms—or use firearms to commit crimes—because of 'drug-induced changes in physiological functions, cognitive ability, and mood.'" They add that marijuana intoxication "causes disinhibition, impaired judgment, [and] disorganized thinking, and can cause 'euphoria, perceptual and other cognitive distortions, hallucinations, and mood changes,' particularly in higher doses."

While it is surely true that "drug users may mishandle firearms" when they are intoxicated, the same could be said of people who consume alcoholic beverages. Yet there is no blanket ban on gun possession by drinkers, and if there were it would be plainly unconstitutional.

Second, Bragdon and Nokes say, "illegal drug users often 'commit crime in order to obtain money to buy drugs'—and thus pose a danger of using firearms to facilitate such crime." They note that "criminal cases are replete with examples of crimes motivated by drug habits."

Leaving aside the point that prohibition-inflated prices foster this kind of crime, its existence does not come close to justifying the conclusion that cannabis consumers, as a group, are "particularly dangerous." How likely is it that the average patron of a state-licensed pot store in Colorado, say, will end up breaking into cars, robbing people, or burglarizing homes to fund his purchases?

Third, Bragdon and Nokes write, "violent crime may occur as part of the drug business or culture." That violence, they say, "can involve not only drug dealers, but also their customers. For example, violence may result from 'disputes and ripoffs among individuals involved in the illegal drug market.'"

The violence to which Bragdon and Nokes refer is almost entirely a product of prohibition, which creates a black market in which there is no legal, peaceful way to resolve disputes. In any case, their concern again seems misplaced as applied to marijuana users. If that Colorado cannabis consumer gets short-changed or is unhappy with his purchase, the chance that he will resort to violence as a remedy is approximately zero.

Fourth, Bragdon and Nokes say, "armed drug users endanger the police." Given "the illegal nature of their activities," the brief explains, "drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers," which "threaten the safety" of the officers "when guns are involved." Alston himself "exemplified the danger drug addicts with firearms pose to police on the night of the charged offense when he threatened a police officer with a loaded firearm."

Recall that Bragdon and Nokes are defending a blanket ban on gun possession by anyone who uses marijuana, not just by cannabis consumers who are demonstrably inclined to commit violent crimes. While Biden says there is an important difference between violent criminals and people whose only crime is possessing or using marijuana, his Justice Department seems determined to blur that distinction.

As the Department of Health and Human Services recently noted, "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others." Yet Bragdon and Nokes want the 4th Circuit to ignore that reality and focus on the tiny minority of cannabis consumers who resemble Alston.

'The Second Amendment's Plain Text'

All of this scaremongering is irrelevant, of course, unless Bragdon and Nokes are right in claiming that "the people" are limited to Americans they view as "responsible." Numbers and Flanagan rejected that claim in no uncertain terms.

While the Supreme Court "may have focused on the rights of law-abiding citizens," Numbers said, "the Second Amendment's protections extend to a broader political community—a community that includes Alston." Flanagan concurred, saying Supreme Court precedent "suggests strongly that all Americans, including those who confess to regular unlawful drug use, enjoy Second Amendment protection."

Bragdon and Nokes next purport to apply the Second Amendment test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in Bruen. At that point, he said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." If and only if the government meets that burden, a court may "conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

It may seem obvious that receiving and possessing ordinary firearms are covered by
"the Second Amendment's plain text." But according to Bragdon and Nokes, that is the wrong question.

"The conduct prohibited by Section 922(g)(3) is not simply receipt (or possession, shipping or transporting) firearms, but rather possession of a firearm by a person who regularly and unlawfully uses drugs," they write. Hence "the conduct subject to the Second Amendment analysis is not merely possession (or receipt), but possession by an unlawful drug user or addict."

Numbers, by contrast, understandably thought the "conduct at issue" in Alston's case was "the receipt of a firearm." So did Flanagan.

"The government argues that the relevant conduct for purposes of constitutional inquiry is 'possessing a firearm while being an unlawful drug user,' contending that defendant's 'conduct in possessing the firearm cannot be divorced from the then-existing condition which made such  possession inherently dangerous,'" Flanagan wrote. "This argument is directly foreclosed by Bruen, which analyzed separately whether petitioners were 'part of "the people" whom the Second Amendment protects,' and 'whether the plain text of the Second Amendment protect[ed petitioner's] proposed course of conduct.' The government's position conflates the inquiry conducted above [regarding whether Alston is part of "the people"] with the separate question of whether the statute at issue burdens the right to 'keep and bear arms.' The court 'has little difficulty concluding that' § 922(g)(3), which prohibits the receipt of firearms, burdens conduct within the ambit of the Second Amendment."

Desperately Seeking Analogs

Just in case the 4th Circuit agrees with Flanagan on these two points, Bragdon and Nokes also try to show that Section 922(g)(3) is "consistent with this Nation's historical tradition of firearm regulation." That provision, they argue, is "relevantly similar" to "historical prohibitions on the possession of firearms by the mentally ill, the intoxicated and those considered to be dangerous."

Section 922(g)(3) was not enacted until 1968, and Bragdon and Nokes concede that they cannot find any Founding-era laws that likewise banned gun possession by people who use currently prohibited drugs. They say that's because "the unlawful use of controlled substances was not a problem faced by the Founding Fathers." But it was not a problem faced by the Founding Fathers because there was no such thing as "unlawful use of controlled substances" when the Second Amendment was ratified in 1791. Nor was there such a thing when the 14th Amendment made the Bill of Rights binding on the states in 1868.

As Bragdon and Nokes concede in passing, there was no such thing until 1877, when "Nevada became the first state to require a prescription for the purchase of any drug (in that case, opium)." Even then, Americans generally were free to purchase patent medicines containing currently prohibited drugs, including cannabis, over the counter or by mail without a prescription. That situation persisted into the early 20th century.

"Through much of the 19th century," Bragdon and Nokes write, "there was no need for firearm prohibitions addressing substances other than alcohol because drugs were not widely used as intoxicants in the United States until the late 19th and early 20th centuries." Since the distinction between medicine and intoxicant can be hazy and was not legally enforced, that assertion is questionable. In any case, it seems highly doubtful that Americans in the late 19th century, when patent medicines containing opium, cannabis, and cocaine were widely available, would have thought consumption of such products justified the loss of gun rights under the Second Amendment or state analogs.

As Bragdon and Nokes note, laws enacted in the 18th and 19th centuries did address the combination of alcohol and guns. But all of these laws were narrowly targeted at the danger posed by people who handled guns while intoxicated, and they prohibited public possession or use of firearms in that specific context. They did not apply to private possession, and none of them imposed a blanket ban on gun ownership by drinkers. The claim that they are "relevantly similar" to Section 922(g)(3) is therefore hard to take seriously. The 5th Circuit rejected it, and so did Flanagan.

Colonial laws "forbade shooting guns at drinking events, in taverns, or on certain holidays," Flanagan noted. "None of these laws, however, forbade the possession or acquisition of firearms; they outlawed only the active use of such weapons at sensitive times. The government's reference to nineteenth century laws limiting the intoxicated from using firearms similarly falls short where those laws apply only to actually intoxicated persons, not persons likely so to become."

In case the 4th Circuit is similarly skeptical of the analogy between gun-owning cannabis consumers and drunken gun handlers, Bragdon and Nokes suggest that marijuana users also are similar to "lunatics" whom 19th century justices of the peace were authorized to "lock up" when they were deemed "dangerous to be permitted to go abroad." Lest you think that comparison is implausible, Bragdon and Nokes offer a quote from a pre-Bruen decision in which the U.S. Court of Appeals for the 7th Circuit upheld Section 922(g)(3): "Habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms."

This argument rehashes the claim that "drug users may mishandle firearms," which is equally applicable to drinkers. In both cases, the issue is how people tend to behave when they are intoxicated, and Section 922(g)(3) goes far beyond that situation.

'Deemed Dangerous'

Finally, Bragdon and Nokes argue that "Section 922(g)(3) is analogous to the tradition
of disarming dangerous individuals," such as "individuals who carried [guns] in a manner that spread fear or terror." Are laws against such menacing behavior "relevantly similar" to a law that says anyone who occasionally relaxes with a few puffs of marijuana may not receive or possess guns? Bragdon and Nokes think so.

"Other early statutes disarmed entire groups deemed dangerous or untrustworthy," the brief notes. Bragdon and Nokes mention "those who refused to swear allegiance to the colony or the Revolution's cause." In other cases, the government's lawyers have noted that early statutes likewise disarmed Native Americans and black people. Although "these laws likely would not pass constitutional muster today," Bragdon and Nokes say, "they remain instructive" because they "demonstrate that the Second Amendment was not historically understood to pose an obstacle to disarming, as a class, certain persons deemed dangerous."

That is one way to look at it. One might also view such loathsome laws as a lesson in what can happen when legislators are free to disarm "entire groups" they deem "dangerous or untrustworthy," whether or not there is any rational basis for that judgment.

Although it may seem like I am picking on Bragdon and Nokes, their arguments reflect the position that the Justice Department has taken in one case after another. Again and again, the government's lawyers have argued that cannabis consumers are irresponsible, unvirtuous, dangerous, similar to "lunatics," and just one toke away from a murderous rampage.

That view is not just empirically unsupported and wildly implausible; it blatantly contradicts the president's avowed opposition to depriving people of their liberty "just for using or possessing marijuana." If Biden wants to persuade young voters who overwhelmingly oppose pot prohibition that he is on their side, reconsidering his reflexive defense of this odious gun law would be a good place to start.

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No Sanctions in Michael Cohen Hallucinated Citations Matter Wed, 20 Mar 2024 17:39:20 +0000 From today's decision in U.S. v. Cohen by Judge Jesse Furman (S.D.N.Y.) (see also N.Y. Times [Benjamin Weiser]):

In support of his motion [for early termination of supervised release], Schwartz [Cohen's lawyer] cited and described three "examples" of decisions granting early termination of supervised release that were allegedly affirmed by the Second Circuit. See id. at 2-3 (citing United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. 21-3391), 2022 WL 4424741 (2d Cir. Oct. 11, 2022); and United States v. Amato, 2022 WL 1669877 (2d Cir. May 10, 2022)). There was only one problem: The cases do not exist. Although the Government failed to point that fact out in its opposition to Cohen's motion, E. Danya Perry—who entered a notice of appearance on Cohen's behalf following the Government's submission—disclosed in a reply that she had been "unable to verify" the citations in Schwartz's filing….

Schwartz (aided by his own counsel) and Cohen (aided by Perry)[,] … [w]ith one exception discussed below, … tell the same basic story. In early November 2023, Schwartz sent a draft of what would become the November 29, 2023 motion to Cohen. Cohen asked Perry (who had not yet entered an appearance in this case) to provide feedback on the draft, which she did. One comment, which Cohen passed along to Schwartz, was that the motion should cite a few cases granting early termination. Schwartz adopted what he understood to be Perry's suggestions and sent subsequent drafts back to Cohen.

On November 25, 2023, Cohen then sent three emails to Schwartz with the cases in question and summaries of the cases. Cohen had obtained the cases and summaries from Google Bard, which he "did not realize … was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, [he had] understood it to be a super-charged search engine …." According to Cohen, he did not "have access to Westlaw or other standard resources for confirming the details of cases" and "trusted Mr. Schwartz and his team to vet [his] suggested additions before incorporating them" into what became the motion.

That trust proved unfounded.

Although Cohen's November 25, 2023 emails made no reference to Perry, Schwartz "believed" that the cases "had been found by Ms. Perry" given the earlier back and forth. "[B]ecause of Ms. Perry's reputation" as "a renowned and skilled trial lawyer," Schwartz "did not independently review the cases." He notes that he "never contemplated that the cases cited were 'non-existent,'" that their inclusion in his motion was an "honest" and "unfortunate mistake[],"and that he "had no intention to deceive the Court."

The first Schwartz learned of the problem was when the Court issued its  Order to Show Cause on December 12, 2023; he then spoke to Perry's colleague, who informed him that Cohen, not Perry, had been the source of the cases. Schwartz professes that he "would have researched" the cases had he "believed that Mr. Cohen" was their source. He acknowledges that he "bear[s] the responsibility for" the "submission" and that "the inaccuracies" in it were "completely unacceptable," and he "sincerely apologize[s] … for not checking [the] cases personally before submitting them."

As noted, Schwartz's and Cohen's recollections differ in one respect.Schwartz recalls that Cohen had, before sending him the cases on November 25, 2023, "communicated to [him] that cases would be provided by Ms. Perry," which was one reason he believed the cases came from Perry.Cohen denies that he said anything of the sort to Schwartz, although he does not dispute Schwartz's claim that Schwartz mistakenly believed in good faith that the cases had come from Perry.

