Month: July 2019

Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler), suggests such statutes may be unconstitutional, when applied to speech that supposedly “impair[s] the functions” of the police by leading people to call the police department:

[An Ohio] statute makes it a crime to “use any computer … or the internet so as to disrupt, interrupt, or impair the functions of any police … operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest.

Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves v. Bartlett [the recent decision limiting plaintiffs’ ability to sue for retaliatory arrests, when there was probable cause for the arrests -EV]. It may be that, based on the Supreme Court’s reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now.

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At the Democratic presidential debates this week and as the campaign heats up in the months ahead, listen for the word “suck.”

Sen. Elizabeth Warren (D–Mass.) has been using it frequently in connection with health care. In the first round of debates she said, “the insurance companies last year alone sucked $23 billion in profits out of the health care system.”

She also uses the term for those in the financial sector more broadly, beyond health insurance. Recently, Warren issued a plan to “rein in the financial industry so it stops sucking money out of the rest of the economy.”

“The private equity firms are like vampires—bleeding the company dry and walking away enriched even as the company succumbs,” Warren said.

This image of businessmen as bloodsuckers has a long and ugly history. Karl Marx used it: “Capital is dead labor, that vampire-like, only lives by sucking living labor, and lives the more, the more labor it sucks.”

Sen. Bernie Sanders (I–Vt.) has his own v-word derogatory nickname for capitalists. Earlier this month he tweeted, “We must ban private equity funds and Wall Street vulture funds from owning hospitals.”

In 2017, Sanders posted on Facebook, “Wall Street vulture funds should not be allowed to make huge profits off the misery of the Puerto Rican people while they are dealing with a humanitarian crisis.”

Vampire or vulture, the language from the presidential candidates gets picked up by people and then directed at particular investors. Earlier this month in Boston, Puerto Ricans rallied in the streets, according to a report by WBUR’s Simon Rios. They were singling out Seth Klarman and his Boston-based hedge fund Baupost. “You can hear them starting to chant in the background….The protesters are referring to these investors as vulture capitalists, making profit off of the bankrupt Puerto Rican economy,” Rios narrated for listeners of WBUR, a National Public Radio affiliate based at Boston University.

What’s the problem with this sort of language?

For starters, it’s more than a bit hypocritical. Sanders and Warren are both campaigning for huge tax increases on the private sector to fund bigger government. If anyone’s acting like a bloodsucking vampire or vulture, it’s them.

It’s also hypocritical in the sense that one line of Democratic attack against President Trump has been faulting him for coarsening the public discourse and for dehumanizing, insulting, and scapegoating vulnerable minority populations. Some people assert that it’s different to target a rich insurance company executive or hedge fund manager than it is to target a poor Mexican or Muslim immigrant. There may be some differences, but there are also some similarities. Those similarities aren’t particularly attractive. If the Democrats are going to be slinging around this sort of language, it erodes some of their standing to be critical of Trump’s rhetoric.

The language is potentially dangerous. Demonizing the investors or insurance company executives or depicting them as less than human could lead to violence against them. Similar language was deployed by communists and fascists in the 20th century, with deadly results.

It’s also logically flawed. Warren’s dichotomy between “the financial industry” and “the rest of the economy” is a false one. People in “the rest of the economy” have retirement money invested in the financial industry. Union pension funds and university endowments reap a share of those insurance company and hedge funds profits. Ordinary Americans benefit all the time from mortgages, credit cards, and auto loans that the financial industry makes possible. That Puerto Rican debt funded real projects on that island.

Warren complains that the financial industry is too large a share of the economy. Paring it back in the way Sanders and Warren propose, though, would require shifting some of its present functions, such as health insurance and even some banking functions, to government. The result could be a government that is too large a share of the economy. Such a set-up historically has been detrimental both to liberty and to economic growth. There’s a risk that if Warren and Sanders do get their way, the sucking sound will be of talent and capital fleeing America for other jurisdictions where they will be treated better.

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From Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler):

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot….

This case comes to us after a motion to dismiss, so we take the facts as Novak alleges them and draw reasonable inferences in his favor. Novak created a “farcical Facebook account” designed to look like the police department’s official page. The page was up for twelve hours and published several posts. Among the posts was a recruitment advertisement that “strongly encourag[ed] minorities to not apply.” Novak also posted an apology from the department for “neglecting to inform the public about an armed white male who robbed a Subway sandwich shop,” while promising to bring to justice an “African American woman” who was loitering outside the Subway during the robbery.

