Lawsuit Over Fox News’ Supposed Coronavirus Misrepresentations Rejected

From yesterday’s Washington Court of Appeals decision in WASHLITE v. Fox News (opinion by Acting Chief Judge Beth Andrus, joined by Judges Linda Coburn and Cecily Hazelrigg):

On April 2, 2020, WASHLITE brought this lawsuit, alleging that Fox hosts and television personalities violated the CPA [Washington Consumer Protection Act] by making statements, on-air, downplaying the danger posed by the coronavirus, describing the pandemic as a “hoax,” and accusing government officials and media organizations of exaggerating the danger posed by COVID-19 in an attempt to undermine former President Donald J. Trump. {WASHLITE alleged, for example, that on March 7, 2020, Fox host Judge Jeanine Pirro (ret.) stated on her show that “the talk about coronavirus being much more deadly (than the flu) doesn’t reflect reality.” On March 8, 2020, host Pete Hegspeth stated “[t]he more I learn about coronavirus, the less concerned I am.” On March 11, 2020, host Matt Schlapp stated “[i]t is very very difficult to contract this virus.” And on March 13, 2020, host Ainsley Earhardt stated “it is actually the safest time to fly.”} WASHLITE sought to enjoin Fox from airing any further misinformation about COVID-19, to require Fox to retract prior false statements, and to pay damages to unnamed “John Doe” consumers….

WASHLITE initially argues that Fox’s cable content does not enjoy full independent protections under the First Amendment because cable providers, through which Fox offers its programming, retain a degree of editorial control over that content….[But t]he fact that a cable operator may curtail the speech of Fox hosts on its own channels does not mean that the State, through judicial action, may do the same…. And [WASHLITE’s] argument is inconsistent with the court’s holding in Turner Broad. Sys., Inc. v. F.C.C. (1994), where … the court recognized that both “[c]able programmers and cable operators engage in and transmit speech” and thus “are entitled to the protection of the speech and press provisions of the First Amendment.” The fact that Fox offers its programming through cable providers does not lessen the extent of the First Amendment protections it enjoys in the context of direct state regulation….

WASHLITE next argues that Fox’s statements regarding the coronavirus and the disease it causes, COVID-19, made during a global pandemic, are not protected because they are false. We reject this contention because the challenged statements implicate matters of public concern and thereby fall squarely within First Amendment protections….

[WASHLITE] contends that content-based regulation is permissible in this instance because false statements regarding threats to public health fall within an exception to the First Amendment’s broad protections. To support its assertion, WASHLITE argues content-based regulation of speech is permissible in several instances: false statements to the government prohibited under 18 U.S.C § 1001 and RCW 9A.76.175, speech inciting lawless action, terroristic threats, and defamation. WASHLITE argues false statements regarding threats to public health are analogous and that, “[b]ootstrapping these concepts to this case, Fox cannot reasonably deny that it knew that characterizing COVID-19 as a hoax was false…. It acted with reckless disregard for the truth of COVID-19 when it regularly broadcast that the virus was a hoax or words to that effect.” … [But] WASHLITE cites no authority for the proposition that false statements about threats to public health, even if recklessly made, fall within any exception to the First Amendment. To the contrary, the Supreme Court in Alvarez disavowed the principle that false expressions in general receive a lesser degree of constitutional protections simply by virtue of being false. The court stated that its precedent restricting the value or protections afforded objectively false statements

all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.

The court went on to explain that,

[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.

WASHLITE’s allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State’s undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.

The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

United States v. Stevens (2010).

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson (1989). Although WASHLITE pursues the meritorious goal of ensuring that the public receives accurate information about the COVID-19 pandemic, the challenged statements do not fall within the narrow exceptions to the First Amendment’s protections. We affirm the trial court’s conclusion that, however laudable WASHLITE’s intent, its CPA claim is barred by the First Amendment.

I think this is generally quite right, certainly as to the “cable television is unprotected” argument (see this post) and likely also as to the “false statements about epidemics are unprotected” argument. In addition to the Alvarez plurality statements cited by the Washington court, note that five Justices and three dissenting Justices in Alvarez agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

That’s from Justice Breyer’s two-Justice concurrence, but Justice Alito’s three-Justice dissent took the same view, adding “The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.” I think this logic applies to statements about medical science as well as social science.

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These Are The US States With The Top Tech Salaries In 2021

These Are The US States With The Top Tech Salaries In 2021

In 2020, despite the economic turmoil caused by the global pandemic, America’s tech sector experienced rapid growth. Last year, the total number of U.S. tech jobs grew by 60,000.

Because of this demand, U.S. employers are willing to pay for the right talent – on average, tech workers in the U.S. earn about 61% more than the average salary. But, as Visual Capitalist’s Carmen Ang details below, some tech workers make more than others, depending on where they live.

