Category: reason

Washington S. Ct. Upholds $18M Fine for Violating Campaign Disclosure Rules

From Chief Justice Steven Gonzalez’s majority opinion in State v. Grocery Manufacturers Ass’n:

Voters have a right to know who funds their elections. To enforce that right, candidates and political committees are required to disclose their contributors or face a penalty for failing to do so. We are asked today whether the penalty for intentionally concealing the source of political contributions may be based on the amount concealed. We conclude that it may and accordingly affirm….

In the wake of the [California] Proposition 37 campaign, Washington sponsors filed Initiative 522. Like Proposition 37, this initiative would have required GMO
labels on packaged food and like Proposition 37, GMA opposed it. GMA developed a campaign strategy to work against the initiative while shielding its member companies from the sort of negative public response that happened in California. As part of that campaign strategy, GMA created a segregated “Defense of Brands” strategic account that would hold and disburse contributions raised to oppose labeling requirements. GMA staffers explained that “‘state GMO related spending will be identified as coming from GMA which will provide anonymity and eliminate state filing requirements for contributing members.'” Nothing in the record or briefing suggests GMA brought a declaratory judgment action under chapter 7.24 RCW to determine whether and how the FCPA would apply to its campaign work.

GMA raised more than $14 million to oppose GMO labeling efforts. GMA in turn contributed $11 million to the “No on 522” campaign from the Defense of Brands strategic account. Despite its political activities in Washington, GMA did not register as a political committee with the Public Disclosure Commission (PDC) and did not make any PDC reports until after this lawsuit was filed. In response to the suit, GMA registered “under duress” but, as of the time of trial, still had not filed all of the required reports….

[T]he trial court found that GMA had intentionally violated Washington’s campaign finance laws. It found that GMA and its board intended to use the Defense of Brands account “to shield the contributions made from GMA members from public scrutiny” and to “eliminate the requirement and need to publicly disclose GMA members’ contributions on state campaign finance disclosure reports.” It also concluded that GMA concealed the amount and source of contributions, registered 224 days late, and did not properly or timely file at least 47 reports. The trial court specifically rejected testimony from GMA officers that they had not intended to violate the law, finding “it is not credible that GMA executives believed that shielding GMA’s members as the true source of contributions to GMA’s Defense of Brands Account was legal.”

The judge imposed a $6 million base penalty, trebled to $18 million because the violation was intentional (which was authorized by state statute). The majority upheld this, concluding (to vastly oversimplify) that:

  1. The fine wasn’t unconstitutionally excessive, because it was proportioned to the magnitude of the transgression (here, the amount that was spent in violation of campaign finance rules).
  2. The fine didn’t violate the First Amendment, because the First Amendment allows what are in effect punitive damages on a showing of intentional misconduct, and because there was no evidence that the law was being applied in a viewpoint-based way.

Judge Sheryl Gordon McCloud’s dissent disagreed as to the Excessive Fines Clause (and didn’t opine as to the First Amendment; again, to oversimplify, the dissent reasoned:

The Grocery Manufacturers Association (GMA) committed only the regulatory violation of failing to comply with a reporting requirement. The FCPA punishes just that—failure to report. It does not make the receipts, expenditures, or political speech that the expenditures funded illegal, and it does not punish such receipts, expenditures, or speech. Hence, under the Eighth Amendment, the penalty imposed for the FCPA violation must be proportionate to the failure to report, not to the amount of the receipts, expenditures, or speech that the expenditures funded.

 

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One Year Into His Presidency, Joe Biden’s Immigration Policy Hasn’t Made Anyone Happy


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President Joe Biden took office one year ago today promising that his administration would undo the damage former President Donald Trump did to the U.S. immigration system. He had big plans for reform and restoration. However, the U.S. immigration system does not look much better than it did on Inauguration Day 2021, despite improvements on the margins.

On his first day in the presidency, Biden began to tackle some of the harsh immigration measures imposed by Trump. He lifted Trump’s so-called Muslim ban, which prevented citizens of seven predominantly Muslim countries from coming to the U.S. He signed an executive order halting construction of a wall at the U.S.-Mexico border. And he sent the U.S. Citizenship Act of 2021 to Congress. Among other things, that bill set out to create a path to citizenship for undocumented people, clear backlogs in the family-based immigration system, and improve immigration courts.

However, many of those early wins—and supposed reversals of Trump’s policies—came with asterisks. Biden was right to rescind Trump’s “Muslim ban,” but nearly all families affected by the policy remained separated because of visa application backlogs. He was right to halt construction of the border wall (which was never going to work), but his administration failed to stop Trump’s land grab lawsuits and the federal government continued to seize private property along the U.S.-Mexico border through eminent domain. That ambitious immigration bill has gone nowhere.

Since taking office, Biden has cherry-picked which of Trump’s most controversial policies he’ll keep and which he’ll discard. The ones he’s kept are cruel, counterproductive, and are failing to please either side of the political aisle.

