Month: November 2020

President-elect Joe Biden has tapped Neera Tanden, president of the Center for American Progress and a former advisor to Hillary Clinton, to head the U.S. Office of Management and Budget. The position requires Senate confirmation, which might be a long shot, given Tanden’s long history of feuding with not just Republicans but also fellow Democrats.

If Tanden does take control of the OMB, then the office will be run by someone who has recently said that deficits and the debt should be no obstacle whatsoever to further government spending. At the start of the pandemic, she co-authored a commentary piece titled, “Deficit and Debt Shouldn’t Factor Into Coronavirus Recession Response.”

“Deficits and debt pose no comparable risk,” wrote Tanden. “Policymakers should set aside their concerns about red ink and deliver the response the crisis demands.”

Tanden has said that the purpose of the budget is to “expand opportunity for all Americans” and that excessive fretting about deficits hinders economic growth.

To the extent Tanden has expressed any concern for the debt at all, it was mostly tactical: She has previously worried that spending wildly without paying for it makes the government unpopular with voters. In 2011, she came up with a novel solution to this problem, suggesting in an email to other CAP staffers that “oil rich countries” in the Middle East should pay the U.S. back in exchange for our military presence. She was specifically thinking of Libya, which was in the middle of a civil war at the time, with the U.S. and NATO offering support to the rebel factions. Indeed, Tanden sent this email—which was later leaked to her critics, including Glenn Greenwald—just a day after Libyan leader Moammar Gadhafi was brutally killed by rebels.

“We have a giant deficit,” wrote Tanden. “They have a lot of oil. Most Americans would choose not to engage in the world because of that deficit. If we want to continue to engage in the world, gestures like having oil rich countries partially pay us back doesn’t seem crazy to me.”

In context, “engage in the world” meant U.S. military intervention. This did not turn out so well in Libya, which descended into chaos following the killing of Gadhafi and became a haven for terrorists. A second civil war only recently ended. It is doubtful the Libyans feel so grateful that they would like to help relieve the U.S. budget deficit.

Director of the OMB is a very powerful position, given the agency’s important function as an overseer of not just the president’s budget priorities but also various regulatory policies, intergovernmental coordination, and compliance. Even aside from ideological concerns, there is plenty of reason to wonder about Tanden’s fitness for the position. In addition to her distressing lack of concern for the deficit and hawkish foreign policy views, Tanden also has a worrying history of personnel clashes. She was accused of becoming physically aggressive toward a CAP staffer who had dared to question Hillary Clinton about the Iraq War, and she once outed an employee who had filed a sexual harassment complaint. These issues speak to her competency as the leader of an organization.

“Everything toxic about the corporate Democratic Party is embodied in Neera Tanden,” wrote Briahna Joy Gray, former press secretary for the 2020 presidential campaign of Sen. Bernie Sanders (I–Vt.).

from Latest – Reason.com https://ift.tt/33sRW2c
via IFTTT

To go by the post-election commentary, we libertarians are a powerful group holding sway over American politics and policy. Yet Team Blue and Team Red still enthusiastically embrace authoritarianism and scorn our insistence on letting people run their own lives.

Despite growing recognition that libertarians matter, Democrats and Republicans show little sign of extending an olive branch to people who oppose efforts to make government more abusive and intrusive. They know we exist, but they keep us in opposition.

How long a shadow do we throw over American politics?

“According to the latest figures, the Libertarian candidate for president, Jo Jorgensen (pronounced Yo Your-gun-sin), has spoiled the election,” huffed conservative writer Michael Warren Davis on his way to working himself into a frenzy in The Spectator. “The number of votes Yo-Yo received in Arizona, Georgia, Nevada and Pennsylvania exceeds Joe Biden’s margin over Donald Trump in all those states. In other words, had the libertarians in each of those states voted for Mr Trump, he would have been reelected handily.”

It wasn’t just the presidential race, either.

“Hide the kids and liquor. Libertarians have been heard from again,” the Arkansas Democrat-Gazette editorialized about Libertarian Ricky Dale Harrington’s 33.5 percent showing against Senator Tom Cotton (R-AR). The piece acknowledged, with regret, that libertarian views on drugs and foreign policy have moved into the mainstream. “If the Libertarian stirred such a response with chewing gum and duct tape, it’d be fascinating to watch what he could do with some serious resources,” the paper added.