This graphic by business.org uses data from the Bureau of Labor Statistics (BLS) to highlight the average annual tech salaries in each state, compared to the average salary of other occupations. We’ll also touch on the top-paying metro areas, and what type of tech jobs offer the highest compensation across the country.

Average U.S. Tech Salaries by State

Perhaps unsurprisingly, Washington and California have the highest average salaries, largely because of the high job density in those areas.

However, when it comes to the difference in tech salary versus average salary, Alabama takes the top spot—on average, tech jobs pay 85% more than other occupations in that state.

Why are tech workers so generously compensated in Alabama? It could be because the area’s talent pool is not keeping up with demand.

In 2021, Huntsville, Alabama is expected to see 25,000 new jobs in aerospace, logistics, defense, and other tech-related industries. But these jobs could be difficult to fill given the area’s low unemployment rate.

On the other end of the spectrum, the District of Columbia has the smallest discrepancy between tech and other salaries. But at $95,330, the area has the highest average yearly salary for other occupations in the country—and tech workers still make 20% more.

Top 10 Metro Areas for Tech Salaries

Some of the highest-paying states are also home to the highest-paying metro areas.

For instance, when it comes to pay differences in tech, two of the top 10 metro areas are located in Washington state, while three are in California. The graphic below shows the metros with the highest difference between the area’s average salary and the average salary of tech jobs.

The highest pay difference between tech jobs vs the average salary is in San Jose, where tech workers make 507% more on average. This figure is almost certainly skewed because of the area’s high concentration of tech millionaires and top tier programmers.

Highest Paying Tech Jobs Nationally

Of course, location isn’t the only factor that plays into salary—the type of job is important, too. Here’s a look at U.S. tech salaries, organized by job type:

In this analysis, which looked at jobs in computer science as well as mathematics, actuaries are the highest paid professionals on average.

While actuaries are more on the mathematical and financial side of the equation, more commonly associated jobs with tech are all over the list as well: software developers, computer network architects, information security analysts, data scientists, computer programmers, web developers, computer systems analysts, and so on.

The Future of Tech is Bright

America’s information technology sector, worth about $1.6 trillion, is expected to grow to $5 trillion by the end of 2021. And as this fast-growing industry continues to boom, jobs in this sector are likely to remain in high supply.

Augmented Reality (AR) in the U.S. is looking especially promising and is projected to grow by a CAGR of 100% between 2021-2025.

In short, tech is expected to keep growing. And salaries will likely follow suit.

Tyler Durden
Tue, 08/31/2021 – 13:35

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Taliban Assumes Control Of Afghanistan With 100,000 US Allies And 200 US Citizens Left Behind

Taliban Assumes Control Of Afghanistan With 100,000 US Allies And 200 US Citizens Left Behind

After nearly 20 years the American-led war in Afghanistan is finally over (or is it…). The last US forces left last night, and on Tuesday, Taliban forces took control of the airport in Kabul, while Taliban fighters and supporters across Afghanistan rallied to celebrate the return of Islamic rule.

Senior Taliban leaders posed in front of a C-130 transport plane at the Kabul airport, the hub of the chaotic US-led evacuation operation in recent days. Fighters took selfies in the cockpits of Afghan military helicopters, which had been disabled before being abandoned by US troops.

The Taliban’s top spokesman issued a statement calling for the reconstruction of an Afghanistan now firmly under Taliban rule.

“We hope that Afghanistan will not be invaded again, that it will be rebuilt, remain independent, and that a holy Islamic system will rule,” Taliban spokesman Zabiullah Mujahid said, as uniformed fighters in modern combat gear knelt on the tarmac and chanted “Allahu akbar”.

Speaking to members of the Taliban’s Badri 313 unit, Mujahid continued, via WSJ: “I praise all your sacrifices, congratulate you all on the great victory, and on achieving independence and freedom for Afghanistan.”

While the Taliban offered amnesty to former government officials and soldiers after taking Kabul and tried to project a more moderate image, they are increasingly returning to their old ways. The Taliban-appointed acting minister of higher education has said women and men could no longer attend the same university lectures, women presenters have been banned from radio and TV in the southern city of Kandahar, and dozens, if not hundreds, of former security officials have been executed.

Still, tens of thousands of Afghans who assisted the NATO war effort remain behind in Afghanistan, many still hoping to leave the country before they are imprisoned or executed by the Taliban. Additionally, the US left behind a small contingent of Americans (WSJ says between 100 and 200) and while Secretary of State Antony Blinken pledged to do everything in the US’s power to support them, right now, it appears there’s little to be done, as all commercial flights have been suspended temporarily.

