Category: reason

The Eleventh Circuit Rules Against Jeffrey Epstein’s Sex Abuse Victims’ Efforts to Rescind His Secret Plea Deal

Yesterday the Eleventh Circuit en banc ruled 7-4 that the Crime Victims Rights Act (CVRA) does not allow Jeffrey Epstein’s sex trafficking victims to proceed in court to enforce their CVRA rights. The Circuit assumed that federal prosecutors had violated the victims’ CVRA right to confer about the Epstein non-prosecution agreement. But even proceeding on that assumption, the majority decided that Congress did not intend to allow victims to proceed in court to enforce their rights before charges are filed. This disturbing decision plainly thwarts Congress’s intent to provide enforceable rights to crime victims throughout the criminal justice process.  On behalf of our client, Ms. Courtney Wild, my co-counsel Brad Edwards and I plan to seek review in the Supreme Court and, if unsuccessful there, will ask Congress to overturn the unfortunate and incorrect ruling as swiftly as possible.

I have previously blogged about Epstein’s victims’ challenge to the sweetheart plea deal he orchestrated, which prevents any federal prosecution in the Southern District of Florida for the countless federal sex offenses he and his co-conspirators committed. You can read some of my earlier posts here, here, and here. As has been established through more than a decade of litigation, federal prosecutors arranged a secret non-prosecution agreement with Epstein, concealing what they were doing from his sex abuse victims. In 2008, after the deal was consummated, Edwards and I challenged it as having been concluded in violation of the crime victims’ CVRA rights, notably their right to reasonably confer with prosecutors.

After eleven years of hard-fought litigation(!), in February 2019 the federal district court judge  presiding over the challenge agreed with us that the prosecutors had violated Epstein’s victims’ CVRA rights by deliberately concealing what they were doing from the victims. But in September 2019, after Epstein’s arrest and death from apparent suicide in jail, the district judge dismissed our case as moot. We went to the Eleventh Circuit, arguing that the victims’ challenge to the deal was not moot because the agreement conferred immunity from prosecution in the Southern District of Florida to Epstein’s co-conspirators. In April 2020, an Eleventh Circuit panel ruled 2-1 against us, but refused to reach the issue of whether the case was moot. Instead, the panel held that the CVRA did not give crime victims any rights before criminal charges are filed.

Edwards and I then sought review of the panel ruling by Eleventh Circuit en banc, supported by an amicus brief from Senator Dianne Feinstein and former Senators Jon Kyl and Orrin Hatch–three of the CVRA’s key co-sponsors when Congress passed the Act in 2004.  The Eleventh Circuit agreed to rehear the case en banc, and I argued the matter to the full Circuit in December 2020.

Yesterday the Circuit ruled 7-4 against Epstein’s victims, but on different grounds than the earlier panel opinion. In a 53-page decision written by Judge Newsom, the Circuit concluded that when Congress enacted the CVRA, it had somehow failed to include a provision  giving crime victims a “private right of action authorizing crime victims to seek judicial enforcement of CVRA rights outside the confines of a preexisting proceeding.” The Circuit conceded that the facts of the case are “beyond scandalous—they tell a tale of national disgrace.” And the Circuit acknowledged that it had “the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government attorneys.” Nonetheless, the Circuit concluded that we “simply cannot discern a clear expression of congressional intent to authorize the sort of stand-alone civil action that Ms. Wild filed here.”

The Circuit’s decision is wrong at so many levels that it is hard to see the precedent lasting long. We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications. And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims’ Rights Reform Act of 2019, which would directly overrule the Circuit’s conclusion.

One immediately glaring point about the majority’s decision, as cogently explained in Judge Branch’s dissenting opinion, is that the decision refused to decide the first of the two questions that the Circuit had agreed to rehear en banc.  The Court had asked for briefing and argument on two questions:

1. Whether the [CVRA] . . . grants a crime victim any statutory rights that apply before the filing of a formal criminal charge by the government prosecutor?
2. If a crime victim has statutory rights under the CVRA that apply pre-charge, does the CVRA also grant a crime victim a statutory remedy to enforce a violation of their statutory rights?

Yet, in its 53 page ruling, the majority ducked the first issue. Presumably the reason for obscuring the answer to this initial question is that the CVRA’s text and structure make plain that Congress intended to give to crime victims rights before charges are filed. Congress gave victims “[t]he reasonable right to confer with the attorney for the Government in the case” and also “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” Neither of these rights are textually limited to post-charging situations.  And in contrast, several of the other rights Congress provided in the CVRA are specifically limited to cases that have been filed in court, such as the victim’s right “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”

And, indeed, in another section of the CVRA, Congress commanded that the Justice Department and “other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are . . . accorded[] the rights described in subsection (a).” Congress would have had no reason to mandate that federal agencies involved in crime “detection” or “investigation” ensure that crime victims are accorded their CVRA rights if those rights did not exist “pre-charge.” Rather, as Judge Branch pointed out, “the use of disjunctive wording in subsection (c)—the ‘or’—indicates agencies that fit either description must comply, even though in some circumstances the investigatory and prosecution phases may overlap.”

The majority’s conclusion that Congress had failed to authorize victims to seek enforcement of their rights even before charges are filed also founders on another provision in the CVRA. Section 3771(d)(3) provides that “if no prosecution is underway,” crime victims can assert the rights described in the CVRA “in the district court in which a defendant is being prosecuted for the crime or, in the district court in the district in which the crime occurred.” In this case, because no federal prosecution of Epstein was “underway” after his secret non-prosecution agreement, Ms. Wild was entitled to pursue relief “in the district court in which the crime occurred”–i.e., in the Southern District of Florida where Epstein sexually abused her.

Judge Branch also eviscerates the majority’s conclusion that there is no “rights creating” language in the CVRA. As she explains, Congress’s opening command in the CVRA is that “[a] crime victim has the following rights,” and the Act goes on to list “[t]he reasonable right to confer with the attorney for the Government in the case,” and “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” And Congress also provided that victim “may assert” the rights described in the CVRA. Indeed, Congress allowed that assertion of rights even where “no prosecution is underway.” Congress then directed that the district court “shall take up and decide any motion asserting a victim’s right.”