In the Court's view, this discrepancy is ultimately inconsequential. At most, Cohen told Schwartz on some unspecified date that Perry would later provide "cases"; Schwartz does not suggest, and the record does not show, that Cohen identified Perry as the source of the problematic cases Cohen provided on November 25, 2023. Moreover, even if Cohen did not say anything to Schwartz to suggest that Perry would provide cases, Perry's comments on the initial draft that Cohen forwarded to Schwartz provided a good faith basis for Schwartz's belief that Perry was the source. All of that is to say, the Court credits Schwartz's testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court….

Judge Furman concluded that sanctions should only be imposed for knowing misbehavior, and not carelessness, and that there wasn't enough evidence here of such knowing misbehavior:

[T]he Court is compelled to conclude that sanctions may not be imposed on Schwartz. His citation to non-existent cases is embarrassing and certainly negligent, perhaps even grossly negligent. But the Court cannot find that it was done in bad faith. Given Perry's comments on the initial draft (as conveyed by Cohen), Schwartz understandably believed that the cases had come from her. As Schwartz himself concedes, it was plainly his responsibility to review the citations before putting them in a submission to the Court. But the Court credits his explanation for his failure to do so: that he had confidence in the accuracy of the cases given Perry's reputation and that he never contemplated that the cases were non-existent.

The Court also credits Schwartz's representations—that inclusion of the cases in his motion was an "honest" and "unfortunate mistake[]"; that he "had no intention to deceive the Court"; and that he would have withdrawn the citations immediately if given the opportunity—and does not doubt the genuineness of his apologies and acceptance of responsibility. Perry, in responding to Schwartz's submission, asserts that "even a quick read" of the citations "should have raised an eyebrow." That may be so, but, at most, it supports a finding of extreme carelessness, not intentional bad faith.  And it is noteworthy that the Government's lawyers—who presumably engaged in more than a "quick read" of Schwartz's motion and, thus, saw the citations at issue before filing their opposition—did not "notice[] something awry" themselves.

So too, there is no basis to impose sanctions on Cohen himself. The Court's Order to Show Cause was limited to Schwartz and did not alert Cohen to the possibility of sanctions. But even if the Court had put Cohen on notice, sanctions would not be warranted. Cohen is a party to this case and, as a disbarred attorney, is not an officer of the Court like Schwartz. He was entitled to rely on his counsel and to trust his counsel's professional judgment—as he did throughout this case.

Given the amount of press and attention that Google Bard and other generative artificial intelligence tools have received, it is surprising that Cohen believed it to be a "super-charged search engine" rather than a "generative text service." But the Court has no basis to question Cohen's representation that he believed the cases to be real. Indeed, it would have been downright irrational for him to provide fake cases for Schwartz to include in the motion knowing they were fake—given the probability that Schwartz would discover the problem himself and not include the cases in the motion (as he should have) or, failing that, that the issue would be discovered by the Government or Court, with potentially serious adverse consequences for Cohen himself.

In sum, as embarrassing as this unfortunate episode was for Schwartz, if not Cohen, the record does not support the imposition of sanctions in this case.

Note that sanctions sometimes do get imposed for merely careless behavior. My sense is here the judge was especially influenced by this detail:

All of that is to say, the Court credits Schwartz's testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court.

If in a future case a lawyer instead just relies directly on ChatGPT or Google Gemini, without cite-checking—as opposed to relying on information that he thought came from another, reputable lawyer—the result might well be different (as it was in Mata v. Avianca, the first hallucitation court case to hit the news).

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No Ice Cream Price Gouging Thanks to Substitutes Wed, 20 Mar 2024 17:30:30 +0000 A pint of Ben & Jerry's "half baked" ice cream, with the lid leaning against it and an ice cream scoop laying on top. An open bag of M&Ms is also on the table. | Photo by <a href="">Hybrid Storytellers</a> on <a href="">Unsplash</a>

Following anemic sales growth of 1.8 percent in 2023, Unilever announced its separation from its ice cream division on Tuesday.

Increasing its share of the ice cream market from 16 percent to 20 percent over the past decade, Unilever's ice cream brands included Ben & Jerry's, Magnum, Wall's, and Cornetto. Unilever's ice cream division accounted for 13 percent of its revenue in 2023, with the rest coming from consumer staple brands like Dove, Comfort, TRESemmé, Vaseline, Liquid I.V. (a favorite of college students who totally respect the legal drinking age) and—Hellmann's Mayonnaise?

Unilever has quite the diversified (and eccentric) portfolio of products.

Despite its impressive market share, Unilever's ice cream division experienced the firm's highest input-cost inflation last year, making it more of a liability than an asset. In an attempt to remain profitable, Unilever instituted cost-cutting measures and across-the-board price increases.

The first strategy proved ineffective: Despite 7 percent growth in the consumer staples sector between 2019 and 2024, Unilever's own share actually decreased by 8 percent.

The second strategy also fell flat: After raising the average price of its offerings by 13.3 percent in 2022, sales decreased by 3.6 percent and 1,500 of its 128,000 employees were fired. Although consumer welfare was initially reduced by Unilever's price hikes, so too was producer surplus in short order.

Unilever's decision to fire 7,500 more employees coupled with its divestiture from its ice cream division constitutes its latest bid to cut costs, saving the company a projected $870 million over the next three years. Given CFO Fernando Fernandez's nod to the importance of artificial intelligence in Unilever's "comprehensive technology program," it comes as no surprise that CEO Hein Schumacher anticipates layoffs impacting those in "predominantly office-based roles."

What may come as a surprise to Federal Trade Commission (FTC) Chair Lina Khan and the neo-Brandeisians (mis)managing the FTC is the fact that even huge, horizontally integrated firms like Unilever cannot raise prices without decreasing quantity demanded. This is especially true when it comes to those goods for which demand is relatively elastic.

Consumers will happily hand over a couple bucks to sate their Chunky Monkey craving, but they're not going to pay much more than that; they'll satisfy their sweet tooth with cheaper ice cream, substitute with a Kit Kat, or forgo the (relative) luxury altogether.

In markets where own-price elasticity is high and substitute goods abound, market share does not translate to market power.

Speaking of Chunky Monkey, Unilever's sale of Ben & Jerry's bodes well for those uneasy about the increasingly politicized marketplace. Ben & Jerry's opted to differentiate their overpriced, punny ice cream flavors through active participation in the political controversy du jour: vocally supporting Black Lives Matter in 2021 and refusing to sell in the "Occupied Palestinian Territory" in 2022. The Vermont ice cream chain went so far as to sue Unilever to prevent it from selling distribution rights to Israeli licensees.

Apparently, hot political takes don't pair well with cold ice cream.

Though Ben & Jerry's corporate activism undoubtedly contributed to its relationship with Unilever melting, it was probably not determinative. Pointing to "lack of overlap on supply chains with the rest of the company," Schumacher explained the benefits of horizontal disintegration from all of its ice cream brands, not just Ben & Jerry's. When cost-saving synergies no longer compensated for increased input costs, the profit motive naturally incentivized Unilever to downsize and delimit its focus.

Less of an instance of "get woke, go broke," Unilever's divestiture from its ice cream brands is more so evidence that the size and extent of a company has little to do with its pricing power. 

FTC, take note.

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Policing 'Thinspiration' Is Harder Than Lawmakers Think Wed, 20 Mar 2024 16:01:53 +0000 thinspiration? | Photo by <a href="">Alex Shaw</a> on <a href="">Unsplash</a>

Whenever the subject of social media and teenagers comes up, it seems someone wants to talk about eating disorders. Conventional wisdom says Instagram and other highly visual platforms promote negative body image and push young people—mostly young women—to take dieting to extremes. Some politicians even want to hold tech companies legally liable when young users develop eating disorders.

Suggestions like these make me want to bang my head against a wall. They represent a dreadful misread of both eating disorders and technology, as well as the limits of content moderation and the functions of eating disorder communities and content.

I'm reminded of all of this because of this excellent post at Techdirt by TechFreedom legal fellow Santana Boulton. "Eating disorders are older than social media, and advocates who think platforms can moderate [eating disorder] content out of existence understand neither eating disorders nor content moderation," she writes.

Eating Disorders and the Kids Online Safety Act (KOSA)

The big reason we're discussing this issue right now is KOSA, the latest (and arguably most likely to succeed) effort in Congress to childproof the internet. KOSA was first introduced in 2022 and a new version is back this year. It comes from Sen. Richard Blumenthal (D–Conn.), one of the original sponsors and biggest supporters of the measure that became the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA).

Under KOSA, social media companies and other covered online platforms have a "duty of care" that requires them to "act in the best interests" of minor users. To do this, they must "take reasonable measures…to prevent and mitigate…harms" including "anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors," as well as "addiction-like behaviors" and exposure to bullying, sexual exploitation, deceptive marketing practices, and more.

KOSA would grant the Federal Trade Commission (FTC) the power to enforce this "duty of care." Even if enforced in the most neutral of ways, this could lead to a lot of crazy harassment of tech companies unless they obsessively and excessively censor online content.

Of course, giving this power to the FTC all but ensures it will be used to further the political agendas of whatever administration is in power. Under a Biden or otherwise Democratic administration we could see, for instance, the failure to delete content that doesn't uphold progressive gender orthodoxies deemed a violation (under the theory that this could promote mental health problems in transgender children). Under a Trump or otherwise GOP administration, we could see platforms censured for allowing too much LGBTQ content (grooming!), information about birth control or abortion, and so on.

KOSA is the epitome of the type of "online safety" bill that danah boyd—a tech and culture writer and researcher who has been exploring these issues since back when social media was still called "social networking"—describes as "pretend[ing] to be focused on helping young people when they're really anti-tech bills that are using children for political agendas in ways that will fundamentally hurt the most vulnerable young people out there."

"Efforts to drive design through moral panics and flawed deterministic logics can easily trigger a host of unintended consequences," writes boyd in a pre-print paper with María P. Angel. "When it comes to kids' safety, these consequences tend to be most acutely felt by those who are most vulnerable."

Which brings us back to eating disorders.

At best, laws like KOSA try to sweep eating disorders (and other mental health issues) under the rug. But they could also make things worse for teens struggling with anorexia or other forms of disordered eating.

Misunderstanding Eating Disorders

Many people believe that anorexia and other eating disorders are about thinness, which implies that they can be triggered by exposure to beauty standards prizing thinness and solved by exposing people to less of this. From what I know about eating disorders and about media effects, everything about this is essentially wrong.

Yes, eating disorders often manifest as a desire to be thin. But this is often a symptom of deeper issues—anxiety, depression, obsessive-compulsive disorder, etc. Restricting calories, obsessively exercising, or binging and purging become ways to exercise control.

This isn't to say that some teens exposed to a lot of images of ultra-thin people won't wind up feeling worse about their bodies. But otherwise healthy, well-adjusted people aren't developing anorexia from looking at Instagram posts. And pretending like they are actually minimizes eating disorders' seriousness.

Could exposure to pro-anorexia ("pro-ana") content or idealized images of thinness on social media tip the scales for someone already suffering from mental health issues? It seems plausible. But in this scenario, Instagram (or Tumblr, or TikTok, or whatever) is just the most zeitgeisty manifestation of a much older phenomenon.

People said the same things about fashion magazines, Hollywood movies, Photoshopped advertisements, and all sorts of other depictions of thin beauty standards—and yet no one is suggesting we hold these legally liable when young people get anorexia.

Misunderstanding Eating Disorder Communities

Besides, pro-ana content isn't anything new to Instagram and its contemporaries. Back when Instagram was just a twinkle in Kevin Systrom and Mike Krieger's eyes, you could find all sorts of "pro-ana" communities and eating disorder forums on LiveJournal—and I did. Which is how I know that these types of communities and content can be multifunctional, and sometimes serve as a force for good.

Yes, people in these communities posted "thinspiration" (photos of very thin people offered up for "inspiration") and offered encouragement and tips for extreme calorie restriction.

But people in many of them also offered support on the underlying issues that others struggled with. They encouraged people who wanted to recover, and warned those who didn't against going too far. They told people to seek help for suicidal ideation, and were there for each other when someone said they had no one who understood them.

Even when not being overtly pro-recovery, these communities could sometimes have a deterrent effect, since they served as windows into the misery that people with serious eating disorders lived through. If anything, they de-glamorized life with an eating disorder, perhaps driving relatively casual calorie counters (like my young adult self) away from descending into more extreme behavior.

"The empirical literature has documented both the harm and potential benefit that these forums offer participants," noted a paper published in the Journal of Infant, Child, and Adolescent Psychotherapy in 2014.

Shutting down communities like this could actually do more damage than good.

And, as Boulton notes, people with eating disorders aren't one-dimensional and their social media accounts likely aren't either:

The account might also include that they're pro-recovery, post or do not post fatphobia, their favorite K-pop group, whether they go to the gym or not, what kind of eating disorder they have, and what kind of fashion they like.

