Josh Hawley’s Toxic Populism

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When rioters stormed the U.S. Capitol in January, Sen. Josh Hawley (R–Mo.) was there. Not only was he happy to see the mob assembled outside his workplace; he cheered them on.

Shortly before the group of conspiracists and reactionaries broke into the building—vandalizing offices, taking selfies amid the wreckage, and dramatically halting business on both the House and Senate floors as lawmakers were evacuated to secure locations, sometimes fearing for their lives—Hawley had been photographed giving them a raised fist of encouragement.

Earlier that morning, then–President Donald Trump had addressed a rally at the National Mall. “We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women,” he directed. “And we’re probably not going to be cheering so much for some of them, because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

Trump pumped the mob up, but it was Hawley who gave it an official channel and a sense of legitimacy. The week before, Hawley had been the first senator to announce that he would oppose certification of the electoral votes that would give the presidency to Joe Biden. “I cannot vote to certify without pointing out the unprecedented effort of megacorporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden,” he said at the end of December. Congress, he complained, had “failed to act.”

The announcement was entirely typical of Hawley: blustery, partisan, pro-Trump, anti–Big Tech, and transparently authoritarian. And it led to disastrous consequences.

The events that followed played out as a kind of ironic insurrection, part 4chan lulz prank, part lethally serious attack. There was the “Q Shaman” wearing face paint and a Viking helmet, the gaggle of internet provocateurs cackling as they looted Speaker of the House Nancy Pelosi’s chambers, and images of a ransacked parliamentarian’s office (presumably not out of frustration with the Byrd rule). These madcap images were juxtaposed with more potent horrors: a mob-built noose and chants of “hang Mike Pence”; video showing rioters mercilessly assaulting a Capitol Police officer with whatever happened to be on hand, including the pole of a Blue Lives Matter flag. By the time it was over, five people, including a protester shot by police and an officer beaten over the head with a fire extinguisher by rioters, had died.

This was not the glorious revolution the rioters had imagined but a deadly cosplay version of it brought to life, a dangerous joke planned and perpetrated by trolls and cranks—and backed by people in power who should have known better. Those few hours on January 6 were like the entire Trump era in concentrate: There were the absurdist aesthetics and lunatic logic, the self-serving lies, the made-for-YouTube showmanship, the chaos and conspiratorial impenetrability, the muddling of the serious with the deeply unserious, the swirling threat of political violence and, finally, its palpable, horrible reality.

And there, as always, were Republicans like Hawley, standing by. They coddled Trump’s delusions and saluted his mob of supporters, fueling their paranoia and excusing their outbursts. And they did it all under the guise of representing ordinary Americans who, they said, simply wanted to be heard.

That was Hawley’s stated logic when he defended his decision to object to certifying the election results. “Many, many citizens in Missouri have deep concerns about election integrity,” he later wrote in a column for the Southeast Missourian. “For months, I heard from these Missourians—writing, calling my office, stopping me to talk. They want Congress to take action to see that our elections at every level are free, fair, and secure. They have a right to be heard in Congress. And as their representative, it is my duty to speak on their behalf. That is just what I did last week.”

Hawley’s defense was crafted with a veneer of deniability. Strictly speaking, he had not called the election rigged, nor had he directly endorsed the nuttier theories that had propagated among the president’s lawyers and supporters. He hadn’t even quite said, outright, that Biden hadn’t won. Instead, he had concocted a dubious rationale about supposedly improper changes to Pennsylvania’s election law—an issue that, as a U.S. senator from Missouri, would not normally fall within his purview—and then insisted he was just echoing the concerns of Missouri voters.

His constituents, in Hawley’s telling, were deeply worried about the technicalities of another state’s vote-counting procedures. As if that’s what the noose and death chants were about.

Did anyone really believe this too-clever-by-half shtick? Did Hawley? Did it even matter? The episode generated an uproar and entirely justified outrage, but it also generated something Hawley clearly craves: attention. More than anything else, the junior senator from Missouri specializes in grandstanding and gimmickry cloaked in the language of Middle American populist righteousness. And he is hoping he can grandstand his way to the top of American politics.

It’s no secret that Hawley sees himself as a potential heir to the Trump coalition, a man of the people who dreams of one day occupying the Oval Office himself. After Hawley announced his plan to object to the vote certification but before the Capitol riot, Illinois Rep. Adam Kinzinger—one of the few House Republicans who later voted yes on Trump’s second impeachment—mocked him on Twitter. “I want to be President so I decided to try to get [a] POTUS tweet saying I’m great even though I know this isn’t going anywhere,” Kinzinger posted, imagining Hawley’s internal monologue, “but hey… I’ll blame someone else when it fails.”

Hawley has denied that he’ll run for president in 2024. Yet he clearly wants to set the party’s tone and recalibrate its self-image. In just two years in Washington, Hawley has already positioned himself as one possible future for the GOP, a new breed of legislator that is younger, more vehemently nationalist, and less committed to the party’s “outdated” orthodoxies, particularly when it comes to free speech and limited government. Hawley’s vision of government is a vision of vast power, used to forcibly advance a particular kind of life.

Yet he also represents a link to the party’s past, following in the long tradition of socially conservative scolds and media panic mongers who have found a home on the American right.

Hawley doesn’t want to be the next Trump, exactly. But he wants to be the heir to Trumpism. To that end, he combines the MAGA movement’s ugliest traits with many of the worst tendencies of the pre-Trump Republican Party. He may well be the GOP’s dark future, bringing the culture war into the social media era and repurposing the Progressive Era’s statist playbook for faux-populist ends.

In the wake of the Capitol riots, though, Hawley became something else as well: a smug and self-serving avatar of his party’s darkest and most shambolic moment.

Hawley vs. the Elites

If there’s one thing to know about Hawley’s politics, it’s that they’re rooted in opposition to contemporary elites. In speech after speech, Hawley has decried the progressive overlords who hold the commanding heights of American politics, tech, academia, and culture, who he says have joined together to rule over a vast Middle American public that does not share their values.

“Elites distrust patriotism,” he said in a 2019 speech at a conference on conservative nationalism, “and dislike the common culture left to us by our forbearers.” They “look down on the common affections that once bound this nation together: things like place and national feeling and religious faith.”

America’s Founders “built a new republic governed not by a select elite, as in the days of old, but by the common man and woman, grounded on the premise that it is the common man and woman who are the noblest of citizens,” Hawley explained. But today, America is ruled by a “cosmopolitan consensus” that prioritizes “social change over tradition, career over community, and achievement and merit and progress” and global integration over family and national loyalties. The looming threat, he warned in a separate speech that year, is “government by unelected elites who are confident they know better than the American people, that they know better than the Constitution, that they should be in control.”

Hawley takes this outlook personally. “I’m not happy that people in Washington, D.C.—and, let’s be honest, New York, on Wall Street, in Hollywood—look down on the kind of upbringing I had,” he told The New York Times in 2018.

