Month: September 2021

The San Diego Unified School District Tuesday night voted unanimously to require students age 16 and over to be fully vaccinated by December 20 or be exiled into remote learning.

The country’s 21st largest school district thus joins #2 Los Angeles (whose guidelines cover everyone 12 and up), and smaller Culver City, California (also 12+), as the earliest adopters of what will likely be an increasing—and increasingly controversial—trend of mandating injections into the arms of comparatively low-risk minors.

“Tonight we’re making a statement that we believe in the science, we believe in the process and that we are serious about this, that we want to protect children,” School Board Vice President Sharon Whitehurst-Payne said at the meeting.

Whitehurst-Payne’s interpretation of the science is not universal. Dr. Vinay Prasad, of UC San Francisco’s Epidemiology & Biostatistics department, noted in a U.S. News & World Report column Tuesday that different countries have come to different conclusions about the safety of giving kids two doses rather than one, and that potential side effects of myocarditis (heart inflammation) are real, if rare.

“Taking kids who decline vaccination and preventing them from getting an in-person education is a draconian penalty,” Prasad wrote. “Prolonged school closures have massive negative effects on children, robbing them of education, the last tattered rung left in the ladder of American opportunity…. [T]he reality is they are overstepping the certainty of the science, and they are taking out our collective rage and frustration—that this pandemic has not yet ended—on children. It is a shameful policy, and I condemn it.”

K-12 student vax mandates are almost certain to jump beyond the borders of California. Education Secretary Miguel Cardona last Thursday said that he “wholeheartedly” supports them. New York Governor Kathy Hochul has said repeatedly this month that she’s keeping a student-mandate open as an “option.”

According to an article this week in Pew Trusts, “Officials in counties and cities in California, Maryland, New York and Virginia as well as the District of Columbia are mandating vaccinations—with a few exceptions for weekly testing—for student-athletes. Hawaii has a statewide vaccine requirement for public school student-athletes.” But also: “At least 12 states ban schools from requiring vaccines for students.”

As has been the case with COVID-related policies on masking, school reopening, business closures and vaccine passports, a chief determinant on whether a given polity mandates or bans K-12 vaccines is not the comparative impact of the coronavirus, but rather which of the two major political parties constituents favor. That means the higher your vaccination rates are for minors, the more likely you are to pass a student vax mandate.

The United States’ one-shot vaccination rate for 12- to 17-year-olds is currently around 57 percent. California is at 68 percent, New York at 66 percent…and then there are the states that have banned student mandates: Florida (55 percent), Utah (55), Arizona (53), Arkansas (47), Oklahoma (44), Montana (42), Tennessee (37), and Alabama (36). Assuming for the sake of argument that vaccine mandates are an unalloyed good, the states that need them most will almost certainly get them least.

But the argument over mandates is anything but settled. COVID-19, even since the triumph of the delta variant and the advent of vaccination, has remained overwhelmingly an older-person disease: Just 478 people under the age of 18 have died of it through Sept. 29, according to the Centers for Disease Control and Prevention (CDC). That’s less than the 643 minors that the CDC estimates died during the 2017-18 winter flu season. Rare is the state that mandates flu shots; though in fairness, their effectiveness rate lags far behind those of the three COVID-19 vaccines approved in the U.S.

The second main reason to favor the physical removal of unvaccinated students is to keep kids from spreading the virus to teachers and staff. But school employees have had priority access to vaccines for more than half a year by now. Given the microscopic infection results revealed by school testing—0.27 percent among the unvaccinated in New York City, around 0.6 percent in Los Angeles—it’s reasonable to continue concluding that school buildings are among the safest places for humans to gather in groups.

Like all vaccine mandates, K-12 student requirements will surely drive up vaccination rates, and thus hasten the virus’s transition from pandemic to endemic status. But by how much, and at what cost?

Kids who are sent back home for yet another year marred by remote learning will experience tangible and measurable harm, including the possibility of being more, not less, exposed to COVID-19. Their parents’ work productivity, comparatively, will suffer.