Fixating on the word “motion,” the majority believes that the word presupposes an on-going criminal proceeding. But this reading is contrary to the way the term “motion” is used in the Federal Rules of Criminal Procedure. For example, Rule 41(g) establishes the procedures governing searches during investigations, explicitly permitting a third party to file a “motion” to enforce her rights before a criminal prosecution is formally commenced; and under Rule 17(c)(2), a witness may file a “motion” to quash a grand-jury subpoena even before an indictment is handed down. The majority says that these examples fails to establish that the term “motion” is commonly used to describe a vehicle for initiating enforcement of rights. But the majority overlooks the obvious point that both of the examples involve third-parties attempting to assert rights in criminal cases–which is exactly the situation that the CVRA involves.

The straightforward conclusion that crime victims have rights before charges are filed has previously been reached by the only other Circuit to address this issue. In a case I argued before the Fifth Circuit–In re Dean, 527 F.3d 391 (5th Cir. 2008)–that Circuit concluded that “‘[t]here are clearly rights under the CVRA that apply before any prosecution is underway.’ . . . includ[ing] the CVRA’s establishment of victims’ ‘reasonable right to confer with the attorney for the Government.'” This clear split between yesterday’s Eleventh Circuit ruling and the earlier 5th Circuit ruling will be one of the issues that we plan to present to the Supreme Court.

In the 185 pages of concurring and dissenting opinions yesterday, many other points are discussed. Perhaps one of the most powerful is Judge Hull’s cogent explanation that the majority’s decision

exacerbates disparities between wealthy defendants and those who cannot afford to hire well-connected and experienced attorneys during the pre-charge period. Most would-be defendants lack resources and usually have no counsel during this pre-charge period. Consequently, they do not have the pre-charge opportunity to negotiate the kind of extremely favorable deal that Epstein received. This sort of two-tiered justice system—one in which wealthy defendants hire experienced counsel to negotiate plea deals in secret and with no victim input—offends basic fairness and exacerbates the unequal playing field for poor and wealthy criminal defendants.

The majority’s decision produces so many oddities and disparities that its author–Judge Newsom–felt compelled to write an apologia about his own ruling.  Judge Newsom observed that he had reluctantly written the first panel decision and was now “filled with the same sense of sorrow.” He agreed that the prosecutors’ deliberate concealment of their agreement with Epstein from his victims was “[s]hameful all the way around” and that “[t]he whole thing makes me sick.” He also explained that, in handing down the ruling, “my heart breaks” for Ms. Wild and the other Epstein victims. But while this reaction is understandable, what is hard to understand is why Judge Newsom and his colleagues concluded that this unsettling result is what Congress intended in passing the CVRA. In creating “rights” for crime victims–in the Crime Victims Rights Act–Congress did not want victims like Ms. Wild to be shut out of the court process. Judge Newsom did not need to break the hearts of Epstein’s victim–all he needed to do was to enforce the law as Congress had written it.

For further reading on the issue of crime victims’ rights in pre-charging situations, you can read my two law review articles on the subject here and here.

Yesterday’s result is so palpably wrong on so many levels that I hope and expect that the Supreme Court or Congress will rapidly overrule it.

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The Eleventh Circuit Rules Against Jeffrey Epstein’s Sex Abuse Victims’ Efforts to Rescind His Secret Plea Deal

Yesterday the Eleventh Circuit en banc ruled 7-4 that the Crime Victims Rights Act (CVRA) does not allow Jeffrey Epstein’s sex trafficking victims to proceed in court to enforce their CVRA rights. The Circuit assumed that federal prosecutors had violated the victims’ CVRA right to confer about the Epstein non-prosecution agreement. But even proceeding on that assumption, the majority decided that Congress did not intend to allow victims to proceed in court to enforce their rights before charges are filed. This disturbing decision plainly thwarts Congress’s intent to provide enforceable rights to crime victims throughout the criminal justice process.  On behalf of our client, Ms. Courtney Wild, my co-counsel Brad Edwards and I plan to seek review in the Supreme Court and, if unsuccessful there, will ask Congress to overturn the unfortunate and incorrect ruling as swiftly as possible.

I have previously blogged about Epstein’s victims’ challenge to the sweetheart plea deal he orchestrated, which prevents any federal prosecution in the Southern District of Florida for the countless federal sex offenses he and his co-conspirators committed. You can read some of my earlier posts here, here, and here. As has been established through more than a decade of litigation, federal prosecutors arranged a secret non-prosecution agreement with Epstein, concealing what they were doing from his sex abuse victims. In 2008, after the deal was consummated, Edwards and I challenged it as having been concluded in violation of the crime victims’ CVRA rights, notably their right to reasonably confer with prosecutors.

After eleven years of hard-fought litigation(!), in February 2019 the federal district court judge  presiding over the challenge agreed with us that the prosecutors had violated Epstein’s victims’ CVRA rights by deliberately concealing what they were doing from the victims. But in September 2019, after Epstein’s arrest and death from apparent suicide in jail, the district judge dismissed our case as moot. We went to the Eleventh Circuit, arguing that the victims’ challenge to the deal was not moot because the agreement conferred immunity from prosecution in the Southern District of Florida to Epstein’s co-conspirators. In April 2020, an Eleventh Circuit panel ruled 2-1 against us, but refused to reach the issue of whether the case was moot. Instead, the panel held that the CVRA did not give crime victims any rights before criminal charges are filed.

Edwards and I then sought review of the panel ruling by Eleventh Circuit en banc, supported by an amicus brief from Senator Dianne Feinstein and former Senators Jon Kyl and Orrin Hatch–three of the CVRA’s key co-sponsors when Congress passed the Act in 2004.  The Eleventh Circuit agreed to rehear the case en banc, and I argued the matter to the full Circuit in December 2020.

Yesterday the Circuit ruled 7-4 against Epstein’s victims, but on different grounds than the earlier panel opinion. In a 53-page decision written by Judge Newsom, the Circuit concluded that when Congress enacted the CVRA, it had somehow failed to include a provision  giving crime victims a “private right of action authorizing crime victims to seek judicial enforcement of CVRA rights outside the confines of a preexisting proceeding.” The Circuit conceded that the facts of the case are “beyond scandalous—they tell a tale of national disgrace.” And the Circuit acknowledged that it had “the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government attorneys.” Nonetheless, the Circuit concluded that we “simply cannot discern a clear expression of congressional intent to authorize the sort of stand-alone civil action that Ms. Wild filed here.”

The Circuit’s decision is wrong at so many levels that it is hard to see the precedent lasting long. We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications. And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims’ Rights Reform Act of 2019, which would directly overrule the Circuit’s conclusion.

