The Supreme Court’s renewed interest in the nondelegation doctrine has prompted a surge in scholarship looking at nondelegation in theory and practice during the founding era.
The nondelegation doctrine has been championed by prominent originalist scholars, such as Gary Lawson and Michael Rappaport, contending that the original public meaning limits the extent to which Congress may delegate power to the Executive Branch. Yet several new papers argue that there was a wide degree of delegation in the early Republic, suggesting that the Constitution was not understood to place limits on delegation. These papers include:
Julian Davis Mortensen & Nicholas Bagley, “Delegation at the Founding” (forthcoming in the Columbia Law Review).
Given the number of self-proclaimed originalists among the current justices, and the likelihood of another delegation case reaching the Court, it will be interesting to see how this burst of scholarship influences the evolution of the doctrine.
from Latest – Reason.com https://ift.tt/31dIEWM
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Dueling Townhalls Post Mortem: Snarling Savannah Vs Gentle George Tyler Durden
Fri, 10/16/2020 – 08:45
The contrast could not have been greater – “under great pressure” from the great-and-good of liberal media to ‘resist’, NBC’s Savannah Guthrie came out swinging in the so-called “Townhall” with President Trump, interrupting, interjecting, and intervening his responses with the first actual ‘American voter’ question relegated to 20 minutes into the ‘discussion’; whereas George Stephanopolous gave Joe Biden as long as he wanted to answer questions, leaving lies unchallenged and controversies unaddressed.
Behind the scenes of the NBC News Townhall, there was anger, even before the first question, but this time it wasn’t from President Trump.
As RealClearPolitics’ Philip Wegmann details, NBC employees seethed that they had agreed to host a Trump townhall in the same hour that ABC was hosting a similar Biden event. It was counterprograming, they complained, a clear attempt by the incumbent to force a split-screen moment and pull the eyeballs of the electorate away from the Democratic challenger.
They were not alone, and others went public with that sentiment. Actors and producers and on-air talent put their frustration to paper in an open letter to NBC asking the network to “air the president’s town hall either before or after Joe Biden’s so that American voters can have the opportunity to watch both.”
NBC executives didn’t budge. But while Trump got half the national spotlight, Savannah Guthrie made sure he paid for it with sharp questions that kept coming, one after the other.
Did he have any remaining COVID symptoms? Did he ever develop a case of pneumonia? Did he take a coronavirus test before the debate with Biden as required by the Commission on Presidential Debates?
Trump said he is symptom-free at the moment, said he didn’t “do too much asking” about his chest X-rays while a patient at Walter Reed medical center, and said he wasn’t sure if he had or hadn’t tested before the debate: “The doctor has very accurate information — if you are president, you have a lot of doctors you’re surrounded by — I was in great shape for the debate, and sometime after the debate, I tested positive.”
Why hadn’t he condemned white supremacy on the debate stage?
Trump said he did condemn white supremacy on stage and always has “denounced white supremacy” and then complained that the press “always starts off with the question.” Interrupting as Guthrie tried a follow-up, the exasperated president asked, “Are you listening? I denounce white supremacy!”
Why won’t he condemn Q-Anon for spreading a conspiracy theory about satanic cult of pedophiles controlling the Democratic Party?
Trump said three times that he didn’t know about the group before adding that the only knowledge he had was that they were “very much against pedophilia” and that “they fight it very hard.” The president expressed frustration that Guthrie didn’t ask him about antifa and that the press had not asked Biden about antifa.
She said it was because Biden wasn’t there, a not-so-subtle reminder to the audience about why the two presidential candidates weren’t together on stage.
”How cute,” he replied.
Why did he retweet an article claiming that Navy SEALS killed a body double of Osama bin Laden, while secretly capturing the real bin Laden, and that former President Obama may have had the SEALS killed to hide the plot?
The commander-in-chief replied that it was “an opinion of somebody” and that it “was a retweet.” While he didn’t endorse the idea, he added, he was simply putting it “out there.”
At this Guthrie responded, “I don’t get that. You’re the president, not like someone’s crazy uncle who can retweet whatever.” Trump said he does a lot of retweets because “the media is so fake and so corrupt” and that without social media he “wouldn’t be able to get the word out.”
The grilling went on like this for 20 minutes without a single question from the audience. At the first commercial break, White House Communications Director Alyssa Farah hurried over to the president. Three other aides quickly followed. And although voters finally got their chance to ask questions when programming returned, Guthrie did her best to keep Trump on the ropes with her own follow-ups.
The evening was not supposed to go this way. It was supposed to feature a second presidential debate – moderated by C-SPAN’s Steve Scully with a townhall format — but was cancelled after the debate commission insisted on a virtual event and Trump refused to participate. Without a Democrat to attack, the Trump campaign returned to familiar form. They went after the moderator. And vice versa.
