Category: reason

A popular map app in Japan is being used to alert users to places where kids are making noise or playing unsupervised.

A New York Times article about DQN Today  quotes the website’s description as a crowd-sourced guide where people—particularly potential home-buyers—can discover and avoid neighborhoods where “stupid parents… let their children play on roads and in parking lots.”

The app’s popularity has grown exponentially over the past year, perhaps due to the fact that a certain virus has lots of kids and adults home during the day, and lots of nerves fraying.

But the reporters, Tiffany May and Hisako Ueno, suggest that anger at the sound of frolic may have been gaining steam even before COVID-19 hit. They quote unnamed experts speaking of “society’s growing intolerance for the sounds of children at play.”

I wonder if this intolerance really is growing, and if so, why?

It could be that the sound of kids playing was once so common, no one noticed it, like highway traffic. But now that kids are spending so much more time inside, on screens, or at supervised activities—and therefore not roaming the streets—the kids who DO wander and play are outliers, drawing attention to themselves.

The reporters also point out that Japan is an aging society, and the oldsters might have grown unaccustomed to the sound of children playing. But aren’t old folks just as likely to appreciate that sound?

Anyway, noise is such a difficult thing: Even happy sounds can be terribly annoying if you are trying to rest or work. The issue is so fraught that if this were simply an app about decibels, it wouldn’t strike me as controversial at all.

What is disturbing is the underlying assumption that kids shouldn’t be outside on their own. The site allows “references to unattended children playing on nearby roads, noting that it was ultimately the responsibility of parents and schools to supervise children at all times.”

But it’s not.

Yes, schools have a responsibility for the kids in their care. But it is not the responsibility of parents to supervise their kids at all times.

Children are humans, not possessions to be locked away. They are part of the fabric of life. And when parents think their little humans are ready for some independence, they are allowed to give this to them. That’s how kids become comfortable in the world—and in their skins.

Ironically, this is something Japan seemed to understand better than most countries. Japanese first graders routinely walk to school by themselves. Do not wait at the schoolyard gate, the Savvy Tokyo website begs parents: “Remember your child’s pride in not being a kindergartener anymore.”

And then there’s the popular Japanese show, My First Errand, which celebrates exactly what you’d expect. Except that the kids doing the errands are sometimes as young as three. (That’s my guess, anyway: Here’s the episode I watched.)

This is a country that trusts kids to do a whole lot on their own, and in fact, strangers along the way are expected to look out for them. Fantastic.

If this app starts to foster a culture that sees constant quiet as a right, kids will lose their freedom as will their parents. But there is the possibility that users could turn the app on its head: This is the place where all sorts of kids are playing outside on their own? Shouting? Running? Frolicking? Let’s move our family there!

Call it the Free-Range Kids Finder.

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On July 28, 2016, a group of Cleveland police officers dressed in plain clothes and driving in an unmarked car idled up to a house, where they spotted a man on the front porch. The man was named Shase Howse, and he lived in that house with his mother. The police proceeded to beat and arrest him.

Last year a federal court ruled that those two cops were protected by the legal doctrine known as qualified immunity. And this morning, buried in the Supreme Court order, came the news that SCOTUS will not hear the case.

On the day he was arrested, Howse says, he was searching for his keys when the officers—who he didn’t realize were officers, since they were dressed normally—appeared. They asked if Howse lived at the residence. Howse replied yes, and the cops drove away. They soon doubled back. As I wrote in June:

After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was sure he lived there. “Yes, what the fuck?” Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse’s bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.

Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he’d done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.

As he lay on the porch, Howse’s mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse’s head to hit the porch. She, too, did not initially realize they were officers.

Howse was charged with two counts of assault and one count of obstructing official business. He then sat in jail for several days. The charges were eventually dropped.

Howse countered with his suit, arguing the officers had violated his Fourth Amendment rights with excessive force and malicious prosecution. The U.S. Court of Appeals for the 6th Circuit rejected this, saying that the cops were protected by qualified immunity. That doctrine shields public officials from certain sorts of civil rights suits if their alleged misbehavior was not “clearly established” in case law.

In other words, for a plaintiff to have the right to bring a case before a jury, he must pinpoint a precedent that outlines the factual circumstances of their case almost identically. A few choice examples: Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who ruined a man’s car during a bogus drug search, a cop who shot a 10-year-old, and two cops who sicced a police dog on a surrendered suspect. Howse can now add his case to that list, as he will not have another chance at appeal.

In awarding the officers qualified immunity last year, Circuit Judge Amul Thapar wrote: “‘Clearly established’ means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct. To avoid ‘paralysis by analysis,’ qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law.”