Key among them is Title 42, which critics say violates longstanding U.S. asylum law. The policy was first imposed by the Trump administration and allows Customs and Border Patrol (CBP) to expel migrants on public health grounds. Deprived of the opportunity to present their cases for asylum, migrants are very often returned to dangerous communities and countries. Biden has kept Title 42 in place, even though it was the brainchild of notoriously anti-immigration Trump adviser Stephen Miller. Centers for Disease Control and Prevention officials have questioned its efficacy as a COVID-19 mitigation measure from the very beginning.

CBP expelled over 1 million people under Title 42 in 2021, with over 7,000 migrants getting kidnapped and attacked by cartels and Mexican authorities post-expulsion since Inauguration Day. The Biden administration has also used Title 42 to deport thousands of Haitians to Haiti, even though many of the deportees hadn’t lived in Haiti for years and were actually coming from South America. Some Biden appointees have suggested that the president’s continuation of Title 42 “is largely based on optics—that it’s staying in place because of concerns that ending it will fuel perceptions of a chaotic border.”

But Biden’s critics falsely claim that the Southern border is open. It’s true that CBP reported a 21-year high of 1.66 million migrant encounters at the border in fiscal year 2021. The majority—61 percent—of those apprehensions resulted in Title 42 expulsions, and the figure fails to account for repeat crossings. “Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings,” writes The Washington Post‘s Catherine Rampell. Over one-quarter of encountered individuals were apprehended multiple times by CBP, Rampell notes—”nearly quadruple the share in 2019.”

All the while, inefficiency has plagued day-to-day aspects of the U.S. immigration system. Two years into the pandemic, 60 percent of U.S. embassies and consulates are still partially or completely closed for visa processing. Nearly 440,000 immigrant visa applicants whose cases are “documentarily complete” are still waiting for visa appointments (the State Department scheduled just 26,605 appointments for this month). The nation’s refugee intake hit a record low in fiscal year 2021 and our numbers aren’t on pace to be any better in 2022. Legal immigration collapsed under Trump; it hasn’t rebounded under Biden.

All that said, it would be unfair to say that Biden’s immigration policy has been a complete failure. The administration evacuated a staggering number of Afghans after their country fell to the Taliban in August. Visa processing has been imperfect and many vulnerable people are still trapped in Afghanistan, but the Biden administration smartly introduced a private refugee sponsorship program that allows U.S. citizens to help support and resettle evacuated Afghans. Biden has rescinded some Trump-era rules that needlessly slowed down visa and work permit processing, and recently added 20,000 visas to this fiscal year’s cap for the nonimmigrant nonagricultural worker H-2B visa. The administration restarted the Central American Minors program, which allows at-risk children from El Salvador, Guatemala, and Honduras to come to the U.S. as refugees.

The Biden administration inherited a dysfunctional immigration system and has made respectable strides in fixing certain components of it. But those modest wins have been overshadowed by the unpopular middle path Biden has chosen. To his Democratic base, the administration’s immigration policy is disappointingly punitive, unchanged, and contradicts campaign promises. Biden’s Title 42 deportations, hard-line approach to the border, and lethargic processing of visa applicants have done little to placate his critics on the right, who say our nation’s doors are open (though our borders are essentially as strict as they were under Trump).

After one year in office, Biden’s record on immigration is bleak. He’s failed to truly appease any political faction’s concerns about immigration and is now stuck with both the bad optics of being an “open borders” president and the practical reality of a shuttered immigration system.

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How Many Supreme Court Justices Must Deny NPR’s Reporting Before Media Outlets Believe Them?


polspphotos882664

Want to hear some gossip? Lately, rumors have been flying, especially rumors concerning a notoriously secretive and imperious institution: the Supreme Court of the United States. The Court has recently heard several important cases relating to the Biden administration’s vaccine mandates for private sector workers and health care workers—but members of the public who closely followed the oral arguments might have noticed that Associate Justice Sonia Sotomayor did not appear in person; she participated virtually, from her chambers.

Sotomayor is one of the more COVID-cautious justices, owing to an underlying health condition, diabetes. She usually wears a mask, and has decided to wait out the omicron variant. That’s her right, of course—the justice should do whatever is best for her health.

But according to media reports, Sotomayor was specifically concerned about appearing in person due to a colleague’s failure to wear a mask. Chief Justice John Roberts asked the other justices to wear masks, but Associate Justice Neil Gorsuch allegedly refused.

NPR’s legal affairs correspondent Nina Totenberg made that claim in a bombshell report earlier this week. She wrote:

According to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

This revelation prompted widespread denunciation of Gorsuch, who has authored a book called A Republic, If You Can Keep It that laments the loss of civility in public discourse and in politics.

How could a man who decries that political actors no longer treat each other with basic decency refuse to wear a mask for the immunocompromised colleague who sits next to him? Obviously, that would be hypocritical.

But here’s the problem: NPR’s reporting is now being challenged.

First, Fox News’ Shannon Bream did some digging of her own, and her SCOTUS sources said the report was untrue—Gorsuch did not refuse a request to mask up.

