Category: reason

California Gov. Gavin Newsom will be in Los Angeles today to give the annual State of the State address in Dodger Stadium, possibly connecting the setting to the fact that theme parks and stadiums will finally be allowed to reopen here, months behind many other states’ reopenings.

In the meantime, a movement to recall Newsom has picked up steam amid the state’s harsh lockdowns, and organizers have announced they have surpassed the 1.5 million signatures needed for a special election. California may be voting on whether to replace Newsom this fall.

Republicans actually launched the recall campaign months before the spread of COVID-19 prompted Newsom’s authoritarian responses. This isn’t unusual—people attempt to recall politicians all the time in California. The secretary of state’s office notes every recall petition circulated for state officials, almost all of which fail to make the ballot. There were three other attempts to recall Newsom last year, and three more in 2019 that all failed to make the ballot. In 2019, the lieutenant governor, state treasurer, attorney general, secretary of state, controller, and insurance commissioner were all targets of failed recalled efforts. Heck, Gov. Arnold Schwarzenegger, who was put into office because of the successful recall of Gov. Gray Davis, was himself the subject of seven failed recall petitions.

But this one is different. Things are not golden in California right now. Initially, it appeared that California’s Sacramento-mandated shutdown actually staved off some of the worst of the pandemic’s spread. But the second spike in the fall hit hard. The rate of infections and deaths is still much lower than in states like New York and New Jersey, but California is actually on par with Florida’s numbers. Florida has notably refused to implement restrictions and lockdowns as harsh as California’s, and Republican Gov. Ron DeSantis has been a consistent target of criticism for it. And yet, forcing the shutdown of places like Disneyland and the public school system has not kept Californians any safer than Floridians.

That this recall may well make the ballot has prompted Democratic political leaders to respond in opposition to the effort. President Joe Biden is already on the record (via White House Press Secretary Jen Psaki) as opposing the recall.

Sen. Bernie Sanders (I–Vt.) weighed in on Monday with a particularly dumb take:

Right-wing Republicans in CA are trying to recall @GavinNewsom for the crime of telling people to wear masks and for listening to scientists during COVID. Extremist Republicans have done enough to undermine democracy already. We must all unite to oppose the recall in California.

— Bernie Sanders (@BernieSanders) March 8, 2021

First of all, some Democratic leaders have this particular way of saying they’re “listening to the science” and then implementing whatever policies they wanted to implement anyway, regardless of whether it’s actually where the science leads. Sanders himself claims to want to reduce and eventually eliminate the use of fossil fuels, but will proudly ignore the science that says you need nuclear power to do so. Like many politicians, Sanders supports science to the extent that science supports him.

But that’s not the dumbest part of the take. In reality, it was California’s progressive movement that gave citizens the ability to recall elected officials in the early part of the 20th century. According to historians, railroad magnates were using their power and money to make sure California politicians protected their monopoly. Progressive candidates couldn’t make inroads, and the recall was a way to give citizens an opportunity to force corrupt politicians out of office.

Far from being a threat to democracy, the recall is a way for citizens to respond when an elected official is not doing what they were sent to office to do. By the same token, that’s why ballot initiatives can be so valuable. In November, Californians actually used ballot initiatives to veto the favored policies of the Democratic establishment.

A healthy democracy will allow voters to shut down bad or harmful behavior by elected officials. Was the initial launch of Newsom’s recall driven by conservative politics? Most certainly. But in a state where the number of registered Democrats is now nearly twice the number of Republicans, a potentially successful recall petition should be seen as a great big red flag that Newsom’s decisions this past year do not match the citizens’ needs.

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From Le v. Exeter Finance Corp., decided Friday by the Fifth Circuit, in an opinion by Judge Don R. Willett joined by Judges Carolyn Dineen King and Jennifer Walker Elrod:

Having decided the substantive issues [in this executive employment dispute], we hasten to add a peripheral-yet-essential point: Judicial records are public records. And public records, by definition, presume public access.

In this case, the district court granted an agreed protective order, authorizing the sealing, in perpetuity, of any documents that the parties themselves labeled confidential. Result: nearly three-quarters of the record—3,202 of 4,391 pages—is hidden from public view, for no discernable reason other than both parties wanted it that way.