Speaking as a parent of a fully vaccinated 13-year-old in public school, I do not fear her unvaxxed classmates (if she has any), and I’d rather any such students be regularly tested rather than sent packing. But as usual, my educational preferences will be drowned out by the people I choose to live among.

A “science” whose policy extrapolations depend on political slant will continue to lose public respect. Advocates who don’t acknowledge and grapple with real-world tradeoffs will almost certainly introduce major error. Vaccines are a marvel of modern medicine, and the best ticket out of the wretched last 19 months of our lives. But that doesn’t mean it’s wise for the government to force this particular one on teenagers.

Related Reason reading, from 2014: “Should Vaccines Be Mandatory? A libertarian debate on immunization and government.”

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I blogged about the underlying case last week; the defendant had accused plaintiff (with whom plaintiff had been romantically involved in the past) of having “sexually assaulted  [defendant’s daughter] some years prior at age 12.” Plaintiff sued for libel, and defendant didn’t defend the case, so the Magistrate Judge recommended that the District Court enter an $80,000 default judgment.

But the Magistrate Judge also recommended that the court “enjoin Defendant from further publishing the same or similar statements about Plaintiff that are the subject of this matter.” I’ve written about anti-libel injunctions, so I’m planning on filing the following friend-of-the-court brief on my own behalf. Here’s a draft (not yet cite-checked or proofread); I’d love to hear what others think about it.

[* * *]

Summary of Argument

[1.] Under Erie, this Court should not issue an injunction unless state law authorizes it. Lord & Taylor, LLC v. White Flint, LP, 780 F.3d 211 (4th Cir. 2015); Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991). And West Virginia law appears to forbid anti-libel injunctions. Kwass v. Kersey, 81 S.E.2d 237, 245 (W. Va. 1954).

[2.] If this Court nonetheless believes that West Virginia law does not bar such an anti-libel injunction, the First Amendment would not bar it, either, if the junction is properly narrowed and provides sufficient procedural protections to the defendant.

[I.] West Virginia law, which should be applied here under Erie, appears to forbid anti-libel injunctions

“Erie doctrine requires courts to apply state substantive law to a request for permanent injunctive relief in diversity cases.” Lord & Taylor, LLC v. White Flint, LP, 780 F.3d 211 (4th Cir. 2015). “Allowing different remedies in state law cases heard in federal courts on pendent jurisdiction would undermine the ‘twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.'” LaShawn A. by Moore v. Barry, 144 F.3d 847, 853 (D.C. Cir. 1998) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)). (The matter is uncertain in some circuits, see, e.g., Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 341 n.7 (5th Cir. 2015) (so noting), but this Circuit’s view appears to be set forth by Lord & Taylor.) See also Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991) (expressing sympathy for injunctions in First Amendment cases, but concluding that Pennsylvania law forbids such injunctions, and thus reversing such an injunction).

And West Virginia law appears to forbid anti-libel injunctions. Kwass v. Kersey, 81 S.E.2d 237, 245 (W. Va. 1954), observed that “we have found no authority in the United States which holds that mere defamation can be enjoined,” and therefore reversed an anti-libel injunction. Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791, 808 (W. Va. 1986), cited Kwass favorably, albeit in a non-libel case, for the broad proposition that the West Virginia Constitution preserves traditionally recognized rights to trial by jury.

[II.] If an injunction is available, it should be framed narrowly, and with adequate procedural safeguards

To be sure, the modern trend in most states is in favor of allowing anti-libel injunctions following a judgment on the merits that certain speech is libelous and therefore constitutionally unprotected; thirty-four states appear to allow such injunctions, and only six, including West Virginia, forbid them. Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73, 77, 137-46 (2019), http:/‌/‌www.‌law.‌ucla.‌edu/‌volokh/‌libelinj.‌pdf. Properly limited, such injunctions should be seen as consistent with the First Amendment. See id. at 105-17; for Fourth Circuit cases so holding, see Brennan v. Stevenson, Civ. No. JKB-15-2931, 2015 WL 7454109, at *5 (D. Md. Nov. 24, 2015) (dictum) (taking the view that an anti-libel injunction would be a permissible injunction against “unprotected speech,” and thus consistent with the First Amendment); Maye v. Worrell, No. 13-cv00510, 2013 WL 5545077, at *3 (M.D.N.C. Oct. 8, 2013) (issuing anti-libel injunction and rejecting First Amendment objection).