That’s more than a little bit ironic, given that Hawley is, by almost any definition, an elite himself. A graduate of both Stanford University and Yale Law School, he went on to be a Supreme Court clerk for Chief Justice John Roberts before his 30th birthday. From there, he worked as a lawyer in private practice, a teacher at the prestigious St. Paul’s School in London, and an associate professor at the University of Missouri School of Law. Along the way, he wrote articles for the conservative policy journal National Affairs and a scholarly book, based on his graduate thesis, on the life of President Theodore Roosevelt, published by Yale University Press.

All this was before he ran for office, first becoming a state attorney general and then being elected to the U.S. Senate at the age of 39. Hawley often passes himself off as a man of the people, but he’s also a man above the people, an elite in nearly every sense of the word. He’s well connected and well traveled. You might even call him cosmopolitan.

That’s something he shares with Roosevelt, the subject of his book, who was born to a wealthy family, traveled the globe extensively as a child, and attended Harvard before entering politics. Hawley’s biography is scholarly and intellectual, a dense and sometimes fascinating text intimately concerned not only with the character and philosophy of the man who would become president but also with the character and philosophy of the age, and with how the era and his subject pushed and pulled against each other.

As a sickly young boy, Roosevelt came to emphasize physical strength and vigor as pathways to virtue; he was obsessed with the idea of action, of being a player on history’s grand stage. Roosevelt’s political career, meanwhile, was defined in part by a desire to tame the corporate growth and consolidation that came with turn-of-the-century industrialization. He wielded the threat of antitrust as a weapon against the era’s large corporations. He too was an elite whose political program was a response to a backlash against rapid social change, whose actions were taken in the name of assisting ordinary people.

Hawley’s examination of Roosevelt is not a defense of the 26th president, but he clearly finds the man intriguing. Roosevelt was a stalwart of the late 19th century Progressive movement, which championed expansive corporate regulation as an answer to fast-moving industrialization and urbanization. Roosevelt was a Republican but not a believer in limited government.

In the end, Hawley calls Roosevelt’s approach both “racist” and “coercive,” though he also says it “may yet help Americans imagine a substantive politics of another kind.”

In a later essay for National Affairs, he contrasted Roosevelt’s governance with Woodrow Wilson’s more individualistic, less moralistic philosophy, writing that Wilson “accurately identified Roosevelt’s drift into statism.” Yet it was Wilson who oversaw America’s major early 20th century trustbusting efforts and Wilson who pushed through the Revenue Act of 1913, which implemented a federal income tax. Wilson was a Progressive reformer, too, but of a different kind.

Hawley vs. Big Tech

Hawley doesn’t endorse a full-fledged Wilsonian worldview either—it’s too narrowly individualistic for his taste—but it’s clear he continues to see American politics through the lens of turn-of-the-century Progressive Era politics. Instead of the concerns about railroad monopolies, land conservation, and food safety that dominated the early 20th century, however, Hawley’s principal focus is on the threat of Big Tech.

In April 2018, Hawley, then the attorney general of Missouri, announced that his office would follow a joint effort by New York and Massachusetts and begin a separate investigation into Facebook for its role in what was becoming known as the Cambridge Analytica scandal.

Details were still emerging at the time, and the scandal would eventually grow into a convoluted, multi-threaded narrative involving Trump campaign adviser Steve Bannon, major Republican donors, Russian data scientists, and allegations of stolen or manipulated elections. At its core, the story was built on allegations that Cambridge Analytica, a British firm that also had business in the United States, had unethically and perhaps illegally scoured social media data to create “psychographic” voter profiles. Cambridge Analytica “harvested private information from the Facebook profiles of more than 50 million users without their permission,” The New York Times reported, by buying a batch of data from an independent researcher. It was “one of the largest data leaks in the social network’s history.”

Mainstream media outlets warned that the data created using these profiles might have given Trump an illicit edge that helped him win the 2016 election. They thought it may even have provided a tool for Russians or other foreign rivals to use to cause chaos in American politics. Democratic lawmakers in Congress held hearings and called for congressional oversight of social media.

Hawley, a Republican, had more prosaic concerns: Facebook had a lot of personal data. What was it using those data for?

“You think about the kind of information we put on our Facebook page,” Hawley said at a press conference announcing the Missouri investigation. “Pictures of our kids. Pictures of our families. Family vacations. Pictures of our work colleagues. And then to think that all of that information and more might have been acquired by entities that we don’t even know. I think it’s really terrifying.”

As it turned out, the scandal was barely a scandal at all. It was a misunderstanding, constructed out of a mix of paranoia, ignorance, and political convenience. In October 2020, a yearslong investigation by the U.K. Information Commissioner’s Office (ICO), a government body that oversees British data privacy, found little more than misleading marketing hype on the part of Cambridge Analytica’s chief officers. The complexity of the voter profiles had been wildly exaggerated by both critics and the company itself. There had been no foreign election interference to speak of.

The incident did, however, make Facebook a political target. In 2019, the Federal Trade Commission (FTC) came to a $5 billion settlement with the social media giant for having violated the terms of a 2012 consent decree. In response, Hawley, by then a U.S. senator, signed a letter with Sen. Richard Blumenthal (D–Conn.) arguing that the unprecedented fine was too small and that the FTC had not gone nearly far enough in restricting and managing Facebook’s business practices.

The incident was a model for Hawley’s behavior as an elected official. The investigation he launched as A.G. went nowhere. It mostly served as an announcement that he’d jumped on a bandwagon driven by Democratic A.G.s in other states. The panicky pretext he cooked up—the sharing of family photos—had little to do with the actual issue at hand but was calculated to inject fear into the minds of heartland families. And after the FTC’s settlement, he signed on to a high-profile demand that the federal government take dramatic steps to further regulate a company based on a bevy of bipartisan concerns that largely turned out to be bunk. In the end, he contributed almost nothing of substance. But he had grandstanded his way to the center of attention at every step.

Hawley’s actions may have been largely ineffectual. But they represented a sweeping vision of government control and oversight of Facebook, one in which federal regulators would play a role in nearly every core business decision the company made as well as many smaller decisions about product functionality and marketing.

“Fines alone are insufficient,” the letter said. “Far-reaching reforms must finally hold Facebook accountable to consumers.” The FTC should “consider setting rules of the road” for the platform’s data collection, advertising practices, and other aspects of its business. Essentially, the letter argued that the federal government should be running Facebook.

This was not the first broadside Hawley had launched against the FTC. In March 2019, he’d written a letter to the regulator lamenting that its approach to regulating big tech companies had been “toothless.” The senator listed a series of alleged abuses by Google and Facebook, many of which were remarkably narrow in focus.

