Category: reason

Arctic Village, Alaska, is about as remote a spot as you’ll find in the United States. Tucked into a sweeping bend in the east fork of the Chandalar River, Arctic Village and its roughly 150 full-time residents live more than 100 miles from the nearest “metropolis”—that would be Fort Yukon, Alaska. Population: 582.

And yet, under the terms of a sweeping federal elections bill that hit a wall in the Senate on Tuesday evening, Arctic Village would have been required to keep its polling place open for 10 hours every day for at least 15 days prior to every future federal election.

“The whole town could practically vote in an hour,” Sen. Lisa Murkowski (R–Alaska), pointed out Tuesday during a speech on the Senate floor that deconstructed some of the practical issues with the sprawling For The People Act. “When you nationalize something—when you have federal overall oversight—it ends up being a one-size-fits-all mandate coming out of Washington, D.C., that in many cases doesn’t work in a place like Alaska.”

Federalizing control over elections is a major goal of the bill, which would give federal officials a much-expanded role in regulating things that states have always been left to decide, like when polling places are open and how much early voting occurs. But in a country as diverse as America, one set of rules doesn’t make sense everywhere. A possible solution to long lines at polling places in Atlanta creates a ridiculous and expensive mandate in places like Arctic Village.

“The bill that we have in front of us is not so much about voting rights as it is a federal takeover of the election system, and a partisan federal takeover of the election system,” Murkowski said Tuesday. A few hours later, she joined the 49 other Republican members of the Senate in voting against a procedural maneuver that would have allowed the bill to come to the floor for debate—a vote that effectively kills the For The People Act’s chance of passing into law anytime soon. (It cleared the House in March.)

The bill is a response to what Democrats see—with good reason, in some cases—as Republican-led attempts to undermine voting rights in some states. Efforts to disenfranchise voters should be steadfastly opposed at the state level, but senators like Murkowski are rightly hesitant to use the hammer of federal law to accomplish that goal.

That’s not only because of the silly mandates it would impose on places like Arctic Village. There are also serious legal and constitutional issues with other parts of the bill, which would regulate political speech and mandate state-level behavior in ways the federal government has never before attempted. Even if you don’t care about the First Amendment issues in the bill, they would guarantee years of litigation over its provisions.

Instead of creating more certainty about election rules, dozens of lawsuits and conflicting court rulings could create “messy litigation that leaves the state of election law uncertain for years to come,” Murkowski said Tuesday. Imagine, for instance, if you had to understand the latest legal battles over Obamacare before being allowed to see a doctor.

What’s more, federalizing elections to make them more secure might actually make them more vulnerable. Think back to the Republican-led efforts to disrupt the election last year. They were thwarted by state-level officials (including fellow Republicans) who applied the law correctly even when under intense political pressure from President Donald Trump and his top allies. If Trump had to exert pressure on a few federal officials rather than a diffuse network of state-level elections boards, most of which were staffed by people who owed him nothing and had little incentive to cave to his threats, would the outcome have been different?

These practical and legal concerns have been largely glossed over by the bill’s advocates, who have framed the measure as the last stand for democracy. But the fate of America’s democracy has never hinged on just one bill or one vote because most of our election systems are decentralized.

That said, there are many good ideas included in the For The People Act. Expanded early voting, automatic voter registration, and restoring voting rights to people who have served time in prison are worthy policies for increasing voter participation. Redistricting commissions, which the bill would mandate all states use for redrawing congressional district lines, are a decent solution to a messy problem. Banning states from using voting machines that don’t provide paper trails for all votes would make elections more trustworthy.

But, as Murkowski argued Tuesday, those provisions could be considered separately from the “sprawling” proposal Democrats have been pushing. Though it is also fair to point out that Republicans were none too interested in a narrower proposal offered as a potential compromise last week by Sen. Joe Manchin (D–W.Va.).