Dueling news stories—one from the progressive mainstream, another from a right-leaning outlet—are hard to adjudicate. But the Supreme Court made it easier for us. Yesterday, Gorsuch and Sotomayor released a joint statement putting the rumor to bed:

“Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”

Did that dispel the story? Not quite. Progressive activist Charlotte Clymer called it a dodge, because technically NPR had reported that Roberts, acting on behalf of Sotomayor, asked Gorsuch to mask up, not Sotomayor. I guess we’ll never know for sure…but wait! The chief justice released a statement as well. In it, he unequivocally states that he did not ask Gorsuch to wear a mask.

I think a rational person should consider this case closed. If you really want to believe that Roberts, Gorsuch, and Sotomayor herself are all lying about this, fine. Go right ahead. But when all sides of an alleged dispute deny that it took place, and they are generally reputable people, and all we have to the contrary is anonymous sourcing, it’s pretty clear how we should generally feel about it.

To some extent, the damage was already done, however. The NPR story was repeated far and wide, by Newsweek, by The Daily Beast, by MSNBC and CNN, Politico, USA Today, Business Insider, and on and on.

The New York Times‘ Jamelle Bouie smeared Gorsuch as “an impossibly callous guy with poisonous levels of self-regard.” And that was one of the more polite descriptions. If you want to read others, check out this thread by the conservative writer Drew Holden, who, as always, has the receipts.

I have to wonder how many people will have seen the initial story, but miss the important clarifying information. I have to wonder how many others will lose faith in the media over a botched story like this—or have already lost faith, due to the sheer frequency with which poorly and anonymously sourced stories are pushed by the media, and then fall apart days later.

The post How Many Supreme Court Justices Must Deny NPR's Reporting Before Media Outlets Believe Them? appeared first on Reason.com.

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Washington S. Ct. Upholds $18M Fine for Violating Campaign Disclosure Rules

From Chief Justice Steven Gonzalez’s majority opinion in State v. Grocery Manufacturers Ass’n:

Voters have a right to know who funds their elections. To enforce that right, candidates and political committees are required to disclose their contributors or face a penalty for failing to do so. We are asked today whether the penalty for intentionally concealing the source of political contributions may be based on the amount concealed. We conclude that it may and accordingly affirm….

In the wake of the [California] Proposition 37 campaign, Washington sponsors filed Initiative 522. Like Proposition 37, this initiative would have required GMO
labels on packaged food and like Proposition 37, GMA opposed it. GMA developed a campaign strategy to work against the initiative while shielding its member companies from the sort of negative public response that happened in California. As part of that campaign strategy, GMA created a segregated “Defense of Brands” strategic account that would hold and disburse contributions raised to oppose labeling requirements. GMA staffers explained that “‘state GMO related spending will be identified as coming from GMA which will provide anonymity and eliminate state filing requirements for contributing members.'” Nothing in the record or briefing suggests GMA brought a declaratory judgment action under chapter 7.24 RCW to determine whether and how the FCPA would apply to its campaign work.

GMA raised more than $14 million to oppose GMO labeling efforts. GMA in turn contributed $11 million to the “No on 522” campaign from the Defense of Brands strategic account. Despite its political activities in Washington, GMA did not register as a political committee with the Public Disclosure Commission (PDC) and did not make any PDC reports until after this lawsuit was filed. In response to the suit, GMA registered “under duress” but, as of the time of trial, still had not filed all of the required reports….

[T]he trial court found that GMA had intentionally violated Washington’s campaign finance laws. It found that GMA and its board intended to use the Defense of Brands account “to shield the contributions made from GMA members from public scrutiny” and to “eliminate the requirement and need to publicly disclose GMA members’ contributions on state campaign finance disclosure reports.” It also concluded that GMA concealed the amount and source of contributions, registered 224 days late, and did not properly or timely file at least 47 reports. The trial court specifically rejected testimony from GMA officers that they had not intended to violate the law, finding “it is not credible that GMA executives believed that shielding GMA’s members as the true source of contributions to GMA’s Defense of Brands Account was legal.”

The judge imposed a $6 million base penalty, trebled to $18 million because the violation was intentional (which was authorized by state statute). The majority upheld this, concluding (to vastly oversimplify) that:

  1. The fine wasn’t unconstitutionally excessive, because it was proportioned to the magnitude of the transgression (here, the amount that was spent in violation of campaign finance rules).
  2. The fine didn’t violate the First Amendment, because the First Amendment allows what are in effect punitive damages on a showing of intentional misconduct, and because there was no evidence that the law was being applied in a viewpoint-based way.

Judge Sheryl Gordon McCloud’s dissent disagreed as to the Excessive Fines Clause (and didn’t opine as to the First Amendment; again, to oversimplify, the dissent reasoned:

The Grocery Manufacturers Association (GMA) committed only the regulatory violation of failing to comply with a reporting requirement. The FCPA punishes just that—failure to report. It does not make the receipts, expenditures, or political speech that the expenditures funded illegal, and it does not punish such receipts, expenditures, or speech. Hence, under the Eighth Amendment, the penalty imposed for the FCPA violation must be proportionate to the failure to report, not to the amount of the receipts, expenditures, or speech that the expenditures funded.

