Category: reason

After legislation was shut down by law enforcement unions last year, a California lawmaker is trying again to establish a legal process to decertify bad cops and get them off the force.

California is one of only four states (New Jersey, Rhode Island, and Hawaii being the other three) that does not have an official system to strip officers found guilty of misconduct of their badges, meaning that even when a cop gets fired for bad behavior, he or she can just go to another city and get rehired onto another force.

Massachusetts used to be in the same boat, but lawmakers passed a law that took effect this year to create a decertification process. In California, state Sen. Steven Bradford (D–Gardena) introduced similar legislation that died right at the finish line last September as resistance from police unions prevented it from passing.

According to Courthouse News Service, Bradford has made changes to his bill to address some due process concerns that law enforcement representatives had, and now it’s back as S.B. 2. Within California’s existing Commission on Peace Officer Standards and Training, it will create the Peace Officers Standards Accountability Division. The division will have the power to investigate police and decertify them if they’ve broken the law or engaged in serious misconduct like filing false reports, destroying or concealing evidence, tampering with their body cameras, abusing their police powers, and a host of other inappropriate behaviors.

Bradford’s new bill still keeps one of the sticking points from last year’s bill: This new commission will only have two people on it with police backgrounds. The remaining six members of the commission cannot be current or former officers. So while police representatives will have a voice on the commission, they’ll be outnumbered by civilians, including two who themselves were either victims of police abuse or relatives of a victim. Last year, representatives from police unions complained that this meant the board would be “inherently biased against officers,” but that part seems to be staying.

Also in S.B. 2 is a reform, but not a complete elimination, of the state’s civil qualified immunity regulations. Qualified immunity rules often shield law enforcement officers from being held financially responsible when they violate somebody’s rights. It’s a terrible policy, essentially giving permission to police to violate rights and get away with it. In the last two years of police reform activism, we’ve been seeing increasing efforts to eliminate it.

S.B. 2 unfortunately does not eliminate qualified immunity in the state, but it does make it easier for victims of police abuse to make a case against them. Currently, California’s regulations require that anybody attempting to sue a police officer for violating his or her rights prove that the officer had a “specific intent” to do so. That means reckless and irresponsible behavior by an officer could still be protected if the cop didn’t actually intend to cause harm to others. Conversely, S.B. 2 allows for “deliberate indifference or reckless disregard” to be sufficient to bring about a lawsuit.

Both reforms would significantly make it easier in California to hold law enforcement officers responsible for misconduct. Let’s see if lawmakers will be able to get it past the state’s powerful police unions this year.

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Several of my friends have expressed relief now that Joe Biden is president and Donald Trump is gone. They no longer have to watch the news constantly, declaring that they know “the country is now in good hands.”

There’s no way to defend Trump’s poor behavior and insulting style. Yet, there is more to a president than his decorum. And on at least three signature Trump policies for which he’ll be remembered the most, often with dread, the similarities between Biden and Trump are unsettling.

Take immigration. President Biden campaigned against separating migrant kids from their families at the border. But, sadly, such separations are still happening. In fact, February 2021 recorded a 61 percent increase over January. As The Wall Street Journal editorialized, “The Washington Post reports that more than 8,500 migrant children are at facilities run by the Department of Health and Human Services, while another 3,500—’the highest figure ever’—are stuck at [Customs and Border Patrol] stations waiting for a spot to open at the shelters.”

While the Biden administration promised an end to Trump’s immigration policies, the sheer number of kids effectively still locked up in deplorable conditions exposes the Biden administration’s delayed action—or possibly unwillingness—to reform the underlying policies that drive migrant children to show up unaccompanied at the border.

For starters, families who show up to ask for asylum are sent back, while unaccompanied children who cross the border will get into the country. That’s an incentive to send kids alone. Moreover, it’s still the policy to separate children from their more distant relatives when they show up at the border. These rules, combined with the large population that has built up over time under Trump, explains part of the increase in these border detentions.