“Even though the commission canceled the in-person debate that could have happened tonight, one occurred anyway, and President Trump soundly defeated NBC’s Savannah Guthrie in her role as debate opponent and Joe Biden surrogate,” Trump spokesman Tim Murtaugh said at the end of the night.
Others were delighted with the journalist’s performance. The liberal website Vox crooned that “Guthrie delivered the Trump interview we’ve been wanting for years.” Barack Obama speechwriter Jon Favreau wished she would moderate a townhall with Trump “every night between now and election day.”
To Trump loyalists, Guthrie’s adversarial attitude, and the cheering section it engendered, merely confirmed the president’s oft-stated view that the media has taken sides in this election. But, in their view, the night was not at all a waste.
“Obviously, she was trying to placate liberal critics who attacked NBC for giving Trump a platform at all,” a conservative operative close to the campaign told RCP. “Savannah’s decision to aggressively debate Trump instead of interview him or allow voters to speak at the townhall allowed Trump to appear the optimist and turned the studio audience to his side.”
This was particularly true over the left shoulder of the president. Throughout the night one woman nodded with enthusiastic agreement and gave thumbs up regularly when he spoke, earning her both online gratitude and infamy.
Conservative corners of the Internet heralded her as “the hero we need right now,” while liberal social media users suspected a plant who was pulling off “a psychological trick.” Perhaps that reaction encapsulates the entire evening – and even the Trump presidency itself. Although aggressive, the questioning from Guthrie was nothing Trump hasn’t faced before. And after four years, the nation has grown accustomed to a president who pushes back equally hard.
Did the Republican win a strategic victory then by drawing attention away from the Democrat? “Definitely,” the conservative operative explained. “That’s why liberals were up in arms in anger against NBC, knowing Trump is must-watch and Biden is a snooze-fest.”
When the night was finally over and Guthrie was out of questions, Trump press aide Dan Scavino shared a “behind the scenes” video of the night on Twitter. The president was working over a delighted crowd. As MSNBC returned to regular programming, Rachel Maddow tried distancing her cable network from parent company NBC.
“Well, that happened,” the liberal talk show host said to start her show. Guthrie’s question were fine, she added. NBC, not MSNBC, she sighed, had produced what “was a strange replacement for what was otherwise supposed to be the second presidential debate of this general election season.”
Meanwhile, on ABC, Democrats embraced their presidential nominee as a reassuring Mr. Rogers.
As RealClearPolitics’ Susan Crabtree reports, the switch from debate to townhall turned out to be a net positive for Biden when it comes to displaying his skill at talking calmly with voters – even those expressing differences with him. But it wasn’t a slam dunk by any means. His performance was also marred by some wildly uneven moments and windy responses from him, along with an outright refusal to answer whether he supports packing the Supreme Court — though promising he would do so before Nov. 3.
Throughout the dueling forums, Twitter lit up with Biden supporters’ sharply contrasting the calm and collegial tone of the ABC townhall hosted by George Stephanopoulos with the combative faceoff between Trump and NBC host Savannah Guthrie before she turned to voters in the audience for questions.
As the Biden forum wrapped up, “Mr. Rogers” was trending on Twitter after Mercedes Schlapp, a senior adviser for President Trump’s reelection campaign, compared the Democratic nominee’s performance to the long-running children’s show aimed at preschoolers.
“Well @JoeBiden @ABCPolitics townhall feels like I’m watching an episode of Mister Rodgers Neighborhood,” she tweeted, misspelling Fred Rogers last name.
Conservative critics were irate over Guthrie’s grilling of Trump for nearly 20 minutes during a format supposedly dedicated to questions from voters. They also took issue with Stephanopoulos’ light touch with Biden.
Biden’s supporters eagerly embraced the Mr. Rogers analogy, arguing it was a “self-own” for Team Trump because Rogers was known for his soothing, patient and kind demeanor.
“Pretty telling that this crew thinks Mr. Rogers is the bad guy,” tweeted Democratic strategist Zac Petkanas.
Meanwhile, during the same hour, Fox News host Tucker Carlson was revealing purportedly new Hunter Biden emails resurrecting a narrative that Biden, while vice president, demanded the firing of a Ukrainian prosecutor because he was investigating energy firm Burisma, for which Hunter worked as a highly paid board member. Twitter and Facebook for the prior 48 hours had prevented their users from tweeting or posting a New York Post story about the emails and calling into question previous assertions from Biden that he knew nothing about his son’s lucrative business deals in Ukraine and China. Trump’s personal lawyer, Rudy Giuliani, over the same two days has slammed the presidential nominee as the head of the “Biden Crime Family” over the lucrative contracts. Giuliani provided the emails to the New York Post, which he said were obtained from a laptop Hunter Biden dropped off at a repair shop last year and never picked up.
Throughout the 90 minute-townhall, interrupted for commercials, Biden fielded audience inquiries but received none from Stephanopoulos, nor the audience, about the propriety of Hunter Biden’s overseas deals and any links to his father.