Turkey has offered to continue to support the airport’s operation even as NATO ceases its operations there, NATO Secretary General Jens Stoltenberg told Bloomberg Television on Tuesday, but the Taliban have yet to approve this, and right now, the airport remains closed. Stoltenberg also told reporters that NATO is working with EU members to stave off a potential refugee crisis, while also working to ensure Afghanistan doesn’t become a hotbed for terrorism (here’s a rundown of countries willing to take Afghan refugees).

A US-based group advocating for SIVs for qualified Afghans said about 113,000 people left behind by the US and NATO during the withdrawal still want to leave the country. Per Bloomberg, the estimate was produced by the Association of Wartime Allies and based on reports on Afghan employment analyzed by the group and researchers at American University.

In terms of diplomacy, the US and other Western nations and India have cut official ties by closing their embassies in Kabul. Pakistan, China, Russia, Iran and NATO member Turkey, however, have left their embassies open. Although they haven’t formally recognized the Taliban authorities, they are in regular contact with them.

There might be one potential back-channel for the US as rescue operations begin for the Americans still let stranded. The Indian ambassador in Qatar met with the deputy head of the Taliban’s political office on Tuesday to discuss regional security, according to a statement from India’s foreign ministry.

On Tuesday, the Taliban repeated their claim that they want “peace” and a functional diplomatic relationship with the US. Meanwhile, across the country, anti-American celebrations roared as local leaders praised the defeat of the foreign invaders.

One senior Taliban leader in Khost praised the suicide bombers whose attacks on the US during the course of the war helped the Taliban secure victory. “We will establish the Islamic system you yearned for,” he said, according to a recording of the rally. “Your dreams have been realized. We have achieved the dream for which you had blown up your flesh. We congratulate you in your graves.”

The Taliban now control all of Afghanistan’s 34 provinces except for one: Panjshir, a narrow valley north of Kabul where anti-Taliban militias and some remnants of the defeated Afghan army continue to be holed up, hoping to establish a permanent base outside of Taliban control.

Though the Taliban and the Panjshiris are negotiating a possible deal, armed skirmishes have continued on the outskirts of the valley.

The question now is how will the Taliban go about running a country of 40MM with few resources at their disposal. Their international reserves have been frozen by the US, and while China and Russia will offer some support, it will be up to the Taliban to make sure sewer systems and electric grids are functioning, as well as the airports. Given the intense international scrutiny, how long might it take for the Taliban to start with the reprisals against any perceived enemies still in the country?

Tyler Durden
Tue, 08/31/2021 – 13:15

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Peter Schiff: Jerome Powell Tapers The Taper Talk

Peter Schiff: Jerome Powell Tapers The Taper Talk

via SchiffGold (emphasis ours),

Jerome Powell delivered his much-anticipated speech virtually during the Jackson Hole summit on Aug. 27. Peter Schiff talked about the speech during his podcast. Everybody expected a hawkish speech outlining the Fed’s plan to taper quantitative easing. Instead, Powell tapered the taper talk.

The economic summit was titled “Macroeconomics in an Uneven Economy.” Financial analyst Jim Grant suggested a better title would be “Gasoline on Housefire,” or “Hoses in a Hurricane.”

Because $120 billion dollars a month [in asset purchases] in an economy that is bounding and running with good health – the stock market is at all-time highs, 4,000-year lows in interest rates, and on and on – you wonder, why is the Fed still in crisis mode?”

Most people were anticipating Powell would use the moment to unveil the plan to begin a taper of quantitative easing. Up to that point, the taper was only talked about as a hypothetical. Even as the central bankers have hinted at tapering, the Fed has continued to monetize around $120 billion in debt every month. As Peter reminded us, a taper doesn’t mean the Federal Reserve will stop asset purchases altogether. It will just slow them down. A slightly looser monetary policy doesn’t mean tight monetary policy.

Leading up to the speech, several Fed presidents expressed their preference for a fall taper. The expectation was that Powell would echo those sentiments, but also put some teeth in them by clarifying exactly what taper would entail.

At this point, nobody has any idea how much tapering the Fed will actually do, or how long the first taper will go on before it cuts asset purchases further. And there is no hint on how long it will take to wind QE down completely. As Peter pointed out, this is important information to know.

One of the reasons why it’s so important to understand the timetable for the taper and for QE eventually being wound down to zero is that everybody on the Fed, including Powell today [during his speech], has made it perfectly clear the first rate hike will not start before the taper ends and there’s no more QE. Think about that. The Fed is basically assuring the markets that interest rates are going to stay at zero until the Fed stops doing quantitative easing. And we have no idea how long it’s going to take before they ever end their QE program — if they ever end their QE program.”

Why is the Fed doing that? The central bankers keep talking about a strengthening economy. Yet rates are at zero and will likely stay there for months on end. If the Fed intends to raise interest rates, it should already be raising them.