What’s more, the Cato Institute’s immigration expert David Bier wrote recently that the Biden administration’s changes to the “remain in Mexico” policy make the situation even worse. Families that try to cross together are still sent back to Mexico; however, unlike under the Trump administration, they aren’t given a court date to make their case for asylum, or any sort of asylum process, for that matter. They are just sent back to wait in Mexico. Wait for what? It’s unclear.

Biden seems to have also embraced much of the same Trump trade agenda that many on the left used to criticize as protectionist, politically driven, and unnecessarily aggressive toward our trading partners. They were also rightfully critical of his abuse of Section 232 of the Trade Expansion Act of 1962, which authorizes the president to impose tariffs in the name of national security. Unfortunately, so far, Trumpian-style abuses continue under this new administration. The Cato Institute’s Scott Lincicome and Inu Manak note that Biden’s first trade action was to reinstate “tariffs on aluminum from the United Arab Emirates under Section 232.”

While it’s still too early in the administration’s term to be sure what will happen next, there are reasons to worry that Biden will not do much to roll back Trump’s cronyist protectionism. The new administration has yet to remove Trump’s 25 percent national security tariffs on most imported steel. Other tariffs also remain in place at the expense of U.S. consumers. The administration says it’s reviewing the levies, though there’s no guarantee that it will remove them, as it has signaled that it may be as protectionist as the Trump administration. Powerful evidence on this from is Biden’s nonsensical “Buy American” policy.

Finally, there’s little daylight between the Trump and Biden administrations on industrial policy. While each may come at the issue from different angles, the support for industrial policy offered by Trump, Biden and their followers is very similar. They suffer from the same delusion that it’s an innovative idea, or that it will yield different outcomes from when it was tried in the past. It also exhibits pervasive errors in economic thinking and demonstrates an arrogant confidence that bureaucrats have sufficient knowledge to steer the economy in whatever direction they desire.

Biden shares other traits with Trump, such as his fiscal irresponsibility, a willingness to bomb foreign countries, and a soft spot for defense spending. So yeah, Trump is gone, but for those still paying attention and still watching the news, we realize that many of his policies are still firmly in place.

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The PACT Act is back, and still problematic. The latest bill addressing online content moderation contains a big old mess of changes that could enable trolls and seriously burden solo actors, small businesses, and big tech companies alike, while also giving state prosecutors new power to sue entities they don’t like. Called the Platform Accountability and Consumer Transparency (PACT) Act, the measure has bipartisan support.

Sponsored by Sens. Brian Schatz (D–Hawaii) and John Thune (R–S.D.), the PACT Act was first introduced last summer—and widely panned by constitutional scholars and internet law experts. And while the new legislation contains some changes, lawmakers still failed to fix many earlier problems.

The biggest problem with the PACT Act involves Section 230, the federal law that shields internet platforms from some liability for user-created content. An existing exception to this applies when federal criminal laws are concerned. Under the PACT Act’s proposed changes, however, federal civil laws would also be exempted, too. This means federal regulatory agencies could sue online entities when things their users post allegedly violate civil laws, including anti-discrimination and accessibility statutes.

Even more significantly, the PACT Act would let state attorneys general get in on the action—”allowing state attorneys general to enforce federal civil laws against online platforms,” as Schatz’s press release puts it. That means that for the same alleged violation, a company could face the wrath of the federal government and dozens of state prosecutors at the same time.

“That is a potentially massive change”—and not a good one, points out Techdirt‘s Mike Masnick:

State AGs have long whined about how Section 230 blocks them from suing sites—but there are really good reasons for this. First of all, state AGs have an unfortunate history of abusing their position to basically shake down companies that haven’t broken any actual law, but where they can frame them as doing something nefarious… just to get headlines that help them seek higher office. Giving them more power to do this is immensely problematic—especially when you have industry lobbyists who have capitalized on the willingness of state AGs to act this way, and used it as a method for hobbling competitors. It’s not at all clear why we should give state AGs more power over random internet companies, when their existing track record on these issues is so bad.