When Facebook acquired the chat service Whats-App in 2014, for example, it said that it wouldn’t link accounts between the two services; in 2016, it updated its terms of service to note that the accounts from both platforms might be linked. Several of Hawley’s complaints focused on location data, including a warning that Google had used “misleading terms like ‘location’ when it collects a much broader category of non-location data, including the type of motion (e.g., walking, biking, or driving), barometric pressure, Wi-Fi connectivity, MAC addresses, and battery status charge.”

This was Hawley’s grand case against the tech oligarchs, his argument for an expansive and intrusive regulatory regime: Google had used the words location data to capture data relevant to a user’s location. And the senator didn’t just want Google, Facebook, and their peers to amend their business practices. He wanted to put federal regulators in charge.

No tech product or design feature is too small to escape Hawley’s notice. In July 2019, he introduced the Social Media Addiction Reduction Technology (SMART) Act, which was somehow even dumber than its name would suggest.

Hawley’s bill would have outlawed features such as “infinite scroll,” a feature common to services like Twitter and Instagram that invisibly loads new content to a user’s main feed, letting them scroll through posts without interruption. It also banned features such as Snapchat “streaks,” which provide users with virtual rewards—essentially digital merit badges—for certain types of regular use.

Separately, he proposed legislation banning so-called “loot boxes” and “pay to win” mechanisms, both of which allow players of some popular video games to pay for the ability to advance more quickly through gameplay. All this was supposedly out of concern for children’s attention spans. Instead of a senator from Missouri, you’d think he was the mayor of Farmville.

Hawley’s legislation was dressed up in rhetoric about protecting families. The features he wanted to outlaw, Hawley said, were designed to promote “addiction.” That’s another way of saying he hoped to prohibit practices intended to make the services easier and more enjoyable for customers to use. Hawley was literally proposing that Congress regulate the design and layout of your Instagram feed in order to make it less functional.

In the March letter, he charged that the supposed abuses he laid out followed a “common pattern” in which “big tech companies adopt an ‘ask forgiveness rather than seek permission’ mentality.” His goal was plain: to force big tech companies to get an OK from federal regulators before rolling out new ideas and services.

Hawley wasn’t trying to shave off some rough edges from the tech world’s business practices or correct some anti-consumer activity. He was trying to gut the industry entirely, to turn social media into a quasi-nationalized arm of the federal government.

He’s made no secret of his deep disdain for big technology firms. In a 2019 interview with NBC, he wondered out loud of Facebook and Google, “Should these platforms exist at all?” He also said that a plan by Sen. Elizabeth Warren (D–Mass.) to use antitrust to break up large tech companies—a plan that Facebook founder Mark Zuckerberg had, in an internal meeting, portrayed as an existential threat—might not go far enough. Hawley doesn’t want to fix Big Tech, in other words. He wants to destroy it. And he has no apparent qualms about vastly increasing state power in the process.

Nowhere has that been more apparent than his approach to Section 230, a legacy of 1990s internet regulation that says users and tech companies do not assume legal liability for online speech created by other people. Hawley has proposed multiple amendments to the provision, including one that would end liability protections for large tech companies “unless they submit to an external audit that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.” Companies would have to reapply every two years and gain approval from an FTC supermajority.

The proposal is all but an explicit call for federal control of large social media sites, a de facto nationalization of parts of the tech sector.

The goal is ostensibly to force such companies to behave like politically neutral players. But what will Hawley do when the political tables turn against him? As the last two years of congressional tech hearings have made clear, Democrats and Republicans have very different visions of what effective social media moderation looks like, with Democrats largely desiring greater restriction of views that align with the far right, especially when the views are associated even loosely with political violence. A Republican administration might produce an FTC friendly to Hawley’s goals. A Democratic administration would almost certainly weaponize such a program to restrict the sort of Middle American, pro-Trump speech—for example, questioning election results in the aftermath of a deadly riot—that Hawley seeks to protect.

Hawley’s approach to Big Tech regulation is, in many ways, his approach to government itself: He sees the state as both expansive and granular, an agent of massive power and minute control. It’s an ethic in which Washington knows no bounds and regulates even the smallest interactions of daily life, making them worse when it does not prohibit them outright, in the name of protecting people from themselves. It’s statist and coercive, a right-wing Progressivism updated for a new century.

Hawley vs. the Culture

Hawley’s vision of government has no modesty to it, no sense of its own limits; it is both paternalistic and moralistic.

Hawley has no qualms about demanding that government step in with financial assistance for Americans, even at great expense. In December, for example, Congress put together the final details of what would eventually become a $900 billion COVID-19 relief package, following about $3 trillion of aid earlier in the year. Word emerged that the bill was to include a $600 direct payment to most middle-class households. In response, Hawley co-signed a push with Sen. Bernie Sanders (I–Vt.) to double the payment to $1,200. “It would be a dereliction of duty if Congress adjourns for Christmas without having a vote on providing working families with direct payments,” Hawley said. Later, he backed $2,000 checks.

As in so many other instances, Hawley positioned himself as on the side of ordinary families and blasted Congress for having failed to do its job. He practically ignored the checks that had already gone out as a result of earlier COVID relief bills, as well as data showing a record personal savings rate among Americans. Hawley wasn’t pushing targeted help for those who needed it; he just wanted to take credit for the government sending out ever-larger checks.

Sometimes Hawley seems to be calling for a return to a mercantilist world of tariffs and trade barriers, slowing or stopping the global movement of goods and people that has made both Americans and the global poor richer than ever before.

In his nationalism conference speech on cosmopolitan elites, he cautioned darkly that the consensus he took issue with favored “globalization—closer and closer economic union, more immigration, more movement of capital, more trade on whatever terms.” He warned that elites thought “the boundaries between America and the rest of the world should fade and eventually vanish.” If Big Tech is Hawley’s foremost enemy, trade with China is his second-favorite target. Hawley wants a world that is both more closed and more closed-minded.

At other times, Hawley’s governing vision manifests in mendacious moral crusades. He has repeatedly bragged about his work as Missouri attorney general helping local police free “female victims” who had been “forced into sex work,” including operations with possible ties to “Asian organized crime.” In a series of tweets in June 2020, he bragged of having “freed a dozen women in sex slavery.” After one such bust in 2017, he stood in front of a massage parlor and warned, “We will find you out, we will hunt you down, and we will prosecute you.”

Yet a year later, no felony charges had resulted from the bust. As Reason‘s Elizabeth Nolan Brown has reported, no massive crime syndicate has ever been uncovered. Instead, the majority of the charges that were filed have hit the female workers themselves. He hadn’t freed anyone from modern slavery. He’d raided women’s places of employment and saddled them with small-ball charges that resulted in fines of up to $1,000. It was more of a hardship than a rescue. Hawley’s hero act was a self-serving fabrication.

But it was, once again, typical of Hawley. Not only in the way it emphasized evidence-light grandstanding over real action, but in the way it harkened back to the politically exaggerated moral panics of an earlier era.