The fact that they’re pretending they’re not going to raise them until some point in the future once they finish their QE program to me says that the Fed knows that they’re never going to raise interest rates.”

The last time the Fed tried to raise rates, they didn’t get anywhere near normal.

Now they’re not even trying because they’re leaving them at zero indefinitely. So, if the Fed created such an enormous problem back in the 2000s because it was too slow in returning rates to normal, think of the enormity of the problems that are being created now when the Fed isn’t even trying to raise interest rates back to normal. In fact, it’s not even trying to raise interest rates at all, and it’s leaving them at zero, which is lower than they were at any point prior to the housing bubble.”

Peter said the only reason the Fed would make this all-or-nothing bet on “transitory” inflation is if they know the bet is already lost. The Fed is damned if it does and damned if it doesn’t. If it raises rates now, it will create a financial crisis. If it waits until later, it will create an even bigger crisis. It seems the Fed’s only goal is to delay the crisis as long as possible.

As long as crisis is inevitable, just delay it. And that is exactly what they’re doing, by pretending inflation is transitory. And to a lesser extent, that’s what they’re doing by pretending that at some point in the future, they’re actually going to raise rates when they really have no intention of doing that at all.”

Powell’s Jackson Hole speech really confirms this.

Instead of getting this hawkish speech introducing the taper, this was the most dovish speech Powell could have possibly delivered. In fact, the word ‘taper’ wasn’t even spoken once. In fact, there was only one line in the entire speech that referred to the potential for a reduction in asset purchases. And the only thing that Powell said was that a reduction in the asset purchases this year could be appropriate. That’s all he said. He didn’t say it would be appropriate or that it is appropriate now. He simply said that it could be appropriate, which also means it might not be appropriate.”

If the plan was to taper, Powell had every opportunity to clarify that intention. He did no such thing. He spent most of the speech trying to convince everybody inflation really is transitory.

Powell goes on to talk more about Powell’s speech. He also covers gold stocks and the debacle in Afghanistan.

Tyler Durden
Tue, 08/31/2021 – 12:50

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Harvard JLPP Hosts Online Symposium on Justice Thomas’s 30th Anniversary on the Supreme Court

The Harvard Journal of Law & Public Policy has published a symposium issuing celebrating Thomas’s three decades of service. There are contributions from eight of Thomas’s former clerks, many of whom became federal judges.

Symposium Foreword: Justice Thomas Joins the Supreme Court – Gregory G. Katsas

Justice Thomas and Stare Decisis – Gregory E. Maggs

Speaking Out on Justice Thomas – David R. Stras

“Be Not Afraid” – James C. Ho

Justice Thomas: Staunch Defender of Criminal Defendants’ Fifth and Sixth Amendments Rights – Liam P. Hardy and Margaret A. Ryan

Saying What the Law Is, Justice Thomas Style – Neomi Rao

What I Saw at the Daytona 500 – Nicole Stelle Garnett

I look forward to reading all the entries.

When Justice Thomas was confirmed in 1991, I was about 7 years old. I have this faintest memory about the confirmation hearing. My parents were driving down 4th Avenue in Bay Ridge, Brooklyn, listening to the news on the radio. There was some report about Clarence Thomas and Anita Hill. I had no idea what the story was about. I don’t even think I knew what the Supreme Court was. But I distinctly remember there was some sort of serious conflict. I can’t tell you why that story stuck in my mind, but it did. (I also remember the radio report a few months later about the fall of the Soviet Union; we are about to get on the Gowanus by 72nd Street). Three decades later, I am a law professor. And Clarence Thomas is still on the Supreme Court.

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My “Treating Social Media Platforms Like Common Carriers?”

Still more from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article here, but here’s the abstract:

The rise of massively influential social media platforms—and their growing willingness to exclude certain material that can be central to political debates—raises, more powerfully than ever, the concerns about economic power being leveraged into political power. There is a plausible (though far from open-and-shut) argument that these concerns can justify requiring the platforms not to discriminate based on viewpoint in choosing what material they host, much as telephone companies and package delivery services are barred from such viewpoint discrimination. PruneYard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rums­feld v. FAIR suggest such common-carrier-like mandates would be constitutional. On the other hand, platforms do have the First Amendment right to choose what to affirmatively and selectively recommend to their users.

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Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims’ Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation’s leading crime victims’ attorneys, Bradley J. Edwards, and me on behalf of one of Epstein’s victims—Courtney Wild—seeks review of a 7-4 en banc decision from the Eleventh Circuit. The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation—as they did in the Epstein case. This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild’s petition to review this very important legal question.

This petition is the latest chapter in more than twelve years of litigation brought by Edwards and me on behalf of Ms. Wild. I’ve blogged about this case numerous times before, including herehere, and here, and co-authored two law review articles on the case, found here and here.