Holding his mask in one hand and prepared notes in the other, Biden took a soft, measured approach to the questions. Though he often droned on with lengthy responses, he never raised his voice or grew testy.
Kelly Leigh, an undecided voter, asked if he would take the vaccine that Trump has so often touted will soon be available, considering that Kamala Harris, his running mate, said she wouldn’t if Trump alone were to endorse it. Biden responded that he would take such a vaccine, but also pointed to some of Trump’s more bizarre statements about remedies – some of which the president has brushed off as sarcasm.
“No. 1: President Trump talks about things that just aren’t accurate about everything,” Biden said. “The point is that if the scientists, if the body of scientists, say if this is what is ready to be done, been tested, gone through the three phases, yes, I’d take it, encourage people to take it. President Trump says things like everything from crazy stuff he’s walking away from now, ‘Inject bleach in your arm and that’s going to work.'”
Throughout the townhall, Biden spent so much time on policy minutiae that the questioners often looked nonplused. One of those moments came when Cedric Humphrey, a young black man, asked, “What do you have to say to young black voters who see voting for you as further participation in a system that continually fails to protect them?”
At first, Biden said young black voters would have the power to determine the outcome of the election if they would only exercise their right to vote. Then, he dove off a policy cliff, leaving Humphrey staring at him with a blank expression. Along with spotlighting criminal justice reform as a way to help the black community, Biden delivered a mini-dissertation on how black Americans would be helped by his administration to “gain wealth.”
When it comes to violent protests demanding justice for black men and women killed by police, Biden said the solution isn’t defunding the police, and argued he would give law enforcement new tools without diminishing their budgets.
“Cops are kind of like schoolteachers now,” he said. “You know, a schoolteacher has to know everything from … how to handle hunger in a household, as well as how to teach how to read,” Biden said. “Well, cops don’t have that breadth.”
Pressed again on whether he would pack the court, Biden rambled, repeating that he has never been a fan on doing so, but now, depending on how the Senate handles Trump’s nomination of Amy Coney Barrett to fill the late Ruth Bader Ginsburg’s seat, he may change his mind. Her confirmation next week is considered a fait accompli.
“It depends on how much they rush this,” Biden said. When Stephanopoulos asked whether he believes voters “have a right to know where you stand,” he answered, “Yes,” but then quickly followed with the caveat, “depending on how they handle this.”
Biden also continued to insist that he would not ban fracking – a major industry in Pennsylvania and other Rust Belt battleground states – despite previous repeated claims that he would. He added that investing in renewable energy would produce better environmental results and more jobs. Biden argued that 128,000 people could be hired to fill oil wells, “and get a good salary doing it.”
One final note, from PJMedia’s Jeff Reynolds,even with about three times as many breaks, Biden showed significant signs of fatigue and a lack of focus toward the end, calling into question his capacity to handle the job of POTUS.
This worked to prove my premise after the first debate, that Trump getting him worked up and angry kept Biden engaged and on point for the entire evening. Tonight, without the constant adrenaline rushes of having to face attacks from Trump, Biden slowly faded away. In doing so, he proved what many suspect, that 77-year-old Joe Biden’s faculties are in decline.
* * *
In summary, we suspect Trump consolidated his base but did nothing to persuade fence-sitters (if there is such a person in America), whereas Biden likely alienated some of the more progressive leftists in his base, but picked up some ‘undecideds’. Biden won the night, helped by the media.
via ZeroHedge News https://ift.tt/3dF0kzO Tyler Durden
US Core Retail Sales Surge By The Most In History In September Tyler Durden
Fri, 10/16/2020 – 08:37
After two straight months of disappointments, September retail sales beat majestically, rising 1.9% MoM against expectations of a 0.8% rise (the fastest pace in three months).
This surprise sent YoY retail sales soaring with the headline up 5.4% and core retail sales up a stunning 9.1% YoY – the greatest rise ever!
Source: Bloomberg
Every segment of the market (except Electronics & Appliance Stores) saw sales increase in September…
Online Retail sales stabilized…
Now, what happens in October, as government handouts stalled.
via ZeroHedge News https://ift.tt/3dzi4MT Tyler Durden
Robinhood Raises Margin Requirements On “Widely Held Stocks” As Election Volatility Nears Tyler Durden
Fri, 10/16/2020 – 08:29
Just hours after the Robinhood reported a massive hack, an email surfaced on Twitter showing the company warning users about an imminent increase in “margin maintenance requirements for several widely-held stocks” which was to be implemented before the market open on Friday.
The warning, titled “How margin is changing ahead of the 2020 election,” was tweeted by Packy McCormick, a millennial daytrader, around 22:00 ET Thursday.