Looked at one way, Hawley represents the Republican Party’s post-Trump future: more politically combative, more avowedly nationalist, more averse to trade and immigration, more focused on the white working class that fueled Trump’s rise, happy to drop even the pretense of favoring limited government.

But Hawley also descends from the party’s scolding, censorious past, its tradition of waging showy but largely unserious culture war battles against exaggerated moral panics—whether sordid tales of crime-syndicate sex trafficking or more domestic concerns like Facebook destroying the minds of young children—as well as Hollywood leftists and the liberal media.

Liberal elites have been GOP targets for decades because of their status as prominent, left-leaning institutions of cultural production. Hawley, who until January was the Senate’s youngest member, has just taken that old culture war shtick and turned it against a new generation of coastal elites: Big Tech.

Republicans of an earlier era decried Hollywood for tarnishing America’s family values, and politicians in both parties have participated in high-profile hearings on violent movies and video games, nominally out of concern that such media warp the minds of children. Hawley has repurposed those fears for a new generation. For all his talk of liability shields and privacy violations and addictive user interface designs, he isn’t actually motivated by the particulars. He isn’t going after Big Tech because the industry has committed some particular violation. He’s out to destroy Big Tech because its highly educated, left-leaning, blue-state workforce doesn’t share his values.

At 41, Hawley is (just barely) a member of Generation X. But his crusade against Facebook, Twitter, and Google is a millennial remake of the same old culture war.

Hawley vs. the Truth

A generous accounting of Hawley’s worldview probably looks something like this: The primary job of an elected official is to represent the views and interests of his constituents. There is now a meaningful cultural and political divide between the views of Middle Americans, especially those without a college education, and the views of urban professionals, most of whom lean to the left.

Libertarian ideas are overrepresented in policy debates; Americans are not, by and large, libertarians. Indeed, Americans of the sort Hawley sees himself as representing tend to be almost exactly the opposite: socially conservative but also fairly fiscally liberal, concerned about government waste and spending on foreign aid but open to big public programs that directly benefit Americans.

This group prioritizes something like a traditional family life, and its members are genuinely concerned about the forces that shape their children’s upbringing. But they feel their values are underrepresented in Washington and practically invisible in Big Tech, news media, academia, and Hollywood. Globalization has wreaked havoc on small town economies; once-stable jobs that allowed a sole breadwinner to support a family have evaporated. And since large tech companies now serve as the intermediaries for so much of day-to-day existence, that makes them a legitimate target for public oversight.

What’s more, Republican voters rather like Donald Trump, and there is in fact widespread skepticism about the results of the 2020 election. Hawley doesn’t necessarily have to believe everything his constituents believe. His job isn’t to argue with voters. His job is to ensure they have a representative voice in democratic government.

There is at least some truth to this view of politics: Polls really do show a large cohort of socially conservative, fiscally liberal voters, a good chunk of whom reside in less dense regions and at the lower end of the income and education spectrum. And college-educated urban workforces, especially in tech and media, really do lean heavily to the left. Big Tech really is at the center of everyday life in a way that feels both novel and inescapable to many. It’s possible to make too much of the urban-rural cultural divide, which is messier and more ambiguous than simple dichotomies suggest, but the divide is not imaginary either; these groups on average have different values, different views of politics, and different ways of life.

But the job of politics is to bridge this divide, not turn it into an existential struggle. And Hawley’s idea of politics as mere representation, without any sort of independent judgment applied by the representative, undermines the constitutional system that he claims to admire.

This conception has the potential to transform the lawmaker into an empty vessel—a showboater and a grandstander—or even a powerful purveyor of falsehoods and crankery. It demands that legislators represent the people by giving them voice, no matter what. It says nothing about what to do when what the people want is baseless or even dangerous. It doesn’t account for what happens when what the people want is insane.

It’s a flawed and feckless view of leadership. Indeed, it is practically a form of anti-leadership, for it renders elected officials helpless before the whims of their constituents. And it’s a misunderstanding of the constitutional vision of the Senate—the chamber of which Hawley is a member—which was designed at least in part to restrain the raw populist impulses of the House of Representatives.

Hawley might say he’s acting as a public servant. In his pre–public office writing on the Progressive visions of Roosevelt and Wilson, he called for an ethic of “self-determination” in which the people get to choose their own society. But that ethic, he noted, requires a kind of responsibility and commitment on the part of elected officials, a duty to the polity rather than merely to oneself.

Hawley has clearly failed that test, feeding and validating false and destructive beliefs not only from voters but from Trump himself. It is more than a little ironic that Hawley, who has accomplished little of substance as a lawmaker, has so often framed his arguments as critiques of a Congress failing to do his job. In nearly every case, the failure was Hawley’s.

One might argue that Hawley has tried to sand down the rougher edges of the views he’s trying to represent by turning them into concrete legislative issues: concerns about Section 230, say, or the mechanics of Pennsylvania’s early vote counting. But this attempt to render inchoate, nonsensical concerns into something more cognizable has led, at best, to context collapse, exaggerations, distortions of the truth, and too-clever covers for mistaken or even deranged ideas. And often, it has resulted in Hawley simply lying.

In the weeks after he raised his fist to the nascent mob of Capitol rioters, Hawley insisted that he had never questioned the outcome of the vote. “I was very clear from the beginning,” he said, “that I was never attempting to overturn the election.”

Yet following the election, Hawley repeatedly raised the possibility that Joe Biden would not be sworn in as president. On January 4, two days before Congress’ certification vote (and the riot that accompanied it), he appeared on Fox News and was asked by Bret Baier: “Are you trying to say that as of January 20, that President Trump will be president?” Hawley responded that it was at least a possibility: “Well, Bret, it depends on what happens on Wednesday.”

Hawley was indeed quite clear from the beginning. The results of the election—the results that said Biden had won—were in doubt. What happened next was just as clear: A mob of pro-Trump idiots ransacked the Capitol, and people died.

When the publisher Simon & Schuster subsequently canceled Hawley’s contract for a book on “the tyranny of Big Tech,” the senator’s indignant response was to call the cancellation “Orwellian” and brand it as “a direct assault on the First Amendment.” It was no such thing. The First Amendment guarantees citizens the right to be free from government interference in speech. It does not guarantee a right to a book contract. Moreover, Hawley’s book was soon picked up by another imprint. He hadn’t been censored, even in the colloquial sense. Every word he wrote would still be published.

Is that the future of the GOP? One might argue it’s actually the present. Under Trump, the party embraced an ethos of self-serving lies that weren’t even particularly clever. In some ways, their obviousness was part of the appeal: They were dares and stunts and bait meant to generate attention and drive opponents nuts as much as anything else. Trumpy grandstanding is hard to replicate, even for someone like Hawley. But that doesn’t mean he won’t try.