Behind these accounts are individuals who are complex, imperfect, and hurting….Platforms cannot simply ban discussions about eating disorders without sweeping away plenty of honest conversations about mental health, which might also drive the conversation towards less helpful corners of the internet.

Banning accounts that hover between pro-eating disorder content and other things—be it recovery and mental health or things totally unrelated—could make the poster feel even more isolated and more likely to engage in harmful behaviors.

Misunderstanding the Internet

The idea that you can rid the web of eating disorder communities and content is silly.

Even if lawmakers manage to drive any mention of eating disorders from platforms like Instagram and TikTok, there will still be countless web forums, messaging platforms, and other venues where this sort of content and community can live. Only here, teens aren't going to have algorithms steering them away from extreme content. They're not going to be exposed to counter-messages and reality checks from people outside these communities. And it's less likely that people who know them in real life will see their activity and somehow intervene.

The idea that it's easy to separate bad eating disorder content from good eating disorder content, or other types of food/beauty/health content, is silly, too.

Inevitably, attempts to more strictly police pro-eating disorder content or content that good be viewed as triggering would ensnare posts and accounts from people in eating disorder recovery. Besides, different people view the same content in different lights.

To some, memoir-ish accounts of eating disorders are cautionary tales, to others they're crucial for feeling less alone and seeing a way out, and for others they're simply road maps.

Posts on intermittent fasting could be healthy tips for people with diabetes but bad news for people with anorexia.

"Content has a context," as Boulton writes. "A post that's so obviously eating disorder content on [a particular] account may not obviously [be] eating disorder content posted elsewhere."

The idea that tech companies could easily differentiate between content that "promotes" eating disorders and content that merely discusses them, or discusses other aspects of food and fitness, is ludicrous—even if they did have the capacity to use human moderators for this and not automated content filters. And the necessary use of such filters will only erase content even more.

Attempts to do this would almost certainly sweep up not only pro-recovery content but also a lot of harmless and/or unrelated stuff, from perfectly normal nutrition advice and fitness tips to posts from people proud of their (not-extreme) weight loss to pictures of people who just happen to be very thin.

"We could have everyone register their [Body Mass Indexes] and daily caloric intake with their username and password, to be sure that no unhealthy daily outfit pictures slip past the mods," quips Boulton, "but short of that appalling dystopia, we're out of luck."

Another important consideration here is that the content moderation this would take isn't likely to affect all communities equally. Men struggle with eating disorders and bad body image too, of course, but something tells me that male body-building content is going to be a lot less subject to mistaken takedowns than women's pictures and content about their bodies, diets, and fitness routines. In a paper published in the journal Media, Culture, & Society, Nicole Danielle Schott and Debra Langan suggest that policing eating disorder content leads to censorship of women's content more broadly.

A Demand-Side Problem

If KOSA or something like it became law, tech companies would have a huge incentive to suppress anything that could remotely be construed as promoting eating disorders. But there's scant evidence that this would actually lead to fewer eating disorders.

As Mike Masnick noted at Techdirt earlier this year, the issue of eating disorder content is "a demand side problem from the kids, not a supply side problem from the sites."

This is, of course, true with so much of the online content that people find problematic. But because lawmakers have every incentive to Do! Something! (and face almost no recourse when it doesn't work or backfires), we see them again and again approach demand-side issues by simply asking tech companies to hide evidence that they exist.

Today's Image

Las Vegas, 2020. (ENB/Reason)

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Justice Barrett's concurrence in McCraw will increase the number of emergency appeals on the Shadow Docket Wed, 20 Mar 2024 14:57:09 +0000 Justice Barrett's concurrence in McCraw made it less likely that lower courts will grant administrative stays before a merits panel holds oral argument. And, it turns out, the administrative stays from the Fifth Circuit were not coming from the Court's trumpiest judges. Before the ink even dried on the Supreme Court's shadow docket order, the Fifth Circuit panel (Richman, Oldham, Ramirez) swooped into action. First, on Tuesday afternoon, the panel set oral argument for Wednesday morning (it is ongoing as I type). This oral argument is only on the question of whether a stay should be granted pending appeal. A merit-stage oral argument is set for April 3. Second, the panel dissolved the temporary administrative stay over Judge Oldham's dissent. I suspect the writing is on the wall, and this panel will not grant a stay pending appeal. It is possible the en banc court can override this decision. Chief Judge Richman, according to my 2022 count, is far from the median voter on the Fifth Circuit. But the Fifth Circuit may let this one linger for regular en banc review.

Going forward, I'm not sure if Justice Barrett's concurrence will have the effect that she intended. Let's spin out two scenarios. First, where a district court judge in Austin rules against Texas. Second, where a district court judge in Amarillo rules against the federal government. In both scenarios, if Justice Barrett's approach is followed, the courts are less likely to enter administrative stays for any lengthy duration. And, the average Fifth Circuit panel would probably grant a stay in the case from Austin, and deny the stay in the case from Amarillo. What is the effect? More emergency applications arriving at the Supreme Court filed by the Department of Justice. Yes, in an attempt to tighten the screws on the shadow docket, Justice Barrett likely made the shadow docket even more active.

What will the result be? Ironically enough, Circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases, which is what happened in McCraw. The Justices will be in the same position as the Fifth Circuit judges who are struggling to handle the torrent of emergency litigation. The shadow docket giveth, and the shadow docket taketh away.

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David Boaz: Libertarianism Is the Intellectual Core of Liberalism Wed, 20 Mar 2024 14:45:19 +0000 David Boaz talks about the history of libertarianism | Illustration: Lex Villena

This interview has been condensed and edited for style and clarity.

Reason: Having been in the libertarian movement for nearly half a century, how do you assess the current state of libertarian ideas and the broader libertarian movement?

Boaz: I think there are a lot more libertarian ideas. When I was in college and thought of myself as a libertarian—but also thought of libertarians as part of the conservative movement—who did we have as intellectuals? [Friedrich] Hayek and [Milton] Friedman and [Ludwig von] Mises.

It was kind of a good set of years there, because Hayek won the Nobel Prize in '74—which was stunning to us, because even as naive college students we knew nobody like that had won a Nobel Prize before. Then in 1975, [Robert] Nozick won the National Book Award, which really helped to put libertarianism on the map of political philosophers. Then in 1976, Friedman won the Nobel Prize. I was out of college then, but that period really boosted libertarian academic credentials.

These days, just like everybody says, we have nobody like [Ronald] Reagan and [Margaret] Thatcher. But in the time of Reagan and Thatcher, they said, "Where are the people like [Winston] Churchill and [Franklin] Roosevelt?" I look back and say, "Wow, weren't those great? And who is that today?" But at least one answer is there's a lot more libertarian intellectuals today. Maybe nobody is a Hayek these days, but there's definitely a lot more libertarianism in the academy, more libertarian intellectuals, more people reading those people. Some of them even get published by major publishers. There's more of that, and I think that means there's more people who think of themselves as libertarians.

What's the essence of libertarianism for you?

To me, the essence of libertarianism is the nonaggression principle. You have no right to initiate force against people who have not initiated force against you. From that comes freedom of speech, freedom of religion, freedom of property and markets, ideally within an ethos of cosmopolitanism and pluralism and tolerance. At that point, we're kind of talking about liberalism, and these days I'm worried not just about libertarianism, but about liberalism.

Cosmopolitanism, tolerance, pluralism—where do those come from and why should those be interconnected? If we compare the nonaggression principle to the core of a nuclear reactor, why should the surrounding framework be akin to cosmopolitanism?

I think libertarianism is set within classical liberalism, and I think of libertarianism as the intellectual core of liberalism, the intellectual vanguard. I often say I'd like to be part of a libertarian intellectual vanguard leading a broader liberal movement. And for my whole career, we haven't had that. We've had liberals divided into people who emphasize free markets and people who emphasize civil liberties and tolerance and equality under the law for all. Libertarians have not had a great record on equality under the law for all, although I think it's clearly inherent in what we believe. But you didn't see many libertarians involved in the Civil Rights Movement, critical of Jim Crow, and they should have been, and they should have been out there.

The Cato Institute, where you've spent most of your career, was founded in 1977 in San Francisco. How did it come into being?

Ed Crane was in Washington running the MacBride for President campaign in 1976, and he observed that [the American Enterprise Institute] and Brookings had a significant influence on limited budgets. And he said, "There ought to be a libertarian think tank, one representing the values of the American Revolution." So he talked to Charles Koch, who had money to help. And Charles said, "OK, I'll put some money up if you'll run it." And he said, "Well, you don't want me to run it because it needs to be in Washington, and I'm going back to San Francisco." And, as he used to tell it, "Charles was smarter than I was, and he knew if I started this, I would in a few years realize it should be in Washington."

The idea was to set up a think tank that was neither liberal nor conservative, and that would put libertarian ideas on the policy map, as well as just the pure theory map.

What were the big issues in the 1970s that you guys were obsessed with?

The big influences in the early '70s were Vietnam, Watergate, and stagflation. I used that trio often to explain why there was an efflorescence of libertarians in the 1970s. The government had just accomplished Vietnam, Watergate, and stagflation, which gave people a very different view of a government that they perceived as having solved the Depression and won World War II. It was a different generation that was coming up.

What were the main issues? The answer is they're kind of the same issues over and over. History is not a bunch of new things. It's one damn thing, over and over. For Cato, the original agenda was, "Well, we're going to take on Social Security, the linchpin of the welfare state. We're going to take on school choice, which underlies so many problems. And we're going to take on the foreign interventionist state." Early on, we were writing about all of those things. Our first real book was about an alternative to Social Security, how to get out of it. At least one of our first papers was on Social Security, but we had a very early pro-immigration paper. We had a very early paper on conscription, which was a live issue at that time.

Is Social Security unstoppable at this point? 

That seems to be the observation all over the world. We've made a lot of progress on free trade. We've made a lot of progress on human rights, civil rights, women's rights, gay rights. We've made some progress on some microregulation issues. We're making some now on housing. We repealed a lot of the New Deal regulations in the 1978 to '81 era. When people say we're on the road to serfdom, I tell them about all these things. We ended conscription, we ended the [Civil Aeronautics Board], we ended the [Interstate Commerce Commission]. We created a structure that continuously brought tariffs down. All those things were progress. There was significant progress, and people still say, "Yes, but what about all this government spending and everything?" I think the answer there is once you create a program that people think they're getting benefits from, it's very hard to take those benefits away.

We can argue that Social Security is not, on net, benefiting people, but there's a huge constituency of people who paid money in and they don't want it taken away from them. That's true for every program. It's true for the farm program. That's one of the reasons that we always say it is so important to stop a new entitlement in the beginning. Because Medicare was expected to cost a billion dollars a year, 10 years after it was founded. That was crazy. It was much more than that. You've got to stop it.

In the '80s, what was your attitude towards Ronald Reagan? A lot of libertarians, or people leaning libertarian, would say he was really good. Is that right or is that wrong? 

My own trajectory with Reagan was in the '70s. I was in [Young Americans for Freedom] and I went to the 1976 convention on behalf of Reagan, not as a delegate, but just there to cheer him on and everything. I liked Reagan, and I was actually a delegate to the state convention or maybe the county convention for Reagan.

Then in 1978, I got hired to work on the Clark for Governor campaign, and that shifted my allegiance. Ed Clark for governor, California 1978—the first big Libertarian Party campaign that actually had some money and a professional staff of me and one other guy [laughs].

While Reagan was president, I was a libertarian, and we were pretty much critical of everything he did. Well, not everything, but many things he did. As time went on, and we saw other presidents, I think we got nostalgic for the Reagan-Thatcher era—two people who, even if they didn't always live up to it, did enunciate a lot of libertarian rhetoric. I think Thatcher in England revived British entrepreneurship and appreciation for enterprise. Reagan did some of that too. I think to a great extent, Reagan's speeches about freedom revived the American spirit, maybe as much as his tax cuts did.

How disastrous was the George W. Bush administration for America and for libertarian advances?

That was pretty bad. And we were sort of optimistic when he came in! We didn't like Republicans. They did a lot of bad things. But Bush had told Ed Crane that Cato's Social Security plan was on the right track, and he wanted to do something like that. Early in his administration, he appointed a commission, which we were sort of opposed to because a commission is usually the way to put an idea to bed. But it turned out he appointed a commission of Republicans and Democrats that was stacked in favor of some kind of privatization. So that was good.

But then 9/11 happened, and Bush got distracted from everything else. Then he gets reelected, and he says, "I'm going to use my political capital on reforming Social Security." It turns out, somehow he got reelected but everybody hated him. We did a poll at the time, and we said, "Would you support an idea that would allow you to put your own money into retirement and then not take Social Security at the end?" And 60 percent said, "Yeah, that sounds good." When we said, "President Bush has a plan," it got 40 percent approval. So that kind of killed it.