The PACT Act would also remove Section 230 protections for companies that have “actual knowledge” of illegal content or illegal activity posted by users and do not remove it within four days.

Unlike many similar proposals, the PACT Act would at least require some sort of official documentation saying content is illegal before being forced to remove it. Illegal activity is defined as “activity conducted by an information content provider that has been determined by a trial or appellate Federal or State court to violate Federal criminal or civil law” and illegal content is defined as content “provided by an information content provider that has been determined by a trial or appellate Federal or State court to violate” federal criminal or civil law or state defamation law.

The takedown requirement is perhaps more pointless than anything else. Companies “already take down content with a court order. And often don’t or drag their feet without one,” writes Masnick. “This is another fix for a problem that doesn’t exist”

The PACT Act’s provisions go way beyond Section 230. Some of the other requirements in it include mandating internet companies to do the following:

• Publish an “acceptable use policy.”
• Provide a 5-days-per-week, 8-hours-per-day hotline for people to ask a “live company representative” questions about the acceptable use policy and any content moderation decisions the company makes, as well as to report content that a user thinks may be illegal or may violate the company’s acceptable use policy.
• Provide an email complaint system for the same purposes.
• Provide a formal appeals process for people who don’t like a company’s content moderation decisions.

It would also require internet companies twice yearly to submit to the federal government a report outlining how it enforced its acceptable use policy.

The biannual report would have to say how many reports it received, about what kinds of content, and who made these reports; the number of times the company took action on content and what kind and what type of action was taken; the number of content removals broken down by what rules were violated, who flagged the content, what country the content provider was based in, and “whether the action was in response to a coordinated campaign” of some sort; the number of times a company did not remove or take action on flagged content; and the number of appeals it received and what sorts of action were taken on those appeals.

In other words, online entities that allow user-generated content would have to explain and answer to the government for just about every possible content moderation decision made. And failing to properly comply with this transparency requirement would be considered “an unfair or deceptive act” under federal law.

“Individual providers” would be exempt from some of these requirements, including running their own hotlines and submitting biannual transparency reports—but only if they receive fewer than 100,000 unique monthly visitors (which is not really that much).

“Small businesses” would be exempt from the hotline and reporting requirements only if they saw less than 1 million unique monthly visitors.

“Internet infrastructure” services such as web hosting, domain registration, data storage, and cloud management companies and providers of broadband internet access would be exempt.

Overall, the PACT Act is sweeping in terms of the burdens it would place on internet companies without a clear indication of how these changes would solve any existing issues. The bill “solves for things that are not problems, and calls other things problems that are not clearly problems, while creating new problems where none previously existed,” Masnick suggests.

As mentioned above, some of the Section 230 changes could be especially damaging. Allowing state prosecutors to sue websites could open up the litigation floodgates and lead to a lot of biased, agenda-driven lawsuits that benefit attention-seeking attorneys general at the expense of internet users and companies. The PACT Act would also burden online platforms and publishers with a crazy amount of new content moderation rules, paperwork, and “transparency” requirements without any obvious upside.

“Forcing every website that accepts content from users to post an ‘acceptable use policy’ leads us down the same stupid road as requiring every website have a privacy policy,” writes Masnick. “It’s a nonsensical approach—because the only reasonable way to write up such a policy is to keep it incredibly broad and vague, to avoid violating it. And that’s why no one reads them or finds them useful—they only serve as a potential way to avoid liability.”

The required process for allowing people to report, question, contest, and appeal all content moderation decisions would be an even bigger burden—and one that allowed for targeted harassment and censorship campaigns by groups intent on punishing certain platforms or silencing certain groups.

“This bill basically empowers trolls to harass companies,” Masnick writes. “All it will do is harm smaller companies, like ours, by putting a massive compliance burden on us, accomplishing nothing but…helping trolls annoy us.”