Certainly, there is an element of partisanship to Murkowski’s stance—particularly since she’s facing the prospect of a Trump-backed primary challenger next year when her seat is up for re-election. But it would be wrong to dismiss her for that reason alone. For three consecutive congressional sessions, Murkowski has been the lead Senate Republican sponsor of the Voting Rights Advancement Act, a bipartisan bill that would update the 1965 Voting Rights Act to require that states get federal permission before making changes to their voting laws in advance of an election. That’s an actual, practical way to stop some of the shenanigans that states might pull in the future. Murkowski also voted to convict Trump for his role in the January 6 riot—hence why she faces a Trump-backed primary challenger next year.

In short, some Senate Republicans have no qualms about supporting attempts to undermine elections, but Murkowski is clearly not one of them.

“It will make administrating elections more difficult, more expensive, subject to federal micromanagement,” she said. “My fear is that this measure does not lead us further down the path” to fairer elections.

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The U.S. Supreme Court ruled 8-1 today that a Pennsylvania public school district violated the First Amendment when it punished a high school freshman for posting a profane, off-campus rant on the social media site Snapchat about her failure to make the varsity cheerleading squad. “It might be tempting to dismiss [the cheerleader’s] words as unworthy of…robust First Amendment protections,” Justice Stephen Breyer wrote for the majority. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

The matter of Mahanoy Area School District v. B.L. originated with these words: “Fuck school fuck softball fuck cheer fuck everything.” They were posted to Snapchat on a Saturday night and were accompanied by a picture of B.L. (known by her initials in court filings because she was a minor at the time) and a friend with their middle fingers raised. To say the least, B.L.’s cheerleading coaches did not like that post when it was later brought to their attention. As punishment for it, B.L. was suspended from the junior varsity cheerleading team for a full year. The question before the Supreme Court was whether school officials may punish her for this off-campus speech.

The Supreme Court ruled today that the school may not. At the same time, however, the Court made it clear that its decision was not a sweeping one. In fact, the majority stressed that under certain circumstances, schools may punish students for speech that occurs off-campus. “Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus,” Breyer wrote for the majority.

Instead, Breyer made three more general points. First, “geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Second, “when it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.” And third, “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.” To that he added: “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas.'”

“Taken together,” the opinion concluded, “these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”

The cheerleader won this time around, in other words, but future off-campus student speakers might well meet a different legal fate. The free speech side prevailed but it was a limited victory.

Justice Samuel Alito, joined by Justice Neil Gorsuch, joined the majority opinion in full but wrote separately to emphasize a few points. Among them was this:

there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection.

“Even if such speech is deeply offensive to members of the school community and may cause a disruption,” Alito wrote, “the school cannot punish the student who spoke out; ‘that would be a heckler’s veto.'”

The sole dissenter today was Justice Clarence Thomas. In his view, “a more searching review reveals that schools historically could discipline students in circumstances like those presented here.” In fact, Thomas faulted the majority for failing “to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media.” As he put, “because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation.”

The Supreme Court’s decision in Mahanoy Area School District v. B.L. is available here.

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When Robin Hordon, 73, brought his political signs to a Fourth of July celebration at a local public park, he landed himself a night in jail—and was held at $50,000 bail. Nearly two years later, he has not only secured a hefty settlement for violations of his constitutional rights but also inspired meaningful police reform.

Hordon is an artist and activist known for displaying his homemade political signs throughout the community of Kingston, Washington. According to the local newspaper, he endeavors to inspire conversation and dubs his activism “civil informationing,” championing causes like feminism, anti-militarism, and environmentalism (as well as the occasional September 11 conspiracy theory).

In 2019, he brought some of his signs to a public outdoor Fourth of July concert at Mike Wallace Park. The largest poster measured approximately 6 feet across. One side read “Protect Democracy Vote,” and the other simply “Save Earth.”

Sheriff's office agrees to policy changes and free speech training after jailing activist https://t.co/VDtNOqf7Nb

— KitsapSun (@KitsapSun) June 19, 2021

Hordon was asked to remove the signs by the harbormaster, because the largest sign partially blocked the sidewalk. There were no complaints from concertgoers. When Hordon refused to put away his display, the police were called.