As explained in our petition filed today, between 1999 and 2007, Epstein sexually abused more than 30 minor girls, including Ms. Wild. The FBI investigated the case and referred it to federal prosecutors for prosecution.  At this point, the prosecutors prepared a 53-page indictment.  They also sent victim notification letters to the victims about their rights under the CVRA, informing them that they had rights under the CVRA—including their right to confer with prosecutors on the case—and that they could enforce those rights in court. A copy of the CVRA rights notification letter the prosecutors sent to Ms. Wild in 2007 is found here.

Ultimately, however, instead of prosecuting Epstein, the federal prosecutors in Florida reached a non-prosecution agreement (NPA) with Epstein blocking not only his prosecution for federal sex crimes but also prosecution of his co-conspirators, in exchange for Epstein’s agreement to plead guilty to two low-level Florida state offenses. It is undisputed that, from the time the federal government began investigating Epstein until the time it concluded the non-prosecution agreement, the Justice Department prosecutors never conferred with Epstein’s victims about the NPA nor even told them that such an agreement was under consideration. Indeed, the Justice Department’s efforts (according to the Eleventh Circuit) “graduated from passive nondisclosure to (or at least close to) active misrepresentation.” Rather than disclosing the NPA it had signed, the Justice Department sent letters to Ms. Wild and other Epstein victims telling them the case was “currently under investigation” and requesting their “continued patience.”

When Epstein’s sexual abuse victims became concerned about what was happening in their cases, in July 2008 Edwards and I filed a CVRA enforcement action alleging that the prosecutors had violated the victims’ rights under the CVRA. The case proceeded and, in 2010, the Justice Department reversed its promise to Ms. Wild that she had rights under the CVRA. Instead, the Justice Department now took to the position that the CVRA did not apply at all because the Department had not filed federal charges. The district court rejected the Justice Department’s new and novel position, finding that there were clearly rights in the CVRA that applied pre-charging.

Years of litigation followed, in which Edwards and I attempted to prove that the Justice Department had violated the victims’ rights. To make a long story short, in February 2019, the district court ruled in favor of the victims, finding that the prosecutors had violated the victims’ rights under the Act. But following Epstein’s death by apparent suicide, the district court dismissed the case on mootness grounds. In September 2019, we appealed to the Eleventh Circuit, arguing that the case was not moot, because the victims sought to invalidate a provision in the NPA providing immunity from federal prosecution in Florida to Epstein’s co-conspirators—an issue that remains important and justiciable even though Epstein is dead.

In April of this year, the Eleventh Circuit ducked the mootness issue. Instead, the Eleventh Circuit ruled in an en banc decision, 7-4, that the CVRA does not give Ms. Wild and other victims the ability to even appear in court to enforce their rights until the Justice Department files federal charges. Because the Justice Department never formally charged Epstein, the Eleventh Circuit en banc held that the prosecutors were free to conceal their non-prosecution deal with Epstein from the Epstein’s victims. Indeed, Circuit held that the prosecutors were free to “mislead” the victims about the existence of the NPA, even though this was “shameful behavior” that produced a “national disgrace.”

In the cert petition to the U.S. Supreme Court, we argue that “[t]he important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the Government to secretly conclude pre-indictment non-prosecution agreements warrants immediate review by the Court.” Our petition makes three arguments for why the Supreme Court should hear Ms. Wild’s case.

Our first argument concerns the importance of immediate Supreme Court review of the issue.  Given that the underlying legal issue involves a practice that the Justice Department intends to keep secret, the Supreme Court may well face a now-or-never opportunity to consider the question presented. It was only due to unusual circumstances that the Justice Department’s NPA with Epstein was revealed to the victims—and the public. In future cases, there is no guarantee that the Justice Department will disclose its clandestine NPAs, much less disclose them in a way that would permit the kind of district and appellate court challenges that we were able to make for Epstein’s victims. Accordingly, unlike many other areas of federal law, Ms. Wild’s petition presents an issue that the Court cannot simply leave to percolate in the circuits, confident that it will have future opportunities for review. To ensure that it can review the important issue of whether the CVRA permits secret NPAs, the Court must immediately grant the petition.

Our second argument concerns the importance of the underlying legal issue. As explained at length in our petition, Congress clearly drafted the Crime Victims’ Rights Act to block such covert Government maneuvers. By ignoring the “rights creating” language found in the CVRA, the Eleventh Circuit en banc misapplied Alexander v. Sandoval, 532 U.S. 275 (2001). As the dissenting judges below explained, the effect of the ruling is to “gut” the Crime Victims’ Rights Act and create a two-tier system of justice, in which wealthy defendants can scheme with prosecutors to reach agreements that entirely exclude victim input and thwart transparency with the public.