One immediately glaring point about the majority’s decision, as cogently explained in Judge Branch’s dissenting opinion, is that the decision refused to decide the first of the two questions that the Circuit had agreed to rehear en banc.  The Court had asked for briefing and argument on two questions:

1. Whether the [CVRA] . . . grants a crime victim any statutory rights that apply before the filing of a formal criminal charge by the government prosecutor?
2. If a crime victim has statutory rights under the CVRA that apply pre-charge, does the CVRA also grant a crime victim a statutory remedy to enforce a violation of their statutory rights?

Yet, in its 53 page ruling, the majority ducked the first issue. Presumably the reason for obscuring the answer to this initial question is that the CVRA’s text and structure make plain that Congress intended to give to crime victims rights before charges are filed. Congress gave victims “[t]he reasonable right to confer with the attorney for the Government in the case” and also “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” Neither of these rights are textually limited to post-charging situations.  And in contrast, several of the other rights Congress provided in the CVRA are specifically limited to cases that have been filed in court, such as the victim’s right “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”

And, indeed, in another section of the CVRA, Congress commanded that the Justice Department and “other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are . . . accorded[] the rights described in subsection (a).” Congress would have had no reason to mandate that federal agencies involved in crime “detection” or “investigation” ensure that crime victims are accorded their CVRA rights if those rights did not exist “pre-charge.” Rather, as Judge Branch pointed out, “the use of disjunctive wording in subsection (c)—the ‘or’—indicates agencies that fit either description must comply, even though in some circumstances the investigatory and prosecution phases may overlap.”

The majority’s conclusion that Congress had failed to authorize victims to seek enforcement of their rights even before charges are filed also founders on another provision in the CVRA. Section 3771(d)(3) provides that “if no prosecution is underway,” crime victims can assert the rights described in the CVRA “in the district court in which a defendant is being prosecuted for the crime or, in the district court in the district in which the crime occurred.” In this case, because no federal prosecution of Epstein was “underway” after his secret non-prosecution agreement, Ms. Wild was entitled to pursue relief “in the district court in which the crime occurred”–i.e., in the Southern District of Florida where Epstein sexually abused her.

Judge Branch also eviscerates the majority’s conclusion that there is no “rights creating” language in the CVRA. As she explains, Congress’s opening command in the CVRA is that “[a] crime victim has the following rights,” and the Act goes on to list “[t]he reasonable right to confer with the attorney for the Government in the case,” and “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” And Congress also provided that victim “may assert” the rights described in the CVRA. Indeed, Congress allowed that assertion of rights even where “no prosecution is underway.” Congress then directed that the district court “shall take up and decide any motion asserting a victim’s right.”

Fixating on the word “motion,” the majority believes that the word presupposes an on-going criminal proceeding. But this reading is contrary to the way the term “motion” is used in the Federal Rules of Criminal Procedure. For example, Rule 41(g) establishes the procedures governing searches during investigations, explicitly permitting a third party to file a “motion” to enforce her rights before a criminal prosecution is formally commenced; and under Rule 17(c)(2), a witness may file a “motion” to quash a grand-jury subpoena even before an indictment is handed down. The majority says that these examples fails to establish that the term “motion” is commonly used to describe a vehicle for initiating enforcement of rights. But the majority overlooks the obvious point that both of the examples involve third-parties attempting to assert rights in criminal cases–which is exactly the situation that the CVRA involves.

The straightforward conclusion that crime victims have rights before charges are filed has previously been reached by the only other Circuit to address this issue. In a case I argued before the Fifth Circuit–In re Dean, 527 F.3d 391 (5th Cir. 2008)–that Circuit concluded that “‘[t]here are clearly rights under the CVRA that apply before any prosecution is underway.’ . . . includ[ing] the CVRA’s establishment of victims’ ‘reasonable right to confer with the attorney for the Government.'” This clear split between yesterday’s Eleventh Circuit ruling and the earlier 5th Circuit ruling will be one of the issues that we plan to present to the Supreme Court.

In the 185 pages of concurring and dissenting opinions yesterday, many other points are discussed. Perhaps one of the most powerful is Judge Hull’s cogent explanation that the majority’s decision

exacerbates disparities between wealthy defendants and those who cannot afford to hire well-connected and experienced attorneys during the pre-charge period. Most would-be defendants lack resources and usually have no counsel during this pre-charge period. Consequently, they do not have the pre-charge opportunity to negotiate the kind of extremely favorable deal that Epstein received. This sort of two-tiered justice system—one in which wealthy defendants hire experienced counsel to negotiate plea deals in secret and with no victim input—offends basic fairness and exacerbates the unequal playing field for poor and wealthy criminal defendants.

The majority’s decision produces so many oddities and disparities that its author–Judge Newsom–felt compelled to write an apologia about his own ruling.  Judge Newsom observed that he had reluctantly written the first panel decision and was now “filled with the same sense of sorrow.” He agreed that the prosecutors’ deliberate concealment of their agreement with Epstein from his victims was “[s]hameful all the way around” and that “[t]he whole thing makes me sick.” He also explained that, in handing down the ruling, “my heart breaks” for Ms. Wild and the other Epstein victims. But while this reaction is understandable, what is hard to understand is why Judge Newsom and his colleagues concluded that this unsettling result is what Congress intended in passing the CVRA. In creating “rights” for crime victims–in the Crime Victims Rights Act–Congress did not want victims like Ms. Wild to be shut out of the court process. Judge Newsom did not need to break the hearts of Epstein’s victim–all he needed to do was to enforce the law as Congress had written it.

For further reading on the issue of crime victims’ rights in pre-charging situations, you can read my two law review articles on the subject here and here.

Yesterday’s result is so palpably wrong on so many levels that I hope and expect that the Supreme Court or Congress will rapidly overrule it.

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HHS Blames Trump Policy for 180,000 Unplanned Pregnancies


ibphotos474577

Dubious assumptions underlie estimate of unplanned pregnancies caused by Trump policy. “The Biden administration is working to reverse a Trump-era family policy directive that…officials believe may have resulted in an estimated 180,000 unplanned pregnancies,” reports Newsweek. The startling estimate comes from a new proposal from the U.S. Department of Health and Human Services (HHS) to rescind the Trump-era rule. But to get this unintended pregnancy estimate, the health agency had to make some pretty big leaps in logic.

The biggest flaw with the HHS estimate is that it assumes a lot of people not receiving family-planning services subsidized by the federal government in 2019 simply went without any birth control or family-planning measures at all.