“If you hold any of the affected stocks on margin, your buying power may decrease or your account may be in a deficit after these changes go into effect. If you end up in an account deficit and you don’t resolve it by the end of the trading day on Oct. 16, you will be issued a margin call. If you do not resolve the margin call, we may need to sell off some or all of your stock to cover the call,” the warning continued.
Here’s the full message from Robinhood to some of its overleveraged newbie daytraders:
Robinhood users on Twitter were not pleased with the overnight warning, which gave many little notice to readjust their accounts.
One Twitter user remarked: “Love that they didn’t bother telling us which stocks.”
Another said: “Sending this at 9:30 pm the night before…plus changing MR due to a forecast they are making is ridiculous. Thank god I’m not on their platform.”
The increased margin requirements are being added as expected uncertainty surrounding the presidential elections on Nov. 3 has been showing up in the futures curve, particularly in the VIX term structure, which has developed a “hump” around the date of the election.
The trading platform has seen an explosion in active users this year amid an explosion in day trading activity, especially after the COVID-19 crash in markets, with drew in many retail traders conditioned to believe that “stocks only go up”.
The question we have for this morning, as the cash session nears: Will Robinhood margin calls lead to selling pressure for stocks?
via ZeroHedge News https://ift.tt/37dPGyG Tyler Durden
The Supreme Court’s renewed interest in the nondelegation doctrine has prompted a surge in scholarship looking at nondelegation in theory and practice during the founding era.
The nondelegation doctrine has been championed by prominent originalist scholars, such as Gary Lawson and Michael Rappaport, contending that the original public meaning limits the extent to which Congress may delegate power to the Executive Branch. Yet several new papers argue that there was a wide degree of delegation in the early Republic, suggesting that the Constitution was not understood to place limits on delegation. These papers include:
Julian Davis Mortensen & Nicholas Bagley, “Delegation at the Founding” (forthcoming in the Columbia Law Review).
Given the number of self-proclaimed originalists among the current justices, and the likelihood of another delegation case reaching the Court, it will be interesting to see how this burst of scholarship influences the evolution of the doctrine.
from Latest – Reason.com https://ift.tt/31dIEWM
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“Tell him I’ve just worked out a completely new strategy. It’s called running away.”
Not a lot to cheer in markets this week as politics and Covid dominate the stage. The slide in European stocks highlights increasing concerns for what look likely to become a double dip Virus hit. Rising US job claims suggest it’s also going to suffer a second pandemic knockback. On the other hand, companies are still making money, the global economy pootles along and investors will see dividends from sectors having a “good pandemic” remain strong. The world is divided into winner and losers: the Occident vs Orient, Tech and Services vs Hospitality, Property and Travel.
Interesting comment from Goldman which says it’s time to buy value stocks and sell some Tech. They say is due to some mumbo-jumbo about three-four month trading patterns they observed back in the last crisis regarding reversals into cyclical shorts, but to be honest life is literally too short to read analyst’s turgid prose. I suspect most bank research is written to please compliance officers, and approved by committees to make sure no one is offended.
But the thing is – I totally agree! Time to sell some Tech.
This is time to get real about fundamental stocks, and that also means its probably time to cull Tech Stocks. Which ones though? Changes are coming. Everyone loves Tech, especially tech that’s disruptive and creates who new markets and revenue streams. But good tech spawns imitators, and as we are about to find out, Regulation. Nothing strangles new revenues as surely as regulation.
Let’s start with the Streaming Wars.
A few weeks ago I triggered another Teams storm with my suggestion Disney will win the Streaming Wars, while Netflix is doomed.. I was told it was a risky call. I stuck to my guns: competition is the critical issue. There already more streaming services than you can point a sharp, pointy stick at..
Netflix is the clear streaming leader with 32% of total streamtime viewing. It produces plenty of its own fantastic content, and has rights on plenty of other stuff that people want to see. Disney’s streaming services get a respectable 16% of streamtime, but has the advantage of a great stable of entertainment classics plus the Marvel, and Star War franchises. Its already spending more on content than Netflix. In less than 1 year Disney+ has attracted 60 million subs.
(Personally, I am mulling over a subscription for Britbox – I still haven’t seen the final episode of Blakes 7 so I still have no idea what the classic UK cheap-as-chips space opera was all about, and apparently every episode of UFO and Space 1999 is on it! Yay! Because I am a registered Apple Addict, I have Apple TV, but there frankly isn’t much to watch..)
Disney has just announced a refocus to spend more on creating new content for its streaming businesses.
It didn’t have much choice. Coronavirus has slaughtered its Parks business (down 83% from 6.6 bln in Q3 2019) and new studio business (down 55% since this time last year). What’s spectacular is that The Mouse corporation has responded fast to the challenge. The virus has shaken Disney awake. Creation, Distribution and Monetisation of content is its future.