Our third argument concerns the importance of this case—and the need for the Supreme Court to correct the errors by the Eleventh Circuit. As the majority below recognized, “t]he facts underlying this case … are beyond scandalous—they tell a tale of national disgrace.” The nation’s highest Court should review this “national disgrace” and bring some measure of justice by overturning the decision below.

This case involves “one of this era’s most infamous child predators,” as the majority below recognized.  Any other criminal who ran such an extensive international child sex trafficking conspiracy would, no doubt, have received a lengthy federal prison term. But somehow Epstein arranged a secret deal that avoided federal prosecution allowed him to serve most of his state term on “work release.” See Jeffrey Epstein’s Wealth Allowed Him Many Perks While Serving Jail Time in Florida, Wash. Post (July 19, 2019). This “preposterous” non-prosecution agreement, Tung Yin, Learning from the Jeffrey Epstein Mess: It’s Time to Add a Cause of Action for Damages to the Crime Victims’ Rights Act, 69 Kans. L. Rev. 447, 489 (2021), has left Epstein’s victims—and the public—to wonder why Epstein was treated so favorably. As the dissent below explained, “mysteries remain about how Epstein escaped federal prosecution and why, for nearly a year, the government made affirmative misrepresentations to the Florida victims of his serious sex crimes and to the victims’ counsel.”

These “mysteries” about the deal have led to fierce criticism from all quarters. For example, Senator Ben Sasse, then-Chairman of the Senate Judiciary Oversight Subcommittee, wrote to Attorney General William Barr that “[t]he idea that wealth and connections can buy injustice—the only plausible explanation for such pathetically soft terms for a serial child rapist at the heart of a massive international criminal enterprise—is wholly and completely inconsistent with the basic notions of fairness and equality that undergird the rule of law enshrined in our Constitution.” Letter from Sen. Sasse to Attorney General Barr (Aug. 13, 2019). The bottom line is that the shocking Epstein deal has “ignited a crisis of public trust in the Department and exacerbated the erosion of trust that the American people have in our institutions of republican self-government more broadly.” Letter from Senators Sasse, Blumenthal, Cruz, and Blackburn to Inspector General Horowitz (Dec. 2, 2019).

It is, perhaps, conceivable, that the CVRA somehow allows such deceitful behavior by the Justice Department. But such an important issue should be decided by the Supreme Court on plenary review.

Our client, Courtney Wild, certainly hopes that the Court will grant her petition: “The government badly mistreated me and many others. I’m counting on our United States Supreme Court to take my case and give me my day in court.” We believe we have a strong petition and we, too, hope that the Supreme Court will give Courtney her day in court.

 

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Two Senior FDA Officials Stepping Down Over Reported Disagreements With White House Over Booster Shots

Two Senior FDA Officials Stepping Down Over Reported Disagreements With White House Over Booster Shots

Two of the FDA’s senior vaccine officials are leaving their positions as the agency mulls new rules and regulations over booster shots and Covid-19 vaccinations for children, according to Bloomberg and Endpoints News.

Marion Gruber, head of the regulator’s Office of Vaccines Research and Review, plans to retire on Oct. 31 and Philip Krause, deputy director for the FDA’s Center for Biologics Evaluation and Research, will be leaving the following month, according to an email to staff that was viewed by Bloomberg.

U.S. health officials have been working to evaluate Covid vaccines and treatments at top speed, with shots from Moderna Inc., Johnson & Johnson and the partnership of Pfizer Inc. and BioNTech SE cleared in record time. Now the agency is charged with considering the administration’s booster program, which is set to roll out additional shots for most U.S. vaccinated adults Sept. 20. -Bloomberg

As Endpoints News notes, “A former senior FDA leader told Endpoints that they’re departing because they’re frustrated that CDC and their ACIP committee are involved in decisions that they think should be up to the FDA. The former FDAer also said he’s heard they’re upset with CBER director Peter Marks for not insisting that those decisions should be kept inside FDA. What finally did it for them was the White House getting ahead of FDA on booster shots.”

More via Endpoints‘ Zachary Brennan:

FDA’s former acting chief scientist Luciana Borio added on Twitter, “FDA is losing two giants who helped bring us many safe and effective vaccines over decades of public service.”

“These two are the leaders for Biologic (vaccine) review in the US. They have a great team, but these two are the true leaders of CBER. A huge global loss if they both leave,” Former BARDA director Rick Bright wrote, weighing in on the news. “Dr. Gruber is much more than the Director. She is a global leader. Visionary mastermind behind global clinical regulatory science for flu, Ebola, Mers, Zika, Sars-cov-2, many others.”

In a letter from Marks to staff, he explained:

Janet Woodcock told Endpoints that she wishes Gruber and Krause well and thanks them for their significant service.