How bad was the war on terror and the USA PATRIOT Act, for libertarian ideas?

It was definitely bad that we got the PATRIOT Act, but also, just the general [feeling that] we have to respond with war. We even have to invade Iraq, which had nothing to do with 9/11. And the PATRIOT Act and the surveillance state that was created—very bad for the country, bad for libertarians too, although it gave us a lot of targets to complain about. But we didn't get very far in aiming at those targets.

Was Barack Obama particularly bad? While there were overblown accusations, such as him attempting "to destroy America as we know it," is there validity to the idea that he was putting us on a particularly terrible path?
Yes. For one thing, like I said, every time you create a new entitlement, you'll never get rid of it. He was trying to create those, and he had some success. We had stopped HillaryCare. We were not able to stop Obamacare. That's what we said at the time: You'll never get rid of it. We kept trying, but we didn't. So yes, he did put us on that bad trajectory, a bigger government than we'd had before. Although every president was giving us a bigger government than we had had before.

How did Donald Trump scramble the libertarian movement? There are people who claim that "Trump is the most libertarian president ever." What do you think people mean when they say something like that?

Yes, there were. I had lots of fights. I blocked more people that year on Facebook than ever before. I had a lot of fights with old friends who said, "He's the most libertarian president." I mean, when he was running…he said he would cut taxes. Any Republican that year would've been campaigning on tax cuts. He said he would cut regulation. He did campaign against immigration and against trade. I never did understand. I guess he said, "Drill, baby, drill." So libertarians who thought of American energy independence, or at least production, liked it.

I think a lot of libertarians, certainly a lot of conservatives, liked the fact that he fights, he stands up, he calls the left a bunch of dickheads. I think in the subsequent five years, it occurred to me that the people conservatives and some libertarians are gravitating to are not necessarily the ones who are most conservative, certainly not the ones who are making the most compelling cases; they're the ones who are the most anti-left.

Sean Hannity on Fox: He's just partisan, anti-left all the time. Tucker Carlson. Charlie Kirk with Turning Point USA. Charlie Kirk had been kind of "Free market! Socialism sucks"—that was his organization. And then he just went all in for Trump. Then I saw other people going all in for Trump. The defense of Trump now, as the most libertarian president, I think would be tax cuts, and conservative Supreme Court justices who many libertarians think are better than liberal Supreme Court justices. And they'll say deregulation. There wasn't that much deregulation, but there was less regulation than in a Democratic administration.

What's the case against President Joe Biden?

The case against Biden is he is a bankrupt spender. I think Trump may have spent more in four years than Obama did. Biden then comes in and says, "I'll see you and raise you." So there's certainly that.

The best case I heard for Trump is from one of my colleagues. He was saying, "Hillary will bring 4,000 dedicated regulators to Washington. I don't know who Trump's going to appoint—Republican hacks, [former president of the Heritage Foundation] Ed Feulner's list, his cronies—but they won't be dedicated regulators." I think that's definitely happened with Biden. He campaigned as a moderate, and compared to either [Sen.] Elizabeth Warren or Trump he seemed centrist. But he has empowered an administration that wants to regulate everything.

Some of it is woke regulation: sexual harassment on campus, hate speech, all that kind of stuff. Some of it is just pure economic regulation, and you see it every day. "The Biden administration is going to require…" "The Biden administration is going to ban…" One of the problems there, of course, is abuse of presidential power. Every time I see one of those, I'm like, "Where in the Constitution does it say the president can do that?" Of course, it doesn't anywhere.

Going back to what I said in the beginning about cosmopolitanism and tolerance: Obama comes in, campaigns. He's black; he's the first president to welcome gay people into his administration, even though he's not for gay marriage until right before the 2012 election. But he looks like somebody who believes that everybody is part of America. Trump is obviously the exact opposite of that. And with Biden, it's gone way beyond that.

Now we are looking at another Trump vs. Biden. Neither of these people, neither of these parties, are in any way committed to libertarian principles. What are libertarians to do? How do we maneuver a political landscape such as this?

That's a good question these days. Some people tried in 2016 to run a presidential ticket composed of two governors, Gary Johnson and Bill Weld, both well-respected, against the two worst candidates in history, and they got three and a half percent of the vote. That didn't seem to work out very well.

Now the Libertarian Party has fallen apart, so they're not going to do that. I guess you have to pick the party you believe in. I would love to see a fiscally conservative, socially liberal centrist party. I do believe there are millions of voters who think that way, maybe a plurality of voters who think that way. But the two parties are controlled by, more or less, their extremes, and how do you break into that? My [former] colleague Andy Craig has thought a lot about election reforms. I never thought much about them. I always figured if there's enough libertarians, they'll make themselves felt within whatever political system. But maybe something like ranked choice voting, not so much that it would help libertarians, but that it might hurt extremists and get more of a consensus candidate.

And hey, when I was a young guy, I didn't ever think I'd be looking for a consensus centrist country.

Although we are more free as individuals, certainly to express ourselves and to live the way we want to, many don't really feel that way. Can you talk about a culture of libertarian freedom and cosmopolitanism, and how it aligns to our contemporary experiences?

I think that's partly because people always have this nostalgia. On Twitter, there's all these things: "Remember when a man with one income could afford this house?" Then economists come along and say, "Adjust for inflation and adjust for house size and things, this is not true." Plus you have all the knowledge in the history of the world in your pocket right now. Nobody had that. David Rockefeller didn't have it in 1990.

Part of it is just that we always look back and think, "Oh, things were better and now they're worse." But I do think a lot of people know they're freer because they're black people who are allowed to aspire to things. I'll tell you, when Karine Jean-Pierre was appointed press secretary, I wrote a blog post and said, "This is a sign of progress. A black lesbian could not have been the president's press secretary even maybe five or 10 years ago. This is a sign that we're a more open and accepting society." And I got a lot of blowback from alleged libertarians saying, "She's an affirmative action appointee. You're endorsing diversity, affirmative action." I said, "Look, I don't know if she'll be any good, but I'll tell you this: There are positions in your administration you would put diversity hires in, I don't believe you make the most visible face in your administration an affirmative action hire. It's important how she speaks on behalf of your administration. Whether she's good or not, I don't know, but I think they think she is."

We see more black people, more women being able to rise in corporations and politics. And of course, as a gay person in high school in the '60s, now living in a world where I can live with a longtime partner and my friends can get married, all of this is pretty much taken for granted, even among conservatives.

There's a huge surge in illiberalism both on the left and on the right. Where is that coming from, and where does that leave libertarianism?

That's a good question. I've been writing about this, not so much about libertarianism, but about liberalism. We live in a liberal world. Brian Doherty wrote in his history of the libertarian movement [Radicals for Capitalism], "a world that…runs on approximately libertarian principles." You look at that first and say, "What?" And then you think, "Well, yes, the United States, Europe, and more parts of the world are generally based on free markets and private property, and on free speech and freedom of religion, and expanding human rights to people to whom they were denied." All of that is basic libertarian principles.

OK, we're arguing about gay marriage, and OK, we spend too much money. There's all those things, but we do live in a liberal world. And yet we have these big sets of illiberals on both left and right, in the United States, and in other countries, in countries like Hungary and Turkey and India. We're moving away. It's not just Russia, China, Mexico.

My question is: Liberalism works so well! Have you looked around? Do you realize what your grandparents, your great-grandparents had, even your parents? My parents had a black and white TV for a long time. I have four televisions in my house of two people.

A critique of liberalism is that while it gives material resources, it lacks deeper meaning. Critics say it does not reward true believers with a unifying faith, goal, God, or mission. Is this a legitimate critique of liberalism?

To some extent, yes, it's a legitimate critique. Liberalism is a philosophy of individual autonomy. No established church, no established ideas. [Chinese Communist Party leader] Mao [Zedong] said, "Let a thousand ideas bloom," but liberalism actually did that. It's a significant critique, but it's a good thing. We should defend the liberalism that allows people to find meaning in their own lives. Preachers and teachers and authors may want to help guide people to find meaning in their own lives, but we're not all going to find the same meaning. What we want is people being able to choose their own churches, or no church, choose their own ideas and so on. We don't want the church, the king, the Vatican, the government imposing a meaning on everybody. That's what the liberal revolution was about. It was in great part a revolution against the established churches.

There's all these illiberals on the left, there's all these illiberals on the right, and yet liberalism endures. We do mostly live in a liberal country, in a liberal world. Something is attractive enough about liberalism to resist most of these assaults. I think it is that most people, at least in the United States, do want a world of private property and free markets and free speech and human rights and freedom of abortion and women's rights and to choose jobs. They resist the real impositions.

This interview has been condensed and edited for style and clarity.

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The Political Right Has Luxury Beliefs, Too Wed, 20 Mar 2024 14:14:30 +0000 Donald Trump | Lex Villena; Gage Skidmore

If you've heard of the concept of "luxury beliefs," you can thank writer Rob Henderson. Henderson's concept refers to cultural and political ideas that are predominantly held and advertised by individuals in society's upper echelons—those persons with significant economic, social, and cultural capital—to demonstrate that they are on the side of the downtrodden, minorities, and the poor. 

Henderson's new memoir, Troubled: A Memoir of Foster Care, Family, and Social Class, discusses luxury beliefs, a concept he developed during his time at Yale. Henderson had a difficult childhood spent in foster care, and he felt distanced from his Ivy League contemporaries, who espoused fashionable but unworkable or outright harmful views that they themselves were insulated from by some combination of status, wealth, and familial stability. The luxury beliefs Henderson witnessed were a way to signal and maintain elite status by supporting social concepts or policies that sounded empathetic. Yet in reality, they made life worse for those at the bottom rungs of society. 

Henderson argues that luxury beliefs are not just harmless opinions. They can have negative real-world implications, influencing policy and societal norms in ways that might exacerbate inequality or disconnect the elite from the broader societal consequences of the positions that they advocate.

As one might expect from a concept born out of alienation from Ivy League privilege, most of the discussion around luxury beliefs has focused on the left. The left has adopted this sort of self-serving worldview in many ways. 

In a recent interview with Henderson, however, writer and podcaster Jesse Singal raised a different question: What are some of the luxury beliefs of the right? 

It turns out the political right—especially those in the New Right, its growing nationalist/populist faction—has plenty of luxury beliefs too. They support policies designed to elevate their own status while making it seem as if they are on the side of lower-class workers. But those policies would actually make life worse for those they say they want to help.  

The so-called New Right has built its movement on the idea that conservatives should care first and foremost about workers as a reason to justify a shift in economic policies away from so-called "market fundamentalism," deregulation, and smaller government and toward more top-down big government policies such as protectionism, support for unions, and industrial policy. In other words, they have embraced policies that were usually supported by Democrats.

Among the leaders of these efforts are the who's who of the elite conservative world. They include senators, Harvard and Yale university graduates, and six-figure-income pundits. Unfortunately for lower-income workers, their situation will be worsened by these measures, as such interventions inevitably backfire. More infuriatingly, these New Right leaders won't shoulder the burden of the negative effects of their policies—negative effects such as higher prices, slower growth, or work displacement—as these elite conservatives are part of the protected class likely living in the world's most recession-proof region: Washington, D.C. and its suburbs.

Take the New Right's full-throated embrace of protectionism and industrial policy. This romance with protectionism started in the 1990s with former GOP presidential candidate Pat Buchanan, gained enormous traction under former President Donald Trump, and is still going strong today. 

The conservative push for more active government management of trade policy represents a significant shift in economic policy that already had, and will continue to have, wide-ranging effects on the economy. These won't be pretty. 

While protectionist policies, with its tariffs on imports and wholesale rejection of globalism, are often justified on the grounds of supporting domestic industries, preserving jobs, and enhancing national security, they also carry significant downsides, particularly for the most economically vulnerable populations. 

Tariffs are taxes on purchases of imported goods, and these additional costs are passed down to consumers in the form of higher prices. For everyday items that are imported or contain imported components, this means an increase in costs for consumers. Essentials such as clothing, food, and household goods can become more expensive, stretching already tight budgets even thinner. To that, New Righters object that economic efficiency and lower prices aren't everything. But that's easy to say when your income is large and paying much more for necessities leaves you with plenty of cash to spend on other things.

The poor, however, spend a larger proportion of their incomes on basic goods and services, and feel these price increases most acutely. As the cost of essentials rises, families will find it more difficult to acquire basic necessities, leading to greater financial insecurity and hardship. This can exacerbate existing socioeconomic disparities and increase the burden on social safety nets. 

The same is true of the New Right's rediscovery of protectionism's close cousin, industrial policy. Here, the belief is that China's trade expansion pushed down the country's throat by market fundamentalists is the cause of the decline in U.S. manufacturing employment. As such, this view holds that the government needs to restructure the economy to rebuild American capitalism and, among other things, bring manufacturing jobs back. Their preferred policy tools are tariffs and subsidies. 