 

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How Many Supreme Court Justices Must Deny NPR’s Reporting Before Media Outlets Believe Them?


polspphotos882664

Want to hear some gossip? Lately, rumors have been flying, especially rumors concerning a notoriously secretive and imperious institution: the Supreme Court of the United States. The Court has recently heard several important cases relating to the Biden administration’s vaccine mandates for private sector workers and health care workers—but members of the public who closely followed the oral arguments might have noticed that Associate Justice Sonia Sotomayor did not appear in person; she participated virtually, from her chambers.

Sotomayor is one of the more COVID-cautious justices, owing to an underlying health condition, diabetes. She usually wears a mask, and has decided to wait out the omicron variant. That’s her right, of course—the justice should do whatever is best for her health.

But according to media reports, Sotomayor was specifically concerned about appearing in person due to a colleague’s failure to wear a mask. Chief Justice John Roberts asked the other justices to wear masks, but Associate Justice Neil Gorsuch allegedly refused.

NPR’s legal affairs correspondent Nina Totenberg made that claim in a bombshell report earlier this week. She wrote:

According to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

This revelation prompted widespread denunciation of Gorsuch, who has authored a book called A Republic, If You Can Keep It that laments the loss of civility in public discourse and in politics.

How could a man who decries that political actors no longer treat each other with basic decency refuse to wear a mask for the immunocompromised colleague who sits next to him? Obviously, that would be hypocritical.

But here’s the problem: NPR’s reporting is now being challenged.

First, Fox News’ Shannon Bream did some digging of her own, and her SCOTUS sources said the report was untrue—Gorsuch did not refuse a request to mask up.

Dueling news stories—one from the progressive mainstream, another from a right-leaning outlet—are hard to adjudicate. But the Supreme Court made it easier for us. Yesterday, Gorsuch and Sotomayor released a joint statement putting the rumor to bed:

“Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”

Did that dispel the story? Not quite. Progressive activist Charlotte Clymer called it a dodge, because technically NPR had reported that Roberts, acting on behalf of Sotomayor, asked Gorsuch to mask up, not Sotomayor. I guess we’ll never know for sure…but wait! The chief justice released a statement as well. In it, he unequivocally states that he did not ask Gorsuch to wear a mask.

I think a rational person should consider this case closed. If you really want to believe that Roberts, Gorsuch, and Sotomayor herself are all lying about this, fine. Go right ahead. But when all sides of an alleged dispute deny that it took place, and they are generally reputable people, and all we have to the contrary is anonymous sourcing, it’s pretty clear how we should generally feel about it.

To some extent, the damage was already done, however. The NPR story was repeated far and wide, by Newsweek, by The Daily Beast, by MSNBC and CNN, Politico, USA Today, Business Insider, and on and on.

The New York Times‘ Jamelle Bouie smeared Gorsuch as “an impossibly callous guy with poisonous levels of self-regard.” And that was one of the more polite descriptions. If you want to read others, check out this thread by the conservative writer Drew Holden, who, as always, has the receipts.

I have to wonder how many people will have seen the initial story, but miss the important clarifying information. I have to wonder how many others will lose faith in the media over a botched story like this—or have already lost faith, due to the sheer frequency with which poorly and anonymously sourced stories are pushed by the media, and then fall apart days later.

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It’s Time for Kids Liberation Day


kidsfun

Wednesday was a wonderful day for COVID-19 news in New York City.

Cases went down by 10 percent on Tuesday alone, and were 41 percent lower than just two weeks ago, as the omicron variant exhibited the same church steeple–shaped trendline as observed previously in South Africa and Great Britain. Hospitalizations—the critical measure when it comes to evaluating the systemic stress of mass infection—have flattened, maybe peaked. New York Times resident pandemic reality-checker David Leonhardt wrote a Wednesday piece headlined “Omicron Is in Retreat.” As the state’s case numbers tumbled 75 percent off their omicron highs, Gov. Kathy Hochul said in her State of the State speech that “We hope to close the books on this winter surge soon.”

And yet, at Hochul’s orders, my 6-year-old once again went to school Wednesday not just masked, but with an upgraded, close-fitting KF94, the best about which could be said that at least it beat the thick paper covering she had to wear earlier this month (after cloth masks were deemed insufficient), which had prompted her to seriously complain (really, for the first time in 22 months) and rip that thing off her face the first chance she got.

As Leonhardt gingerly suggested, if omicron is receding (which it obviously is here in Brooklyn), “it will be time to ask how society can move back toward normalcy and reduce the harsh toll that pandemic isolation has inflicted, particularly on children and disproportionately on low-income children. When should schools resume all activities? When should offices reopen? When should masks come off? When should asymptomatic people stop interrupting their lives because of a Covid exposure? Above all, when does Covid prevention do more harm—to physical and mental health—than good?”

Here’s an idea for an answer to the question of when, in places where omicron is way below peak: Right the hell now. Let us plan, today, for a concrete off-ramp we can drive off no later than next week, so that the pre-adult population we have inexplicably and unforgivably forced to bear the worst day-to-day brunt of pandemic restrictions can once again breathe free. Watching unmasked politicians yuk it up at a packed Madison Square Garden while millions of kids maintain their indoor distances swaddled in face coverings is just no longer tolerable.