Perhaps, then, Kwass should no longer be relied on, given its stress on the distinction between law and equity, see, e.g., 81 S.E.2d at 243-46—a distinction abolished in West Virginia in 1960, State ex rel. AmerisourceBergen Drug Corp. v. Moats, 859 S.E.2d 374, 383 (W. Va. 2021). Indeed, in Delaware, which still maintains a sharp law/equity distinction, the Court of Chancery held that Delaware’s chancery courts generally lack jurisdiction over libel cases in the first instance, but expressly left open the possibility that, once the law court concludes—after a jury trial, if the parties opt for it—that a statement is libelous, an injunction could then be issued. Organovo Holdings, Inc. v. Dimitrov, 162 A.3d 102, 122, 124-26 & n.105 (Del. Ch. 2017). This Court may therefore choose to certify to the West Virginia Supreme Court of Appeals (see W. Va. Code § 51-1A-3) the question whether anti-libel injunctions remain forbidden under West Virginia law.

And if this Court concludes that (1) certification is unnecessary, (2) under the modern view anti-libel injunctions are permitted, and (3) an injunction is called for in this case, it ought to make sure that the injunction is crafted sufficiently narrowly, and with the proper procedural safeguards.

[A.] The injunction should not include the vague term “similar statements”

First, the proposed injunction would ban defendant from making “the same or similar statements about Plaintiff that are the subject of this matter,” Report & Rec. at 8. The “similar statements” reference is unduly vague, see McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015):

The injunction’s preamble, moreover, greatly expanded the scope of the injunction by prohibiting “any similar statements [that is, similar to the injunction’s specific prohibitions] that contain the same sorts of allegations or inferences, in any manner or forum,” as those listed in the body of the injunction. That expansion was improper. An injunction must be specific about the acts that it prohibits. Fed.R.Civ.P. 65(d)(1). How could such vague terms as “similar” and “same sorts” provide guidance to the scope of the injunction?

It would be better for the injunction to instead say something like, “the Court enjoins Defendant from libelously stating that Defendant had a sexual relationship with her daughter when she was a minor, or had sexually assaulted her daughter” (if the Court concludes that the falsity of those statements has been adequately demonstrated).

[B.] The injunction should provide procedural protections that are at least as strong as those provided by constitutionally valid criminal libel laws

Second, an anti-libel injunction is like a tiny criminal libel law, just for this defendant as to these statements about this plaintiff: The injunction would make it a crime for McLaughlin to say certain libelous things about Knight, on pain of prosecution for criminal contempt. Narrowly written criminal libel laws, which adhere to First Amendment rules, are constitutionally permissible: Civil and criminal libel cases “are subject to the same constitutional limitations.” Herbert v. Lando, 441 U.S. 153, 157 & n.1 (1979); Garrison v. Louisiana, 379 U.S. 64, 67 (1964) (taking the same view as Herbert); In re Gronowicz, 764 F.2d 983, 988 & n.4 (3d Cir. 1985) (en banc) (likewise); Phelps v. Hamilton, 59 F.3d 1058, 1073 (10th Cir. 1995) (upholding a narrowly drawn criminal libel statute); People v. Ryan, 806 P.2d 935, 941 (Colo. 1991) (likewise, as to speech on matters of purely private concern). But, to be constitutional, an injunction ought to maintain at least those procedural protections that are offered by criminal libel law.

Before speakers are jailed for speech under a criminal libel law,

1. Their statements must be found to have been false when the statements were made.
2. This finding of falsehood must be based on proof beyond a reasonable doubt.
3. This finding must be made by a jury—a Sixth Amendment requirement in those states where the criminal libel statute authorizes more than six months in jail,[1] but also a state law requirement in all the other states (except Louisiana) that authorize jail time for criminal libel.[2]
4. This finding must be made after a trial in which an indigent defendant is entitled to a court-appointed defense lawyer, who can argue that the statements were true, opinion, privileged, or otherwise not libelous.