Unfortunately, when all is said and done, industrial policy will only expand the swamp without delivering benefits to most of the workers who the New Right claims to fight for.

Take, for instance, Trump's attempt to bolster U.S. steel manufacturing with tariffs. Ignoring the fact that U.S. steel was doing more than fine, with 70% to 90% of the U.S. steel consumption produced by domestic steel in the last decade, tariffs rose to please steel producers and a thousand steel-making jobs were secured. Meanwhile, these same tariffs destroyed 75,000 other jobs in steel-consuming industries.

Adding insult to injury, when our trading partners retaliated with their own tariffs on American goods, including on farm goods from soy to corn, the Trump administration tried to cover for its policy errors by bailing out damaged farmers with $28 billion in subsidies. After all this, U.S. Steel decided to sell itself to the Japanese company Nippon, causing outrage among New Right senators and pundits.

This episode is unlikely to prompt a reconsideration of these luxury beliefs. And why would it? The belief-holders are neither farmers nor workers in steel-consuming factories. They also have higher incomes to shelter them from the full impact of these price hikes or the failure of the top-down policies. Better yet, they, not workers or middle or lower-class Americans, will benefit from the new policies whether or not they succeed. 

Protectionism and industrial policy require the bolstering of the bureaucratic state capacity. Bureaucrats after all will be the ones controlling the allocation of resources and many other aspects of industrial policy. That task will be massive if these guys are serious about reinventing capitalism or achieving "common good capitalism."

You need people deciding who gets the money, where to send the checks and the tax credits, and what to spend it on. It will take an extra level of power and maybe a few more agencies to enable bureaucrats to decide who, exactly, can export what, precisely, to which countries, and how and where corporations can invest their capital. Who do you think will get these powerful jobs if not our New Right friends?

Many of the left's luxury beliefs are trendy cultural attitudes with political implications. But the New Right's embrace of destructive economic policies meets the definition of luxury belief in just about every way: It's self-serving and counterproductive, designed to elevate one's personal status without regard to the practical consequences for those with less power and privilege in the world. Throughout history, industrial policy and protectionism have been shown to be costly to individuals and the larger economy: These beliefs are luxuries we can't afford.  

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Interesting Speech or Debate Clause Issue in Devin Nunes' Libel Lawsuit Against NBC Wed, 20 Mar 2024 14:03:59 +0000 From yesterday's opinion by Magistrate Judge Sarah Netburn (S.D.N.Y.) in Nunes v. NBCUniversal Media, LLC:

The discovery issues before the Court may present questions of first impression. Because the parties did not adequately address these matters, the Court requests additional briefing.

Specifically, the Court seeks supplemental briefing on who is the holder of the constitutional Speech or Debate privilege asserted by counsel for the House Permanent Selection Committee on Intelligence ("HPSCI"). Assuming that the privilege is held only by a Member of Congress, and not a legislative committee, does a Member waive the privilege when he initiates a civil lawsuit about matters protected by the privilege? Alternatively, if the filing of a lawsuit does not constitute a wholesale waiver of the matter at issue, may a Member selectively waive the privilege as to certain relevant matters but not others? …

On March 18, 2021, when Devin G. Nunes, the Plaintiff, was a Member of Congress, NBCU, through a telecast of The Rachel Maddow Show, published a single allegedly defamatory statement: "[Devin Nunes] has refused to hand [the Derkach package] over to the F.B.I." "The Derkach package" refers to a package sent by Andriy Derkach, reportedly a Russian agent who attempted to influence the 2020 U.S. presidential election. According to Nunes, he "did not accept a package from Derkach." Rather, Nunes claims that the "package came to the House Intelligence Committee," and he "immediately turned the package over to the F.B.I."

A central issue is whether Nunes gave the Derkach package to the FBI. During the deposition of Nunes's former Director of Communications, Jacob Langer, counsel for the HPSCI repeatedly objected to questions about this subject by asserting the Speech or Debate privilege.

At Langer's deposition, HPSCI counsel invoked the Speech or Debate Clause privilege in response to questions on: (1) the receipt, handling, and transfer of the Derkach package; (2) communications with HPSCI members about the package; and (3) a July 29, 2020 HPSCI business meeting. For his part, Nunes takes a different view; Nunes asserts that Langer could testify about whether the package was delivered to the FBI, an executive agency, but that the privilege would protect against testimony that is "purely about HPSCI or its internal operations."…

The Speech or Debate Clause provides that, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." The Clause "provides Members of Congress with two distinct privileges." First, the Clause confers immunity on legislators and their aides "from liability for their actions within the 'legislative sphere.'" Second, the Clause protects legislators and their aides from answering questions or providing documents related to legislative acts. This dispute concerns the evidentiary privilege.

The purpose of the Speech or Debate Clause privilege is "to prevent intimidations of legislators by the Executive and accountability before a possibly hostile judiciary" and to "protect a legislator from the burden of defending himself." The Court has been unable to locate a case where a Member initiated a civil lawsuit against a private party and then asserted the Speech or Debate Clause to withhold discovery.

The privilege is "invocable only by the Senator or by the aide on the Senator's behalf." Thus, when "construing the privilege a Member and his aide are to be 'treated as one. Relatedly, a Member may assert only his own privilege; he may not assert the privilege of others.

The Speech or Debate Clause privilege is absolute. A Member, however, may waive the privilege. Waiver of the Speech or Debate Clause's immunity privilege "can be found only after explicit and unequivocal renunciation of the protection."

The parties' briefing focuses on the scope of the privilege asserted by counsel for the HPSCI. But no one addresses who holds the privilege and whether Nunes's has waived his privilege for the matters at issue by filing this lawsuit. Accordingly, the Court seeks supplemental briefing. The parties and HPSCI shall address:

  • Who holds the privilege that applies to Langer's testimony? To the extent the privilege applies differently to other witnesses, the parties and HPSCI should discuss that.
  • If the privilege is exclusively held by Nunes, did Nunes waive the privilege as to all matters at issue in this litigation by filing this lawsuit? If the lawsuit does not constitute a waiver, what issues of fundamental fairness and due process should the Court consider?
  • To the extent that this lawsuit does not act as a wholesale waiver of all matters at issue, may Nunes selectively waive the privilege as to certain matters but not others, as he suggests?
  • Any other issue that bears on the Court's consideration of this…

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'15 Days To Slow the Spread': On the Fourth Anniversary, a Reminder to Never Give Politicians That Power Again Wed, 20 Mar 2024 13:45:43 +0000 John Stossel is seen in front of the U.S. Capitol | Stossel TV

Four years ago, government officials told us, "Stay home!" We have "15 days to slow the spread."

Days turned into months and then years, while officials chipped away at our freedoms.

I have long been wary of politicians, but even I was surprised at how authoritarian many were eager to be.

Some demanded police to go after people surfing. They took down the rims of basketball hoops. Children's playgrounds were taped up like crime scenes. They told people in rural Utah and Wyoming to stay in their homes.

In the name of safety, politicians did many things that diminished our lives, without making us safer.

They complied with teachers unions' demand to keep schools closed. Kids' learning has been set back by years.

Politicians destroyed jobs by closing businesses. Some shutdown orders were ridiculous. Landscaping businesses and private campgrounds were forced to shut down.

Both former President Donald Trump and President Joe Biden sharply increased government spending. Trump's $2.2 trillion "stimulus" package, followed by Biden's $1.9 trillion "American Rescue Plan," led to so much money printing that inflation doubled and then tripled.

This week, the fourth-year anniversary of "15 days to stop the spread," my new video looks back at politicians' incompetence.

First, government probably killed people with its endless red tape.

At least the Trump administration broke Food and Drug Administration (FDA) rules to speed vaccine approvals. But FDA rules kept perfectly good American COVID-19 test kits off the market because they hadn't gone through its multiyear approval process.

Michigan's Gov. Gretchen Whitmer banned "public and private gatherings of any size." Residents were told they could not see friends or relatives.

Many of her rules seemed random. She banned motorboats and jet skis, but allowed kayaks and canoes. She closed small businesses, but exempted big-box stores if they blocked off aisles offering plant nurseries and paint. Why?

Even the Centers for Disease Control and Prevention's (CDC) "six-foot rule" under Trump was arbitrary, says former FDA commissioner, Dr. Scott Gottlieb. COVID travels in aerosols that flow much farther than six feet.

When some Americans became fed up and protested, they were vilified for "threatening the public." Some were fined. A few were arrested.

It's clear now that restrictive rules were not the best way to protect people.

Sweden took a near opposite approach. They mostly left people alone.

Swedish officials encouraged the elderly and other at-risk people to stay home.

But beyond that, they let life carry on as normal. Sweden didn't impose lockdowns, school closures, or mask mandates.

They followed standard pre-COVID wisdom that the best protection is what epidemiologists call "herd" or "collective" immunity. Once a critical mass of people are infected and recover, collective immunity will reduce the total number of infections.

Arrogant American politicians and media "experts" sneered at Sweden's approach.

NBC "reported" on what it called, "Sweden's failed experiment. How their dangerous Covid gamble went wrong."

CBS confidently stated, "Sweden becomes an example of how not to handle COVID."

Time magazine headlined: "Swedish COVID-19 Response Is a Disaster."

But the media's experts were just wrong. Swedish health officials were right.

Yes, at the beginning of the pandemic, Sweden suffered high numbers of COVID deaths, but as predicted, over time, herd immunity protected people. Sweden's excess death rate was the lowest in Europe.

Sweden's economy got through the pandemic much healthier than other countries. Because Swedish schools never closed, Swedish students didn't suffer the learning losses that American kids did.

Four years later, have media blowhards who were wrong apologized? Corrected their stories? No.

Have American politicians apologized and begged forgiveness for their arrogance, for destroying jobs, restricting our freedom, and needlessly pushing us around? No.

Let's not give politicians power like that again.


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Hong Kong Falls, Again Wed, 20 Mar 2024 13:30:31 +0000 Hong Kong officials | Chen Yongnuo/China News Service/VCG/Newscom

At China's behest: Yesterday, Hong Kong passed a new national security law that will create draconian penalties for all manner of political crimes. Beijing puppet/Hong Kong leader John Lee says these swiftly passed laws "allow Hong Kong to effectively prevent and put a stop to espionage activities, the conspiracies and traps of intelligence units and the infiltration and damage of enemy forces." He's trying to push a narrative that such laws—passed expeditiously over 11 days, the fastest a bill has gone through Hong Kong's legislature since 1997—are needed to thwart Western spying. But what they actually represent is a massive encroachment on the already-eroded civil liberties of Hongkongers who have been absorbed back under mainland Chinese rule.

"The law criminalizes the possession of state secrets, which some international financial firms fear could include information about the state of the economy," reports Semafor. "It also expands the definition of espionage to such an extent that it could have a chilling effect on all exchanges with foreign diplomats, one law professor at the University of Hong Kong warned the government last month."

The law, called Article 23, is needed to deal with "potential sabotage and undercurrents that try to create troubles," according to Lee, including "ideas of an independent Hong Kong."

"This is the high point of patriotism," said Lee, following the bill's passage. No, it's not.

Some background: In 1997, the British, who were colonial rulers of Hong Kong for more than 150 years, reached an agreement with mainland China to hand the island back over. One of the major conditions of the deal was that Hong Kong would for 50 years—so until 2047—maintain a high degree of political independence, including operating its own separate government under what is essentially its own separate constitution.

Then, over the course of 2019 and 2020, this agreement was violated; China put pressure on Hong Kong to pass certain laws—mostly under the guise of national security—that would undermine civil liberties Hongkongers had enjoyed for the past two decades. Those who spoke out against these actions were swiftly disappeared or fired or de facto barred from their positions of influence. Then the pandemic provided even more opportunities to surveil students and political organizers, to quash the massive protest movement that had taken to the streets to oppose Chinese Communist Party (CCP) rule, and to suppress the political norms that had formerly thrived in Hong Kong. The CCP even boldly culled Hong Kong's legislature of people deemed insufficiently "patriotic," instituting loyalty oaths to Beijing.

Now, China—with heavy cooperation from Hong Kong's leader—is finishing the task it started. Article 23 fails to define what "external interference" or "insurrection" actually mean, but deals with plenty of purported political crimes by doling out life sentences in prison. "Law-abiding people will not be caught by the law inadvertently," assures a government spokesperson; but the many people (and firms) who've reluctantly fled Hong Kong—and those who got to leave are the lucky ones—since the national security law was first imposed in 2020 would beg to differ. When the CCP gets to define what "law-abiding" means, you have no assurance you'll be safe.

Literal car salesman wins Ohio: "Bernie Moreno, a former car dealer endorsed by Donald Trump, won a three-way GOP primary Tuesday for the right to take on Democratic Sen. Sherrod Brown in Ohio," reports Politico, which calls Moreno's win "a relief for the former president."