Two-year-old New Yorkers are still wearing masks in congregate settings by diktat of the governor, and in contravention to global standards and scientific understanding. (I get a real kick out of NYC-based journalists expressing outrage at the alleged heavy-handedness in Virginia Gov. Glenn Youngkin letting parents decide whether they want to mask their own schoolkids, rather than just issuing a blanket ban, as did the governors of 14 states, all of which voted for Joe Biden in 2020.)

Five-year-olds are not allowed inside most indoor businesses unless they can either show proof of full vaccination (immediately excluding three-quarters of New Yorkers between the ages of 5 and 11, and virtually all foreign tourists from that demographic), or a recent negative COVID-19 test. Unvaccinated teens in public schools are barred outright from extracurricular activities like sports and band.

All of this needs to go in the trash, beginning with the masks.

The last remaining argument to “stop the spread” rests on the sheer logistical strain that infection waves inflict on local health care systems. If hospitals and/or ICU beds are overwhelmed, patients even without COVID-19 can unduly suffer. When the spread stops, and reverses course, and those hospital numbers trend inexorably downward from maximum capacity, there is no policy justification left for making kids suffer even one day more.

Every adult who wants a COVID-19 vaccine has one. Every single relatively healthy kid is not at serious risk for disease, which has been true since the beginning of the pandemic with every subsequent strain, and well-known among epidemiologists and public health authorities since at least May 2020. As for adults, “the available evidence,” Leonhardt writes, “suggests that Omicron is less threatening to a vaccinated person than a normal flu.”

Might the next COVID-19 variant be more infectious and/or deadly than omicron? Sure. But until then, wherever the health system is no longer bursting at the seams, the kiddie restrictions need to be removed first, the adults’ soon after. We can put those Biden masks in the drawer for next time if need be.

Don’t want to heed such advice from a cranky libertarian? I get it. So let’s hear testimony about the measurable damage these shackles have inflicted on the youngs, from people in left-of-center institutions. (And please do follow the hyperlinks.)

Jonathan Chait, New York magazine:

It is now indisputable, and almost undisputed, that the year and a quarter of virtual school imposed devastating consequences on the students who endured it. Studies have found that virtual school left students nearly half a year behind pace, on average, with the learning loss falling disproportionately on low-income, Latino, and Black students. Perhaps a million students functionally dropped out of school altogether. The social isolation imposed on kids caused a mental health “state of emergency,” according to the American Academy of Pediatrics. The damage to a generation of children’s social development and educational attainment, and particularly to the social mobility prospects of its most marginalized members, will be irrecoverable.

David Leonhardt, The New York Times:

Suicide attempts have risen, slightly among adolescent boys and sharply among adolescent girls. The number of E.R. visits for suspected suicide attempts by 12- to 17-year-old girls rose by 51 percent from early 2019 to early 2021, according to the C.D.C.

Gun violence against children has increased, as part of a broader nationwide rise in crime. In Chicago, for example, 101 residents under age 20 were murdered last year, up from 76 in 2019. School shootings have also risen: The Washington Post counted 42 last year in the U.S., the most on record and up from 27 in 2019.

The Centers for Disease Control and Prevention:

Clear masks or cloth masks with a clear plastic panel are an alternative type of mask that may be helpful when interacting with certain groups of people, such as:

  • People who are deaf or hard of hearing

  • Young children or students learning to read

  • Students learning a new language

  • People with disabilities

  • People who need to see the proper shape of the mouth for making appropriate vowel sounds

This last guidance came quietly on January 14, much to the amazement of those who have been for the past 19 months vilified as hyperbolic, teacher-endangering scientific fabulists for daring to suggest that hiding faces in kindergarten does tangible damage to the acquisition of key learning skills.

Watch the expressions of relief yesterday in the British Parliament when U.K. Prime Minister Boris Johnson announced the removal of school mask mandates and other COVID-19 restrictions. (Yes, it’s the British Parliament, but still.):

Keep in mind that the U.K., like all European countries, has had far less masking and school closure than the U.S. Now watch this testimony from a former British schoolkid about what masking in classrooms was like:

This is not the average experience, of course! Most kids (including my own) have probably muddled through without experiencing the type of resulting trauma that might reduce them to tears. But we know the average learning experience these past 22 months has been degraded, we know that there are plenty of individuals—even if they’re not our own happily compliant children!—who have endured negative consequences from a mitigation that in post-vaccine, post–omicron peak settings has no reason to exist, and in fact does not exist in much of the civilized world.

So as the adults, particularly in the types of Democratic polities where pandemic restrictions are prevalent, come around to either acknowledging the harms they have inflicted or pretending that they knew all along this stuff went too far, let’s throw the kids a damned party. A gigantic, indoor, bouncy-house mosh pit of a party, where the little ones can paint each other’s faces, the teens can go make out in the corner, and the only masks to be seen will be the dirty old paper coverings in a gigantic pile in the bonfire outside.

They—we—need relief from the restrictions imposed by neurotic, statist, and ultimately selfish adults, and to enjoy the cathartic release of a great big yawp of a celebration. Once we have liberated and begun the long process of making amends to our kids, we can then move on to unshackling ourselves.