The public deserves better. The presumption of openness is Law 101: “The public’s right of access to judicial records is a fundamental element of the rule of law.” Openness is also Civics 101. The Constitution’s first three words make clear that ultimate sovereignty is wielded not by government but by the governed. And because “We the People” are not meant to be bystanders, the default expectation is transparency—that what happens in the halls of government happens in public view. Americans cannot keep a watchful eye, either in capitols or in courthouses, if they are wearing blindfolds.

“Providing public access to judicial records is the duty and responsibility of the Judicial Branch.” Why is this important? Because accessibility enhances legitimacy, the assurance that things are on the level. Article III courts are independent, and it is “particularly because they are independent” that the access presumption is so vital—it gives the federal judiciary “a measure of accountability,” in turn giving the public “confidence in the administration of justice.”¹⁹ Put simply, protecting the public’s right of access is “important to maintaining the integrity and legitimacy of an independent Judicial Branch.” And hopefully, more access to judicial records means more trust in judicial officers and more respect for judicial orders.

Judicial records belong to the American people; they are public, not private, documents. Certainly, some cases involve sensitive information that, if disclosed, could endanger lives or threaten national security. But increasingly, courts are sealing documents in run-of-the-mill cases where the parties simply prefer to keep things under wraps.

This is such a case. The secrecy is consensual, and neither party frets that 73 percent of the record is sealed. But we do, for three reasons. First, courts are duty-bound to protect public access to judicial proceedings and records. Second, that duty is easy to overlook in stipulated sealings like this one, where the parties agree, the busy district court accommodates, and nobody is left in the courtroom to question whether the decision satisfied the substantive requirements. Third, this case is not unique, but consistent with the growing practice of parties agreeing to private discovery and presuming that whatever satisfies the lenient protective-order standard will necessarily satisfy the stringent sealing-order standard. Below, we review the interests at stake and the exacting standard for sealing that protects those interests. Then, we explain the concerns raised by the sealings in this case….

[J]udges must protect public accessibility for three mutually reinforcing reasons: (1) the public has a right to monitor the exercise of judicial authority; (2) judges are “the primary representative[s] of the public interest in the judicial process”; and (3) the judiciary’s institutional legitimacy depends on public trust. Public trust cannot coexist with a system wherein “important judicial decisions are made behind closed doors” and, worse, private litigants do the closing.

In our view, courts should be ungenerous with their discretion to seal judicial records, which plays out in two legal standards relevant here. The first standard, requiring only “good cause,” applies to protective orders sealing documents produced in discovery. The second standard, a stricter balancing test, applies “[o]nce a document is filed on the public record”—when a document “becomes a ‘judicial record.'” Under both standards, the working presumption is that judicial records should not be sealed. That must be the default because the opposite would be unworkable: “With automatic sealing, the public may never know a document has been filed that might be of interest.”

True, even under the stricter balancing standard, litigants sometimes have good reasons to file documents (or portions of them) under seal, such as protecting trade secrets or the identities of confidential informants. But “[m]ost litigants have no incentive to protect the public’s right of access.” That’s why “judges, not litigants” must undertake a case-by-case, “document-by-document,” “line-by-line” balancing of “the public’s common law right of access against the interests favoring nondisclosure.” Sealings must be explained at “a level of detail that will allow for this Court’s review.” And a court abuses its discretion if it “ma[kes] no mention of the presumption in favor of the public’s access to judicial records” and fails to “articulate any reasons that would support sealing.”

Here, there is no separate sealing order at all. There is only the protective order entered for purposes of “discovery in this matter.” That order granted the parties wide latitude to designate “Confidential” any information they believed in good faith was “not generally known” and would ordinarily be revealed in confidence or not at all. In addition, if confidential information appeared “in any affidavits, briefs, memoranda of law or other papers filed in court in this action,” the entire document was filed under seal. {Practically speaking, this provision of the parties’ agreed protective order doubles as the court’s sealing order. It authorizes sealing for “all documents and all transcripts of deposition testimony,” labeled confidential “in whole or in part,” “including all pleadings, deposition transcripts, exhibits, discovery responses or memoranda purporting to reproduce or paraphrase such information.”} Not only that, the order “survive[s] the final termination of this action.” In other words, the parties decided unilaterally what judicial records to keep secret, and their decision was permanent; once sealed, the records would stay that way.