The page was polarizing. Some of its about 100 followers thought it was “the funniest thing ever.” Others were angry. And yet others were confused, wondering whether this was the actual Parma police official Facebook page. A handful of people were so angry or confused that they called the police station. In all, the station received twelve minutes of calls. Others continued to enjoy the page, which soon “became a platform for a wide range of citizens to air their grievances about the Department.” The officers later testified that they worried the page would confuse the public and that the “likely result is that people would call.”

One of the page’s audiences—the Parma Police Department—did not find the page funny. Once the officers got wind of Novak’s page, they “all stopped what [they] were doing to take a look at it, and a couple of [them] tried to figure out who did it.” One officer said they “just wanted it down.” They took several steps to make that happen.

A Facebook battle ensued. First, the department posted a warning on its official Facebook page. The warning alerted the public to the fake page and assured them that the matter was “currently being investigated.” Then Novak reposted the exact same warning on his own page. He claims he did this to “deepen his satire.” For the same reason, Novak deleted “pedantic comments” on his page explaining that the page was fake, as these “clumsy explication[s]” only “belabored the joke.”

After that, the conflict moved offline and into the real world. Officer Kevin Riley assigned Officer Thomas Connor to the case and tasked him with finding out who ran the page. So Connor sent a letter to Facebook requesting that the page be shut down immediately. He also sent an email to a different Facebook representative asking that the page be taken down. The police also informed local news outlets of the investigation. The case of the fake police page even appeared on the nightly news. At that point, Novak decided to delete his creation. He had heard of the department’s investigation and was worried about the consequences.

Though Novak was done posting, the police department was not done investigating. They still wanted to find the person behind the laptop. So Connor subpoenaed records from Facebook. Riley directed Connor to go further and obtain a search warrant for Facebook. Novak alleges that Connor made several “material misrepresentations and omissions” to obtain that warrant. The warrant still issued, and Facebook disclosed that Novak was the one behind the fake account.

Once the department realized that Novak was the cyber culprit, Riley directed Connor to obtain two more warrants—one to search Novak’s apartment and one to arrest him. The warrants said that Novak unlawfully impaired the department’s functions, in violation of Ohio Rev. Code § 2909.04(B). Novak responds that, other than twelve minutes of phone calls to the department, the police department suffered no disruption to its functions. And Novak claims the officers were unaware of the twelve minutes of call time when they obtained the warrants. But, once again, the warrants still issued, and the department arrested Novak. The case went to trial, and Novak was acquitted.

Nova sued the City and Officers Rile and Connor; the Sixth Circuit held that most of his claims could proceed, and weren’t defeated by the police officers’ qualified immunity argument. Here’s the heart of the parody analysis:

[Parody] is protected speech. The question … is whether Novak’s page was a parody. The officers claim that his Facebook page was false and meant to mislead the public, not a parody. But they are wrong to think that we just look to a few confused people to determine if the page is protected parody.

Our nation’s long-held First Amendment protection for parody does not rise and fall with whether a few people are confused. Instead, we must apply a “reasonable reader” test. Speech that “could not reasonably have been interpreted as stating actual facts” is a parody, even if “patently offensive.” The test is not whether one person, or even ten people, or even one hundred people were confused by Novak’s page. Indeed, the genius of parody is that it comes close enough to reality to spark a moment of doubt in the reader’s mind before she realizes the joke….

And a parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke.

Instead, the test for parody is whether a reasonable reader would have seen Novak’s Facebook page and concluded that the posts stated “actual facts.” Our nation boasts a long history of protecting parody and satire. “[F]rom the early cartoon portraying George Washington as an ass down to the present day, … satirical cartoons have played a prominent role in public and political debate.” And parody, like all protected speech, need not be high-minded or respectful to find safe haven under the First Amendment. “One of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” “The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.” We uphold this right, even where parody shocks us, because “[o]ur trust in the good sense of the people on deliberate reflection goes deep.”

Whether Novak’s page was a protected parody is a question of fact that we cannot answer at this stage. [Note that Novak wasn’t asking for summary judgment on the grounds that any reasonable jury would have concluded that the speech was a parody; rather, defendants were arguing that the speech was, as a matter of law, not protected parody.-EV] Instead, the jury will have to answer that question. At this stage, though, Novak has alleged enough facts that a reasonable jury could find that his page was a parody.