Let’s do this, Brooklyn, and New York City, and New York state, and everywhere else where omicron is winding down yet restrictions remain. Let’s plan next week’s Kids Liberation Day. And vow to never, ever, do this again.

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It’s Time for Kids Liberation Day


kidsfun

Wednesday was a wonderful day for COVID-19 news in New York City.

Cases went down by 10 percent on Tuesday alone, and were 41 percent lower than just two weeks ago, as the omicron variant exhibited the same church steeple–shaped trendline as observed previously in South Africa and Great Britain. Hospitalizations—the critical measure when it comes to evaluating the systemic stress of mass infection—have flattened, maybe peaked. New York Times resident pandemic reality-checker David Leonhardt wrote a Wednesday piece headlined “Omicron Is in Retreat.” As the state’s case numbers tumbled 75 percent off their omicron highs, Gov. Kathy Hochul said in her State of the State speech that “We hope to close the books on this winter surge soon.”

And yet, at Hochul’s orders, my 6-year-old once again went to school Wednesday not just masked, but with an upgraded, close-fitting KF94, the best about which could be said that at least it beat the thick paper covering she had to wear earlier this month (after cloth masks were deemed insufficient), which had prompted her to seriously complain (really, for the first time in 22 months) and rip that thing off her face the first chance she got.

As Leonhardt gingerly suggested, if omicron is receding (which it obviously is here in Brooklyn), “it will be time to ask how society can move back toward normalcy and reduce the harsh toll that pandemic isolation has inflicted, particularly on children and disproportionately on low-income children. When should schools resume all activities? When should offices reopen? When should masks come off? When should asymptomatic people stop interrupting their lives because of a Covid exposure? Above all, when does Covid prevention do more harm—to physical and mental health—than good?”

Here’s an idea for an answer to the question of when, in places where omicron is way below peak: Right the hell now. Let us plan, today, for a concrete off-ramp we can drive off no later than next week, so that the pre-adult population we have inexplicably and unforgivably forced to bear the worst day-to-day brunt of pandemic restrictions can once again breathe free. Watching unmasked politicians yuk it up at a packed Madison Square Garden while millions of kids maintain their indoor distances swaddled in face coverings is just no longer tolerable.

Two-year-old New Yorkers are still wearing masks in congregate settings by diktat of the governor, and in contravention to global standards and scientific understanding. (I get a real kick out of NYC-based journalists expressing outrage at the alleged heavy-handedness in Virginia Gov. Glenn Youngkin letting parents decide whether they want to mask their own schoolkids, rather than just issuing a blanket ban, as did the governors of 14 states, all of which voted for Joe Biden in 2020.)

Five-year-olds are not allowed inside most indoor businesses unless they can either show proof of full vaccination (immediately excluding three-quarters of New Yorkers between the ages of 5 and 11, and virtually all foreign tourists from that demographic), or a recent negative COVID-19 test. Unvaccinated teens in public schools are barred outright from extracurricular activities like sports and band.

All of this needs to go in the trash, beginning with the masks.

The last remaining argument to “stop the spread” rests on the sheer logistical strain that infection waves inflict on local health care systems. If hospitals and/or ICU beds are overwhelmed, patients even without COVID-19 can unduly suffer. When the spread stops, and reverses course, and those hospital numbers trend inexorably downward from maximum capacity, there is no policy justification left for making kids suffer even one day more.

Every adult who wants a COVID-19 vaccine has one. Every single relatively healthy kid is not at serious risk for disease, which has been true since the beginning of the pandemic with every subsequent strain, and well-known among epidemiologists and public health authorities since at least May 2020. As for adults, “the available evidence,” Leonhardt writes, “suggests that Omicron is less threatening to a vaccinated person than a normal flu.”

Might the next COVID-19 variant be more infectious and/or deadly than omicron? Sure. But until then, wherever the health system is no longer bursting at the seams, the kiddie restrictions need to be removed first, the adults’ soon after. We can put those Biden masks in the drawer for next time if need be.

Don’t want to heed such advice from a cranky libertarian? I get it. So let’s hear testimony about the measurable damage these shackles have inflicted on the youngs, from people in left-of-center institutions. (And please do follow the hyperlinks.)

Jonathan Chait, New York magazine:

It is now indisputable, and almost undisputed, that the year and a quarter of virtual school imposed devastating consequences on the students who endured it. Studies have found that virtual school left students nearly half a year behind pace, on average, with the learning loss falling disproportionately on low-income, Latino, and Black students. Perhaps a million students functionally dropped out of school altogether. The social isolation imposed on kids caused a mental health “state of emergency,” according to the American Academy of Pediatrics. The damage to a generation of children’s social development and educational attainment, and particularly to the social mobility prospects of its most marginalized members, will be irrecoverable.

David Leonhardt, The New York Times:

Suicide attempts have risen, slightly among adolescent boys and sharply among adolescent girls. The number of E.R. visits for suspected suicide attempts by 12- to 17-year-old girls rose by 51 percent from early 2019 to early 2021, according to the C.D.C.