FOLLOW-UP

Georgia shooter claims sex addiction. Police say Robert Aaron Long, the man suspected of shooting up three massage parlors and killing eight people on Tuesday, blamed his actions on “sex addiction.” Friends of Long’s said he was deeply Christian and felt guilty about patronizing sex workers at massage parlors. Already, some media have been minimizing the shooter’s actions and instead blaming the existence of massage parlors that permit sexual activity for “leaving the women working there particularly vulnerable to violence and abuse.”

Police have also expressed what seems like sympathy for the shooter’s sexy-women-made-me-do-it defense, with Cherokee County Sheriff’s Office Captain Jay Baker saying at a press conference yesterday that the businesses were “a temptation for him that he wanted to eliminate” and “he was fed up, at the end of his rope. He had a bad day, and this is what he did.”

FREE MARKETS

Bill passed by both houses in Annapolis "would require health professionals in Maryland to take implicit bias training as a condition of being issued a license to practice." [@marylandmatters] https://t.co/6bBPMjpp2D

— Walter Olson (@walterolson) March 18, 2021

QUICK HITS

• A bill to remove the decades-past deadline for ratifying the Equal Rights Amendment passed the House of Representatives yesterday.

• A baby born to a woman who received the COVID-19 vaccine while pregnant “marks the first known case of a baby born with coronavirus antibodies in the U.S., which may offer her some protection against the virus.”

• Japan has ruled same-sex marriage bans unconstitutional.

• New Hampshire is coming for tiny homes.

• Meet the new war on terror, just as bad as the old war on terror.

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“The current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women, undermining national security.”

Go on, fancy national commission, tell this #GirlDad more!

“After extensive deliberations, the Commission ultimately decided that all Americans, men and women, should be required to register for Selective Service and be prepared to serve in the event a draft is enacted by Congress and the President.”

Go f-f-f-f-f-f-lush yourself.

Last Thursday, the National Commission on Military, National, and Public Service, a body created by Congress in 2017 to reassess the oxymoronically named Selective Service System and brainstorm ways to increase public participation in the military, at long last presented its final recommendations to the Senate Armed Services Committee. In a nearly year-old report whose official delivery was serially delayed by COVID-19 and other distractions, commissioners reacted to our newish reality of having fully integrated female combat troops by urging Congress to ungender President Jimmy Carter’s 1980 reinstatement of compulsory draft registration for 18-year-old males.

And, because this is the world we live in now, they did so in the name of equity.

“That women register, and perhaps be called up in the event of a draft, is a necessary prerequisite for their achieving equality as citizens, as it has been for other groups historically discriminated against in American history,” the commission concluded. “Reluctance to extend the registration requirement to women may be in part a consequence of gender stereotypes about the proper role for women and their need for special protection.”

There is indeed a compelling moral and legal case for women and men to be treated equally under the law when it comes to military obligations. Which is why I, like The Volokh Conspiracy‘s Ilya Somin and most libertarians I’m aware of, prefer the equality of no military obligations whatsoever.

In consequentialist terms, the draft has not been used since 1973, and military capability has improved markedly since switching to an all-volunteer force. But the root argument against pre-conscription is moral: We do not truly own our own lives if the state can lay theoretical claim on them between the ages of 18 and 26. The Declaration of Independence elevated first among our unalienable rights “Life, Liberty, and the pursuit of Happiness,” not “Death, on-call Servitude, and whatever else you can Manage in the margins.”

The most common rejoinder to registration refuseniks is that, c’mon, it’s just a piece of paper; no one’s going to jail for not signing up, and most importantly no one’s getting drafted (Congress would have to pass additional legislation for that, after all). To which I would respond, 1) if you don’t sign that paper, goodbye college loans and probably also your driver’s license; and 2) the state does not share your no-one’s-getting-drafted confidence, at all.

Let’s look at some more of the commission’s verbiage, shall we? “The next time America must turn to a draft, it will need to include everyone who is capable and qualified. It would be harmful to the Nation’s security to leave out the skills and talents of half of the U.S. population.” That’s a when, not an if.