Tyler Durden
Tue, 08/31/2021 – 12:30

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Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims’ Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation’s leading crime victims’ attorneys, Bradley J. Edwards, and me on behalf of one of Epstein’s victims—Courtney Wild—seeks review of a 7-4 en banc decision from the Eleventh Circuit. The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation—as they did in the Epstein case. This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild’s petition to review this very important legal question.

This petition is the latest chapter in more than twelve years of litigation brought by Edwards and me on behalf of Ms. Wild. I’ve blogged about this case numerous times before, including herehere, and here, and co-authored two law review articles on the case, found here and here.

As explained in our petition filed today, between 1999 and 2007, Epstein sexually abused more than 30 minor girls, including Ms. Wild. The FBI investigated the case and referred it to federal prosecutors for prosecution.  At this point, the prosecutors prepared a 53-page indictment.  They also sent victim notification letters to the victims about their rights under the CVRA, informing them that they had rights under the CVRA—including their right to confer with prosecutors on the case—and that they could enforce those rights in court. A copy of the CVRA rights notification letter the prosecutors sent to Ms. Wild in 2007 is found here.

Ultimately, however, instead of prosecuting Epstein, the federal prosecutors in Florida reached a non-prosecution agreement (NPA) with Epstein blocking not only his prosecution for federal sex crimes but also prosecution of his co-conspirators, in exchange for Epstein’s agreement to plead guilty to two low-level Florida state offenses. It is undisputed that, from the time the federal government began investigating Epstein until the time it concluded the non-prosecution agreement, the Justice Department prosecutors never conferred with Epstein’s victims about the NPA nor even told them that such an agreement was under consideration. Indeed, the Justice Department’s efforts (according to the Eleventh Circuit) “graduated from passive nondisclosure to (or at least close to) active misrepresentation.” Rather than disclosing the NPA it had signed, the Justice Department sent letters to Ms. Wild and other Epstein victims telling them the case was “currently under investigation” and requesting their “continued patience.”

When Epstein’s sexual abuse victims became concerned about what was happening in their cases, in July 2008 Edwards and I filed a CVRA enforcement action alleging that the prosecutors had violated the victims’ rights under the CVRA. The case proceeded and, in 2010, the Justice Department reversed its promise to Ms. Wild that she had rights under the CVRA. Instead, the Justice Department now took to the position that the CVRA did not apply at all because the Department had not filed federal charges. The district court rejected the Justice Department’s new and novel position, finding that there were clearly rights in the CVRA that applied pre-charging.

Years of litigation followed, in which Edwards and I attempted to prove that the Justice Department had violated the victims’ rights. To make a long story short, in February 2019, the district court ruled in favor of the victims, finding that the prosecutors had violated the victims’ rights under the Act. But following Epstein’s death by apparent suicide, the district court dismissed the case on mootness grounds. In September 2019, we appealed to the Eleventh Circuit, arguing that the case was not moot, because the victims sought to invalidate a provision in the NPA providing immunity from federal prosecution in Florida to Epstein’s co-conspirators—an issue that remains important and justiciable even though Epstein is dead.

In April of this year, the Eleventh Circuit ducked the mootness issue. Instead, the Eleventh Circuit ruled in an en banc decision, 7-4, that the CVRA does not give Ms. Wild and other victims the ability to even appear in court to enforce their rights until the Justice Department files federal charges. Because the Justice Department never formally charged Epstein, the Eleventh Circuit en banc held that the prosecutors were free to conceal their non-prosecution deal with Epstein from the Epstein’s victims. Indeed, Circuit held that the prosecutors were free to “mislead” the victims about the existence of the NPA, even though this was “shameful behavior” that produced a “national disgrace.”

In the cert petition to the U.S. Supreme Court, we argue that “[t]he important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the Government to secretly conclude pre-indictment non-prosecution agreements warrants immediate review by the Court.” Our petition makes three arguments for why the Supreme Court should hear Ms. Wild’s case.

Our first argument concerns the importance of immediate Supreme Court review of the issue.  Given that the underlying legal issue involves a practice that the Justice Department intends to keep secret, the Supreme Court may well face a now-or-never opportunity to consider the question presented. It was only due to unusual circumstances that the Justice Department’s NPA with Epstein was revealed to the victims—and the public. In future cases, there is no guarantee that the Justice Department will disclose its clandestine NPAs, much less disclose them in a way that would permit the kind of district and appellate court challenges that we were able to make for Epstein’s victims. Accordingly, unlike many other areas of federal law, Ms. Wild’s petition presents an issue that the Court cannot simply leave to percolate in the circuits, confident that it will have future opportunities for review. To ensure that it can review the important issue of whether the CVRA permits secret NPAs, the Court must immediately grant the petition.