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Since the launch of her presidential campaign, it has been almost impossible to determine what Sen. Kamala Harris (D–Calif.) believes about health care policy. Over the last seven months, she has said that she supports Bernie Sanders’ single-payer plan, and also that she opposes parts of it, that she would eliminate all private insurance, and also that perhaps she wouldn’t, and then again that she would, but that actually she misheard the question and in fact wouldn’t eliminate private coverage, because she would allow for supplemental insurance for cosmetic procedures, a type of insurance that does not exist.

There have always been two possible reasons for Harris’ health policy inconsistencies. The first is that she had trouble explaining the nuances of her plans. Given her talents as a speaker and political communicator, that seems unlikely. The second, and more plausible, is that she simply didn’t care about the particulars and was saying what she thought people wanted to hear, whether or not it added up to a coherent or defensible policy.

This morning, Harris released a plan designed to reconcile her health policy contradictions. It provides further evidence for the latter explanation. Although it resolves some surface-level problems with her messaging, as policy it is nearly as muddled and cynical as what came before.

Harris has consistently struggled to describe how she would handle private health insurance. In January, she said she supports the Sanders Medicare for All plan, which would outlaw most private health insurance in four years. Health insurance, she said, was a pain to deal with. “Let’s eliminate all of that,” she said. “Let’s move on.” The following day, facing a backlash, she hedged, saying that while she would support eliminating private health she would also back other options. Then, at last month’s Democratic primary debate, she raised her hand to signal an answer of yes about eliminating private plans; the following day, she backtracked again, saying she’d misunderstood the question.

Her new plan is thus an attempt to articulate a policy that retroactively makes sense of her previous statements. It would allow private insurance carriers to compete to provide Medicare-approved plans within the structure of Medicare. It thus allows her to support a program that nominally provides for universal Medicare while also allowing some private coverage to exist.

But Harris would still eliminate the majority of private coverage as we know it. Employer-sponsored health care plans, which currently cover more than 150 million Americans, would be allowed only if they were certified as Medicare plans. That means many of today’s plans would go away. So would private plans bought through Obamacare’s exchanges. If you like your plan, too bad: You can’t keep it.

The core political problem for Medicare for All is that a large number of Americans currently have employer-sponsored health plans that they like, and Medicare for All would eliminate many of those plans and force those Americans into government-run insurance. Harris’ new plan doesn’t really change this. It would still disrupt coverage for millions of people. In other words, it resolves the contradictions in her messaging, but not the deeper policy issues.

Under the Harris plan, the private health coverage that would remain would be so heavily regulated as to be effectively government-run, and the plan would still require a complex transition from the current employer-based system to one where the government is responsible for financing most health care.

Harris attempts to manage transition worries by providing for a 10-year transition, in contrast to the four-year changeover called for by the Sanders plan. But this poses different problems: It would mean that even if Harris won two presidential terms, she would not oversee the final implementation of the plan, exposing it to political upheaval. (Imagine if Obamacare had been timed to go into effect after Obama’s second term.) The longer timeline could also result in the shuttering of some of today’s insurance carriers before the 10-year window is up, pushing people into the new, government-provided plans before the transition is complete, which makes her promise that “no one will lose access to insurance during a transition” rather dicey.

The 10-year transition also allows her to hide the true cost of the plan. The Congressional Budget Office, which provides cost estimates for legislation, typically estimates the price of only the first 10 years of any given piece of legislation, meaning that the fully implemented program would not be part of the cost estimate.

Harris, tellingly, has not provided any cost estimate of her own, nor has she specified how it would pay providers, a critical issue for determining a price tag. Relying on Medicare rates would reduce the total price tag of the legislation, but would also subject hospitals and doctors to large pay cuts that would almost certainly result in service reductions.

Nor has Harris specified a way to pay for her plan. Instead, she continues to pretend she can finance it without new taxes or fees on the broad middle class, a position that not even Bernie Sanders holds. Indeed, Harris specifically rejects Sanders’ proposal for a 4 percent “premium” on households making more than $29,000 annually, reserving that fee for families with incomes over $100,000, and further adjustments for high-cost areas. No country that provides health care benefits on the level that Harris envisions has done so without higher middle-class taxes. Harris is describing a system that does not exist.  

With the second series of Democratic presidential debates looming, it was clear that Harris had a health care problem. Even liberals were criticizing her incoherence on the issue. But rather than honestly reckon with the contradictions of her previous statements and the trade-offs inherent in any health policy proposal, Harris has merely attempted to paper over those contradictions with yet another poorly-thought-out, detail-light plan designed to allow her to make promises she cannot possibly keep. Her new plan is pitched as a way of answering tough questions, but it’s just another way of dodging them. 

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