That’s what the “clearly established” standard is supposed to do. But that’s not what it does in practice. What public official does not know stealing is wrong? Should an officer have to study case law texts in advance to know that beating and arresting someone on bogus charges is a constitutional violation? Thapar has unintentionally explained why the doctrine is so obscene.

“It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one,” Clark Neily, vice president for criminal justice at the Cato Institute, told me last summer. “Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to.”

Howse’s attorneys asked the high court to consider two issues: “whether the law is clearly established that an officer cannot arrest a person whom the officer has no reason to believe committed a crime, tackle him to effect the arrest, and then strike him in the neck when he poses no threat to anyone’s safety,” and “whether a Fourth Amendment malicious prosecution claim must be dismissed simply because one of the underlying charges is supported by probable cause.”

They will hear neither. Although Howse committed no crime by standing outside his own home, he stiffened his body and screamed while being arrested, which the majority though was enough to void the entire malicious prosecution claim.

The Supreme Court’s announcement adds to its mixed legacy on qualified immunity. It has refused many other chances to review the legal doctrine. But in this recent session, it has been willing to reshape how lower courts apply the doctrine. In November, it overturned a federal court decision giving qualified immunity to a group of prison guards who locked a naked inmate in a cell filled with “massive amounts” of human feces and another cell overflowing with raw sewage. And last month, the Court reversed another federal ruling—which granted qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation—and told the 5th Circuit Court of Appeals to reconsider.

It’s progress. And it’s true that it’s the legislature, not the Supreme Court, that is supposed to create policy. But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.

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The Centers for Disease Control and Prevention (CDC) today issued new guidance for people who have been vaccinated against COVID-19. The agency says fully vaccinated people should feel free to forgo face masks and physical distancing while mingling indoors with each other or with people from “a single household” who are at low risk from COVID-19. But it says vaccinated people should continue wearing masks and practicing physical distancing in public places or when visiting unvaccinated people in high-risk groups.

The CDC notes “the rapidly evolving science on COVID-19 vaccines.” While there is ample evidence from clinical trials that vaccination dramatically reduces the odds of serious disease, hospitalization, and death, there are still some questions about the extent to which it prevents infection and transmission. Yet several studies provide strong evidence that vaccination protects not only people who receive shots but also unvaccinated people in their vicinity.

Even without that research, there are sound reasons to expect COVID-19 vaccination to reduce the spread of the disease. “First, when the vaccines were studied in macaque monkeys (during preclinical testing), they did eliminate asymptomatic infection,” a March 2 article published by the Association of American Medical Colleges notes. “Researchers swabbed the vaccinated macaques’ noses and found little or no virus. Second, the types of antibodies that are stimulated by most systemic vaccines (IgG and IgA) do tend to block viral infection in the nose (and no viral load in the nose most likely translates to no transmission). Finally, when monoclonal antibodies are given to COVID-19 patients, those antibodies reduce the viral load throughout the respiratory tract, including the nose.”

Several studies add to that evidence. Researchers in Israel tracked nearly 600,000 people who received the two-dose Pfizer vaccine, comparing them to an equal number of unvaccinated controls matched for age, sex, “sector” (i.e., “general Jewish, Arab, or ultra-Orthodox Jewish”), neighborhood of residence, influenza vaccination history, pregnancy, and preexisting medical conditions associated with a higher COVID-19 risk. In a study published last month by The New England Journal of Medicine, they reported sharp reductions in asymptomatic infection as well as other outcomes.

During a follow-up period beginning seven days after the second dose, vaccinated subjects were 92 percent less likely to test positive for the coronavirus, 94 percent less likely to develop COVID-19 symptoms, and 92 percent less likely to suffer serious disease. In other words, the risk of infection at this stage was much smaller than it was in the unvaccinated group. Although that risk was not completely eliminated, the CDC notes that “preliminary data from Israel suggest that persons vaccinated with Pfizer-BioNTech COVID-19 vaccine who develop COVID-19 have a four-fold lower viral load than unvaccinated persons,” which suggests they are less likely to transmit the virus even when they are infected.

What about newer virus variants? “This study estimates an average effectiveness of the vaccine over multiple strains,” the researchers say. “Although we cannot provide a specific effectiveness estimate for the B.1.1.7 variant, the plateau observed during the later periods in the cumulative incidence curve for vaccinated persons suggests that the BNT162b2 vaccine is also effective for this variant, an observation consistent with previous reports that showed preserved neutralizing antibody titers. The B.1.351 variant was estimated to be rare in Israel at the time of data extraction.”