The funding in question comes via Title X of the Public Health Service Act, under which the federal government can “make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects.”

In 2019, the Trump administration finalized a rule saying that no Title X funding could go to health clinics or programs that also referred women to abortion services or provided information about abortion. (The money was already barred from going toward the direct provision of abortions.) “Litigation over the 2019 rule immediately ensued,” notes the HHS proposal. “The Department was sued by 23 states, every major medical organization, Title X grantee organizations, and individual grantees.” But appeals courts upheld the Trump administration rule.

As a result, 19 out of 90 recipients of Title X grant funding dropped out of the program, according to HHS. “Overall, the Title X program lost more than 1,000 service sites. Those service sites represented approximately one quarter of all Title X-funded sites in 2019.”

With fewer groups getting Title X grants, fewer patients were serviced under the auspices of Title X money. “With the 2019 Final Rule only being in place for five and a half months, the remaining 71 Title X grantees served 844,083 fewer clients as compared to the previous year,” HHS reports.

HHS does not say these service sites—many of them Planned Parenthood clinics—shut down, and there was no news in 2019 of a wave of Planned Parenthood clinic closures or masses of people being turned away from Planned Parenthood services. (Searching Google for 2019, the only news of Planned Parenthood clinics closing is that two in Cincinnati, Ohio, closed after being threatened by state rule changes. “These closures are the result of years attacks on our ability to provide reproductive health care,” Planned Parenthood said in a statement to ABC News.)

Presumably, Planned Parenthood—whose lobbying arm spent $45 million on the 2020 election—largely found other ways to cover budget deficits left by lack of Title X funds.

Planned Parenthood itself does not report serving few patients or helping prevent drastically fewer unintended pregnancies. Its annual reports say that for 2019–2020, it served 2.4 million patients and that an estimated “395,000 unintended pregnancies [were] averted by contraceptive services
” it provided. And for 2018–2019, it also served 2.4 million patients, and “approximately 393,000 unintended pregnancies [were] averted by Planned Parenthood contraceptive services.”

In addition, groups still receiving Title X money were given more of it in 2019, which should have enabled them to serve more patients. “Fifty existing grantees were awarded $33.7 million to expand Title X services” and seven states “had a meaningful increase in the number of Title X clinics in their states,” HHS says.

There’s no reason to suspect that patients whose visits were previously subsidized by Title X money at Planned Parenthood (or other clinics that left the grant program) simply gave up on birth control or other family-planning methods altogether. Yet that’s exactly what HHS assumes to get its unintended pregnancy increase estimate.

The new HHS proposal gives a lot of data on how many fewer people were served using Title X money: “Compared to 2018, 225,688 fewer clients received oral contraceptives; 49,803 fewer clients received hormonal implants; and 86,008 fewer clients received IUDs.” But we don’t know that people went without these things entirely, merely that clinics weren’t using Title X grant money to pay for them.

Nonetheless, the agency extrapolates from there that “as a result of the decrease in clients able to receive Title X services, it is estimated that the 2019 Final Rule may have led to up to 181,477 unintended pregnancies.”

It arrived at that number by “estimating that of the 844,083 fewer clients served by Title X in 2019 compared to 2018, 21.5% of those clients could have experienced an unintended pregnancy as a result of not receiving services.” HHS said it came to this number from a formula developed by the Guttmacher Institute, a reproductive rights research group.

The Guttmacher Institute said in a 2017 paper that “the formula for calculating pregnancies averted among general populations of publicly funded family planning clients is to multiply the number of clients by 21.5%, to get the number of unintended pregnancies averted.”

However, using this to estimate the number of unplanned pregnancies caused by fewer patients being served by Title X grants does not take into account that these patients may have been served by other publicly funded planning programs.

FREE MINDS

Adam Toledo dropped gun, got killed by cops anyway. Body camera footage released by the Chicago Police Department on Thursday gives a fuller picture of the March 29 killing of Adam Toledo. The 13-year-old boy was fatally shot by police despite having his hands up. “Prosecutors initially suggested Toledo had a gun in his hand when the officer shot him, but the state’s attorney’s office walked that back today,” as Reason‘s Billy Binion reported yesterday. While Toledo did have a gun, “a slowly rendered version of the clip shows Toledo dropping a gun and raising both of his hands in the air, after which point he was shot in the chest.”

FREE MARKETS

House Democrats approve antitrust bill targeting Big Tech. The House of Representatives Judiciary Committee has formally approved an antitrust report targeting Apple, Amazon, Facebook, and Google. The report, released last October, “was approved by a 24-17 vote that split along party lines,” notes Reuters. But Democrats aren’t alone in their antitrust fervor. For instance, Sen. Josh Hawley (R–Mo.) has just a dangerous new “trust-busting” bill. The measure “not only increases the opportunities for future officials to derail perfectly harmless business activities; it runs the risk of bogging down commerce in regulatory processes,” writes Katherine Revello.

QUICK HITS

• The defense in Derek Chauvin’s case rested yesterday, without having called Chauvin (who is on trial for killing George Floyd) to the stand. Closing arguments begin Monday.

• The American Civil Liberties Union of Ohio is suing the state’s prison system for seizing inmates’ COVID-19 stimulus checks.

• Mississippi will stop making purveyors of low-risk beauty services get special licenses:

• A psychedelics decriminalization bill is moving forward in California, having passed the Senate Health Committee by a 6–1 vote on Wednesday.

• A woman with dementia is suing the city of Loveland, Colorado, and three of its police officers after cops pushed her to the ground, arrested her, and jailed her for attempting to walk out of a Walmart with around $14 worth of goods she hadn’t paid for and promptly gave back when asked by store employees.

• Democratic reactions to the prospect of withdrawing troops from Afghanistan are different than they were last year…

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HHS Blames Trump Policy for 180,000 Unplanned Pregnancies


ibphotos474577

Dubious assumptions underlie estimate of unplanned pregnancies caused by Trump policy. “The Biden administration is working to reverse a Trump-era family policy directive that…officials believe may have resulted in an estimated 180,000 unplanned pregnancies,” reports Newsweek. The startling estimate comes from a new proposal from the U.S. Department of Health and Human Services (HHS) to rescind the Trump-era rule. But to get this unintended pregnancy estimate, the health agency had to make some pretty big leaps in logic.

The biggest flaw with the HHS estimate is that it assumes a lot of people not receiving family-planning services subsidized by a particular federal government program in 2019 simply went without any birth control or family-planning measures at all.