And because there is no sealing order, there is no sealing analysis—no reasons given, no authorities cited, no document-by-document inquiry. Instead, the parties wielded nigh-boundless discretion to label things confidential. And again, the secrecy they granted is “perpetual” and “wholesale.” Perhaps most disquieting, documents marked confidential provided the basis for summary judgment—a dispositive order adjudicating the litigants’ substantive rights (essentially a substitute for trial)—yet there was “no mention of the presumption in favor of the public’s access to judicial records.” There was no grappling with public and private interests, no consideration of less drastic alternatives. There was no assurance that the extent of sealing was congruent to the need.

At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper. Party-agreed secrecy has its place—for example, honoring legitimate privacy interests and facilitating the efficient exchange of information. But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous. This conflation error—equating the standard for keeping unfiled discovery confidential with the standard for placing filed materials under seal—is a common one and one that over-privileges secrecy and devalues transparency.

Given the judiciary’s solemn duty to promote judicial transparency, we must be alert to conflation errors (extending protective-order standards to material filed with the court). The secrecy of judicial records, including stipulated secrecy, must be justified and weighed against the presumption of openness that can be rebutted only by compelling countervailing interests favoring nondisclosure. All too often, judicial records are sealed without any showing that secrecy is warranted or why the public’s presumptive right of access is subordinated. This mistake harms the public interest, however interested the public is likely to be.

Sealings are no less rampant in low-profile cases (like this one) than in high-profile cases featured on the front page (like Bill Cosby’s deposition testimony) or the Oscars stage (like records detailing the cover-up of child sexual abuse, as depicted in 2016 Best Picture Winner Spotlight). And a steady flow of unjustified low-profile sealings is capable of far greater damage—a gradual, sub silentio erosion of public access to the judiciary, erosion that occurs with such drop-by-drop gentleness as to be imperceptible….

The Judicial Branch belongs to the American people. And our processes should facilitate public scrutiny rather than frustrate it. Excessive secrecy—particularly displacing the high bar for sealing orders with the low bar for protective orders—undercuts the public’s right of access and thus undermines the public’s faith in our justice system.

Legal arguments, and the documents underlying them, belong in the public domain. American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense. When it comes to protecting the right of access, the judge is the public interest’s principal champion. And when the parties are mutually interested in secrecy, the judge is its only champion.

To be sure, entrenched litigation practices harden over time, including overbroad sealing practices that shield judicial records from public view for unconvincing (or unarticulated) reasons. Such stipulated sealings are not uncommon. But they are often unjustified. With great respect, we urge litigants and our judicial colleagues to zealously guard the public’s right of access to judicial records—their judicial records—so “that justice may not be done in a corner.”

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From In re Application of Daniel Snyder, decided Friday by Magistrate Judge N. Reid Neureiter (D. Colo.), related to a discovery dispute in the case:

On July 16, 2020, the defendant in the Indian Action published on its website, Media Entertainment Arts Worldwide …, articles about Mr. Snyder that contained defamatory statements, including the false allegation that Mr. Snyder was involved in sex trafficking and was on a list maintained by Jeffrey Epstein, the infamous sex criminal and financier. On August 7, 2020, Mr. Snyder sued the website and the authors of the article for defamation in The High Court of Delhi at New Delhi, India.

As part of the basis for the India Action against the owner of MEAWW, Mr. Snyder claims the following:

MEAWW purports to be, and holds itself out as, a news website. MEAWW publishes “news” stories regarding a broad variety of matters, including pop culture, law and government, and media and entertainment.

In reality, however, rather than being legitimate news sources and reporters, MEAWW intentionally sows disinformation at the behest of its undisclosed clients, including governments and intelligence services, and is often hired by clients that are cloaked behind several layers of anonymous corporate entities. MEAWW thus acts as a hired agent of these unnamed entities to knowingly spread, among other things, false and defamatory statements concerning its clients’ rivals.