In the weeks after the Capitol riot, Hawley was increasingly chastised for his actions leading up to the event. A major donor to his campaign, Tamko Building Products CEO David Humphreys, called for him to be censured—officially reprimanded—by Congress. Seven Democratic senators filed an ethics complaint against him and fellow election-results questioner Sen. Ted Cruz (R–Texas). A Morning Consult poll in late January found Hawley’s overall approval in solidly red Missouri had fallen precipitously, to 36 percent. Among Republicans, his approval had dropped 9 points in the weeks following the Capitol riot, to 63 percent.

In response, Hawley amped up the grievance mongering. If he was going to go down, he would go down grandstanding.

He responded to the Democratic letter calling for his censure by accusing the signers of trying to “silence dissent” and by issuing a formal demand for an ethics investigation into them. “The Senate cannot function if its neutral administrative processes are hijacked for bad-faith ends,” he complained in what was somehow not a competition for the least-self-aware statement ever made by a U.S. senator.

Separately, in a rambling diatribe of victimhood for the New York Post, he linked the widespread criticism he’d received post-riot and the cancellation of his contract with Simon & Schuster to China’s “social credit scores”—a government-run monitoring scheme to rate citizens based on their conformity with the expectations of the Communist state. The headline, and his tweets about the piece, declared, “It’s time to stand up to the muzzling of America.” It was yet another self-serving gimmick built on lies.

America hadn’t been muzzled, and neither had Hawley. He’d landed his tirade on the front page of a major newspaper, available on a website accessible to every American with an internet connection. He’d confused widespread disapproval of his behavior with the threat of an authoritarian crackdown on his rights, a telling mistake from a politician whose frequent response to ideas he disagrees with is to propose a government crackdown on someone else’s rights. And perhaps even more revealing, he’d mistaken opprobrium at his own malignant behavior for opprobrium at the country as a whole.

In the end, Hawley isn’t even a very good populist. He may think he is speaking for the nation or representing the voiceless and oppressed. Instead, he advances his own political fortunes at the expense of the nation’s. He simply can’t tell the difference.

That raised fist at the mob that would go on to storm the Capitol? He wasn’t just cheering them on. He was raising it for himself, ensuring the eyes of history would be trained on him that day. It worked.

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Did Justice Breyer Go IDGAF?

On Thursday, the Supreme Court released two opinions: Pereida v. Wilkinson and United States Fish and Wildlife Serv. v. Sierra Club, Inc. The latter case was Justice Barrett’s first majority opinion. The vote in Sierra Club was 7-2. Justice Breyer, joined by Justice Sotomayor, dissented on fairly technical grounds. Justice Breyer agreed with the majority that the case should be remanded back to the lower court. Indeed, Justice Breyer left open the possibility that he would “agree with the majority” opinion. His disagreement was hyper-technical

There is something of a tradition that a Justice’s first decision should be unanimous. Justice Kavanaugh’s first majority opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. Same for Justice Gorsuch.

I suspect that if there was a unanimous majority opinion to be had from Justice Barrett’s first sitting, the Chief would have assigned that case. Perhaps there were no majority opinions from Barrett’s first sitting. Or maybe Sierra Club started off as a majority opinion, but Breyer and Sotomayor fractured off. Still, given this narrow disagreement, I was surprised that Justice Breyer would bother to dissent on Justice Barrett’s first majority opinion. He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.

Now Justice Kagan joined the majority opinion. I have no clue about her views on the substance. But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. Maybe Justice Kagan gave Justice Barrett a join as a courtesy. If so, how do we explain the vote of Justice Breyer, who historically has used his votes strategically to form coalitions?

It’s possible that Justice Breyer has seen the writing on the walls. The conservatives has no interest in working with him to build consensus opinions. The Chief can count to 5 without Breyer’s help. And Justice Breyer may have already told President Biden he plans to retire. At this point, Justice Breyer may be IDGAF. He’s checked out. Call it SCOTUS senioritis. Indeed, originally Justice Breyer’s dissent was not respectful. His opinion originally ended with “For these reasons, I dissent.” But on March 5 at 9:49 a.m., the Court revised the opinion. Now, Breyer’s dissent was respectful.

The fact that Breyer made this change suggests something is afoot with respect to collegiality.

Mike Dorf offers a similar explanation:

Perhaps I’m wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing–at least sometimes.

Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn’t worth the candle.

Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.

It is always risky to read so much into subtle changes in the Court’s decisions. But these two dissent on Thursday felt off.

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5 Ways Elon Musk and Other Billionaires Get Welfare for the Rich

Elon_Musk_and_the_Neuralink_Future

Tech billionaire Elon Musk is known for leading Tesla and SpaceX, as one of the visionaries behind PayPal, and for hyping bitcoin and a bold plan to colonize Mars.

He’s not just the planet’s richest person, he’s one of its biggest recipients of government handouts, according to Lisa Conyers and Phil Harvey, authors of Welfare for the Rich: How Your Tax Dollars End Up in Millionaires’ Pockets—And What You Can do About It. Conyers is a veteran journalist and co-author with Harvey of 2016’s The Human Cost of Welfare. Harvey is a successful businessman and philanthropist who supports many libertarian organizations, including Reason Foundation, the nonprofit that publishes this website.

By 2015, they write, companies led by Musk had already gotten billions of dollars in subsidies, tax breaks, and other handouts. New York state even shelled out $750 million to build a factory for Musk’s troubled SolarCity operation and then said the company would pay no property taxes for a decade, saving Musk another $260 million. “He seems to have a magic touch,” says Harvey. “He’s gotten so good at raising money from state governments, getting subsidies, tax abatements, and so on, that sometimes it seems as though the states are lining up to offer him money to come and do business.”

Musk is far from alone. There are thousands of other immensely rich people who are constantly bilking governments at all levels for special perks, carveouts, and handouts.

Here are five of the very worst ways they do that.

1. Agricultural Subsidies

Since 1933, when Congress passed the first farm support bill, the government has been shoveling billions of dollars in the form of crop insurance, cash payouts, and other subsidies to the smaller and smaller number of American farmers. Recipients have included billionaire Penny Pritzker, who served as President Obama’s commerce secretary and received $1.6 million in subsidies between 1996 and 2006, and Republican South Dakota Gov. Kristi Noem, who was part of a family business that got over $3 million in subsidies between 1995 and 2008.

2. Sugar Subsidies

If general agricultural subsidies aren’t bad enough, the amount of government largesse specifically going to sugar producers is almost beyond comprehension. Because of protectionist tariffs and price supports, Americans pay around double the world price for sugar, thanks to efforts by billionaires like the Fanjul brothers, Alfy and Pepe, who were dubbed “the first family of corporate welfare” by Time magazine. “The Fanjul brothers give millions and millions of dollars to both sides of the aisle,” explains Conyers. “That’s how a lot of this stuff happens. You make friends on the Hill and you just make sure that your subsidy is renewed every year or every four years or whatever the case may be.” 