The funding in question comes via Title X of the Public Health Service Act, under which the federal government can “make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects.”

In 2019, the Trump administration finalized a rule saying that no Title X funding could go to health clinics or programs that also referred women to abortion services or provided information about abortion. (The money was already barred from going toward the direct provision of abortions.) “Litigation over the 2019 rule immediately ensued,” notes the HHS proposal. “The Department was sued by 23 states, every major medical organization, Title X grantee organizations, and individual grantees.” But appeals courts upheld the Trump administration rule.

As a result, 19 out of 90 recipients of Title X grant funding dropped out of the program, according to HHS. “Overall, the Title X program lost more than 1,000 service sites. Those service sites represented approximately one quarter of all Title X-funded sites in 2019.”

With fewer groups getting Title X grants, fewer patients were serviced under the auspices of Title X money. “With the 2019 Final Rule only being in place for five and a half months, the remaining 71 Title X grantees served 844,083 fewer clients as compared to the previous year,” HHS reports.

HHS does not say these service sites—many of them Planned Parenthood clinics—shut down, and there was no news in 2019 of a wave of Planned Parenthood clinic closures or masses of people being turned away from Planned Parenthood services. (Searching Google for 2019, the only news of Planned Parenthood clinics closing is that two in Cincinnati, Ohio, closed after being threatened by state rule changes. “These closures are the result of years attacks on our ability to provide reproductive health care,” Planned Parenthood said in a statement to ABC News.)

Presumably, Planned Parenthood—whose lobbying arm spent $45 million on the 2020 election—largely found other ways to cover budget deficits left by lack of Title X funds.

Planned Parenthood itself does not report serving few patients or helping prevent drastically fewer unintended pregnancies. Its annual reports say that for 2019–2020, it served 2.4 million patients and that an estimated “395,000 unintended pregnancies [were] averted by contraceptive services
” it provided. And for 2018–2019, it also served 2.4 million patients, and “approximately 393,000 unintended pregnancies [were] averted by Planned Parenthood contraceptive services.”

In addition, groups still receiving Title X money were given more of it in 2019, which should have enabled them to serve more patients. “Fifty existing grantees were awarded $33.7 million to expand Title X services” and seven states “had a meaningful increase in the number of Title X clinics in their states,” HHS says.

There’s no reason to suspect that patients whose visits were previously subsidized by Title X money at Planned Parenthood (or other clinics that left the grant program) simply gave up on birth control or other family-planning methods altogether. Yet that’s exactly what HHS assumes to get its unintended pregnancy increase estimate.

The new HHS proposal gives a lot of data on how many fewer people were served using Title X money: “Compared to 2018, 225,688 fewer clients received oral contraceptives; 49,803 fewer clients received hormonal implants; and 86,008 fewer clients received IUDs.” But we don’t know that people went without these things entirely, merely that clinics weren’t using Title X grant money to pay for them.

Nonetheless, the agency extrapolates from there that “as a result of the decrease in clients able to receive Title X services, it is estimated that the 2019 Final Rule may have led to up to 181,477 unintended pregnancies.”

It arrived at that number by “estimating that of the 844,083 fewer clients served by Title X in 2019 compared to 2018, 21.5% of those clients could have experienced an unintended pregnancy as a result of not receiving services.” HHS said it came to this number from a formula developed by the Guttmacher Institute, a reproductive rights research group.

The Guttmacher Institute said in a 2017 paper that “the formula for calculating pregnancies averted among general populations of publicly funded family planning clients is to multiply the number of clients by 21.5%, to get the number of unintended pregnancies averted.”

However, using this to estimate the number of unplanned pregnancies caused by fewer patients being served by Title X grants does not take into account that these patients may have been served by other publicly funded (or otherwise subsidized) planning programs.

FREE MINDS

Adam Toledo dropped gun, got killed by cops anyway. Body camera footage released by the Chicago Police Department on Thursday gives a fuller picture of the March 29 killing of Adam Toledo. The 13-year-old boy was fatally shot by police despite having his hands up. “Prosecutors initially suggested Toledo had a gun in his hand when the officer shot him, but the state’s attorney’s office walked that back today,” as Reason‘s Billy Binion reported yesterday. While Toledo did have a gun, “a slowly rendered version of the clip shows Toledo dropping a gun and raising both of his hands in the air, after which point he was shot in the chest.”

FREE MARKETS

House Democrats approve antitrust bill targeting Big Tech. The House of Representatives Judiciary Committee has formally approved an antitrust report targeting Apple, Amazon, Facebook, and Google. The report, released last October, “was approved by a 24-17 vote that split along party lines,” notes Reuters. But Democrats aren’t alone in their antitrust fervor. For instance, Sen. Josh Hawley (R–Mo.) has just a dangerous new “trust-busting” bill. The measure “not only increases the opportunities for future officials to derail perfectly harmless business activities; it runs the risk of bogging down commerce in regulatory processes,” writes Katherine Revello.

QUICK HITS

• The defense in Derek Chauvin’s case rested yesterday, without having called Chauvin (who is on trial for killing George Floyd) to the stand. Closing arguments begin Monday.

• The American Civil Liberties Union of Ohio is suing the state’s prison system for seizing inmates’ COVID-19 stimulus checks.

• Mississippi will stop making purveyors of low-risk beauty services get special licenses:

• A psychedelics decriminalization bill is moving forward in California, having passed the Senate Health Committee by a 6–1 vote on Wednesday.

• A woman with dementia is suing the city of Loveland, Colorado, and three of its police officers after cops pushed her to the ground, arrested her, and jailed her for attempting to walk out of a Walmart with around $14 worth of goods she hadn’t paid for and promptly gave back when asked by store employees.

• Democratic reactions to the prospect of withdrawing troops from Afghanistan are different than they were last year…

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Pharma Co. Demands Preliminary Injunction to Take Down Anesthesiology Journal Articles

As I blogged Wednesday, Pacira Biosciences, Inc. is suing over allegedly “false and  misleading statements made about EXPAREL, a pain medication drug,” in articles in the medical journal Anesthesiology (and related materials). It’s asking the court to “order Defendants to remove the challenged statements from its website, print a retraction in the next issue of Anesthesiology, and prohibit the individual defendants from publishing or
circulating the challenged materials, pending resolution of this suit.” (The brief arguing for this preliminary injunction, which was sealed when I first blogged about it, is now available, in lightly redacted form.)