Gun violence against children has increased, as part of a broader nationwide rise in crime. In Chicago, for example, 101 residents under age 20 were murdered last year, up from 76 in 2019. School shootings have also risen: The Washington Post counted 42 last year in the U.S., the most on record and up from 27 in 2019.

The Centers for Disease Control and Prevention:

Clear masks or cloth masks with a clear plastic panel are an alternative type of mask that may be helpful when interacting with certain groups of people, such as:

  • People who are deaf or hard of hearing

  • Young children or students learning to read

  • Students learning a new language

  • People with disabilities

  • People who need to see the proper shape of the mouth for making appropriate vowel sounds

This last guidance came quietly on January 14, much to the amazement of those who have been for the past 19 months vilified as hyperbolic, teacher-endangering scientific fabulists for daring to suggest that hiding faces in kindergarten does tangible damage to the acquisition of key learning skills.

Watch the expressions of relief yesterday in the British Parliament when U.K. Prime Minister Boris Johnson announced the removal of school mask mandates and other COVID-19 restrictions. (Yes, it’s the British Parliament, but still.):

Keep in mind that the U.K., like all European countries, has had far less masking and school closure than the U.S. Now watch this testimony from a former British schoolkid about what masking in classrooms was like:

This is not the average experience, of course! Most kids (including my own) have probably muddled through without experiencing the type of resulting trauma that might reduce them to tears. But we know the average learning experience these past 22 months has been degraded, we know that there are plenty of individuals—even if they’re not our own happily compliant children!—who have endured negative consequences from a mitigation that in post-vaccine, post–omicron peak settings has no reason to exist, and in fact does not exist in much of the civilized world.

So as the adults, particularly in the types of Democratic polities where pandemic restrictions are prevalent, come around to either acknowledging the harms they have inflicted or pretending that they knew all along this stuff went too far, let’s throw the kids a damned party. A gigantic, indoor, bouncy-house mosh pit of a party, where the little ones can paint each other’s faces, the teens can go make out in the corner, and the only masks to be seen will be the dirty old paper coverings in a gigantic pile in the bonfire outside.

They—we—need relief from the restrictions imposed by neurotic, statist, and ultimately selfish adults, and to enjoy the cathartic release of a great big yawp of a celebration. Once we have liberated and begun the long process of making amends to our kids, we can then move on to unshackling ourselves.

Let’s do this, Brooklyn, and New York City, and New York state, and everywhere else where omicron is winding down yet restrictions remain. Let’s plan next week’s Kids Liberation Day. And vow to never, ever, do this again.

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Accepting Sub Teacher Job at School Where Your Ex Teaches Isn’t “Stalking”

From yesterday’s Florida Court of Appeal decision in Ahern v. Leon, in an opinion by Judge Alan Forst, joined by Judges Melanie May and Jonathan Gerber; seems quite correct to me:

Appellant and Appellee briefly dated in mid-2016 and again from March through July 2017. In October 2017, Appellee informed Appellant that he wished to terminate all relations with Appellant. Appellee testified that Appellant contacted two women he was dating, in December 2017 and June 2018, and told them she had dated Appellee, ultimately leaving the women with a negative impression of him…. Appellant agreed that she became acquainted with Appellee’s then-girlfriend in February 2018, claiming that she met this woman on a professional basis and did not realize the woman was dating Appellee until June 2018, at which time she admitted to “warning” the woman about him. Neither party testified to any contact between one another or between Appellant and Appellee’s acquaintances after June 2018.

In December 2019, Appellant accepted a substitute teaching assignment at the school where Appellee was employed as a full-time teacher. Neither party testified that Appellant physically encountered Appellee or spoke about him with any school personnel or students. Nevertheless, upon learning that Appellant was teaching at his school, Appellee petitioned for an injunction for protection against stalking. Following a hearing at which the parties were the only witnesses, the trial court granted the petition ….

Courts have the authority to enjoin stalking and/or cyberstalking under section 784.0485, Florida Statutes (2015). “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” “‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.”

Here, it is questionable whether Appellant’s conversations with Appellee’s then-girlfriends, allegedly “warning” them about Appellant, constitute “harassment” necessitating an injunction, particularly because Appellant gave unrebutted testimony that she was professionally acquainted with the second girlfriend before learning of that individual’s relationship with Appellee. See, e.g., Leach v. Kersey (Fla. 2d DCA 2015) (holding that phone calls, messages, and “friend” requests on Facebook were not grounds for an injunction against stalking when made “for the legitimate purpose” of urging the petitioner to stay away from the respondent’s husband, with whom the petitioner had been having an affair). Moreover, as we noted in David v. Textor (Fla. 4th DCA 2016):

“[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” An injunction may not be directed to prevent defamatory speech. “‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.'” Section 784.048 itself recognizes the First Amendment rights of individuals by concluding that a “course of conduct” for purposes of the statute does not include protected speech. This includes speech that may be offensive or vituperative.

In any case, the petition for injunction was filed in January 2020. At that point, it had been two years since the parties last had contact and approximately eighteen months since Appellant spoke with anyone about Appellee. The trial court nonetheless implicitly characterized Appellant’s acceptance of a substitute teaching assignment as “stalking,” speculating at the hearing that “the showing up at the particular place where [Appellee] works, I don’t believe was a coincidence by any stretch of the imagination.”