Hippies during these debates tend to overuse such phrases as “cannon fodder,” but the military establishment that seeks to extend more control over the civilian populace has some dehumanizing metaphors of its own (bolded):

Should future circumstances become so dire that a draft is required, it is in the national security interest of the United States to be able to draw on the best talent in the country for military service. Roughly doubling the pool from which the Nation might obtain conscripts would improve military readiness by raising the quality of those who might serve, as some women would be more qualified to serve than some men. Defense officials in recent years have noted that changing national demographics and low eligibility trends for qualified military recruits do little to alleviate future uncertainties. Indeed, these trends exacerbate concerns over meeting military personnel requirements in the event of an emergency. The population growth rate in the United States is at its lowest point in more than 80 years, and 7 of 10 young Americans—male and female—are currently ineligible to serve because they fail to meet physical, moral, educational, and health standards, including mental health criteria. Consequently, the number of young people eligible for military service in the country is shrinking. Of those eligible, data from DoD’s Joint Advertising, Market Research and Studies (JAMRS) suggests that young women are on average equally likely to qualify for military service as young men—29.3 percent of female qualified military applicants versus 29.0 percent of male qualified military applicants.

Because the existing registrant pool may prove inadequate to meet the personnel needs of DoD if a draft is required, it is critical to create a broader pool that includes women.

Feel empowered today, punk?

The commission took pains to emphasize that it solicited the full gamut of opinion—from those who believe “that women and men should have equal obligations under the law to register for the Selective Service System,” to those who “support women’s right to serve voluntarily in the military but oppose requiring women to register for a potential draft.” Allow me to gently suggest that there are some other views across this great land.

A military that openly brags about “playing shell games to not make clear to our [civilian] leadership how many troops” we have in Afghanistan is a military that has lost any claim to treating U.S. citizens like droplets in its water supply. The Founding generation would likely be sickened by our current status as hegemon-on-autopilot, forever indifferent to legislative influence on the power to wage war. The federal government was supposed to secure our rights, not our blood loyalty.

Congress should take the commission’s recommendation as an excellent opportunity to dismantle Jimmy Carter’s late-term Cold War panic once and for all. As the report—titled “Inspired to Serve,” natch—makes clear, “The current practice of registering all men—even those ineligible for military service under today’s All-Volunteer Force standards—is intentionally designed to limit potential inequities in the draft process.”

The best way to remove inequities in the draft process is to remove the damned draft. Hands off my daughters, Washington.

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Please feel free to write comments on this post on whatever topic you like! (As usual, please avoid personal insults of each other, vulgarities aimed at each other or at third parties, or other things that are likely to poison the discussion.)

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(For the full draft PDF, with footnotes, see here.)

The few courts that have considered the issue have so far largely declined to hold people liable based on knowingly maintaining libelous material online. Rather, those courts have tended to require that the plaintiff show that the defendant had a culpable mens rea as of the time the material was initially posted.[1] And the main reason for this has been the single publication rule.

Historically, common-law libel cases used to follow the “multiple publication rule”:

Each time a libelous article is brought to the attention of a third person, a new publication has occurred, and each publication is a separate tort… . [I]f a newspaper printed an article and that newspaper was purchased by ten individuals, each communication of the defamatory article was a tortious act resulting in the injured party having ten causes of action.[2]

It followed that each distribution of a libelous item would restart the statute of limitations.[3]

In the mid-1900s, courts began to shift to the “single publication rule”:

(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.

(4) As to any single publication,

(a) only one action for damages can be maintained;

(b) all damages suffered in all jurisdictions can be recovered in the one action; and

(c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.[4]

On its face, the single publication rule limits how many lawsuits can be brought based on a particular publication. But many courts have also applied this logic to deciding when the lawsuits must be filed, concluding that the statute of limitations begins to run when the single publication is first distributed. In the typical Internet libel case, that happens when a Web page is first published; the clock isn’t reset each time the page is displayed on a reader’s computer.