A similar Indianapolis Star piece about Libertarian Donald Rainwater’s 11.5 percent showing in the three-way Indiana governor’s race described his party as “ascendant.” It added, “to pass up Democrats in the next turn, Libertarians don’t have to worry much about soul searching yet, they just need to figure out what they are building toward.”

What they’re building toward might be policy victories of the sort that troubled the Arkansas Democrat-Gazette‘s editorial board.

Voters, “perhaps those with a libertarian streak, in red and purple states such as Arizona, South Dakota, Mississippi and Montana voted to relax their drug laws and reject the status quo,” Zachary Siegel noted for NBC News.

Libertarians “got almost everything they wanted,” Liz Mair wrote in The New York Times in a piece that anticipates Republicans holding the Senate. “On the one hand, Joe Biden has a friendlier record on trade and immigration, and on the other, they avoided the burst of spending that inevitably comes with unified control of the federal government.”

Libertarians are apparently winning bigly, as certain political types might say. So why are we still treated as untouchable by both of the major political parties? The answer lies, almost certainly, in the two parties’ disinterest in courting those who want to live and let live for fear they’ll alienate other constituents.

President-Elect Joe Biden’s Democrats, for their part, are divided between pseudo-technocrats who want to “follow the science“—so long as the science says that government officials should be in charge of everything—and the party’s more left-leaning wings. 

“We can no longer leave this to the private sector,” insists Biden’s website in a section about pandemic response. “The Supply Commander should work with every governor to determine their needs, and then coordinate production and delivery of those needs in a timely and efficient manner.”

Meanwhile, the party’s progressives—increasingly open about their socialism—feud with the “centrists” about just how much bigger, more intrusive, and generous with other people’s money government should get under their control.

It’s difficult to reconcile a Democratic Party torn between two brands of control freakery with any effort to reach out to libertarians—and woe betide anybody who tries.

“It was the libertarians that she most inspired during her presidential campaign,” The Washington Times observes of exiting Rep. Tulsi Gabbard (D-HI), who unsuccessfully vied for the Democratic presidential nomination. “Breaking from her party endeared Ms. Gabbard with a new sect of the electorate, but it hurt her prospects with her party and her constituents back home.”

The same could be said of the Trump-era Republican Party, which drove also exiting Rep. Justin Amash (L-MI) to flee the GOP for the Libertarian Party. Rep. Thomas Massie, Amash’s ideological ally, has weathered the storm—but not because the party leadership made him welcome.

“Massie, a libertarian-leaning conservative who has often clashed with his party’s leadership, said he has no plans to leave the Republican Party, despite Trump calling for him to be thrown out of the GOP,” Politico reported in March.

The populist-nationalist GOP of recent years has little room in it for advocates of personal freedom and small government.

“Today, many leaders of the Republican Party have coalesced around a desire to purge libertarians, with our pesky commitments to economic liberty and international trade, from their midst,” Reason‘s Stephanie Slade pointed out in an August The New York Times column. She cited party figures rejecting not just figures like Amash and Massie, but libertarian ideas about free markets and limited government.

With the Democrats victorious in the presidential contest, while Republicans (probably) retain the Senate, gain seats in the House, and thrive at the state level, there’s little sign that the big political parties will feel a need to appeal to a libertarian faction that drives them to distraction but is entirely incompatible with their competing brands of authoritarianism.

More than ever, that leaves libertarians without a home in either of the major political parties. It also, incidentally, leaves the United States without a major political party even slightly inclined to leave people alone to manage their own affairs. Those of us who value liberty, then, are left in permanent opposition to the meddlesome major political parties, and to the government they dominate.

from Latest – Reason.com https://ift.tt/36mXOMs
via IFTTT

Lisa Folajtar pled guilty in 2011 to federal tax fraud, a felony, which is punishable by up to three years in federal prison and a fine of up to $100,000. In the end, she was sentenced to three years’ probation, fined $10,000, and forced to pay the IRS $250,000 in back taxes, interest, and penalties.