Basically, Republicans need to win this Ohio senate seat to possibly have a majority post–Election Day. And most political commentators saw this race in particular as an opportunity for MAGAism to either be affirmed or repudiated; Moreno winning gives weight to the idea that Trump has a strong hold on Ohio—and possibly the rest of the country, too.

Scenes from New York: 


  • "Biden's budget arithmetic doesn't add up," writes the Bloomberg editorial board.
  • No, the deep state is not awesome, next question.
  • New York City's public schools are facing a large spike in disciplinary problems which many claim are attributable to the COVID-19 pandemic and learning disruptions. "Last school year, there were 14,048 school safety incidents, according to Police Department data," reports The New York Times. "In the 2018-2019 school year, there were 11,504." And "the number of times students were suspended or removed from class rose last year, to 36,992 from 31,738 the year before, though it remains below prepandemic levels" (some of the reason for this may be that schools have changed the degree to which they involve law enforcement in recent years).
  • Delivery by drone is becoming a reality.
  • Mortgage rates are approaching 7 percent, "more than twice as high as they were in 2021 before the Federal Reserve began an aggressive hiking campaign to quell inflation," reports Bloomberg.
  • Incredible scenes:

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Do Judges Also "Berate" The Press? Wed, 20 Mar 2024 13:00:16 +0000 On Monday, the Supreme Court heard oral argument in Murthy v. Missouri. Justices Kavanaugh and Kagan–who both worked in the White House–stated that it was fairly common for government officials to "berate" the press.

Justice Kavanaugh observed that "experienced government press people throughout the federal government . . .. regularly call up the media and berate them." Later, Justice Kavanuagh asked if "traditional, everyday communications would suddenly be deemed problematic"? Justice Kagan added that "like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech." Whereas Kavanaugh referred to "government press people," Kagan spoke in the first person about her own calls to the press. Kagan explained that "this happens literally thousands of times a day in the federal government." And she offered what such a phone call would sound like:

"You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again."

I can imagine being on the receiving end of such a phone phone call from Kagan or Kavanaugh. Indeed, some years ago, I received just such a call. I tweeted about an opinion from a federal circuit judge. The next day, I received an email from the judge asking me to call chambers. I promptly did so. At that point, the circuit judge proceeded to berate me for what the judge perceived to be an inaccurate tweet about the opinion. I tried to explain tweets are very short messages, that can't always capture all the nuances of a complex opinion. My explanation did not suffice. I was told that I should know better, and should take care to accurately characterize the opinion. The phone call went on for some time.

This experience was the most extreme judicial berating I've received, but it is not isolated. Another time I attended a conference and bumped into a circuit judge. I had recently severely criticized a decision from the judge's court. I introduced myself, and the judge replied, with a look of scorn, "I know who you are." No further words were exchanged.

Sometimes, judges use intermediaries. In one instance, a judge complained to my former boss, Judge Boggs, about a blog post I wrote. Judge Boggs relayed the message to me, and I shrugged. Another judge complained to one of my co-authors about something I wrote; I shrugged. In other instances, I've received contact from a judge's former clerks who defended their boss against something I wrote. More shrugging.

I've had other run-ins with judges who gently criticized my writings, or at most, suggested that I got something wrong. Most of the time it is done with some humor and humility, but on occasion, I can tell I've peeved the judge. These experience reinforce a point I've made in recent posts: judges profoundly care what the public thinks about them, and when they feel treated unfairly, they speak out.

I don't think inferior judges are unique. Supreme Court Justices likewise berate the press. In recent memory, perhaps the most visible such incident was when Justice Scalia wrote a letter to the editor of the National Law Journal, calling an article by Tony Mauro "mauronic." And in the Dick Cheney duckhunt case, Justice Scalia charged that many press outlets did "not even have the facts right" and gave "largely inaccurate and uninformed opinions." Scalia, perhaps to his credit, was open with his criticism. Other Justices make these remarks in private.

I am reliably informed that the Justices will often call members of the Supreme Court press corps into chambers for a discussion about their reporting. Of course, the very people who are best equipped to talk about these beratings are unable to do so. But if I had to guess, while Justices Kagan and Kavanaugh were asking their questions during Murthy, the fourth estate in the press box was nodding along.

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Supreme Court Considers Claim That New York Regulators Violated NRA's First Amendment Rights Wed, 20 Mar 2024 11:00:49 +0000 A hand holds a smartphone, displaying two different logos of the National Rifle Assocation (NRA), against a background of the American flag. | Waingro |

For good reason, much attention was devoted to the Supreme Court's oral arguments on Monday, over government pressure on social media companies to suppress speech that officialdom doesn't like. The same day, though, justices heard arguments in another important case involving free speech principles violated when New York officials leaned on financial institutions to deny services to the National Rifle Association. Importantly, both cases involved "jawboning," the use by government of threats to improperly coerce compliance.

When Communication Becomes Coercion

As Reason's Jacob Sullum ably summarizes, arguments in Murthy v. Missouri involve "dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security," with plaintiffs arguing that "those private contacts, combined with public statements condemning the platforms' failure to suppress 'misinformation,' amounted to government-directed censorship."

At stake is the point at which efforts to persuade private companies they ought not offer platforms to certain speakers morph into "nice business you got there; it'd be a shame if something happened to it." Did officials cross the line when they badgered tech firms to muzzle voices skeptical of lockdowns, COVID vaccinations, and election integrity? If you've followed the Twitter and Facebook Files, you know there's significant evidence they did, though it remains to be seen if Supreme Court justices agree.

Remarkably, the evidence of improper strong-arming appears even clearer in National Rifle Association of America v. Vullo. In that case, the NRA, joined by the ACLU, alleges that Maria Vullo, former Superintendent of the New York State Department of Financial Services, abused the power of her position to punish the gun rights organization for its political positions.

"Vullo met with executives at Lloyd's of London to discuss her views on gun control and to tell them she believed the company's underwriting of NRA-endorsed insurance policies raised regulatory issues," according to Abby Smith of the Foundation for Individual Rights and Expression (FIRE). "She told them Lloyd's could 'avoid liability'—but only if the company told its syndicates to stop underwriting their insurance policies, and joined her agency's 'campaign against gun groups.'"

There was nothing subtle about the arm-twisting. In 2018 I wrote about guidance letters New York regulators sent to banks and insurance companies, at the behest of then-Gov. Andrew Cuomo, cautioning "regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety." Given that insurance companies and banks are tightly regulated and operate largely at the pleasure of state officials, this would logically be interpreted as a threat. Subsequently, banks and insurance companies alike cut ties with the NRA.

"New York, if these facts are true, tried to circumvent the First Amendment's ban on censorship by relying on this informal pressure campaign," noted FIRE's Smith. "But informal censorship violates the First Amendment, too."

Extra-Legal Threats Violate Individual Rights Protections, Say the Courts

Such informal censorship is known as "jawboning" since, as the Cato Institute's Will Duffield wrote in 2022, it involves "bullying, threatening, and cajoling" in the place of formal legal action.

"Jawboning occurs when a government official threatens to use his or her power—be it the power to prosecute, regulate, or legislate—to compel someone to take actions that the state official cannot," observed Duffield. "Jawboning is dangerous because it allows government officials to assume powers not granted to them by law."

Despite formal protections for individual liberties, such as the First Amendment, the vast regulatory power wielded by government agencies in the United States is easily weaponized against people who don't do the government's bidding. Such abuses aren't hypothetical but are a matter of public record already addressed by the courts.

"People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around," the U.S. Supreme Court recognized in Bantam Books v. Sullivan (1963). That case involved Rhode Island officials hassling booksellers to refrain from stocking allegedly obscene publications. The implied threats and constant nagging of booksellers by state officials "was in fact a scheme of state censorship effectuated by extra-legal sanctions," ruled the court.

Does "a scheme of state censorship effectuated by extra-legal sanctions" better describe the situation in the Murthy case or in the NRA case? Well, Monday was a twofer day, so why not both?

A Strong Case Against New York's Jawboning

In truth, New York regulators' threats to insurance companies and banks that do business with the NRA and other gun groups were so overt that even commenters hostile to the NRA and self-defense rights concede that state officials went way over the line.

"Every now and then, the Supreme Court takes up a case involving a public official who acted so foolishly…that you wish the justices could each take turns smacking them upside the head," Vox's Ian Millhiser, no fan of the NRA, conceded last November. "National Rifle Association v. Vullo, which the Court announced that it would hear last Friday, is such a case."

And so far, while it's uncertain which way the justices will jump in Murthy, the court seems inclined to agree that it's impermissible for government officials to use regulatory threats to coerce financial firms into cutting ties with disfavored political organizations.

"The Supreme Court on Monday appeared sympathetic to the National Rifle Association's claim that a New York official violated the group's right to freedom of speech when she urged banks and insurance companies that worked with the NRA to cut ties with the group," SCOTUSblog's Amy Howe concluded. ACLU Legal Director David Cole "closed by telling the justices that 'the notion that this is business as usual, for a government official to speak with a private party and say we'll go easy on you if you aid my campaign to weaken the NRA. That is not business as usual. That is not ordinary plea negotiation.' Although it was not entirely clear, a majority of the justices seemed to agree with him."

With government reaching ever further into American life, it's time the court reminds officials, once again, that their intrusive powers aren't supposed to be used to bypass protections for individual rights.

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Today in Supreme Court History: March 20, 1854 Wed, 20 Mar 2024 11:00:40 +0000 3/20/1854: The Republican Party is founded. President Abraham Lincoln would be elected President on the Republican ticket six years later on November 6, 1860.

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Brickbat: You Blew It Wed, 20 Mar 2024 08:00:24 +0000 A male motorist blows into a Breathalyzer while sitting in the front seat of his car. | Andrey Popov |

Officials in Fowlerville, Michigan, have agreed to pay $320,000 to settle a lawsuit brought by Ryohei Akima, who was wrongly charged with driving under the influence after a rookie officer misread a breathalyzer test. Akima blew a 0.02, below the blood alcohol content for a drunk driving charge. But officer Caitlyn Peca read that as 0.22—nearly three times the limit. Peca told a colleague over the radio, "I have no idea what I'm doing." The charges were dropped when a blood test showed Akima was under the limit.

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Who is responsible for the 5th Circuit's alleged "troubling habit of leaving 'administrative' stays in place for weeks if not months"? Wed, 20 Mar 2024 04:11:50 +0000 In the latest iteration of United States v. Texas, Justice Sotomayor observed that the "Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months." She cited five cases. Those same five cases were cited in the Solicitor General's application to vacate the stay (at 15 n.3).

Would you care to guess which judges were on the panels that granted those administrative stays? Certainly is must be a super-Trumpy panel with Judges Ho, Duncan, and Wilson, right? Not exactly.

Here are the panels that granted the temporary administrative stays that Justice Sotomayor complained about:

  • United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023) (Stewart, Graves, Oldham).
  • Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023) (Jones, Higginson, Ho).
  • Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023) (Stewart, Graves, Oldham).
  • R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023) (King, Jones, Smith).
  • Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022)(Higginbotham, Stewart, Dennis).

Of these fives cases, Judge Stewart, a Clinton appointee, voted to grant a stay in three of them. Judge Graves, an Obama appointee, voted to grant a stay in two of them. Judge Oldham, a Trump appointee had two. Judge Jones, a Reagan appointee had two. And Judges Ho, and Smith each had one.

After these temporary administrative stays were issued, the cases were accelerated to the next available oral argument session. And in Petteway v. Galveston County, in particular, Judges Jones, Higginson, and Ho set the temporary administrative stay to expire after 15 days.

What lesson do we draw here? Judges of all stripes on the Fifth Circuit grant temporary administrative stays. I think they are doing their best to handle this torrent of emergency motions, many of which are filed by the United States and progressive groups. It is hard to make a decision in short order with limited briefing. Don't forget–by the time a case gets to SCOTUS, there has been a full vetting below. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps to get through the rush.

Justice Barrett raised some fair questions on how administrative stays should be granted. But neither the SG nor Justice Sotomayor have put forward any evidence that these temporary stays are being used in some sort of evasive fashion to evade the usual stay-pending-appeal standard. There is also a related point. If the District Courts in Texas are doing such crazy stuff, then the Fifth Circuit should be rewarded for granting these stays! But that sort of argument defeats the narrative.

There is no smoke here. And there is no fire. No shadows either. Justice Kagan was prudent to write her own dissent, and not join Justice Sotomayor's dissent.

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The Supreme Court Should Reject Clandestine Government Censorship of Online Speech Wed, 20 Mar 2024 04:01:35 +0000 Surgeon General Vivek Murthy | Ron Sachs/CNP/SplashNews/Newscom

When federal officials persistently pressured social media platforms to delete or downgrade posts those officials did not like, a government lawyer told the Supreme Court on Monday, they were merely offering "information" and "advice" to their "partners" in fighting "misinformation." If the justices accept that characterization, they will be blessing clandestine government censorship of online speech.