This miscellaneous action began in the District of Colorado when Mr. Snyder filed a Petition for Assistance in Aid of Foreign Proceeding …, asking the Respondents here, Mrs. Jessica McCloughan and her company, Friday Night Lights LLC, to provide discovery for use in the India Action.

Mrs. McCloughan is the wife of Scot McCloughan, the former general manager for the Washington Football Team. I am informed that Mrs. McCloughan’s company, Friday Night Lights, LLC, is a holiday lighting display company. The purported need for the discovery from Mrs. McCloughan is that Mrs. McCloughan supposedly has relevant information concerning the alleged campaign of defamation against Mr. Snyder, directed by “hidden third party clients.” …

The third party in question is Mary Ellen Blair, the former executive assistant to Mr. Snyder, who left her employment on bad terms. Mr. Snyder has alleged in other federal court filings that Ms. Blair “is an active participant, for pay from third parties, and/or arising from personal animus, in the same campaign of defamation against Petitioner that led to the publication of the subject defamatory articles, including serving as a source for the false and libelous claims in said articles.” Mr. Snyder has additionally alleged that Ms. Blair, “further directly offered or alluded to the availability of bribes to current employees of the Team and the Petitioner, attempting to elicit further false statements about Petitioner to be published by MEAWW and other outlets.”

Also potentially important to this conspiratorial saga was the publication, on July 16, 2020, of a damning article in The Washington Post about alleged sexual harassment and verbal abuse of women employees for the Washington Football Team and female reporters covering the organization. The article, titled “From Dream Job to Nightmare,” detailed the frequent sexual harassment and verbal abuse experienced by fifteen female employees with the Team over many years. The Post article was written by reporters Will Hobson and Liz Clarke. The article involved interviews with more than 40 current or former employees of the Washington Football Team and a review of text messages and internal company documents. The defamatory articles published on the MEAWW website had speculated that the to-be-published Post article might include allegations about Mr. Snyder’s sexual misconduct and a relationship with Mr. Epstein. But, in fact, the Washington Post article included no such references….

Another element to this alleged conspiracy to defame Mr. Snyder is an ongoing dispute between the Mr. Snyder and the minority owners of the Washington Football Team. The minority owners apparently want to sell their shares in the club or remove Mr. Snyder from his majority ownership position. It appears that Mr. Snyder’s theory is that someone affiliated with a minority owner is somehow working with Ms. Blair to plant defamatory and embarrassing articles (such as ones false associating Mr. Snyder with sex trafficker Jeffrey Epstein) in order to put pressure on Mr. Snyder to sell his shares in the Team.

In support of this theory, Petitioner’s counsel says that he has evidence that Ms. Blair was in telephone contact with the minority owners (or someone affiliated with the minority owners) shortly before the Indian website articles were published. There are also allegations (found in the Petition filed in the Eastern District of Virginia) that Ms. Blair has had financial difficulties and is living in an apartment that is beyond her financial means and owned by someone affiliated with the Washington Football Team’s minority owners….

The document Subpoenas [to Mrs. McCloughan and her company] generally required [Electronically Stored Information] searches for and production of:

• All Documents and Communications concerning Mr. Snyder, including but not limited to emails, text messages, and/or phone records.
• All Documents and Communications concerning the Washington Football Team, including but not limited to emails, text messages, and/or phone records.
• All Documents and Communications concerning MEAWW and/or any affiliates, agents or employees thereof, including but not limited to emails, text messages, and/or phone records.
• All Documents and Communications concerning the Defamatory Articles and/or any actual or anticipated negative publicity concerning Mr. Snyder, including but not limited to emails, text messages, and/or phone records.
• All Documents and Communications between Mrs. McCloughan and any third party concerning Mr. Snyder, the Defamatory Articles and/or any actual or anticipated negative publicity concerning Mr. Snyder, including but not limited to emails, text messages, and/or phone records.
• All Documents and Communications with Ms. Mary Ellen Blair, including but not limited to emails, text messages, and/or phone records.