She also permanently lost her right to keep and bear arms. According to federal law, it is unlawful “for any person…who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year…[to] possess…any firearm or ammunition.” In other words, a federal statute has seemingly placed the Second Amendment off-limits to all federal felons.

Folajtar has been fighting that particular act of Congress in federal court since 2018. Last week, a divided panel of the U.S. Court of Appeals for the 3rd Circuit rejected her constitutional challenge.

“Persons who have committed serious crimes forfeit the right to possess firearms much the way they ‘forfeit other civil liberties,'” such as the right the vote, stated the majority opinion of Judge Thomas L. Ambro in Folajtar v. Barr. And in this case, because Congress has designated Folajtar’s crime to be a felony, “we defer to the legislature’s determination.” That deferential approach, Ambro argued, “safeguards the separation of powers by allowing democratically constituted legislatures, not unelected judges, to decide in most cases what types of conduct reflect so serious a breach of the social compact as to justify the loss of Second Amendment rights.”

Writing in dissent, Judge Stephanos Bibas faulted his colleagues for an “extreme deference that gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” Yes, there are “historical limits on the Second Amendment,” he acknowledged. And yes, “those limits protect us from felons, but only if they are dangerous.” Lisa Folajtar “is not dangerous. Neither the majority nor the Government suggest otherwise. Because she poses no danger to anyone,” Bibas concluded, she has no business permanently losing one of her constitutional rights.

In 2019, the U.S. Court of Appeals for the 7th Circuit delivered a similar ruling in Kanter v. Barr. Writing in dissent, then-Judge Amy Coney Barrett—who is Justice Amy Coney Barrett now—insisted that the majority was dead wrong.

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote. “But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

I would not be surprised if Folajtar’s case makes it to the Supreme Court. And if it does, the Court’s newest member is sure to look askance at the federal statute that permanently stripped Folajtar of one of her constitutional rights.

from Latest – Reason.com https://ift.tt/33uFOhk
via IFTTT

Over the weekend, Prof. Thomason dropped this lawsuit, which I had written about when it was filed a year ago. As I understand it, there was no settlement; the suit was just dropped. Since free speech about legal cases and the lawyers who litigate them is likely important to many readers of blogs such as ours, I thought I’d note this latest development. Here are the details of the lawsuit, from my original Dec. 2019 post. (Note also that there has since been a Federal Circuit opinion in the underlying SFM, LLC v. Corcamore, LLC litigation, affirming the decision against Corcamore, though not opining in detail on the TTAB’s “delaying tactics” conclusion)

[* * *]

[1.] In the Dec. 2018 SFM, LLC v. Corcamore, LLC decision, the Trademark Trial & Appeal Board had some harsh things to say about Corcamore’s litigation tactics, including:

It is obvious from a review of the record that Respondent has been engaging for years in delaying tactics, including the willful disregard of Board orders, taxing Board resources and frustrating Petitioner’s prosecution of this case. In view thereof, Petitioner’s motion for sanctions in the form of judgment against Respondent also is granted pursuant to the Board’s inherent authority to sanction.

Corcamore’s lawyer in the case was Charles L. Thomason (listed in the docket as being in Columbus, Ohio), who was a clinical professor at Ohio State University Moritz College of Law until his recent retirement. The TTAB’s decision is now on appeal to the Federal Circuit.

[2.] A few days later, the TTABlog, written by trademark lawyer John L. Welch, posted an item summarizing the case (though not mentioning Prof. Thomason’s name), and adding (as an exhibit to the Prof. Thomason’s Complaint notes), “TTABlog comment: What about a sanction against counsel?” This led to three comments, which I quote from another exhibit to the Complaint:

[3.] Last week [i.e., in December 2019], Prof. Thomason sued the three commenters for libel; but it seems to me that his legal theory is not sound.

[A.] The Dreitler comment began with what seems to be a correct statement of two facts—that Corcamore’s lawyer was an Ohio State law professor, and that the client was sanctioned. It seems to err in saying that the “case [was] dismissed”; rather, it was the client’s opposition to the cancellation proceeding that was effectively dismissed, and the other side prevailed. But that mischaracterization of the procedural situation wouldn’t be damaging to Prof. Thomason’s reputation; the implication of “case [was] dismissed” is that the client lost, and that is correct. (Note also that Prof. Thomason has apparently retired, and the last class I could find him teaching was in Spring 2018, so it’s possible that the Dreitler comment was slightly imprecise in its tense; but any error as to that wouldn’t be damaging to Prof. Thomason’s reputation, either, and Thomason’s Complaint more generally speaks of Thomason as a law professor, in the present tense.)