It’s using its streaming platform well. Hamilton the Movie, only available on Disney+, was apparently a great success, but I gave up after 20 mins because She-who-is-Mrs-Blain kept asking who was who, who they were, where it was, what it was all about and why were we watching it.. (I told her: A long long time ago in a galaxy far, far away…)
Disney’s decision to launch new films direct into the Stream would probably have got more plaudits if it hadn’t been the live action version of Mulan. A controversial choice.
How many other studios will also monetise direct to the stream? The whole film industry has been pressured by Covid. (Films make a fraction of the revenues of the Home Gaming sector – which is one reason our in-house VC fund, Sure Ventures has been so successful.) Few other studios have the range of marketing opportunities Disney has to sell merchandising tat alongside their content.
As the streaming wars are fought to a bitter end, I suspect Disney will rise. What’s interesting is it will demonstrate that incumbent old businesses can weather, innovate and prosper when new disruptive technologies change the narrative. The risk for the other streamers, including Netflix, is that their tech premium reduces as competition rises and their lack of profitability dooms them to also ran status.
I reckon we will see the same thing in Electric Vehicles.
It’s the hot sector. Just this week we’ve seen a UK electric vehicle start up Arrival raise $118 mm from the private market – to build 10000 commercial vehicles a year on a “flexible skateboard model”. US EV maker Lucid is launching a luxury 480 hp model based at $78k with a 400+ mile range. Volkswagen is “accelerating” a massive capex programme to “automate and digitalise” new EV plants in the US and Germany to build batteries and new car bodies. BMW has just announced its new “5th” generation EV tech, including a home charging “wallbox” that can fill you car full of electric liters in a mere 3.5 hours. Wow… (US readers.. mild sarcasm alert.) Porsche is going a slightly different road – investing in “synthetic fuels”.
You get the drift..
Competition in the EV sector is going to pull down margins.. and probably increase the cost of lithium meaning at least one very large market-capitalisation maker of a very small number of cars is going to struggle not just with competition, but meeting promises to get the cost down and actually make real profits selling cars…. rather than regulatory credits.. Competition is real and will reduce windfall/first mover advantages and profits.
Another major issue is Regulation.
Amazon, Facebook, Apple and Google are all in the political crosshairs for “anti-competitive, monopolist behaviours” and are likely to suffer new anti-trust regulations.
Nations around the globe look unable to agree on how to tax the Tech multinationals who charge in one country, bill in another, and deliver to a third.
And then there is the issue I highlighted yesterday of surveillance capitalism and how certain tech firms have utilised Algorithms to monetise us – which looks, smells, and feels just like subliminal advertising, which was banned in the 1960s.
There are worries a Biden presidency will accelerate regulation of Tech.
We all know.. the moment government starts to regulate anything… is the moment to sell.
In the case of Google and Facebook – government has to act. But the others? Maybe Amazon has become a monopoly? Would it change much to break it up the same way the oil majors were forced to unravel 120 years ago? If people are stupid enough to pay £1200 for the new iPhone XII then their problem (Me! Me! Me! I am an addict. I need help.)
Meanwhile…
Speaking of cars, lets talk about proper Motors.. the ones that run on dead dinosaurs. Next week my very great mate and market legend, Alex Bridport, a bond market veteran who remembers trading the original South Sea Bubble Bonds, is doing the The Mille Miglia for the fifth time. It’s a race in proper old cars all round Italy. Normally its run in May with nice warm days “this year the delay means it’s going to be a very different kettle of poisons!” He added: “It’s simply an incredible experience in the moist beautiful country in the world!”
Good luck to him!
via ZeroHedge News https://ift.tt/3dwzcTq Tyler Durden
In Sines v. Yiannopoulos, decided Wednesday by Judge Katherine Polk Failla (S.D.N.Y.), several people—all plaintiffs in a lawsuit over injuries at the Charlottesville Unite the Right—are trying to compel Milo Yiannopoulos “to disclose the identity of a confidential source who [Yiannopoulos] says has relevant documents” related to Richard Spencer. Yiannopoulos has said “that his source had played clips of responsive audio and video files, and shown him a screen where he could see that additional files existed.” But Yiannopoulos is refusing to testify about his source, based on the journalist’s privilege, which Second Circuit precedent recognizes.
The court describes the privilege, which is qualified, not absolute:
“The privilege may be invoked by an individual “involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.” However, to invoke the privilege, an individual must be acting in “the role of the independent press” when “collecting the information in question.” Furthermore, “the talisman” for invoking “the journalist’s privilege is intent to disseminate to the public at the time the gathering of information commences.”
Once established, the federal journalist’s privilege is a qualified one and may be overcome. However, the protection accorded by the privilege “is at its highest when the information sought to be protected was acquired by the journalist through a promise of confidentiality.” To protect the “important interest of reporters in preserving the confidentiality of [their] sources,” the Court may override the journalist’s privilege and order disclosure “only upon a clear and specific showing that the information is: [i] highly material and relevant, [ii] necessary or critical to the maintenance of the claim, and [iii] not obtainable from other available sources.”