But preliminary injunctions against libel (entered before a trial) are generally viewed as unconstitutional prior restraints, even by courts that generally allow permanent injunctions against repeating material found to be libelous at trial. And though this is a trade libel case, trade libel claims (at least ones not involving commercial advertising) are subject to the same First Amendment rules as ordinary libel claims.

In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. “… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted….”

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.

The Nebraska Supreme Court took the same view:

A jury has yet to determine whether Sullivan’s allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan’s speech, constitute unconstitutional prior restraints in derogation of Sullivan’s right to speak.

Or in the words of the Alaska Supreme Court, “Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected.” And while the court went on to say that, “A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected,” the injunction that it was authorizing this way isn’t really so preliminary.[1] The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.[2]

And the Third Circuit, in which this case is being litigated, seems to take a similar view; it has endorsed permanent injunctions against libel, but precisely because they are entered after a trial (emphasis in first paragraph in original, in second paragraph added):

Two of the three traditional reasons for barring equity from enjoining a defamation … are obviated once a jury has determined that the enjoined statements are indeed libelous. First, it obviously cannot be said that a defendant has been denied the right to a jury determination of the veracity of his statements if a judge issues an injunction against further statements after a jury has determined that the same statements are untrue and libelous.

Second, not all injunctions against speech constitute prior restraints. The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rel., 413 U.S. 376, 390 (1973) (“The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.“). Because libelous speech is not protected by either the United States or the Pennsylvania Constitutions, it follows that, once a jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin the defendant from repeating that statement.

I was curious how the brief supporting the injunction would overcome these objections, but the answer is that it doesn’t: It doesn’t seem to mention the First Amendment or prior restraints. Presumably they are saving that for the reply brief; when that is filed, I’ll post something about whatever argument they make.

I also don’t know of any authority for ordering a journal to print a retraction before trial; indeed, it’s controversial whether even it’s permissible to order a retraction even after material is found libelous at trial. I hope the reply brief will likewise elaborate on this.

[* * *]

[1] See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued “after only the most preliminary of determinations by the trial court”); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted “before an adequate determination that it is unprotected by the First Amendment”); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) (“We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although ‘it has never been held that all injunctions against publication are impermissible,’ such an injunction has been upheld only when it ‘was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'”); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) (“[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected.”); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) (“A preliminary injunction is a prior restraint.”); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not “‘entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'” (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only “after a final adjudication on the merits that the speech is unprotected”).

[2] But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and “[t]he First Amendment does not protect fraud”); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of “primarily private concern”).

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Conservatives Embrace Their Own ‘Wokeness’ With Attacks on Private Businesses


polspphotos782777

This week’s column set out to highlight the expected Democratic attack on free speech and free enterprise. I had been following news reports that Rep. David Cicilline (D–R.I.), the chairman of the House Judiciary Committee’s antitrust subcommittee, is about to introduce 10 bills that take aim at the nation’s big technology companies.

For instance, the preamble to the Cicilline panel’s 449-page report, released in October, complained that tech firms “that once were scrappy, underdog startups that challenged the status quo have become the kinds of monopolies we last saw in the era of oil barons and railroad tycoons.”

One should expect such overheated rhetoric—combined with a misunderstanding about the nature of monopolies—from one of Congress’ most left-wing members. We also shouldn’t feign surprise that Sen. Elizabeth Warren (D–Mass.), the progressive icon and former presidential candidate, recently got into a snarky Twitter debate with Amazon.

“You make the tax laws @SenWarren; we just follow them,” the company tweeted,  in response to her effort to close tax “loopholes.” In response, the senator blasted the company’s “armies of lawyers and lobbyists”—and vowed to “break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.”

That’s an outrageous threat to use federal muscle to commandeer private companies and squelch their ability to communicate with elected officials. Warren, Cicilline, and other Democrats now call for an end to the Communications Decency Act’s Section 230, which protects tech platforms such as Facebook from lawsuits over comments made by users.

I was appalled about these threats that newly empowered Democrats pose to private industry, but then I looked at what the GOP had to say. Instead of standing up for free enterprise and other long-held GOP principles, leading conservatives have been trying to outbid their progressive colleagues in making overheated attacks on “Big Tech.” Given the hypocrisy here, the GOP attacks may be worse than what progressives are doing.

Last week’s political news centered on Georgia, where the GOP governor signed a package of election “reforms” that some mainstream media outlets depict as “Jim Crow 2.0”. Those narratives do a disservice to the African Americans that Jim Crow laws actually victimized, but the legislation—a mix of good, bad, and awful—emanates from Donald Trump’s baseless allegations that election fraud robbed him of a second term.

A number of private executives, in the tech sector and old-line industries, criticized the new law. For instance, Major League Baseball responded by moving the All-Star Game out of Atlanta. Atlanta-based Delta Airlines and Coca-Cola criticized the legislation. Coke’s CEO, for instance, told CNBC that the law “does not promote principles we have stood for in Georgia around broad access to voting, around voter convenience, about ensuring election integrity.”

Republican officials, who have created a cottage industry out of blasting progressives for their cancel-culture habit of boycotting and shaming people who say and do things they don’t like, went into full cancel-culture mode and railed against corporations. The former president championed a boycott of Coca-Cola in zany press releases. One GOP lawmaker introduced a bill to strip Major League Baseball of its antitrust exemption, which is the type of thing one would expect from Warren.

Senate GOP Leader Mitch McConnell (R–Ky.), who has never shied away from accepting corporate donations that advance his agenda, used the Georgia fracas to issue his own warnings to corporate America. “Our private sector must stop taking cues from the Outrage-Industrial Complex,” he said, noting that, “corporations will invite serious consequences if they become a vehicle for far-left mobs to hijack our country from outside the constitutional order.”

As I understand it, our constitutional order is based on the idea that American citizens—including corporate executives—have every right to express their opinions on political issues even if leading senators don’t like the positions they take. That Constitution allows businesses to operate wherever they choose—and do so without threats from federal officials more interested in fighting culture wars than protecting our freedoms.

In other news, conservatives applauded Supreme Court Justice Clarence Thomas, who embraced the notion that feds should treat tech firms like public utilities rather than private companies. Meanwhile, two GOP members of Congress recently penned an op-ed in the Hill that sounds like something from Nanny State Democrats.