A Lancet study of more than 23,000 hospital workers in Scotland and Northern Ireland who were periodically tested for the coronavirus likewise found that the Pfizer vaccine dramatically reduced asymptomatic infection. Three weeks after the first dose, infection was reduced by 70 percent. Seven days after the second dose, the reduction rose to 85 percent. “Our study demonstrates that the BNT162b2 vaccine effectively prevents both symptomatic and asymptomatic infection in working age adults,” the researchers report. Since “this cohort was vaccinated when the dominant variant in circulation was B1.1.7,” the study “demonstrates effectiveness against this variant.”

A preprint study of about 62,000 Mayo Clinic patients in four states found that “administration of two COVID-19 vaccine doses was 88.7% effective in preventing SARS-CoV-2 infection.” Complementing the data from randomized clinical trials of the Pfizer and Moderna vaccines, the researchers said, “this study demonstrates their real-world effectiveness in reducing the rates of SARS-CoV-2 infection and COVID-19 severity among individuals at highest risk for infection.”

As The New York Times notes, these findings are consistent with the results of animal research and studies involving smaller samples of people who participated in the Moderna and Johnson & Johnson clinical trials. In a study of eight vaccinated monkeys exposed to the virus, seven were uninfected. Among a few dozen people who received the Moderna vaccine, infection was reduced by about two-thirds after the first dose. Johnson & Johnson’s single-dose vaccine reduced infection by 74 percent in a subsample of 3,000 people.

“We feel confident that there’s a reduction,” University of Florida biostatistician Natalie Dean told the Times. “We don’t know the exact magnitude, but it’s not 100 percent.” While the estimates “could change with more data,” said Dan Barouch, a virologist at Beth Israel Medical Center in Boston, “the effect seems quite strong.”

The evidence so far indicates that people who have been vaccinated are much less likely to be infected—perhaps as much as 92 percent less likely, judging from the Israeli study. That means they are much less likely to infect other people.

Encounters among vaccinated people, the focus of the CDC’s guidance, obviously pose the lowest risk. The CDC’s advice also allows close encounters between vaccinated people and unvaccinated people in low-risk groups, which suggests it’s OK to hug your vaccinated parents or grandparents.

But the CDC wants vaccinated people to carry on as before in public places. Here we are talking about a potential risk to strangers, so the moral calculus is different. And given the CDC’s habitual risk aversion, its recommendation regarding masks and physical distancing in public is not at all surprising. After all, even an 85 percent or 92 percent reduction in the likelihood that you are carrying the virus still means the chance is greater than zero.

“They should wear masks until we actually prove that vaccines prevent transmission,” says Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases. Research that tracks close contacts of vaccinated people might prove that effect to Fauci’s satisfaction. In the meantime, the Times says, “when vaccinated people can ditch the masks in public spaces will depend on how quickly the rates of disease drop and what percentage of people remain unvaccinated in the surrounding community.”

Many vaccinated people are apt to see things differently, especially if they think the onus should be on members of high-risk groups to avoid situations that are conducive to virus transmission. Now that vaccines are widely available to older Americans and people with preexisting medical conditions, that argument has additional force.

The minimal inconvenience of wearing a mask during a trip to the grocery store (assuming the store no longer requires it) is a pretty easy way of reassuring people who are especially vulnerable to COVID-19 but have not managed to get their shots yet, especially since they ordinarily have no way of knowing who has been vaccinated. But as time goes by and daily new cases continue to drop, vaccinated Americans are apt to lose patience with people in high-risk groups who have the opportunity to get vaccinated but fail to do so.

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This morning, the Washington Post published my new op ed on Biden, Syria, and war powers:

Critics have argued that both Trump’s and Biden’s strikes were illegal under the Constitution because they were not approved by Congress…. In my view, that is incorrect: Advance congressional authorization is not required for small-scale actions taken in self-defense against adversaries that have attacked U.S. forces — as Iranian-backed militias did in the most recent case.

But the debate over these strikes, taken in isolation, obscures a larger question: While the recent action may pass constitutional muster, the overall legality of the long-standing U.S. military presence in Syria is profoundly questionable; it almost certainly requires congressional authorization. Barack Obama, Trump and now Biden all deserve blame for failing to secure it throughout almost seven years of military operations….

In addition to violating the Constitution, the Syria intervention — viewed as a whole — also runs afoul of the 1973 War Powers Act, which requires the president to get congressional authorization for any deployment of military forces in “hostilities” abroad within 90 days of their commencement. It is undeniable that the U.S. intervention in Syria involves the kind of “hostilities” covered by the Act. Where Syria is concerned, the War Powers Act deadline passed a long, long time ago — during the Obama administration.