The case, Murthy v. Missouri, pits two states and five social media users against federal officials who strongly, repeatedly, and angrily demanded that Facebook et al. crack down on speech the government viewed as dangerous to public health, democracy, or national security. Some of this "exhortation," as U.S. Deputy Solicitor General Brian Fletcher described it, happened in public, as when President Joe Biden accused the platforms of "killing people" by allowing users to say things he believed would discourage Americans from being vaccinated against COVID-19.

Surgeon General Vivek Murthy, who echoed that charge in more polite terms, urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures." Other federal officials said holding social media platforms "accountable" could entail antitrust action, new regulations, or expansion of their civil liability for user-posted content.

Those public threats were coupled with private communications that came to light only thanks to their discovery in this case. As Louisiana Solicitor General J. Benjamin Aguiñaga noted on Monday, officials such as Deputy Assistant to the President Rob Flaherty "badger[ed] the platforms 24/7," demanding that they broaden their content restrictions and enforce them more aggressively.

Those emails alluded to presidential displeasure and warned that White House officials were "considering our options on what to do" if the platforms failed to fall in line. The platforms responded by changing their policies and practices.

Facebook executive Nick Clegg was eager to appease the president. In emails to Murthy, he noted that Facebook had "adjust[ed] policies on what we're removing"; had deleted pages, groups, and accounts that offended the White House; and would "shortly be expanding our COVID policies to further reduce the spread of potentially harmful content."

Facebook took those steps, Clegg said in another internal email that Aguiñaga quoted, "because we were under pressure by the administration." Clegg expressed regret about caving to that pressure, saying, "We shouldn't have done it."

According to Fletcher, none of this implicated the First Amendment because "no threats happened." He meant that federal officials never explicitly threatened platforms with "adverse government action" while urging suppression of constitutionally protected speech.

That position is hard to reconcile with the Supreme Court's 1963 decision in Bantam Books v. Sullivan. In that case, the Court held that Rhode Island's Commission to Encourage Morality in Youth had violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable.

Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications, which ostensibly sought voluntary "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.

The Biden administration's social media meddling bears a strong resemblance to that situation. But Fletcher argued that federal officials were simply using "the bully pulpit" to persuade platforms that they had a "responsibility" to curtail dangerous speech.

"Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all," Aguiñaga noted. "That's just being a bully."

Free Press, an inaptly named organization that aims to promote "positive social change, racial justice and meaningful engagement in public life," warns that a ruling against the government "could allow social-media platforms to leave up misinformation." In other words, a ruling for the government would empower it to define "misinformation" and require its removal—something the First Amendment plainly forbids.

© Copyright 2024 by Creators Syndicate Inc.

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'Hamstringing the Government': A Viral Narrative Distorts Ketanji Brown Jackson's Understanding of Free Speech Tue, 19 Mar 2024 21:27:38 +0000 Justice Ketanji Brown Jackson is seen during the formal group photograph at the Supreme Court in October 2022 | Pool/ABACA/Newscom

"My biggest concern," said Supreme Court Justice Ketanji Brown Jackson on Monday, "is that your view has the First Amendment hamstringing the government in significant ways."

That comment came during oral arguments in Murthy v. Missouri, the case that asks if President Joe Biden's administration violated the First Amendment when it sought to pressure social media apps to remove information it deemed harmful. It took almost no time for Jackson's tidbit to set off the viral narrative that she doesn't grasp basic constitutional principles, particularly when considering the point of the First Amendment is indeed to hamstring what the government can do in response to speech it may not like.

"Jackson raises eyebrows with comment that First Amendment 'hamstrings' government," wrote Fox News. "Leftists want unlimited government — which is why they hate the Constitution," lamented The Federalist. It was "literally one of the craziest things I've ever seen," said Rep. Jim Jordan (R–Ohio).

But like so many viral narratives, Jackson's comments were fairly benign in context, and were actually echoed by Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps most ironically, her remark spoke fundamentally to the crux of the case: The government, of course, does not have the right to punish someone criminally for the vast majority of speech. But does it have the right to persuade?

Jackson may think it does. Her "hamstringing" comment came attached to a hypothetical scenario she posed to Benjamin Aguiñaga, Louisiana's solicitor general, who argued the Biden administration had overstepped when it contacted social media platforms and attempted to pressure them to remove posts it found objectionable. Suppose a challenge circulated on social media concerning "teens jumping out of windows at increasing elevations," Jackson said. Could the government try to persuade those platforms to remove that content?

No, Aguiñaga said, because that's still protected speech, no matter how dangerous.

That might very well be the correct interpretation. But Jackson's take—that such a view could place too much restraint on the government—is one that's held by many, including, it appears, some of her more conservative colleagues. Kavanaugh, for example, invoked his experience working with government press staff, who regularly call reporters to criticize them and try to influence their coverage. Would it be illegal for the feds to prosecute those journalists for pieces that cast them in a negative light? Absolutely. Is it beyond the pale for the government to express what it believes to be true in seeking better coverage? Not necessarily, Kavanaugh said.

That doesn't mean they're correct. But the great irony of the viral Jackson pile-on is that, based on oral arguments, her view may very well prevail.

Jackson, of course, is not the first to find herself in this situation. At a recent rally in Ohio, former President Donald Trump said there would be a "bloodbath" if he were to lose. The comment set off a media frenzy, despite that, once again, the comment, which seemed to refer to the auto industry, appeared far more benign in context. But if partisans have one thing in common, it's confirmation bias. They often differ on which ideas they want to succeed, but they want their side confirmed just the same—sometimes at the expense of truth.

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]]> 133 Justice Ketanji Brown Jackson is seen during the formal group photograph at the Supreme Court in October 2022
The Best of Reason: After a Century, the Federal Tea Board Is Finally Dead Tue, 19 Mar 2024 21:11:46 +0000 The Best of Reason Magazine logo | Joanna Andreasson

This week's featured article is "After a Century, the Federal Tea Board Is Finally Dead" by Eric Boehm.

This audio was generated using AI trained on the voice of Katherine Mangu-Ward.

Music credits: "Deep in Thought" by CTRL and "Sunsettling" by Man with Roses

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The Sequel to Doe v. Mills: Justice Barrett Tightens The Screws On The Shadow Docket Tue, 19 Mar 2024 21:10:38 +0000 Today, the Supreme Court issued an order on the emergency docket in United States v. Texas. To avoid confusion with the umpteen other cases by that name, we can call the case Las Americas Immigrant Advocacy Center v. McCraw. This case presented a challenge brought by the federal government against Texas S.B. 4. The District Court entered preliminary injunction to block the law from going into effect. On March 2, a three-judge panel of the Fifth Circuit entered a "temporary administrative stay." The panel also stayed that temporary stay for seven days to permit an appeal to the Supreme Court. The panel also expedited the case for the April argument session.

Two days later, on March 4, the Solicitor General sought an application to vacate the stay of the preliminary injunction. Circuit Justice Alito promptly administratively stayed the case until March 13. On March 12, the Court extended the administrative stay until Mach 18. And on March 18, the stay was "hereby extended pending further order of Justice Alito or of the Court." It was a stay on top of a stay on top of a stay on top of a stay. Stays all the way down.

Today, the Court denied the application to stay the Fifth Circuit's temporary administrative stay. In other words, the Supreme Court's stay was dissolved. As a result, the Fifth Circuit's temporary administrative stay will go into effect, and thus S.B. 4 can be enforced. As is often the case, there was no opinion of the Court. There was only a single sentence without any reasoning. However, there were separate writings.

Justice Barrett wrote a five-page concurrence, which was joined by Justice Kavanaugh. In many regards, Barrett's Las Americas v. McCraw concurrence is the sequel to Barrett's Doe v. Mills concurrence. In October 2021, Justice Barrett wrote her influential concurrence in John Does 1-3 v. Mills, which was joined by Justice Kavanaugh. This decision, in my view at least, heightened the standard required to obtain relief on the emergency docket. She wrote that the "likelihood of success on the merits" factor from Nken reflects "a discretionary judgment about whether the Court should grant review in the case." At the time, I wrote that Justice Barrett cut the fuse on the shadow docket, by making it harder to grant emergency relief. Over the past 2.5 years (yes it has been that long), Justice Barrett has consistently voted to grant emergency applications from the Biden administration and likeminded groups, often citing Doe v. Mills. More often than not, she lines up opposite of the Fifth Circuit.

Barrett's McCraw concurrence makes several primary points.

First, Barrett writes that if the Fifth Circuit had issued a stay pending appeal, the Supreme Court would have reviewed that decision with the four-factor test from Nken v. Holder. Here, Barrett cited her Doe v. Mills concurrence. But the Fifth Circuit panel did not actually issue a stay pending appeal. Rather, the panel only issued a temporary administrative stay until the case is argued before a merits panel. Barrett describes this posture as "very unusual." In dissent, Justice Kagan did not "think the Fifth Circuit's use of an administrative stay, rather than a stay pending appeal, should matter."

Second, Justice Barrett issues a deep dive into administrative stays, relying in large part on a recent article by Rachel Bayefsky in the Notre Dame Law Review. Barrett writes that administrative stays usually do not consider likelihood of success. Rather, quoting Bayefsky, administrative stays "freeze legal proceedings until the court can rule on a party's request for expedited relief." The administrative stay "buys the court time to deliberate" and decide whether the applicant is likely to succeed on the merits. Barrett cites a number of cases in which the Supreme Court issued a temporary administrative stay to "permit time for briefing and deliberation," including June Medical v. GeeMurthy v. MissouriYeshiva University v. YU Pride, and McCraw itself. Barrett then cites a slew of circuit court decisions; some of which are cited in Bayefsky's article, but some are not. ACB did some original research.

Third, in a footnote, Justice Barrett observes that the Court has "not explained the source of a federal court's authority to enter an administrative stay." She cites Bayefsky for the proposition that this power comes from "a court's inherent authority to manage its docket, as well as to the All Writs Act, 28 U. S. C. §1651." I have not given this issue much thought, but I will.

Fourth, Justice Barrett opined on an issue that I've given a lot of thought over the years: what does it mean to maintain the status quo. Barrett observes that the status quo is a "tricky metric, because there is no settled way of defining 'the status quo.'" Is the status quo the "state of affairs prior to the challenged law or rule"? Or is the status quo "the state of affairs prior to judicial intervention"? Barrett explains that in this case the status quo "is not self-evident." There are several possibilities:

Is it the day before Texas enacted S. B. 4? The day before the lawsuit was filed? The day Texas's appeal and stay motion was docketed in the Fifth Circuit?

Howard Wasserman and I wrote about how the "status quo" was invoked in the same-sex marriage litigation:

Following Windsor, federal district courts in more than two dozen states enjoined enforcement of bans on same-sex marriage. Judges then had to decide whether to stay those injunctions pending review. An injunction alters the status quo. A stay of an injunction suspends that alteration,9 while refusing to grant a stay allows that altered status quo to take immediate, and perhaps irreparable, effect. Here, the altered status quo meant issuance of hundreds or thousands of marriage licenses.

And in particular, the status quo about the Utah case, was difficult:

Part of the problem with Judge Shelby's reasoning was a strange understanding of the status quo. On Friday morning, the status quo was what it had been for a century—Utah would not issue marriage licenses to same-sex couples. Judge Shelby's order, without a stay, immediately and perhaps irreparably altered the status quo. It now became the new normal that same-sex couples were allowed to marry, as the Clerk of Salt Lake County recognized. Thus, Judge Shelby reasoned, a stay would amount to an injunction preventing county clerks from issuing marriage licenses to same-sex couples. In other words, an alteration of the status quo. But this misunderstands the nature of injunctions and stays and their respective effects on the status quo. The stay would alter the status quo on Monday only because the court had already altered the status quo on Friday with its injunction. The point of a stay would be to suspend that alteration. Had Judge Shelby issued the stay on Friday, the practical status quo would have remained unchanged.

I think much more work needs to be done to consider the relationship between injunctions, stays of injunctions, and the status quo. I think judges sometimes use "status quo" without precision.

Fifth, Barrett points out that an administrative stay, while it may seem "value neutral," is actually applying a principle: minimizing harm. She describes the choice as a "first-blush judgment about the relative consequences of staying the lower court judgment versus allowing it go to into effect." Barrett speculates that the Fifth Circuit panel "apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than those of erroneously lifting the injunction."

Sixth, Barrett acknowledges that some issuances of administrative stay are premised on the merits question–even when this analysis precedes the application of the Nken factors:

Because an administrative stay precedes a ruling on a stay pending appeal, the Nken factors are obviously on the court's radar, and unsurprisingly, they can influence the stopgap decision, even if they do not control it. Thus, for example, judges have cited the underlying merits as a reason to grant an administrative stay.