Reps. Gus Bilirakis (R–Fla.) and Bob Latta (R–Ohio) argued for more speech regulation because of online bullying. “There is bipartisan agreement that the Big Tech industry is failing to protect Americans, especially our children,” they wrote. Well, if it’s for the children, why should anyone complain?

The two representatives are correct in one thing. This abuse of government to micromanage private businesses and limit free speech certainly is bipartisan. Now that Republicans have embraced the same approach as Democrats, who is left to bloviate about the need for limited government, free enterprise, and personal responsibility?

This column was first published in The Orange County Register.

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Pharma Co. Demands Preliminary Injunction to Take Down Anesthesiology Journal Articles

As I blogged Wednesday, Pacira Biosciences, Inc. is suing over allegedly “false and  misleading statements made about EXPAREL, a pain medication drug,” in articles in the medical journal Anesthesiology (and related materials). It’s asking the court to “order Defendants to remove the challenged statements from its website, print a retraction in the next issue of Anesthesiology, and prohibit the individual defendants from publishing or
circulating the challenged materials, pending resolution of this suit.” (The brief arguing for this preliminary injunction, which was sealed when I first blogged about it, is now available, in lightly redacted form.)

But preliminary injunctions against libel (entered before a trial) are generally viewed as unconstitutional prior restraints, even by courts that generally allow permanent injunctions against repeating material found to be libelous at trial. And though this is a trade libel case, trade libel claims (at least ones not involving commercial advertising) are subject to the same First Amendment rules as ordinary libel claims.

In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. “… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted….”

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.

The Nebraska Supreme Court took the same view:

A jury has yet to determine whether Sullivan’s allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan’s speech, constitute unconstitutional prior restraints in derogation of Sullivan’s right to speak.

Or in the words of the Alaska Supreme Court, “Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected.” And while the court went on to say that, “A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected,” the injunction that it was authorizing this way isn’t really so preliminary.[1] The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.[2]

And the Third Circuit, in which this case is being litigated, seems to take a similar view; it has endorsed permanent injunctions against libel, but precisely because they are entered after a trial (emphasis in first paragraph in original, in second paragraph added):

Two of the three traditional reasons for barring equity from enjoining a defamation … are obviated once a jury has determined that the enjoined statements are indeed libelous. First, it obviously cannot be said that a defendant has been denied the right to a jury determination of the veracity of his statements if a judge issues an injunction against further statements after a jury has determined that the same statements are untrue and libelous.

Second, not all injunctions against speech constitute prior restraints. The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rel., 413 U.S. 376, 390 (1973) (“The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.“). Because libelous speech is not protected by either the United States or the Pennsylvania Constitutions, it follows that, once a jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin the defendant from repeating that statement.

I was curious how the brief supporting the injunction would overcome these objections, but the answer is that it doesn’t: It doesn’t seem to mention the First Amendment or prior restraints. Presumably they are saving that for the reply brief; when that is filed, I’ll post something about whatever argument they make.

I also don’t know of any authority for ordering a journal to print a retraction before trial; indeed, it’s controversial whether even it’s permissible to order a retraction even after material is found libelous at trial. I hope the reply brief will likewise elaborate on this.

[* * *]

[1] See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued “after only the most preliminary of determinations by the trial court”); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted “before an adequate determination that it is unprotected by the First Amendment”); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) (“We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although ‘it has never been held that all injunctions against publication are impermissible,’ such an injunction has been upheld only when it ‘was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'”); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) (“[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected.”); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) (“A preliminary injunction is a prior restraint.”); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not “‘entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'” (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only “after a final adjudication on the merits that the speech is unprotected”).

[2] But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and “[t]he First Amendment does not protect fraud”); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of “primarily private concern”).

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Conservatives Embrace Their Own ‘Wokeness’ With Attacks on Private Businesses


polspphotos782777

This week’s column set out to highlight the expected Democratic attack on free speech and free enterprise. I had been following news reports that Rep. David Cicilline (D–R.I.), the chairman of the House Judiciary Committee’s antitrust subcommittee, is about to introduce 10 bills that take aim at the nation’s big technology companies.

For instance, the preamble to the Cicilline panel’s 449-page report, released in October, complained that tech firms “that once were scrappy, underdog startups that challenged the status quo have become the kinds of monopolies we last saw in the era of oil barons and railroad tycoons.”

One should expect such overheated rhetoric—combined with a misunderstanding about the nature of monopolies—from one of Congress’ most left-wing members. We also shouldn’t feign surprise that Sen. Elizabeth Warren (D–Mass.), the progressive icon and former presidential candidate, recently got into a snarky Twitter debate with Amazon.

“You make the tax laws @SenWarren; we just follow them,” the company tweeted,  in response to her effort to close tax “loopholes.” In response, the senator blasted the company’s “armies of lawyers and lobbyists”—and vowed to “break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.”

That’s an outrageous threat to use federal muscle to commandeer private companies and squelch their ability to communicate with elected officials. Warren, Cicilline, and other Democrats now call for an end to the Communications Decency Act’s Section 230, which protects tech platforms such as Facebook from lawsuits over comments made by users.

I was appalled about these threats that newly empowered Democrats pose to private industry, but then I looked at what the GOP had to say. Instead of standing up for free enterprise and other long-held GOP principles, leading conservatives have been trying to outbid their progressive colleagues in making overheated attacks on “Big Tech.” Given the hypocrisy here, the GOP attacks may be worse than what progressives are doing.

Last week’s political news centered on Georgia, where the GOP governor signed a package of election “reforms” that some mainstream media outlets depict as “Jim Crow 2.0”. Those narratives do a disservice to the African Americans that Jim Crow laws actually victimized, but the legislation—a mix of good, bad, and awful—emanates from Donald Trump’s baseless allegations that election fraud robbed him of a second term.

A number of private executives, in the tech sector and old-line industries, criticized the new law. For instance, Major League Baseball responded by moving the All-Star Game out of Atlanta. Atlanta-based Delta Airlines and Coca-Cola criticized the legislation. Coke’s CEO, for instance, told CNBC that the law “does not promote principles we have stood for in Georgia around broad access to voting, around voter convenience, about ensuring election integrity.”

Republican officials, who have created a cottage industry out of blasting progressives for their cancel-culture habit of boycotting and shaming people who say and do things they don’t like, went into full cancel-culture mode and railed against corporations. The former president championed a boycott of Coca-Cola in zany press releases. One GOP lawmaker introduced a bill to strip Major League Baseball of its antitrust exemption, which is the type of thing one would expect from Warren.