To its credit, the Biden administration has not attempted to stretch previous AUMFs to justify its recent airstrike. Instead, the president cited his inherent power, as commander in chief, to defend U.S. troops against attack. This is a strong rationale for the limited airstrike conducted on Feb. 25, but cannot justify the broader U.S. operations…

As I note in the op ed and discussed more fully here, the White House has indicated that the president would like to repeal the 2001 and 2002 AUMFs and replace them with a more “narrow and specific” authorization for ongoing operations against terrorists. I hope that happens. But recent history gives reason for skepticism.

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(For the full PDF, with footnotes and an Appendix listing the cases I’m discussing, see here; note that the article is still in draft, so I’ll be adding more materials, and any feedback people can offer would still be very useful.)

Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction like this: “[Defendant] is permanently enjoined from publishing … any statements whatsoever with regard to the plaintiff.”

It’s hard to reconcile such an injunction (whether entered in a libel case or as a “personal protective order”) with the First Amendment. And yet I have found 200 such injunctions (almost all in the last 10 years)—some as broad as that one, and others narrower but still overbroad—entered either in libel cases or in cases involving petitions to stop harassment or cyberstalking.[1]

They have involved speech criticizing exes and other family members;[2] businesses or professionals (lawyers, doctors, real estate agents, financial advisers) with whom speaker say they had a bad experience; police officers, judges, and other government officials; and more. Some have banned all speech about the plaintiff, or all online speech about the plaintiff.

Others have been narrower—for instance, banning all “derogatory” speech or all posting of photographs of plaintiff—but still covered constitutionally protected speech (and not just libel or true threats or unwanted speech said to the plaintiff). Many of these injunctions are focused on online speech, but the Court has made clear that online speech, and in particular speech on social media, is fully protected by the First Amendment (as much as is speech in newspapers or books or leaflets).

Unsurprisingly, most such injunctions involve either a defendant who was not represented by a lawyer, or a default judgment against a defendant who did not appear, so the First Amendment arguments against the injunctions were likely not effectively laid out in front of the judge. Part I lays out the evidence—and doubtless it’s just the tip of the iceberg, since most unappealed injunctions aren’t systematically accessible online.

When these injunctions do go up on appeal, they almost always get reversed, because they violate the First Amendment. Part II discusses the precedents on this, both from the U.S. Supreme Court and from state appellate courts. I hope this Part will be especially useful to judges, lawyers, and even pro se litigants dealing with such cases. (I discuss state and federal appellate precedents there in more detail than is common for a law review article, precisely to be more useful to practical litigation.)

But some state appellate decisions have upheld such injunctions, based on two related theories. First, some courts have concluded that the First Amendment doesn’t protect harassment, and that otherwise protected speech becomes unprotected harassment when it is said (especially when it is said often enough) with an intent to offend, embarrass, or harass. Second, some courts have concluded that the First Amendment doesn’t protect such speech when it is on a matter of merely “private concern.” I think these theories are inconsistent with First Amendment precedents, and Part III will discuss that.

Finally, Part IV will speculate why courts are doing it, and how it bears on broader debates—for instance, about how the “cheap speech” created by the Internet has affected public discussion; how some judges might perceive their role in pragmatically resolving disputes; and about how judges deal with litigants that they see as irrational and uncontrollable using normal tools.

Our legal system offers many remedies, however imperfect, for damaging speech about a person. One is libel lawsuits, and even narrowly tailored injunctions forbidding the defendant from repeating specific statements that have been found to libelous at trial. Another, in some states, is criminal libel law. A third, in other states and under federal law, is criminal harassment law or cyberstalking law, though that may raise its own First Amendment problems. In if Donna is writing derogatory things to Paul, rather than just about him, he may able to get a restraining order to make that stop.

But the injunctions I describe in this article are not a permissible remedy. Of course, persistent online criticism, which may often be unfair and insulting, may understandably distress its targets. But, as the Supreme Court and lower courts have made clear, such speech is generally constitutionally protected.

[* * *]

[1] Harassment here refers to criminal harassment or harassment that might be targeted by harassment prevention orders, not hostile environment workplace harassment, see Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992), or quid pro quo workplace harassment.

[2] From what I’ve seen, such orders don’t exhibit any particular gender pattern; men sometimes get them against ex-wives and ex-girlfriends, women against ex-husbands and ex-boyfriends, and some stem from same-sex relationships.

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