Our second argument concerns the importance of the underlying legal issue. As explained at length in our petition, Congress clearly drafted the Crime Victims’ Rights Act to block such covert Government maneuvers. By ignoring the “rights creating” language found in the CVRA, the Eleventh Circuit en banc misapplied Alexander v. Sandoval, 532 U.S. 275 (2001). As the dissenting judges below explained, the effect of the ruling is to “gut” the Crime Victims’ Rights Act and create a two-tier system of justice, in which wealthy defendants can scheme with prosecutors to reach agreements that entirely exclude victim input and thwart transparency with the public.

Our third argument concerns the importance of this case—and the need for the Supreme Court to correct the errors by the Eleventh Circuit. As the majority below recognized, “t]he facts underlying this case … are beyond scandalous—they tell a tale of national disgrace.” The nation’s highest Court should review this “national disgrace” and bring some measure of justice by overturning the decision below.

This case involves “one of this era’s most infamous child predators,” as the majority below recognized.  Any other criminal who ran such an extensive international child sex trafficking conspiracy would, no doubt, have received a lengthy federal prison term. But somehow Epstein arranged a secret deal that avoided federal prosecution allowed him to serve most of his state term on “work release.” See Jeffrey Epstein’s Wealth Allowed Him Many Perks While Serving Jail Time in Florida, Wash. Post (July 19, 2019). This “preposterous” non-prosecution agreement, Tung Yin, Learning from the Jeffrey Epstein Mess: It’s Time to Add a Cause of Action for Damages to the Crime Victims’ Rights Act, 69 Kans. L. Rev. 447, 489 (2021), has left Epstein’s victims—and the public—to wonder why Epstein was treated so favorably. As the dissent below explained, “mysteries remain about how Epstein escaped federal prosecution and why, for nearly a year, the government made affirmative misrepresentations to the Florida victims of his serious sex crimes and to the victims’ counsel.”

These “mysteries” about the deal have led to fierce criticism from all quarters. For example, Senator Ben Sasse, then-Chairman of the Senate Judiciary Oversight Subcommittee, wrote to Attorney General William Barr that “[t]he idea that wealth and connections can buy injustice—the only plausible explanation for such pathetically soft terms for a serial child rapist at the heart of a massive international criminal enterprise—is wholly and completely inconsistent with the basic notions of fairness and equality that undergird the rule of law enshrined in our Constitution.” Letter from Sen. Sasse to Attorney General Barr (Aug. 13, 2019). The bottom line is that the shocking Epstein deal has “ignited a crisis of public trust in the Department and exacerbated the erosion of trust that the American people have in our institutions of republican self-government more broadly.” Letter from Senators Sasse, Blumenthal, Cruz, and Blackburn to Inspector General Horowitz (Dec. 2, 2019).

It is, perhaps, conceivable, that the CVRA somehow allows such deceitful behavior by the Justice Department. But such an important issue should be decided by the Supreme Court on plenary review.

Our client, Courtney Wild, certainly hopes that the Court will grant her petition: “The government badly mistreated me and many others. I’m counting on our United States Supreme Court to take my case and give me my day in court.” We believe we have a strong petition and we, too, hope that the Supreme Court will give Courtney her day in court.

 

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Apple Watch Production “Temporarily Halted” As Engineers Struggle With Quality Issues 

Apple Watch Production “Temporarily Halted” As Engineers Struggle With Quality Issues 

Suppose you’re waiting for the launch of the new Apple Watch 7 that may make an appearance at an Apple event in September. If so, you might be disappointed because, as per Nikkei Asia, watch production has been delayed as engineers wrestle with quality issues.  

Multiple sources familiar with the Apple Watch 7 production told Nikkei Tuesday that the device “encountered critical challenges in reaching satisfactory production performance.” 

The three sources said Apple was disappointed in production quality, which could be “attributed to the complexity of the design.” The smartwatch is a larger flat-edge design than previous models. 

Four sources said that production has been “temporarily halted” as Apple engineers and suppliers sort out production flaws ahead of mass production. 

“All assemblers are facing similar problems in reaching satisfactory production performance based on the current industrial designs,” one of the people with direct knowledge told Nikkei Asia.

Apple has even requested component suppliers to delay shipments of critical parts of the new watch to assemblers, sources continued. 

The issues assemblers found in the overhauled smartwatch are related to electronics modules, components, and displays. No other details were provided. 

“Apple and its suppliers are working around the clock trying to solve the issues, but currently it is hard to tell when the mass production could begin,” another source said. Apple initially planned mass production to begin around mid-September, but now delays could disrupt mass production dates.  

Apple shares are down half a percent but don’t appear to have moved on the news. 

Tyler Durden
Tue, 08/31/2021 – 12:25

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