Senate GOP Leader Mitch McConnell (R–Ky.), who has never shied away from accepting corporate donations that advance his agenda, used the Georgia fracas to issue his own warnings to corporate America. “Our private sector must stop taking cues from the Outrage-Industrial Complex,” he said, noting that, “corporations will invite serious consequences if they become a vehicle for far-left mobs to hijack our country from outside the constitutional order.”

As I understand it, our constitutional order is based on the idea that American citizens—including corporate executives—have every right to express their opinions on political issues even if leading senators don’t like the positions they take. That Constitution allows businesses to operate wherever they choose—and do so without threats from federal officials more interested in fighting culture wars than protecting our freedoms.

In other news, conservatives applauded Supreme Court Justice Clarence Thomas, who embraced the notion that feds should treat tech firms like public utilities rather than private companies. Meanwhile, two GOP members of Congress recently penned an op-ed in the Hill that sounds like something from Nanny State Democrats.

Reps. Gus Bilirakis (R–Fla.) and Bob Latta (R–Ohio) argued for more speech regulation because of online bullying. “There is bipartisan agreement that the Big Tech industry is failing to protect Americans, especially our children,” they wrote. Well, if it’s for the children, why should anyone complain?

The two representatives are correct in one thing. This abuse of government to micromanage private businesses and limit free speech certainly is bipartisan. Now that Republicans have embraced the same approach as Democrats, who is left to bloviate about the need for limited government, free enterprise, and personal responsibility?

This column was first published in The Orange County Register.

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Restore Pre-Pandemic Freedom, For the Children


andre-ouellet-NJUkH0h0R9I-unsplash

The year-plus of the pandemic has been an unpleasant experiment in just how far previously free-ish countries could be subjected to command-and-control systems without exciting rebellion and pushing them past the breaking point. The uncomfortable evidence is that many people willingly suffer massive impositions before resisting, though others chafe and are eager to resume some semblance of normal life. But how much damage has been done to children who have been at the mercy of officials who seized control and adults who failed to resist? In an era when every policy seems to be justified as “for the children,” pandemic lockdown pain is definitely something done to them.

“The coronavirus pandemic has been hitting adolescents hard,” science journalist Melinda Wenner Moyer noted last week in UnDark. “During the teen years, friendships matter more than almost everything else… But this year, teens have been forced to stay home and avoid real-world interactions with their friends. They have had to spend their days denied of their deepest needs while, in some cases, taking on more responsibilities — yet without many of the emotional supports they had in the past.”

“Rarely have America’s children suffered so many blows, and all at once, as during the pandemic’s lost year, Andrea Petersen reported in a similar piece for the Wall Street Journal. “The crisis has hit children on multiple fronts. Many have experienced social isolation during lockdowns, family stress, a breakdown of routine and anxiety about the virus.”

Both stories cite awful examples, and science supports the anecdotes.

“Posttraumatic, anxiety, and depression disorders are expected during and aftermath of the pandemic,” cautioned a September 2020 article in the International Journal of Disaster Risk Reduction. “Some groups, like children, have more susceptibility to having long term consequences in mental health.”

“[C]hildren’s depression ratings significantly increased during the lockdown, relative to 18 months beforehand,” found a November 2020 article on the results of lockdowns in the UK in the Archives of Disease in Childhood.

From April through October of 2020, emergency room visits in the United States for mental health reasons increased by 24 percent for kids 5- to 11-years-old, and by 31 percent for 12- to 17-year-olds, according to the Centers for Disease Control and Prevention.

Anecdotally, my wife, a pediatrician, has seen a huge surge in depression, anxiety, and self-harm in the months of the pandemic. Deprived of social interaction with classmates, teammates, and friends for a period of time that constitutes a significant percentage of their short lives, kids are falling apart. Too many of them are having suicidal thoughts in a world distorted beyond recognition and acceptability. And there’s no doubt as to the culprit.

“Pandemic life is not conducive to normal developmental events and this is having a significant impact,” comments Mamilda Robinson, a specialty director and clinical instructor of psychiatric mental health at Rutgers School of Nursing.

It didn’t have to be this way. During past pandemics, nobody ordered more-or less free societies to grind to a halt or tried to coerce their populations into isolation from one another. Weirdly, the public health professionals behind the lockdowns took their inspiration from totalitarian China, a country ruled by a government that espouses values entirely hostile to those of free societies.

“It’s a communist one party state, we said,” Professor Neil Ferguson, a prominent advisor to the British government on pandemic policy, told the Times of London in December. “We couldn’t get away with it in Europe, we thought… and then Italy did it. And we realised we could.” (UnHerd offers an unpaywalled summary.)

The result was that “[a]cross the world in 2020, citizens experienced the biggest rollback of individual freedoms ever undertaken by governments during peacetime (and perhaps even in wartime),” The Economist‘s Democracy Index 2020 observed of the world’s pandemic response. “The willing surrender of fundamental freedoms by millions of people was perhaps one of the most remarkable occurrences in an extraordinary year.”

“Willing” may be an overstatement about the reaction of those—in America and elsewhere—who protested and defied restrictions. It is certainly not an accurate characterization of the children who were dragged into an isolated and unnatural existence by adults.

And why were kids dragged into isolation that troubles even adults who have greater perspective and emotional resources when children are among those with the least vulnerability to COVID-19?

“Children, including very young children, can develop COVID-19,” according to information posted by the Harvard Medical School. “Many of them have no symptoms. Those that do get sick tend to experience milder symptoms such as low-grade fever, fatigue, and cough.”

Some children, especially those with underlying health conditions might get very sick. And there’s potential for them to pass the illness to those who are more vulnerable. But, as we’ve seen over the past year, children are especially endangered by isolation, the disruption of normal routine, and lack of contact with friends. They’re at much more risk from the lockdown policies implemented to fight the pandemic than they are from the virus itself.

A more rational response to the pandemic might have focused on offering protective measures to those at greatest risk from the disease, allowing adults to choose their own tradeoffs between risk and isolation. A rational approach would have certainly emphasized maintaining as much normality as possible for children and adolescents who need social contact with peers and friends in order to develop normally and happily.

The woefully regrettable authoritarian experiment of the past year will leave a mark on people’s sanity, prosperity, and relations with one another for years to come. It’s certainly going to leave an unpredictable, but probably unfortunate, legacy for the youngest among us for whom the pandemic will be a defining event in their lives. An apology isn’t enough; we need to restore pre-pandemic freedom for the children.

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