But when a speaker is prosecuted for criminal contempt for violating an anti-libel injunction, these protections are absent. Even if the defendant has a court-appointed lawyer (available if the defendant is facing the risk of jail) and the case is tried before a jury, the jury must only find beyond a reasonable doubt that the defendant said what the injunction forbade. The jury is not asked to decide beyond a reasonable doubt that the statement was false, and the court-appointed lawyer cannot argue to the jury that the statement was actually true.

This is an especially serious problem for defendants who could not afford a lawyer when the injunction was first sought. Because injunction proceedings are civil cases, these defendants would not be entitled to a court-appointed lawyer. They might therefore have been unable to effectively argue that the statement was true, or privileged. If they lost at trial, they would find it very hard to effectively appeal. Indeed, they might have felt so hamstrung by the lack of a lawyer that they might not have contested the injunctions in the first place. The injunctions may also have been entered far from where they lived, making it even harder for them to effectively litigate the case. And when a defendant is absent, unrepresented, or practically unable to appeal, there will often be reason to doubt the accuracy of the factfinding at the initial civil injunction hearing.

This might be an unavoidable reality as far as the civil justice system is concerned. Defendants who lack the resources to defend themselves may find themselves subject to civil judgments.

But when courts issue injunctions against libel, they turn that reality into something with criminal law consequences: Defendants might be threatened with jail for repeating statements without ever having had lawyers who could effectively argue that the statements were not actually libelous.

Moreover, injunctions against false statements risk forbidding true statements as well. First, a statement may be libelous in one context, but hyperbole in another. See, e.g., Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. 6, 13-14 (1970) (so holding as to allegations that a developer was engaged in “blackmail”). Yet an injunction simply barring repetition of a statement will prohibit the statement regardless of context.

Second, “[u]ntrue statements may later become true; unprivileged statements may later become privileged.” Kinney v. Barnes, 443 S.W.3d 87, 98 (Tex. 2014) (giving this as a reason to reject anti-libel injunctions). An injunction might, for instance, bar a defendant from accusing plaintiff of sexual assault, because the court concludes that the plaintiff has not indeed committed sexual assault. But say the plaintiff does later commit such an assault: The injunction will still remain, and will still forbid the watchdog from repeating the specified statement.

True, a defendant could go to court to modify the injunction, see Balboa Island Vill. Inn, 40 Cal.4th 1141, 1161, 156 P.3d 339, 353 (Cal. 2007), but that is expensive and time-consuming. Or a defendant could ask the court to exercise its discretion not to initiate criminal contempt proceedings in light of the changed facts, see, e.g., Brandt v. Gooding, 636 F.3d 124, 135 (4th Cir. 2011), but the judge may of course not agree that the facts have changed, or may think that in any event the defendant should have complied with the injunction. And, more generally, speakers should not have to “request the trial court’s permission to speak truthfully in order to avoid being held in contempt,” Kinney, 443 S.W.3d at 98.

In these respects, a criminal contempt prosecution for violating an anti-libel injunction is much like pre-Revolutionary libel prosecutions, such as in the notorious John Peter Zenger trial: The judge decides whether a statement is libelous, and then the criminal jury decides only whether the defendant had published the statement. See, e.g., Kramer, 947 F.2d at 672 n.15.

American law roundly rejected this approach for criminal libel, even when criminal libel prosecutions were common, and instead insisted that the criminal jury must determine whether the statement was indeed false. E.g., Montee v. Commonwealth, 26 Ky. 132, 151 (1830) (denouncing the older English approach—leaving the jury to only decide the fact of publication—as “odious” and “subversive of personal security”). The law should likewise take the same approach to anti-libel injunctions, given that they are enforced through criminal prosecution. See Willing v. Mazzocone, 482 Pa. 377, 384, 393 A.2d 1155, 1159 (Pa. 1978) (Roberts, J., concurring) (“One of the underlying justifications for equity’s traditional refusal to enjoin defamatory speech is that . . . [an injunction] deprives appellant of her right to a jury trial on the issue of . . . truth or falsity . . . .”); Organovo Holdings, Inc. v. Dimitrov, 162 A.3d 102, 124-25 (Del. Ct. Ch. 2017) (refusing to enjoin libel because of the “longstanding preference for juries addressing defamation claims”).