The Dreitler comment then turned to an inference that the lawyer is responsible for the result and the litigation tactics, followed by an opinion about what should happen, and what the lawyer allegedly deserves: “the Board certainly ought to sanction” the lawyer. But such opinions, however derogatory they may be, aren’t actionable libel.

Now libel law recognizes that “a statement in the form of an opinion” may be actionable “if it implies the allegation of undisclosed defamatory fact as the basis for the opinion.” (That’s from the Restatement (Second) of Torts § 566, which the Kentucky Supreme Court has expressly adopted.) But “where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based,” there can be no liability. And that seems to be what happened here: The initial TTABlog post summarized the court opinion (in a way that Thomason’s Complaint doesn’t claim is defamatory); the comment accurately stated a further fact (that Thomason was a law professor) and then expressed an opinion based on those facts.

Thomason’s Complaint says,

[31.] Defendant Joseph Dreitler’s comments defamed plaintiff, in particular, plaintiff’s professionalism, legal ability, as well as his standing as a full-time faculty member teaching at the College of Law of The Ohio State University.

[32.] Defendant Joseph Dreitler’s comments stated or indicated that plaintiff was unfit for his job and duties as a law professor.

But this doesn’t explain why Dreitler’s comment contained any false factual allegation, as opposed to derogatory opinions. Later, the Complaint asserts (in ¶ 63) that, “each defendants’ comments imply or give the impression that they have knowledge of other false and defamatory facts, on which they relied when writing the comments they published on non-party Welch’s blog.” But I don’t see how that’s so: Rather, the comments appear to just refer to the original post and the opinion cited in it, plus, in Ms. deWolf’s case, the other opinion that she cites.

[B.] The Reidl comment likewise seems to be opinion: An overt “guess” that Thomason, as the lawyer, was responsible for the party’s filings (an inference from the disclosed facts), followed by an inference about Thomason’s mental state coupled (that he is one of those “lawyers who think this is all a game that they … ‘win’ by being jerks”). “[A]nyone is entitled to speculate on a person’s motives from the known facts of his behavior.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993); see also Scholz v. Delp, 473 Mass. 242, 251, 41 N.E.3d 38, 46 (2015); Gacek v. Owens & Minor Distribution, Inc., 666 F.3d 1142, 1147-48 (8th Cir. 2012).

The Complaint asserts,

[37.] The comments defendant Paul Reidl published to non-party Welch’s blog post were defamatory and directed at the plaintiff, and were defamatory per se under Kentucky law….

[38.] Defendant’s comments stated or indicated that plaintiff was unfit for his job and duties as a law professor, and separately as an IP litigation attorney….

[63.] The defendants’ comments include false assertions about the plaintiff “teaching at the Ohio State law school,” false reference to attorney-client privileged communications about “TTAB procedure” and false assertions about the client not “being advised” but un-advised and so knowing “nothing” about such procedures, malicious comments that plaintiff is a “lawyer who thinks” adjudicative procedures are “a game,” and is a “jerk,” and that the plaintiff is “unprofessional” even though that word never appears in the Cancellation decision referenced in non-party Welch’s blog post.

But again it doesn’t explain how the comments contained false factual assertions, as opposed to pejorative characterizations and opinions.

[C.] The deWolf comment correctly points out that Thomason had “been called out for unprofessional conduct” by the Thomason v. Lehrer opinion (issued Aug. 21, 1998); that opinion begins,

In what has unfortunately become a far too frequent occurrence in this era of “scorched-earth” litigation tactics, an errant attorney has lost sight of his professional obligations to his client, his profession, and this Court.