3. Stadium Deals

The typical NFL, MLB, or NBA team owner is worth at least hundreds of millions of dollars but they rarely shy away from shaking down cities, states, and even the feds to pay for new stadiums. That explains why between 1997 and 2015, almost half of all construction costs for new NFL stadiums were covered by taxpayers. In the case of Raymond James Stadium, home to Super Bowl champs the Tampa Bay Buccaneers, taxpayers ponied up 100 percent of building costs. The team basically gets all revenue generated at the stadium too.

But it’s not just big-league teams that rip off taxpayers. There’s the case of the minor league baseball team the Hartford Yard Goats, who bilked that perennially broke city for a new home. The millionaire owners of the team convinced city officials to pony up for a new stadium in 2016, explains Conyers. “The stadium ended up costing the city $67 million,” she says. “Which is exactly the amount of money that the city is in the hole right now.”

4. Mickey Mouse Subsidies

Nobody will be surprised that Mickey Mouse’s owner, The Walt Disney Company, is the heavyweight champ among theme park operators when it comes to sweetheart deals. Disney “holds assets worth over $92 billion, has a stock market value of $152 billion, and returned $2.3 billion to investors in 2017 alone,” write Conyers and Harvey. “Bob Iger, chairman and CEO, earns $45 million a year.” So of course Disneyland, located in Anaheim, California, needs handouts.

Twenty-five years ago, Anaheim built Disney a new parking structure that cost $108 million and then leased it to the company for the high price of $1 a year. In 2015, the city agreed to exempt the park from paying entertainment taxes for 45 years, and in 2016, it agreed to a $650 million tax rebate on a luxury hotel Disney built near “The Happiest Place on Earth.”

5. Energy Freebies

As Conyers and Harvey note, the energy industry has been the best performing sector of the S&P 500 for many years, with revenues topping $238 billion in 2018. Over the past decade, Peabody Energy, the largest private coal company in the world, sucked up around $275 million in state and federal subsidies while generating $5.6 billion in revenue in 2017 alone. Exelon, a power company that specializes in nuclear energy, generated $34 billion in revenue in 2017, the year after it gulled New York state into giving it $7.6 billion to keep four aging and underperforming nuclear power plants going. And when it comes to renewable resources like wind and solar, Elon Musk’s ability to make it rain with tax dollars speaks for itself.

All is not darkness, insist Conyers and Harvey, even as they catalog how the tax code, zoning laws, and other sorts of government policies routinely get revised to specifically and uniquely benefit the ultra-rich. One success story they point to involves residents in Louisiana who pushed back against the decades-long exemption from property taxes that major oil and gas producers like ExxonMobil had. The exemptions were a well-kept secret until a group of citizen activists stumbled across their existence and then kicked up a fuss that led to reform.

“They stumbled upon this little committee that was rubber-stamping requests for from these oil companies,” relates Conyers. “They started a public education campaign just saying, ‘Hey, you know, how much better would our schools be, how much better would our police forces be…how much better would our roads be if those guys would just pay their fair share?’ They managed to get the law changed so that now when those companies go and ask for those tax breaks, they have to make presentations to local school boards and fire departments and police departments and say: ‘Hey, we don’t want to pay taxes and support you because we don’t think we should.'”

The authors of Welfare for the Rich point to the growing number of websites such as Good Jobs First and Sunlight Foundation that track subsidies and handouts as places both to get energized by and to get information about how to claw back public dollars that are going to gild the pockets of mega-corporations and the billionaires who own them.

By the time Elon Musk makes it to Mars, hopefully he’ll be paying his full fare.

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Did Justice Breyer Go IDGAF?

On Thursday, the Supreme Court released two opinions: Pereida v. Wilkinson and United States Fish and Wildlife Serv. v. Sierra Club, Inc. The latter case was Justice Barrett’s first majority opinion. The vote in Sierra Club was 7-2. Justice Breyer, joined by Justice Sotomayor, dissented on fairly technical grounds. Justice Breyer agreed with the majority that the case should be remanded back to the lower court. Indeed, Justice Breyer left open the possibility that he would “agree with the majority” opinion. His disagreement was hyper-technical

There is something of a tradition that a Justice’s first decision should be unanimous. Justice Kavanaugh’s first majority opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. Same for Justice Gorsuch.

I suspect that if there was a unanimous majority opinion to be had from Justice Barrett’s first sitting, the Chief would have assigned that case. Perhaps there were no majority opinions from Barrett’s first sitting. Or maybe Sierra Club started off as a majority opinion, but Breyer and Sotomayor fractured off. Still, given this narrow disagreement, I was surprised that Justice Breyer would bother to dissent on Justice Barrett’s first majority opinion. He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.

Now Justice Kagan joined the majority opinion. I have no clue about her views on the substance. But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. Maybe Justice Kagan gave Justice Barrett a join as a courtesy. If so, how do we explain the vote of Justice Breyer, who historically has used his votes strategically to form coalitions?

It’s possible that Justice Breyer has seen the writing on the walls. The conservatives has no interest in working with him to build consensus opinions. The Chief can count to 5 without Breyer’s help. And Justice Breyer may have already told President Biden he plans to retire. At this point, Justice Breyer may be IDGAF. He’s checked out. Call it SCOTUS senioritis. Indeed, originally Justice Breyer’s dissent was not respectful. His opinion originally ended with “For these reasons, I dissent.” But on March 5 at 9:49 a.m., the Court revised the opinion. Now, Breyer’s dissent was respectful.

The fact that Breyer made this change suggests something is afoot with respect to collegiality.

Mike Dorf offers a similar explanation:

Perhaps I’m wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing–at least sometimes.

Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn’t worth the candle.

Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.

It is always risky to read so much into subtle changes in the Court’s decisions. But these two dissent on Thursday felt off.

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5 Ways Elon Musk and Other Billionaires Get Welfare for the Rich

Elon_Musk_and_the_Neuralink_Future

Tech billionaire Elon Musk is known for leading Tesla and SpaceX, as one of the visionaries behind PayPal, and for hyping bitcoin and a bold plan to colonize Mars.

He’s not just the planet’s richest person, he’s one of its biggest recipients of government handouts, according to Lisa Conyers and Phil Harvey, authors of Welfare for the Rich: How Your Tax Dollars End Up in Millionaires’ Pockets—And What You Can do About It. Conyers is a veteran journalist and co-author with Harvey of 2016’s The Human Cost of Welfare. Harvey is a successful businessman and philanthropist who supports many libertarian organizations, including Reason Foundation, the nonprofit that publishes this website.

By 2015, they write, companies led by Musk had already gotten billions of dollars in subsidies, tax breaks, and other handouts. New York state even shelled out $750 million to build a factory for Musk’s troubled SolarCity operation and then said the company would pay no property taxes for a decade, saving Musk another $260 million. “He seems to have a magic touch,” says Harvey. “He’s gotten so good at raising money from state governments, getting subsidies, tax abatements, and so on, that sometimes it seems as though the states are lining up to offer him money to come and do business.”