When Kitsap County deputies arrived, Hordon still refused to relinquish the signs. He expressed his desire to hear the band, and, according to a deputy’s notes “said he was exercising his first Amendment rights and that [the police] were wrong.”

The sheriff’s deputies proceeded to arrest Hordon for obstruction of a police officer, and he was permanently banned from the public park. He then spent one night in the county jail; despite his clean record, bail was set at $50,000. Unable to pay, Hordon was released by a judge the following morning.

When he went back to the park twice over the following two weeks, supposedly to take photos for his legal defense, he was arrested again for violating his permanent banishment. Hordon spent another night in jail and was then charged with three counts of second-degree communal trespass—one for refusing to remove his signs and two for returning to the park.

Following his second release, Hordon brought a lawsuit to the district court claiming his constitutional rights were violated by the port that manages the park and the sheriff’s office that jailed him twice, held him on unreasonable bail, and denied him due process by indefinitely banning him from a public park.

Hordon told the Kitsap Sun he sued in defense of civil liberties and the First Amendment. “If our society cannot uphold political free speech in a public park,” he said, “then our society, our government is in trouble.” 

The settlement was finalized this May. Hordon was awarded $250,000 in damages from the county and an additional $150,000 from the Port of Kingston. “They dug their own financial hole,” he told the local paper, “I’m not thinking ‘cha-ching.'”

What matters more to him is the reform that resulted from his lawsuit. Kitsap County Police instated new rules that prevent officers from setting unreasonably high bail. Additionally, they revised trespassing laws to afford due process and allow for petitions of banishments.

Kitsap County sheriff’s deputies and criminal prosecutors have also agreed to attend free speech training, which is most meaningful to Hordon. “Why I do what I do is to improve democracy, without question,” he said. “I was standing up for making the Constitution work.”

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A federal judge on Monday partially rejected a group of lawsuits against local police and fully dismissed claims against federal officials who ordered and oversaw the violent clearing of protesters from Lafayette Park in Washington, D.C., on June 1, 2020.

The four groups of plaintiffs sued former President Donald Trump, former Attorney General William Barr, several former federal agency heads, as well as representatives from the Metropolitan Police Department and the Arlington County (Virginia) Police Department. The plaintiffs sought damages and injunctive relief for constitutional violations and claimed that, in violently clearing Lafayette Park with little notice allegedly so that Trump could take a photo in front of St. John’s Episcopal Church, he and the other defendants committed conspiracy and violated the Posse Comitatus Act.

A recently released report from the Office of Inspector General for the Interior Department found that law enforcement acted against the protesters so that contractors could install a fence, and that Barr only asked that they expedite the process for Trump.

However, Judge Dabney Friedrich of the U.S. District Court for the District of Columbia did not dismiss the case because of the OIG report, but rather because her reading of the precedents cited by the plaintiffs led her to grant the federal actors official immunity.

Specifically, Friedrich relied on the Bivens doctrine, a court-constructed avenue that is supposed to provide recourse for people whose rights are violated by the government. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Supreme Court permitted a victim to sue federal cops who conducted a warrantless search of his apartment to look for drugs, shackled him, and strip-searched him in a courthouse. But that standard has become increasingly diluted with subsequent decisions, like the one in Ziglar v. Abbasi (2017), in which the Supreme Court ruled that judges should look for “special factors counseling hesitation” when “the case is different in a meaningful way from previous Bivens cases decided by this Court.”

In other words, if the judiciary pinpoints any highly subjective measure that differentiates a case from those already on the books, then the ruling judge can use his or her discretion in shielding a federal official from accountability. It is essentially a federal and even more rigorous version of qualified immunity, the legal construct which allows state and local government actors to violate your rights unless the exact way they misbehaved has been outlined and published in a previous court precedent.