The court concluded that Yiannopoulos is protected by the privilege, though the defendants may yet be able to overcome it:
Movants argue that [Yiannopoulos] cannot assert the journalist’s privilege because he was gathering information and cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist. [Yiannopoulos] replies that at the time he “acquired the identity of” his source, he was employed as a professional journalist at Breitbart, and, further, that he “learn[ed] the identity of the source in the course of gathering or obtaining news”—not in pursuing a grudge against Spencer.
The factual record is both thin and slightly muddled. The parties focus their arguments on [Yiannopoulos]’s intent at the time he obtained his confidential source, as well as his role while attending an “afterparty” at which the source allegedly showed relevant recordings to [Yiannopoulos]. [Yiannopoulos] states that “when [he] acquired the identity of the source and listened to materials and became aware of various facts in the course of reporting, [he] was at the same time a senior salaried professional reporter at” Breitbart.
Breitbart is a controversial website with an overt bias, “[b]ut the touchstone is not … whether the journalistic enterprise was ‘unbiased’; by that standard, few, if any, daily newspapers could assert the privilege. Rather, the test is whether the enterprise intended to express its views publicly, or merely to engage in private lobbying.” Breitbart does not primarily engage in private lobbying, regardless of its editorial vision or the merits of the content that it publishes.
[Yiannopoulos] asserts he was writing about white supremacy “at the time in question,” making conversations with white nationalists “directly relevant to [his] daily work[.]” Thus, to the extent [Yiannopoulos] acquired his source and/or learned about the relevant documents while employed by Breitbart, he has sufficiently invoked the journalist’s privilege, even if he later developed a personal grudge against Spencer.
Movants further assert that the afterparty at which [Yiannopoulos] was purportedly shown the relevant files happened after [Yiannopoulos] resigned from Breitbart in February 2017. The timeline is not entirely clear, so the Court next addresses the possibility that [Yiannopoulos] cultivated his source and/or obtained relevant information after leaving Breitbart. [Yiannopoulos] asserts that he was not motivated by a personal grudge at the time he cultivated his source, regardless of the timing, and further argues that he attended the afterparty “for journalistic purposes.” (This assertion is supported by the fact that [Yiannopoulos] has been publishing content about white supremacist ideology since he left Breitbart, even if not for a formal media organization and even if published in an unorthodox style.)
Movants ask the Court to discredit [Yiannopoulos]’s assertion that he attended the afterparty with a journalistic intent because [Yiannopoulos] claims to have consumed significant amounts of alcohol at the party. The Court notes that the consumption of alcohol at a party does not vitiate journalistic intent. Journalists may wish to attend a party in order to gather information, or to meet and cultivate potential sources, any of which goals may be furthered by the consumption of alcohol.
Even if the Court discredits [Yiannopoulos]’s representations as to timing, the Court is not convinced that [Yiannopoulos] was motivated only out of a personal grudge against Spencer. Spencer is himself a newsworthy subject, and publishing information about him, even if tinged with personal dislike, can still be motivated by an interest to “disseminate information to the public,” and to promote “debate over controversial matters.” …. [Yiannopoulos]’s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even [Yiannopoulos]’s muckraking style protects the “public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.”
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A friend of mine, who had spent many years establishing a successful printing business in the Midwest, opened his local newspaper to find a story about a fancy redevelopment project that the city had proposed in his neighborhood. How nice, he thought, until he realized that planning officials were going to put the project on top of his company’s existing building.
He was one of many people I had interviewed for my 2004 book about the abuse of eminent domain—the government’s right to take property upon payment of “just” compensation. The Constitution allows such takings for roads, courthouses and other public uses, but the courts have expanded that definition to allow the government to take private property if it deemed the new use more beneficial than the old one.
The U.S. Supreme Court’s 2005 Kelo decision gave governments the imprimatur to do so, although Justice Sandra Day O’Connor’s dissent still resonates: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”
I thought of that case, as well as many sad interviews with victimized property owners in various eminent domain and other property rights disputes, after reading Pope Francis’ latest encyclical called Fratelli Tutti, or “Brothers All.” This pope has repeatedly diminished the importance of private property and free markets, but he usually leaves enough wiggle room so his supporters could describe what he meant in “proper context.”
We need no such context this time. “The right to private property can only be considered a secondary natural right,” Pope Francis explained. “Yet it often happens that secondary rights displace primary and overriding rights, in practice making them irrelevant.” He added that, “the right to private property is always accompanied by the primary and prior principle of the subordination of all private property to the universal destination of the Earth’s goods.”
There’s plenty to debunk in this 43,000-word missive—from its description of the market system as one based on exploitation, to its call to for stronger international institutions. But I’ll focus on the pope’s distorted view of property and his failure to grasp how this supposed secondary right undergirds those primary values of life, family, and brotherhood. As this nation’s founders recognized, property is the foundation of those bigger things.