Musk is far from alone. There are thousands of other immensely rich people who are constantly bilking governments at all levels for special perks, carveouts, and handouts.

Here are five of the very worst ways they do that.

1. Agricultural Subsidies

Since 1933, when Congress passed the first farm support bill, the government has been shoveling billions of dollars in the form of crop insurance, cash payouts, and other subsidies to the smaller and smaller number of American farmers. Recipients have included billionaire Penny Pritzker, who served as President Obama’s commerce secretary and received $1.6 million in subsidies between 1996 and 2006, and Republican South Dakota Gov. Kristi Noem, who was part of a family business that got over $3 million in subsidies between 1995 and 2008.

2. Sugar Subsidies

If general agricultural subsidies aren’t bad enough, the amount of government largesse specifically going to sugar producers is almost beyond comprehension. Because of protectionist tariffs and price supports, Americans pay around double the world price for sugar, thanks to efforts by billionaires like the Fanjul brothers, Alfy and Pepe, who were dubbed “the first family of corporate welfare” by Time magazine. “The Fanjul brothers give millions and millions of dollars to both sides of the aisle,” explains Conyers. “That’s how a lot of this stuff happens. You make friends on the Hill and you just make sure that your subsidy is renewed every year or every four years or whatever the case may be.” 

3. Stadium Deals

The typical NFL, MLB, or NBA team owner is worth at least hundreds of millions of dollars but they rarely shy away from shaking down cities, states, and even the feds to pay for new stadiums. That explains why between 1997 and 2015, almost half of all construction costs for new NFL stadiums were covered by taxpayers. In the case of Raymond James Stadium, home to Super Bowl champs the Tampa Bay Buccaneers, taxpayers ponied up 100 percent of building costs. The team basically gets all revenue generated at the stadium too.

But it’s not just big-league teams that rip off taxpayers. There’s the case of the minor league baseball team the Hartford Yard Goats, who bilked that perennially broke city for a new home. The millionaire owners of the team convinced city officials to pony up for a new stadium in 2016, explains Conyers. “The stadium ended up costing the city $67 million,” she says. “Which is exactly the amount of money that the city is in the hole right now.”

4. Mickey Mouse Subsidies

Nobody will be surprised that Mickey Mouse’s owner, The Walt Disney Company, is the heavyweight champ among theme park operators when it comes to sweetheart deals. Disney “holds assets worth over $92 billion, has a stock market value of $152 billion, and returned $2.3 billion to investors in 2017 alone,” write Conyers and Harvey. “Bob Iger, chairman and CEO, earns $45 million a year.” So of course Disneyland, located in Anaheim, California, needs handouts.

Twenty-five years ago, Anaheim built Disney a new parking structure that cost $108 million and then leased it to the company for the high price of $1 a year. In 2015, the city agreed to exempt the park from paying entertainment taxes for 45 years, and in 2016, it agreed to a $650 million tax rebate on a luxury hotel Disney built near “The Happiest Place on Earth.”

5. Energy Freebies

As Conyers and Harvey note, the energy industry has been the best performing sector of the S&P 500 for many years, with revenues topping $238 billion in 2018. Over the past decade, Peabody Energy, the largest private coal company in the world, sucked up around $275 million in state and federal subsidies while generating $5.6 billion in revenue in 2017 alone. Exelon, a power company that specializes in nuclear energy, generated $34 billion in revenue in 2017, the year after it gulled New York state into giving it $7.6 billion to keep four aging and underperforming nuclear power plants going. And when it comes to renewable resources like wind and solar, Elon Musk’s ability to make it rain with tax dollars speaks for itself.

All is not darkness, insist Conyers and Harvey, even as they catalog how the tax code, zoning laws, and other sorts of government policies routinely get revised to specifically and uniquely benefit the ultra-rich. One success story they point to involves residents in Louisiana who pushed back against the decades-long exemption from property taxes that major oil and gas producers like ExxonMobil had. The exemptions were a well-kept secret until a group of citizen activists stumbled across their existence and then kicked up a fuss that led to reform.

“They stumbled upon this little committee that was rubber-stamping requests for from these oil companies,” relates Conyers. “They started a public education campaign just saying, ‘Hey, you know, how much better would our schools be, how much better would our police forces be…how much better would our roads be if those guys would just pay their fair share?’ They managed to get the law changed so that now when those companies go and ask for those tax breaks, they have to make presentations to local school boards and fire departments and police departments and say: ‘Hey, we don’t want to pay taxes and support you because we don’t think we should.'”

The authors of Welfare for the Rich point to the growing number of websites such as Good Jobs First and Sunlight Foundation that track subsidies and handouts as places both to get energized by and to get information about how to claw back public dollars that are going to gild the pockets of mega-corporations and the billionaires who own them.

By the time Elon Musk makes it to Mars, hopefully he’ll be paying his full fare.

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Massachusetts Appeals Court Strikes Down Child Custody Speech Restriction

From Savanage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond:

We agree that a number of provisions [of the child custody judgment, challenged by mother of a 10-year-old child,] placed an impermissible restraint on the mother’s speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother’s constitutional rights and must be vacated….

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.” Shak v. Shak (2020). Accordingly, a prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.” In addition, an “important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.'” … [The s]tate “may not compel affirmance of a belief with which the speaker disagrees” ….

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech. Absent from this record is any evidence demonstrating that any “harm expected from the [mother’s] unrestrained speech is grave,” or likely to cause harm to the child, or that there was no less restrictive alternative to mitigate any harm….

Thus, we shall remand the disputed portions of the judgment pertaining to the coparenting terms (paragraph numbered two) and communications between the parties (paragraph numbered three) so that the judge may modify those terms that infringe on the mother’s First Amendment and Fourteenth Amendment rights, or make further specific findings justifying the restrictions imposed by the judgment….

In numbered paragraph two (coparenting terms) of the amended judgment, the bulleted subparagraphs are vacated, with the exception of the fifth, eighteenth, twenty-third, twenty-fifth through thirty-first, and thirty-third subparagraphs; and in numbered paragraph three (communication), the bulleted subparagraphs are vacated, with the exception of the first through second, fourth, and sixth through seventh subparagraphs, and the matter is remanded for further proceedings consistent with this memorandum and order. Numbered paragraph nine (education) of the amended judgment is vacated in its entirety. Numbered paragraph ten (exchange location) shall be modified by striking the last sentence of the third paragraph, and striking the fourth paragraph in its entirety. The amended judgment is otherwise affirmed as so modified.

But wait: Just what are these unconstitutional orders? The appellate opinion doesn’t mention them, but I had my research assistant track down the judgment for me; the struck-down provisions that most focus on speech seemed to be:

 

Each parent shall encourage the minor child to have an attitude of respect for the other.

Each parent shall identify for all public and private purposes the minor child by their legal names and shall not use any other name for the minor child.

Each parent shall communicate with each other regarding any matter affecting the welfare of the minor child.