It’s not clear whether this was contemplated by the drafters of the Restatement (Second) of Torts, who said that the single publication rule was “[a]n exceptional rule … applied in cases where the same communication is heard at the same time by two or more persons.” That is the opposite of online distribution, where the work is distributed at different times to different people, and where courts must therefore decide when the statute of limitations begins to run. Still, as a policy matter, starting the statute of limitations when an item is first posted strikes me as good policy (though with a twist I’ll note below).

But some courts have read the single publication rule as dictating that the publisher’s mental state must likewise be determined solely as of the date of the single publication. The cause of action accrues at the time of publication, the logic goes. If at that time, the publisher believes (or, in private-figure cases, reasonably believes) that the statement is true, then it doesn’t matter what the publisher later learns. All that matters is what the publisher knew (or should have known) as of when the cause of action accrued.

This, it seems to me, is mistaken, for two related reasons.

[1.] Formally, a cause of action generally accrues only “once all of the elements of an action … are present.” Under the modern rule, where the speaker’s culpable mens rea is an element of a defamation claim, a libel claim thus doesn’t accrue until the speaker becomes culpable.

If in March WPIX reported (based on reasonable belief) that Starlight Rainbow had mistreated a student, and in August WPIX learned that the guilty party was actually Cynthia Rainbow, then any libel cause of action would not have accrued in March, because the negligence element was absent. The action would only have accrued in August, and the single publication rule would have kicked in only then. Thus, even applying the single publication rule, the mens rea for libel liability—under the § 577(2) theory that “[o]ne who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on … chattels … . under his control” is liable for “continued publication”—should be determined as of August, when the negligence element was satisfied.

Some cases do say that, under “the single publication rule, … a plaintiff’s cause of action accrues only once, at the time of publication,” but that’s an oversimplification: The cause of action accrues only once, and that is usually the time of publication. But no cause of action should be said to accrue before all the elements are satisfied. Thus, in trade libel cases, where damages are an element of the tort, the cause of action doesn’t accrue until damages arise. Likewise, in the rare ordinary libel cases where the mens rea element isn’t satisfied until after publication, the cause of action shouldn’t accrue until the mens rea is present.

[2.] Functionally, the single publication rule was designed to prevent multiple lawsuits, and to prevent long-delayed lawsuits filed after evidence may have been lost and the key events forgotten. Without it, one article in one issue of a newspaper could lead to many lawsuits, and a statement in a book (or on a web site) could lead to a lawsuit decades after it was published. “A newspaper article published forty years ago whose veracity is called into question today could subject the publisher to a defamation suit.”

For these purposes, treating the publication date as being the date of first publication makes sense. If my online article about you is published on January 1, 2025, and the statute of limitations for libel is a year, then on January 2, 2026 you can no longer sue.

Yet say I learn the article is mistaken on January 2, 2025 (because you tell me), I refuse to correct it, and you sue me on January 10, 2025, well within the statute of limitations. It’s hard to see then why the single publication rule should measure my mental state solely as of January 1. My site’s being available continuously might not count for statute of limitations purposes. But its being correctable continuously should indeed count for determining whether I’m continuing to publish the article with actual malice.

[1] See Rainbow v. WPIX, Inc., 179 A.D.3d 561, 563 (2020); Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614–15 (7th Cir. 2013); see also Lakireddy v. Soto-Vigil, No. A138675, 2014 WL 1478693 (Cal. Ct. App. Apr. 16, 2014) (concluding that “failure to remove a Web site posting,” even “once substantial indications of falsity existed,” is not a “republication” of the original posting and thus cannot lead to liability).

[2] Restatement (First) of Torts § 578 cmt. b (1938).

[3] Restatement (First) of Torts § 899 cmt. c (1938) (“A cause of action for defamation is complete at the time of publication.”).

[4] Restatement (Second) of Torts § 577A; see also Uniform Single Publication Act § 1 (adopting this rule); id. Refs. & Annos. (noting that the act has been adopted in Arizona, California, Idaho, Illinois, New Mexico, North Dakota, and Pennsylvania).

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