The city’s taking of my friend’s business devastated him—not because of some dollars-and-cents accounting. In many (but not all) of these cases, the government eventually reimburses owners for the assessed value of their properties. A business, however, is not merely the collected value of its bricks and mortar. It reflects the hard work and creative energies and vision of its owners.
From his lavish Vatican surroundings, the pope describes property ownership as something secondary and even tawdry, yet even in doing so he reinforces the primacy of property. “To care for the world in which we live means to care for ourselves,” Francis wrote. “Yet we need to think of ourselves more and more as a single family dwelling in a common home.” Note the reference to a person’s home. One need not own a house to have a home, but ownership is the linchpin of our other freedoms—and the best assurance that we can provide for our families and help others.
That Pope Francis would erode such rights in the name of helping the poor is foolhardy. Even the pope admits that “corruption and inefficiency” are the hallmarks of politicians. To relegate tangible property ownership to intangible values (e.g., advancing human dignity, promoting equality) is to, as Justice O’Connor noted, benefit the rich and powerful at the expense of the poor.
I find 18th century British statesman William Pitt’s argument far more compelling: “The poorest man may in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.” To help the poor, protect their right to property—so they can defy even the forces of the king.
As Pope Francis correctly noted, some people will use their resources to exploit others. But he conveniently forgets that injustices have existed throughout history. As the property-rights-based market economy has expanded, grueling poverty has receded worldwide. The population living in extreme poverty has dropped precipitously in tandem with the growth of the economic “dogmas” that the pope decries. Perhaps there’s a connection.
Sorry, but property rights are not secondary. As an attorney who defended property owners from government takings liked to say, “Property rights are human rights.” You can’t have one without the other.
This column was first published by The Orange County Register.
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In Sines v. Yiannopoulos, decided Wednesday by Judge Katherine Polk Failla (S.D.N.Y.), several people—all plaintiffs in a lawsuit over injuries at the Charlottesville Unite the Right—are trying to compel Milo Yiannopoulos “to disclose the identity of a confidential source who [Yiannopoulos] says has relevant documents” related to Richard Spencer. Yiannopoulos has said “that his source had played clips of responsive audio and video files, and shown him a screen where he could see that additional files existed.” But Yiannopoulos is refusing to testify about his source, based on the journalist’s privilege, which Second Circuit precedent recognizes.
The court describes the privilege, which is qualified, not absolute:
“The privilege may be invoked by an individual “involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.” However, to invoke the privilege, an individual must be acting in “the role of the independent press” when “collecting the information in question.” Furthermore, “the talisman” for invoking “the journalist’s privilege is intent to disseminate to the public at the time the gathering of information commences.”
Once established, the federal journalist’s privilege is a qualified one and may be overcome. However, the protection accorded by the privilege “is at its highest when the information sought to be protected was acquired by the journalist through a promise of confidentiality.” To protect the “important interest of reporters in preserving the confidentiality of [their] sources,” the Court may override the journalist’s privilege and order disclosure “only upon a clear and specific showing that the information is: [i] highly material and relevant, [ii] necessary or critical to the maintenance of the claim, and [iii] not obtainable from other available sources.”
The court concluded that Yiannopoulos is protected by the privilege, though the defendants may yet be able to overcome it:
Movants argue that [Yiannopoulos] cannot assert the journalist’s privilege because he was gathering information and cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist. [Yiannopoulos] replies that at the time he “acquired the identity of” his source, he was employed as a professional journalist at Breitbart, and, further, that he “learn[ed] the identity of the source in the course of gathering or obtaining news”—not in pursuing a grudge against Spencer.
The factual record is both thin and slightly muddled. The parties focus their arguments on [Yiannopoulos]’s intent at the time he obtained his confidential source, as well as his role while attending an “afterparty” at which the source allegedly showed relevant recordings to [Yiannopoulos]. [Yiannopoulos] states that “when [he] acquired the identity of the source and listened to materials and became aware of various facts in the course of reporting, [he] was at the same time a senior salaried professional reporter at” Breitbart.
Breitbart is a controversial website with an overt bias, “[b]ut the touchstone is not … whether the journalistic enterprise was ‘unbiased’; by that standard, few, if any, daily newspapers could assert the privilege. Rather, the test is whether the enterprise intended to express its views publicly, or merely to engage in private lobbying.” Breitbart does not primarily engage in private lobbying, regardless of its editorial vision or the merits of the content that it publishes.
[Yiannopoulos] asserts he was writing about white supremacy “at the time in question,” making conversations with white nationalists “directly relevant to [his] daily work[.]” Thus, to the extent [Yiannopoulos] acquired his source and/or learned about the relevant documents while employed by Breitbart, he has sufficiently invoked the journalist’s privilege, even if he later developed a personal grudge against Spencer.