Barrett is not troubled by the fact that there is "no jurisprudence of administrative stays, much less a one-size-fits-all test that courts apply before entering one." Barrett prefers "play in the joints" for this "flexible, short-term tool." (This concept may have been excised from the Establishment Clause context, but still has some pull here.)

Seventh, Justice Barrett explains her decision to join the Court's order: the Court had never before reviewed the entry of an administrative stay. And Justice Barrett "would not get into this business." Why? Because administrative stays are necessarily the "short-lived prelude to the main event." She would not "invite emergency litigation" about administrative stays. That sort of message may seems helpful to Texas and other litigants in the Fifth Circuit. But wait.

Eighth, Justice Barrett points to the "real problem"–how long can Nken, and Doe v. Mills, be avoided. These sentences will be cited in every single opposition to a stay application:

An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal. Once the court is equipped to rule, its obligation to apply the Nken factors is triggered—a point that some judges have pressed their Circuits to consider.

"Necessary to make an intelligent" decision. Get used to it. That's the standard–fittingly enough announced on an expedited basis from the emergency docket. Justice Barrett does not want to get into this business of making these decisions now. But if the lower courts take longer than she thinks appropriate "to make an intelligent decision," there would be a problem. Indeed, Barrett cites the SG who calls out the Fifth Circuit, in particular, which has "allowed administrative stays to linger for so long that they function like stays pending appeal." In dissent, Justice Sotomayor wrote that "The Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months."

Ninth, Justice Barrett leaves open the possibility of getting into this business if "an administrative stay has effectively become a stay pending appeal." And she issues a not-too-subtle warning to the Fifth Circuit: "If a decision does not issue soon, the applicants may return to this Court." In other words, there are five votes to rule against the Fifth Circuit if they drag their feet. Justice Kagan's dissent faulted the Fifth Circuit for using an "unreasoned decision to impose [a stay] for more than a month, rather than answer[ing] the stay pending appeal issue before it."

In the end, Justice Barrett and Kavanaugh, once again express their displeasure with how the Fifth Circuit is exercising its power. There is a lot of deep thought in Barrett's concurrence that will affect how cases are litigated on the emergency docket. I'll make this point as often as I have to: progressives should be grateful that Trump picked who he picked. It could have been much, much worse for them.

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Supreme Court Says Officials Who Block Critics on Social Media Might Be Violating the First Amendment Tue, 19 Mar 2024 20:15:40 +0000 Supreme Court Justice Amy Coney Barrett | Eric Lee/Pool via CNP/Polaris/Newscom

When Donald Trump was president, he provoked a First Amendment lawsuit by banning critics from his Twitter account. "Once the President has chosen a platform and opened up its interactive space to millions of users and participants," the U.S. Court of Appeals for the 2nd Circuit ruled in 2019, "he may not selectively exclude those whose views he disagrees with." Although that case became moot after Trump left office, the issues it raised have come up repeatedly across the country because public officials, regardless of their political party, are united in resenting criticism and often prefer to silence irksome constituents rather than simply ignoring them.

In two unanimous decisions published on Friday, the U.S. Supreme Court held that such blocking can violate the First Amendment and clarified the standard for determining when it does. The justices did not actually resolve either case, instead sending them back to the lower courts for reconsideration in light of its newly announced guidelines.

"When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private," Justice Amy Coney Barrett writes in Lindke v. Freed. "We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media."

That case involves Port Huron, Michigan, City Manager James Freed, who as a college student "created a private Facebook profile" that he initially "shared only with 'friends.'" He later made the page public and, after he was appointed city manager in 2014, updated it "to reflect the new job," using "a photo of himself in a suit with a city lapel pin" and noting his position in the "About" section. Freed "posted prolifically (and primarily) about his personal life," but he "also posted information related to his job."

The job-related topics included Freed's visits to local high schools, "reconstruction of the city's boat launch," "the city's efforts to streamline leaf pickup and stabilize water intake from a local river," and "communications from other city officials." Sometimes Freed "solicited feedback from the public," and he would delete comments he viewed as "derogatory" or "stupid." During the COVID-19 pandemic, he posted information on that subject, such as "case counts," "weekly hospitalization numbers," "a description of the city's hiring freeze" and "a screenshot of a press release about a relief package that he helped prepare."

Freed's discussion of the pandemic prompted Port Huron resident Kevin Lindke to vent his opinions about the city's "abysmal" response. "The city deserves better," Lindke wrote. After "Freed posted a photo of himself and the mayor picking up takeout
from a local restaurant," Lindke "complained that while 'residents [we]re suffering,' the city's leaders were eating at an expensive restaurant 'instead of out talking to the community.'" At first, "Freed deleted Lindke's comments." Eventually, Freed blocked Lindke, meaning "Lindke could see Freed's posts but could no longer comment on them."

That decision provoked Lindke to sue Freed under 42 USC 1983, arguing that Freed had violated his First Amendment rights under color of law. Lindke said Freed had "engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them."

That lawsuit is viable only if Freed was acting in his public capacity when he blocked Lindke. If Freed was acting as a private citizen, there would be no basis for arguing that he violated the First Amendment.

A federal judge rejected Lindke's claim, concluding that Freed's decision to block him did not qualify as "state action." The judge noted that Freed's posts were mainly personal, that the government was not involved with his account, and that Freed did not use it to conduct official business.

The U.S. Court of Appeals for the 6th Circuit upheld that ruling. Noting that "the caselaw is murky as to when a state official acts personally and when he acts officially," the appeals court asked "whether the official is 'performing an actual or apparent duty of his office,' or if he could not have behaved as he did 'without the authority of his office.'" In the social media context, the appeals court held, that means an official's activity amounts to state action if the "text of state law requires [him] to maintain a social-media account," he uses "state resources" or "government staff" to run the account, or the account "belong[s] to an office, rather than an individual officeholder."

Freed's activity, the 6th Circuit concluded, did not meet that test. But that test, Barrett says, does not account for the subtleties that courts must consider in cases involving public officials' use of social media.

"Lindke cannot hang his hat on Freed's status as a state employee," Barrett notes. "The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look."

Since a Section 1983 claim requires that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State," Barrett says, it makes sense to ask whether an official "possessed actual authority to speak on the State's behalf." Under that prong, she says, "a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State." That authority "must extend to speech of the sort that caused the alleged rights deprivation." And if "the plaintiff cannot make this threshold showing of authority, he cannot establish state action."

Because "state officials have a choice about the capacity in which they choose to speak," Barrett adds, an official "is speaking in his own voice" unless he is speaking "in furtherance of his official responsibilities." She illustrates the point with the example of a school board president who announces the lifting of pandemic-related school restrictions at a board meeting, then shares the same information "at a backyard barbecue with friends whose children attend public schools." The former announcement "is state action taken in his official capacity as school board president," she says, while "the latter is private action taken in his personal capacity as a friend and neighbor."

The situation with Freed's Facebook account is "hazier," Barrett writes, because he mixed clearly personal posts with job-related posts and did not include any explicit statement about the nature of the page. "Categorizing posts that appear on an ambiguous page like Freed's is a fact-specific undertaking in which the post's content and function are the most important considerations," she says. "Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities."

Because of these fact-specific and context-dependent challenges, the Court vacated the  6th Circuit's decision and remanded the case "for further proceedings consistent with this opinion." It did the same thing in O'Connor-Ratcliff v. Garnier, which involves two California school board members who blocked two parents of students on Facebook and Twitter.

Those decisions, the U.S. Court of Appeals for the 9th Circuit ruled, constituted state action because there was a "close nexus" between the board members' "use of their social media pages" and "their official positions." But "because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke," the Supreme Court said, the lower courts need to take another look.

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]]> 23 Supreme Court Justice Amy Coney Barrett
These Students Lost More Than Half a Year of Learning During COVID Tue, 19 Mar 2024 20:05:37 +0000 Kid looking at laptop | Photo 20191743 © Tashka2000 |

According to one study highlighted by the Times, school districts that spent the least amount of the 2020–21 school year in remote learning (between 0 percent and 10 percent online) experienced a significantly smaller drop in student scores than districts that spent almost all of the school year online. For the least online group, declines in third- and eighth-grade math scores indicated that students were 0.35 years behind where they should be, while the most online group had fallen back more than half a school year by 2022.

While other factors contributed to district-level learning loss, like student poverty, time spent in remote learning still had an incredibly large impact. Students in the poorest districts that stayed mostly in-person actually experienced less learning loss than students in the richest school districts that taught students mostly online.

Unsurprisingly, the students who suffered the most were poor students who experienced mostly remote learning. While mostly remote students in the richest school districts were only 0.15 school years behind their mostly in-person counterparts, mostly remote students in the poorest districts lost 0.25 years more than their peer districts who were mostly in-person. In all, poor, mostly online school districts saw their students fall nearly two-thirds of a school year behind in math scores.

Some of the last school districts to reopen were large, urban school districts with many poor students. However, the leadership in many of those districts hasn't learned much in the face of mounting evidence that extended school closures hurt students without meaningfully reducing COVID infections.

"There's no such thing as learning loss" United Teachers Los Angeles leader Cecily Myart-Cruz famously quipped in 2021, adding that "it's OK that our babies may not have learned all their times tables. They learned resilience. They learned survival."

"I do believe it was the right decision," said Jerry T. Jordan, president of the Philadelphia Federation of Teachers, told the Times. Philadelphia schools didn't fully return to in-person learning until August 2021. "It doesn't matter what is going on in the building and how much people are learning if people are getting the virus and running the potential of dying."

While it's now been four years since schools first closed during COVID-19, the school year lost on online and hybrid learning has clearly had a lasting impact on American schoolchildren—one that is likely to echo for years to come.

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America's $280 Million Military Mission in Niger Ends in Failure Tue, 19 Mar 2024 19:40:17 +0000 A Nigerien soldier wipes sweat off his face while participating in a special forces training exercise during Exercise Flintlock 2018 in Agadez, Niger, April 14, 2018. | U.S. Navy/Evan Parker

Air Base 201 in Niger was the U.S. Air Force's largest construction project in history: a massive drone center that cost American taxpayers $280 million. Thanks to a change in the Nigerien leadership, Americans may have to give up that investment for good.

Niger's new nationalist government, which took power in a coup d'etat last year, has been trying to get rid of foreign military presence in the country. Over the weekend, Nigerien Col. Amadou Abdramane ordered U.S. troops out of Air Base 201, declaring on television that "the American presence in the territory of the Republic of Niger is illegal."

The Biden administration seems to be stalling. Pentagon spokeswoman Sabrina Singh and State Department spokesman Vedant Patel both said that the United States was seeking "clarification" on the Nigerien government's comments. (What exactly is so unclear about "the American presence…is illegal"?)

The last straw seems to have been a meeting between American and Nigerien officials last week. U.S. Assistant Secretary of State for African Affairs Molly Phee criticized a Nigerien deal to sell Iran uranium, growing Nigerien-Russian military ties, and Niger's failure to return to democracy, according to The Wall Street Journal.

After the meeting, Abdramane went on television to condemn the "condescending attitude" of the Biden administration.

"Niger regrets the intention of the American delegation to deny the sovereign Nigerien people the right to choose their partners and types of partnerships capable of truly helping them fight against terrorism," he said.

The U.S. military is ostensibly in West Africa to help local governments fight against Islamist rebels, such as Al Qaeda, the Islamic State, and Boko Haram. But the problem has only gotten worse: The U.S. State Department, which reported just nine terrorist attacks throughout all of Africa in 2002 and 2003, recorded 2,737 incidents in Burkina Faso, Mali, and western Niger alone in 2022.

The U.S. presence in Niger, unknown to most Americans, has been a mess for years. In 2017, the Islamic State ambushed and killed four U.S. Green Berets. The U.S. military reprimanded several commanders for improperly preparing the troops and lying about their mission. In 2022, local bandits robbed a van carrying $40,000 in American taxpayer money, meant to pay local employees, in broad daylight just outside Air Base 201.

Many West African countries are former French colonies, and France has also used counterterrorism missions to retain its influence over the region it calls "Françafrique."

Resentment over the American and French presence boiled over in 2020, when West Africa began to suffer a series of military coups, bringing anti-Western governments to power. Ironically, many of the coup plotters—including the Nigerien officers—had also received U.S. military training before turning against their American backers.

One of those officers, Gen. Abdourahmane Tchiani, blamed the failure of such U.S. military aid for his decision to overthrow Niger's elected government.

"The current security approach has failed to secure our country, despite the heavy sacrifices made by Nigeriens and the appreciable and appreciated support of our external partners," he said in a speech shortly after seizing power. "No, the results have not lived up [to] our expectations, and we can no longer continue with the same approaches proposed to date."

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]]> 14 A Nigerien soldier wipes sweat off his face while participating in a special forces training exercise during Exercise Flintlock 2018 in Agadez, Niger, April 14, 2018.