There is, fortunately, a simple revision that can allow anti-libel injunctions to provide the procedural protections necessary for criminalizing speech:

1. The injunction should not simply ban specific statements (e.g., “Defendant shall not state X about the plaintiff”) but should also expressly include the libelous nature of the statements as an element of the forbidden behavior (e.g., “Defendant shall not libelously state X about the plaintiff”).
2. The injunction should expressly provide that any criminal contempt prosecutions should be conducted with a jury (unless the defendant waives the jury trial at the time of the criminal contempt hearing).
3. The injunction should provide that it cannot be enforced through the threat of jail for civil contempt; this is needed to enforce the principle that speakers can only be jailed for their speech if the full protections of the criminal law are provided. Kramer, 947 F.2d at 668-69 (describing the trial judge’s use of civil contempt proceeding to jail the libel defendant until he wrote a confession and apology).

Because the revised injunction would ban only libelous statements, the defendant could not be punished unless the plaintiff or the prosecutor, in the criminal contempt proceeding, shows that the statement is libelous. (For extra clarity, the injunction might so state expressly.) This means:

1. Before the defendant is criminally punished, the statement will have to be proved libelous beyond a reasonable doubt.
2. The defendant will have a court-appointed lawyer (at least if there is a risk of jail time) who can effectively argue about whether the statement is indeed libelous.
3. The finding that the statements were indeed false will have to be made by a criminal jury, if the defendant so wishes.
4. If the facts or context have changed, and the statements are no longer false or are not libelous in context, the defendant would be entitled to acquittal.

To be sure, this would make criminal contempt hearings more time-consuming, and more expensive for plaintiffs (who would likely assist the prosecutor) and for the court system. But that is a necessary consequence of the procedures required to protect speech.

And the extra expense need not be great. While the findings in the civil case would of course not have collateral estoppel effect on the criminal case, the evidence and argument assembled for the civil case could be reused with a minimum of extra discovery and investigation.

Of course, the injunctions would continue to powerfully deter speakers. Only rare speakers would continue speaking after a court has found (albeit by a preponderance of the evidence) that their speech is false, and specifically ordered them—on pain of criminal punishment—to stop. (Criminal libel law would have the same effect, once a speaker gets a warning from a prosecutor.) But if a few speakers do think that they can prevail at a criminal contempt trial, they should be entitled to the customary protections provided by the criminal justice process.

Conclusion

West Virginia precedent appears to forbid anti-libel injunctions; this suggests that, under Erie, this Court should not issue such an injunction here. But if this Court concludes that this precedent is no longer sound, an injunction may well be consistent with the First Amendment, if it is framed something like this:

1. The Court enjoins Defendant from falsely stating that Defendant had a sexual relationship with her daughter when she was a minor, or had sexually assaulted her daughter.
2. Any criminal contempt prosecutions for violating this injunction shall be tried by jury.
3. The defendant may not be jailed for civil contempt for violating this injunction.

[1] See Kan. Stat. Ann. §§ 21-6103, 21-6602 (2017 Supp.)); Minn. Stat. Ann. § 609.765 (2016); N.M. Stat. Ann. §§ 30-1-6, 30-11-1 (2004); N.D. Cent. Code §§ 12.1-15-01 (2012), 12.1-32-01 (2012 & 2017 Supp.); Wisc. Stat. Ann. §§ 939.51, 942.01 (2015-16).

[2] See, e.g., Idaho Crim. R. 23(b) (right to jury trial for all misdemeanors); Mich. Ct. R. 6.401 (likewise); N.C. Gen. Stat. § 15A-1201 (2017) (likewise); Okla. Const. art. II, § 22 (jury in criminal libel cases); Utah Const. art. I, § 15 (likewise). New Hampshire criminal libel law does not authorize jail time. N.H. Rev. Stat. Ann. §§ 644:11 (2016), 651:2(III) (2016 & 2017 Supp.).