The “special factor” here, according to Friedrich, was “national security.” Because no prior Bivens decision dealt with protesters outside the White House, Trump, Barr, and the other federal defendants of the four lawsuits will not have to face a jury in civil court. She adds that it is of no import whether or not presidential safety was actually under threat. “What [does] matter,” Friederich writes, “is whether the claims in this case arise in a similar context to Bivens.” Indeed, she even acknowledges later that she “is unable at this time to credit the defendants’ assertion that the clearing of the Square was done in the interest of presidential security.”

Unless Congress legislates an avenue for plaintiffs to bring civil claims against federal actors who violate our rights in novel ways and circumstances, then future federal officials will also be shielded from responsibility for misconduct. “There’s a gaping hole in the Constitution” when it comes to holding federal actors to account, says Scott Michelman, legal director for the American Civil Liberties Union of the District of Columbia and the attorney representing the plaintiffs. “That hole was [just] expanded to encompass the territory of one of the most important sites in the nation for protests, because if anything federal officials do there implicates presidential security, then they can never be sued.”

The immunity enjoyed by government employees isn’t particularly new, especially when it comes to law enforcement. “In lower courts’ view, [a] federal badge now equals absolute immunity,” says Anya Bidwell of the Institute for Justice, a libertarian-leaning public interest law firm. “We see it all the time these days. No matter how outrageous the conduct by federal police, they cannot be sued for violations of constitutional rights, even if plaintiffs can overcome qualified immunity.”

Last month, the Supreme Court declined to consider a case brought by José Oliva, who, at 70 years old, was placed in a chokehold and slammed to the ground by federal cops at a Department of Veterans Affairs hospital because he did not furnish his identification quickly enough. (It was in a metal detector bin.) Those officers were shielded by Bivens, a lower court ruled, giving Oliva no way to bring his claims before a jury in civil court to argue for damages after he sustained a permanent shoulder injury.

D.C. and Arlington County police were only partially so fortunate.

They will not receive the legal protections against protesters’ First Amendment claims, Friederich concluded. “The right to be free from government violence for the peaceful exercise of protected speech is so fundamental to our system of ordered liberty that it is ‘beyond debate,'” she writes. The order does not provide the plaintiffs with any sort of damages but merely allows them to make their case before a jury.

The saga will not end there. “Unfortunately, one of the many double-standards created by the qualified immunity doctrine is that it gives government officials the ability to appeal non-final rulings like this one, even though ordinary people cannot,” says Clark Neily, senior vice president for legal studies at the Cato Institute. “It seems very likely that the DC and Arlington County police defendants will take advantage of that special privilege to appeal the trial court’s ruling denying them qualified immunity on the First Amendment claims.”

The plaintiffs will also not be able to argue before a jury that police violated their Fourth Amendment rights when they used excessive force to remove them from the square. The police received qualified immunity because such force was used to disperse the protesters and not to restrain the protesters. “Even assuming that the plaintiffs were seized by being forced to leave Lafayette Square,” Friedrich adds, “the plaintiffs have not pointed to a case clearly establishing that attempting to move members of a crowd (rather than keep them in a location) can constitute a seizure.”

It’s a fitting reminder of just how myopic a standard qualified immunity can be, put in place by the government to protect the government.

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During the 2008 presidential election, Vijay Boyapati quit his job as an engineer at Google to campaign for Ron Paul in New Hampshire. A few years after that, he discovered bitcoin, and in 2018 he published an essay on Medium titled “The Bullish Case for Bitcoin,” which got widespread attention and was translated into more than 20 languages.

Boyapati, an Australian native who now lives in the Pacific Northwest, launched a fundraiser on Kickstarter to expand the essay into a book, and it was released at the star-studded 2021 Bitcoin Conference, which was held in early June in Miami.

Nick Gillespie caught up with Boyapati in Florida to talk about inflation, how bitcoin fits with the Austrian school of economics, his libertarian origin story, and what he thinks has to happen for bitcoin to finally become the new global monetary standard.

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