And it continues,

The circumstances of this case, however, present the unhappy picture of a lawyer who has crossed the boundary of legitimate advocacy into personal recrimination against his adversary. Lawyers are not free, like loose cannons, to fire at will upon any target of opportunity which appears on the legal landscape. The practice of law is not and cannot be a “free fire zone.” While I will impose these sanctions pursuant to the authority conferred upon me by Rule 11, I join with those who urge the legal profession to return to the standards of professionalism which have characterized the bar throughout the history of our nation.

Thomason’s complaint objects (¶ 45) that “Defendant deWolf’s comment omitted mentioning that a later decision of the U.S. Court of Appeals for the Third Circuit abrogated the Lehrer case.” Indeed, the Third Circuit decision in U.S. Express Lines, Inc. v. Higgins, did reverse one of the legal conclusions in a later (Oct. 27, 1998) opinion in Thomason: The District Court in Thomason had rejected Thomason’s abuse of process claim, on the grounds that alleged misconduct in a federal case should be dealt with within that case, rather than through a new lawsuit; the Third Circuit in U.S Express Lines rejected that position. But the heart of the Aug. 21, 1998 Thomason opinion pointed to by deWolf seems to me to have been unaffected by U.S. Express Lines; the court wrote in that opinion,

Thomason’s section 1983 claim, specifically, the allegation that Lehrer acted under color of state or federal law by representing Absolute and Knight in asserting counterclaims against Thomason, is sanctionable under, inter alia, Rule 11(b)(2) because it is not warranted by existing law or nonfrivolous arguments for an extension or expansion of existing law….

As I have already held, Thomason’s allegations that Lehrer acted under color of state or federal law in representing Absolute and Knight when Absolute and Knight named Thomason as a Defendant to their counterclaims, are wholly without merit. Even a casual investigation, let alone the reasonable inquiry required by Rule 11, see Fed.R.Civ.P. 11(b), would have revealed to Thomason that much more participation by the state and invocation of state powers and procedures is required to transform the attorney representing the client who merely alleges those claims into a state actor for the purposes of section 1983. Count I of the Second Amended Counterclaim was not “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”

And that “call[ing] out” of Thomason, to my knowledge, had not been reversed by the Third Circuit.

[4.] I’m also skeptical that the federal court in Kentucky has personal jurisdiction over the commenters, who seem to be in Ohio, California, and New York. The caselaw on Internet libel jurisdiction is complicated, but the most on-point Sixth Circuit case seems to cut against Thomason here. (That decision is unpublished and therefore only persuasive precedent rather than binding precedent, but it has been cited over 40 times by federal district courts in the Sixth Circuit.) In that case, the Sixth Circuit held that there was no jurisdiction in Ohio over Internet commenters who spoke about an Ohioan:

[W]hile the “content” of the publication was about an Ohio resident, it did not concern that resident’s Ohio activities. Furthermore, nothing on the website specifically targets or is even directed at Ohio readers, as opposed to the residents of other states. Appellant argues that if [defendant’s] goal was only to reach Massachusetts readers, then he should have used only local media, not the internet. The law does not require that people avoid using the internet altogether in order to avoid availing themselves of the laws of every state. See Revell v. Lidov, 317 F.3d 467, 473 (5th Cir.2002) (finding that Columbia University’s maintenance of a website and internet message board, on which one of its professors posted an article that criticized the Texas plaintiff, was insufficient to confer personal jurisdiction in Texas over the university or the professor, because the “article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states”). Additionally, although Appellant claims that [defendant]’s website links to a class action form and thereby solicits litigants, there is nothing in this form that targets Ohio, let alone mentions [plaintiff], and there is no allegation that [defendant] used this form to make repeated online contacts with Ohio residents. Consequently, because the website was not directed toward Ohio in its content or in its target audience, the case is closer to Revell and Reynolds than Calder.

Change Ohio here to Kentucky (the state in which Thomason sued), and the quote fits well: The commenters weren’t speaking about Kentucky, deliberately addressing Kentucky residents, or opining about some Kentucky-specific activities on Thomason’s part.

So my guess is that defendants can quickly get the case dismissed on personal jurisdiction grounds, or, if necessary, on a 12(b)(6) motion to dismiss for failure to state a claim. I’ll try to keep our readers posted as to any substantive developments.

from Latest – Reason.com https://ift.tt/3omBwkj
via IFTTT