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An office within the Georgia Department of Revenue illegally spent $3.1 million in money seized through civil asset forfeiture, according to a report from the Georgia Office of State Inspector General (OIG).

The state watchdog agency issued a report last week finding that the department’s Office of Special Investigations (OSI) kept $5.3 million dollars in asset forfeiture revenues between 2015 and 2020 that should have gone into the state’s general fund. It then illegally spent $3.1 million of that, including on items such as office furniture, vehicles, gym equipment, and Fitbits.

Investigators concluded that the illegal use of forfeiture funds “did not stem from a simple misunderstanding of the law.” Rather, former Office of Special Investigations director Joshua Waites “repeatedly disregarded legal advice” and “intentionally misled” Department of Revenue leadership regarding his office’s power to to collect and spend civil asset forfeiture funds, the OIG found.

“OIG’s investigation revealed an office culture at the highest levels of leadership within OSI that disregarded any semblance of their professional responsibilities,” State Inspector General Scott McAfee said in a statement.

The inspector general report confirmed a joint investigation published last March by the Atlanta Journal-Constitution and Channel 2 Action News. The news outlets found that the OSI had used asset forfeiture funds on frivolous expenses such as engraved firearms, commemorative badges, sunglasses, and gym equipment.

One day after the investigation dropped, the agency quietly returned $2.1 million to the state treasury. Waites resigned that same month as the news outlets were preparing to report that he had falsely stated in his job application that he had a degree from a college that did not exist.

A lawyer for Waites told the Journal-Constitution that the OIG’s findings were “misleading, incomplete, and just plain wrong.”

The OIG investigation was launched after the office received a tip from a lawyer representing Todd and Julie Chrisley, stars of the reality series “Chrisley Knows Best.” The Chrisleys settled a $150,000 tax evasion case with the Georgia Department of Revenue in 2019.

According to the OIG report, Waites’ office improperly requested access to the Chrisleys’ bank accounts using a U.S. Treasury Department program reserved for suspected terrorists and money launderers.

During its investigation, the OIG recovered cell phone pictures of Waites posing on the Chrisleys’ seized furniture, as well as text messages that read, “look at me in Todd’s chair” and “Todd’s bed.”

“By posing on the Chrisley’s furniture, Director Waites and other senior DOR leadership undermined DOR’s ability to maintain a position of impartiality in the enforcement of state laws,” the OIG wrote. “Further, acting in this manner harmed DOR’s professional reputation and lends credence to Todd Chrisley’s complaints that he was unfairly targeted for investigation due to his ‘celebrity status.'”

Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, such as drug trafficking, even when the owner is not charged or convicted of a crime.

Law enforcement groups say civil asset forfeiture is an important tool to disrupt organized crime and drug trafficking by targeting their illicit proceeds. However, civil liberties advocates have contended for years that the practice lacks enough safeguards for property owners and creates perverse profit incentives for police.

There have been cases around the country of law enforcement agencies using forfeiture revenues as slush funds, and the OIG report is far from the first time Georgia officials have gotten in trouble for misusing them.

In 2018, the Justice Department demanded that the Gwinnett County Sheriff reimburse it for $70,000 in asset forfeiture funds that the sheriff’s office spent on a Dodge Charger Hellcat.

A decade earlier, the Camden County sheriff got in hot water for using forfeiture funds to buy a $90,000 Dodge Viper for the department’s DARE program.

The Journal-Constitution reported in 2013 that the Fulton County district attorney used state forfeiture funds to buy tickets to charity balls and sporting events, office parties, basketball shoe display cases, and a wrought iron security door for his home.

More than half of all U.S. states have passed some form of asset forfeiture reform in response to media investigations and reports by civil liberties groups. The Institute for Justice, a libertarian-leaning public interest law firm, gives Georgia a “D-” grade for its asset forfeiture laws, citing low standards of evidence and strong profit incentives for seizures.

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