The timeframe specified was from January 1, 2020 “to the present.” …

Petitioner proposed 58 ESI search terms, which, in the Court’s view, go far beyond anything related to the defamatory MEAWW articles and appear, instead, to be seeking, for example, any references to Mr. Snyder and sexual harassment, the Washington Football Team and sex discrimination, and former coach Jay Gruden and sex or sex discrimination.

In addition, Petitioner wants an exhaustive list of telephone toll records and emails, including any communications with The Washington Post or its reporters. Again, these documents seem not to have any direct relevance to the India Action, as The Washington Post article, while it may have been embarrassing to the Washington Football Team organization and to Mr. Snyder, is not alleged to be untrue in any respect and is not the subject of litigation either in India or the United States.

Indeed, the breadth of the search terms proposed, coupled with the professed desire to obtain evidence of any communications between Mrs. McCloughan and The Washington Post‘s reporters, indicates that the subpoenas directed at Mrs. McCloughan may be less of a bona fide effort to obtain evidence supportive of the claims brought in the Indian Action, than they are an effort to burden and harass individuals formerly associated with the Washington Football Team who may have acted as sources for The Washington Post story….

I conclude the following:

[1.] Petitioner’s efforts to obtain extensive cell phone records and texts messages from Mrs. McCloughan appears to a fishing expedition, without significant factual justification.

[2.] The link between Mrs. McCloughan and the defamatory Indian publications is tenuous at best. Petitioner hypothesizes that because Mrs. McCloughan, the spouse of the former general manager for the Washington Football Team, talked on a number of occasions to Ms. Blair around the time of the Indian articles, and also talked to a reporter for The Washington Post, then she could be part of (or have information about) the alleged conspiracy to defame Mr. Snyder by planting fake sex trafficking stories on the Indian website.

[3.] A much more rational explanation for the communications between Ms. Blair and Mrs. McCloughan is that former employees (or a spouse of an employee) of the Football Team were discussing the nationally publicized Washington Post article (which appeared the same time as the Indian articles), and for which they may or may not have acted as sources.

More important, whether Mrs. McCloughan or Ms. Blair were sources for The Washington Post is completely irrelevant to the issue of the defamatory Indian articles. The Washington Post article is not the subject of any litigation. Efforts to learn whether Mrs. McCloughan communicated with The Washington Post are improper, unnecessarily invasive, and being done for what the Court perceives is an improper purpose—to discover the sources for the embarrassing and damning The Washington Post story—rather than the proper purpose of discovering evidence about the defamatory Indian website publications. Even if this were not the intent of the subpoenas, it certainly has an adverse and chilling effect when persons who communicate with reporters on a story are at risk of having their phone records searched without substantial justification. I find that justification lacking here.

[4.] I conclude that Mrs. McCloughan has substantially complied with the relevant and appropriately limited aspects of the subpoenas. That said, it would be appropriate for her counsel to personally inspect her cell phone for any additional or missed communications with Ms. Blair regarding Mr. Snyder or any communications with MEAWW, or persons affiliated with MEAWW or the Indian articles, including specifically, Anay Chowdhary, Nirnay Chowdhary, Prarthna Sarkar and Jyotsna Basotia. There is no justification for requiring Mrs. McCloughan to produce phone records or text messages or e-mails with the Washington Post or its reporters….

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We’ve been going through our first set of submissions, and honoring our “answer within two weeks” policy. Our average response time has been 6 days, so though we only accept exclusive submissions (like many peer-reviewed journals do), you’ll get a quick aye-or-nay from us. And we’re also offering a modest amount of reviewer feedback—constructive, we hope—if the article is rejected, something most other law reviews don’t do. So submit now! Submission guidelines are at JournalOfFreeSpeechLaw.org. 

Our first issue will be a symposium on social media platform regulation in April, scheduled to be out in July; nine prominent scholars are participating. Our next issue will likely be printed in October, but articles will be electronically published as quickly as they are ready, so if you have a time-sensitive piece, we will be able to publish it within a few months (or perhaps even more quickly).

We accept articles from all sorts of authors; we neither exclude submissions from law students (or others) nor offer them any separate publication track.