Movants further assert that the afterparty at which [Yiannopoulos] was purportedly shown the relevant files happened after [Yiannopoulos] resigned from Breitbart in February 2017. The timeline is not entirely clear, so the Court next addresses the possibility that [Yiannopoulos] cultivated his source and/or obtained relevant information after leaving Breitbart. [Yiannopoulos] asserts that he was not motivated by a personal grudge at the time he cultivated his source, regardless of the timing, and further argues that he attended the afterparty “for journalistic purposes.” (This assertion is supported by the fact that [Yiannopoulos] has been publishing content about white supremacist ideology since he left Breitbart, even if not for a formal media organization and even if published in an unorthodox style.)
Movants ask the Court to discredit [Yiannopoulos]’s assertion that he attended the afterparty with a journalistic intent because [Yiannopoulos] claims to have consumed significant amounts of alcohol at the party. The Court notes that the consumption of alcohol at a party does not vitiate journalistic intent. Journalists may wish to attend a party in order to gather information, or to meet and cultivate potential sources, any of which goals may be furthered by the consumption of alcohol.
Even if the Court discredits [Yiannopoulos]’s representations as to timing, the Court is not convinced that [Yiannopoulos] was motivated only out of a personal grudge against Spencer. Spencer is himself a newsworthy subject, and publishing information about him, even if tinged with personal dislike, can still be motivated by an interest to “disseminate information to the public,” and to promote “debate over controversial matters.” …. [Yiannopoulos]’s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even [Yiannopoulos]’s muckraking style protects the “public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.”
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A friend of mine, who had spent many years establishing a successful printing business in the Midwest, opened his local newspaper to find a story about a fancy redevelopment project that the city had proposed in his neighborhood. How nice, he thought, until he realized that planning officials were going to put the project on top of his company’s existing building.
He was one of many people I had interviewed for my 2004 book about the abuse of eminent domain—the government’s right to take property upon payment of “just” compensation. The Constitution allows such takings for roads, courthouses and other public uses, but the courts have expanded that definition to allow the government to take private property if it deemed the new use more beneficial than the old one.
The U.S. Supreme Court’s 2005 Kelo decision gave governments the imprimatur to do so, although Justice Sandra Day O’Connor’s dissent still resonates: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”
I thought of that case, as well as many sad interviews with victimized property owners in various eminent domain and other property rights disputes, after reading Pope Francis’ latest encyclical called Fratelli Tutti, or “Brothers All.” This pope has repeatedly diminished the importance of private property and free markets, but he usually leaves enough wiggle room so his supporters could describe what he meant in “proper context.”
We need no such context this time. “The right to private property can only be considered a secondary natural right,” Pope Francis explained. “Yet it often happens that secondary rights displace primary and overriding rights, in practice making them irrelevant.” He added that, “the right to private property is always accompanied by the primary and prior principle of the subordination of all private property to the universal destination of the Earth’s goods.”
There’s plenty to debunk in this 43,000-word missive—from its description of the market system as one based on exploitation, to its call to for stronger international institutions. But I’ll focus on the pope’s distorted view of property and his failure to grasp how this supposed secondary right undergirds those primary values of life, family, and brotherhood. As this nation’s founders recognized, property is the foundation of those bigger things.
The city’s taking of my friend’s business devastated him—not because of some dollars-and-cents accounting. In many (but not all) of these cases, the government eventually reimburses owners for the assessed value of their properties. A business, however, is not merely the collected value of its bricks and mortar. It reflects the hard work and creative energies and vision of its owners.
From his lavish Vatican surroundings, the pope describes property ownership as something secondary and even tawdry, yet even in doing so he reinforces the primacy of property. “To care for the world in which we live means to care for ourselves,” Francis wrote. “Yet we need to think of ourselves more and more as a single family dwelling in a common home.” Note the reference to a person’s home. One need not own a house to have a home, but ownership is the linchpin of our other freedoms—and the best assurance that we can provide for our families and help others.
That Pope Francis would erode such rights in the name of helping the poor is foolhardy. Even the pope admits that “corruption and inefficiency” are the hallmarks of politicians. To relegate tangible property ownership to intangible values (e.g., advancing human dignity, promoting equality) is to, as Justice O’Connor noted, benefit the rich and powerful at the expense of the poor.
I find 18th century British statesman William Pitt’s argument far more compelling: “The poorest man may in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.” To help the poor, protect their right to property—so they can defy even the forces of the king.
As Pope Francis correctly noted, some people will use their resources to exploit others. But he conveniently forgets that injustices have existed throughout history. As the property-rights-based market economy has expanded, grueling poverty has receded worldwide. The population living in extreme poverty has dropped precipitously in tandem with the growth of the economic “dogmas” that the pope decries. Perhaps there’s a connection.
Sorry, but property rights are not secondary. As an attorney who defended property owners from government takings liked to say, “Property rights are human rights.” You can’t have one without the other.
This column was first published by The Orange County Register.
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