The parents are restrained from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and / or from posting any disparaging comments relative to one another on any form of electronic social media.

The parents shall treat each other with mutual respect and shall foster in the child respect for the other parent.

The parents shall not discuss with the child the nature of any past, present or future legal proceedings.

The parents shall not question the child about the other parent nor allow a third party to do so.

The parents shall at all times insure that any and postings by the minor child on any social media platform shall be age-appropriate, not contain any demeaning or inflammatory depictions or language and shall not contain any language or depictions of a provocative nature.

One interesting portion of paragraph 9 (also struck down as “infring[ing] on the mother’s fundamental rights as a parent”): “Each parent, during the time that he or she has custody of the child, shall ensure that the child timely completes all school homework assignments or projects and shall review with the child all completed school homework assignments or projects.”

For more on child custody speech restrictions, see here.

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Massachusetts Appeals Court Strikes Down Child Custody Speech Restriction

From Savanage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond:

We agree that a number of provisions [of the child custody judgment, challenged by mother of a 10-year-old child,] placed an impermissible restraint on the mother’s speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother’s constitutional rights and must be vacated….

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.” Shak v. Shak (2020). Accordingly, a prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.” In addition, an “important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.'” … [The s]tate “may not compel affirmance of a belief with which the speaker disagrees” ….

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech. Absent from this record is any evidence demonstrating that any “harm expected from the [mother’s] unrestrained speech is grave,” or likely to cause harm to the child, or that there was no less restrictive alternative to mitigate any harm….

Thus, we shall remand the disputed portions of the judgment pertaining to the coparenting terms (paragraph numbered two) and communications between the parties (paragraph numbered three) so that the judge may modify those terms that infringe on the mother’s First Amendment and Fourteenth Amendment rights, or make further specific findings justifying the restrictions imposed by the judgment….

In numbered paragraph two (coparenting terms) of the amended judgment, the bulleted subparagraphs are vacated, with the exception of the fifth, eighteenth, twenty-third, twenty-fifth through thirty-first, and thirty-third subparagraphs; and in numbered paragraph three (communication), the bulleted subparagraphs are vacated, with the exception of the first through second, fourth, and sixth through seventh subparagraphs, and the matter is remanded for further proceedings consistent with this memorandum and order. Numbered paragraph nine (education) of the amended judgment is vacated in its entirety. Numbered paragraph ten (exchange location) shall be modified by striking the last sentence of the third paragraph, and striking the fourth paragraph in its entirety. The amended judgment is otherwise affirmed as so modified.

But wait: Just what are these unconstitutional orders? The appellate opinion doesn’t mention them, but I had my research assistant track down the judgment for me; the struck-down provisions that most focus on speech seemed to be:

 

Each parent shall encourage the minor child to have an attitude of respect for the other.

Each parent shall identify for all public and private purposes the minor child by their legal names and shall not use any other name for the minor child.

Each parent shall communicate with each other regarding any matter affecting the welfare of the minor child.

The parents are restrained from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and / or from posting any disparaging comments relative to one another on any form of electronic social media.

The parents shall treat each other with mutual respect and shall foster in the child respect for the other parent.

The parents shall not discuss with the child the nature of any past, present or future legal proceedings.

The parents shall not question the child about the other parent nor allow a third party to do so.

The parents shall at all times insure that any and postings by the minor child on any social media platform shall be age-appropriate, not contain any demeaning or inflammatory depictions or language and shall not contain any language or depictions of a provocative nature.

One interesting portion of paragraph 9 (also struck down as “infring[ing] on the mother’s fundamental rights as a parent”): “Each parent, during the time that he or she has custody of the child, shall ensure that the child timely completes all school homework assignments or projects and shall review with the child all completed school homework assignments or projects.”

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Classes #13: Freedom of Association & Future Interests I

First Amendment Class #13: Freedom of Association: Compulsory Disclosure of Membership and Expression

  • NAACP v. Alabama (1524-1527) / (796-799)
  • Janus v. AFSCME (Supplement)

Property II Class #13: Future Interests I: Interests in Transferor and Transferees

  • Introduction, 313-315
  • Future Interests in the Transferor, 315-317
  • Future Interests in the Transferees, 317-321
  • Problems, 321 (1-4)

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Classes #13: Freedom of Association & Future Interests I

First Amendment Class #13: Freedom of Association: Compulsory Disclosure of Membership and Expression

  • NAACP v. Alabama (1524-1527) / (796-799)
  • Janus v. AFSCME (Supplement)

Property II Class #13: Future Interests I: Interests in Transferor and Transferees

  • Introduction, 313-315
  • Future Interests in the Transferor, 315-317
  • Future Interests in the Transferees, 317-321
  • Problems, 321 (1-4)

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Biden Indicates Openness to Replacing War Authorizations with “Narrow and Specific” Framework

F-15
F-15E fighter, similar to the ones used in Biden’s recent Syria air strike.

 

A few days ago, I wrote about the Biden Administration’s recent air strike in Syria, targeting pro-Iranian militia groups that had earlier attacked US forces. While I argued that this specific air strike did not violate the Constitution, I also emphasized that the broader US military intervention lacks congressionally required authorization, and also violates the 1973 War Powers Act. For reasons outlined in my earlier post and various previous writings, addressing this problem is vital for both legal and pragmatic reasons.

I highly doubt anyone in the White House read my post. But they might have been influenced by similar concerns expressed by others, including several Democratic members of Congress. Regardless, the administration now indicates that the president would like to work with Congress to repeal the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs), which successive administrations have stretched in many ways, and “replace [them] with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.” Some members of Congress from both parties have also proposed repealing and replacing the current AUMFs, including in a recent bill introduced by a bipartisan group of senators, led by Tim Kaine (D-Va.) and Todd Young (R-Ind.).

If these efforts pan out, they could help bring an end to the era of  wars waged by the executive without proper congressional authorization. But the failure of previous efforts along similar lines provides grounds for skepticism that this will work. For example, the Obama administration’s 2015 effort to secure an AUMF for the Syria intervention quickly foundered in Congress.

The hard truth is that presidents are rarely willing to accept meaningful constraints on their powers, and (with a few principled exceptions) most members of Congress are all too ready to let them get away with that. The 2015 draft AUMF presented by Obama included few actual limits on presidential power, and failed in Congress, in part for that reason. Donald Trump, too, was unwilling to accept anything in the way of meaningful limitation, and vetoed a congressional effort to do so.

Whether Biden’s initiative turns out to be an exception to these trends remains to be seen. His willingness to actually repeal and replace the 2001 and 2002 AUMFs, as opposed to merely augmenting them with new authority, seems promising. But the devil in these matters is often in the details. Those will determine whether the AUMF really does provide proper authorization for current efforts in Syria, while also avoiding giving the White House a potential blank check to intervene anywhere it wants. It will be interesting to see what kind of new AUMF the administration proposes (if any) and how it fares in Congress.

 

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