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Twitter sues to stop Texas’ top cop from violating the First Amendment. Twitter claims Texas Attorney General Ken Paxton is only investigating the company as payback for it banning former President Donald Trump’s account. “Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers, to retaliate against Twitter for having made editorial decisions with which he disagrees,” Twitter says in its federal lawsuit, filed Monday in the U.S. District Court for the Northern District of California.

Paxton launched the investigation into Twitter and several other tech companies on January 13—just five days after Twitter’s suspension of Trump from its platform—decrying “the seemingly coordinated de-platforming of the President of the United States.”

But private companies are allowed to deplatform public officials as they see fit. The First Amendment doesn’t just protect the right of private individuals and corporations to speak freely without censorship from the government but to resist serving as a mandatory forum for government speech, too.

With the new lawsuit, Twitter “seeks to stop AG Paxton from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights,” it states. The suit continues:

The rights of free speech and of the press afforded Twitter under the First Amendment of the U.S. Constitution include the right to make decisions about what content to disseminate through its platform. This right specifically includes the discretion to remove or otherwise restrict access to Tweets, profiles, or other content posted to Twitter. AG Paxton may not compel Twitter to publish such content over its objection, and he may not penalize Twitter for exercising its right to exclude such content from its platform.

You can read the whole complaint here.

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FREE MINDS

Iowa is cracking down on early voting, as part of Republicans’ ongoing charade that the 2020 election was rife with election fraud. “Republicans said the new rules were needed to guard against voting fraud, though they noted Iowa has no history of election irregularities and that November’s election saw record turnout with no hint of problems in the state,” notes NBC News. More:

The law shortens the early voting period to 20 days from the current 29, just three years after Republicans reduced the period from 40 days. It also requires most mail ballots to be received by Election Day, rather than counting votes postmarked by Election Day that arrive by noon on the Monday following the election.

Georgia yesterday also passed a bill restricting absentee voting:

Breaking news: The Georgia senate approved a bill with sweeping new voting restrictions, including getting rid of no-excuse absentee voting in the state 29-20

— Sam Levine (@srl) March 8, 2021

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FREE MARKETS

A new vision for antitrust law. Asheesh Agarwal, deputy general counsel at TechFreedom, lays out some of the popular, problematic, and woefully bipartisan proposals to give the U.S. government more control over private businesses and counters with a “positive antitrust agenda” that draws on existing laws and concepts:

In recent months, antitrust activists have defined the debate with very aggressive proposals that break from the bipartisan consensus of the past 40 years. These ideas, popular in Europe, include: abandoning the venerable consumer welfare standard to encompass amorphous concepts such as “democratic ideals”; calling for structural separation of large companies; and adopting a “guilty until proven innocent” presumption for many common business practices, such as small acquisitions.

Rather than simply oppose these ideas, antitrust traditionalists — people on both sides of the aisle who believe in settled antitrust concepts and have concerns about upending decades of law and practice — should promote their own, alternate agenda. Tim Muris, one of the Federal Trade Commission’s most successful chairmen ever, developed and implemented a “positive antitrust agenda” to show people that established antitrust concepts could address competitive concerns.

More on what a less extreme antitrust agenda might look like here.

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QUICK HITS

• Another U.S. sex trafficking “rescue” group turns out to be a bunch of loons:

Operation Underground Railroad is a hugely prominent anti-sex trafficking charity that had deep ties to the Trump admin and is beloved by Q adherents. @annamerlan and I investigated their claims about their overseas missions and found … a lot: https://t.co/02WSg9QqdB

— Tim Marchman (@timmarchman) March 8, 2021

• The Centers for Disease Control and Prevention (CDC) now says that fully vaccinated people can “visit with other fully vaccinated people indoors without wearing masks or physical distancing,” “visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing,” and “refrain from quarantine and testing following a known exposure if asymptomatic.”

• It looks more and more likely that COVID-19 did originate in Wuhan, China, but not at an open-air market there.

• A record number of migrant children are being held in U.S. detention facilities. “More than 3,200 migrant children were stuck in Border Patrol facilities on Monday, with nearly half held beyond a three-day legal limit,” says CBS News.

• “A Michigan State Police trooper has been charged in an incident in which he set his dog on a driver and kept the biting animal on the man for nearly four minutes even though the driver was pleading for help,” reports NBC News.

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