“Speculative testimony is not competent substantial evidence.” However, even if the trial court had a factual basis to support its disbelief, which we do not glean from the record, the gap in time between the last incident of purported stalking leads to the conclusion that Appellant’s conduct falls outside the statutory definition of stalking. In the context of a similar statute, Florida courts have found the remoteness of the prior acts of abuse may render the injunction improper.

As noted above, “[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” Here, Appellee did not present competent evidence that Appellant “repeatedly follow[ed]” him. Appellee’s testimony that a neighbor saw Appellant driving by Appellee’s residence was uncorroborated hearsay. Nor did Appellee present any evidence that the parties were in verbal or physical contact after a January 2018 phone call, two years before he filed the petition.

Nor can we conclude that Appellant “repeatedly … harass[ed]” Appellee. “‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” The last alleged “harassment” occurred in mid-2018, eighteen months before Appellee filed the petition. Appellee admitted that, before December 2019, he did not feel it necessary to file a restraining order or contact the police because of any threat posed by Appellant.

While that fact is not dispositive, the mere circumstance that Appellant was contracted to work at Appellee’s place of employment (eighteen months after her last contact with Appellant) is not a harassing “course of conduct” under the statute. Moreover, Appellant accepting a substitute teaching assignment at the school where Appellee was employed serves a “legitimate purpose,” both for Appellee and the school…. “[C]ourts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.”

Despite acknowledging that Appellant had never physically assaulted him and never threatened him with physical harm, Appellee testified that Appellant’s “presence in my school is a threat to my safety and the safety of my students.” But Appellee’s subjective belief is not dispositive. “In determining whether substantial emotional distress has been established [as statutorily required], ‘courts use a reasonable person standard, not a subjective one.'” From an objective standpoint, a reasonable person would not be in emotional distress due to the mere fact that a former paramour (who had never physically abused Appellee or threatened physical abuse) was scheduled to work for a couple of days at the same workplace, with no certainty that the two would even encounter each other….

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Biden Takes Credit for Things He Shouldn’t at Marathon Wednesday Press Conference


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Dubious claims from President Joe Biden’s press conference. In a televised press conference yesterday, the president talked about a wide-ranging set of issues, from the failure of Democrats’ voting bill to America’s withdrawal from Afghanistan to his own mental fitness. Over the course of the nearly two-hour event (which you can watch in full here, if you’re a masochist), Biden spewed a lot of his typical half-truths and exaggerations. Fact-checkers have taken Biden to task for comments he made about the pandemic, economic growth, and other subjects.

For instance, Biden made the dubious claims that his “Build Back Better” plan wouldn’t “raise a single penny in taxes on people making under $400,000 a year”—a proposition that folks at the Tax Foundation dispute—and that it would cut the deficit. However, the Congressional Budget Office says the version passed by the House of Representatives would actually raise the deficit by $158 billion over 10 years.

Glenn Kessler at The Washington Post pointed out several Biden statements that were misleading or lacked context, including claims about inflation, jobs, wage growth, and taxes.

And here’s some of the Associated Press fact check:

BIDEN: “We just made surprise medical bills illegal in this country.”

THE FACTS: He ignores the fact that President Donald Trump signed that consumer protection into law before leaving office in December 2020. The achievement is Trump’s….

BIDEN: “We created 6 million new jobs, more jobs in one year than any time before.”

THE FACTS: He’s taking too much credit. As Trump did before him, Biden makes some grandiose economic claims that gloss over one central reason for historic growth — the U.S. population is far larger than in past decades (and continued to grow last year, despite COVID-19 deaths).

The economy added 6.4 million jobs in 2021, the most on government records dating back to 1939, but part of that is just a natural rebound from what had been the steepest job loss on record in 2020, when 9.4 million jobs were cut.

And since the late 1970s, the U.S. population has grown by more than 100 million people, so any hiring surge under Biden will be larger in raw numbers than that achieved by his predecessors. On a percentage basis, the number of jobs in the U.S. grew 4.5% in 2021. That is still a sizeable increase — the biggest since 1978 — but not a record-breaker.

Reviews of Biden’s press conference are predictably mixed. Partisan media outlets have rushed to defend their usual positions, with Democrats praising the president’s performance and conservatives mocking it mercilessly.

The conference was “filled with shrewd observations” and “displayed a mastery of the realities of power,” claimed The New Republic. Meanwhile, the New York Post called it “an exercise in self-delusion” and “an utter disaster” and Fox News host Jesse Watters called it “a political field sobriety test — that he failed.”

The truth is probably somewhat less dramatic than either of these sides suggests. Biden fumbled, exaggerated, and at times sounded a lot like former President Donald Trump, whining that his opponents wouldn’t let his party get whatever it wanted and blaming this on some personal anti-Biden agenda rather than just, you know, differing values and goals. (“I did not anticipate that there’d be such a stalwart effort to make sure that the most important thing was that President Biden didn’t get anything done,” Biden said.)

Biden also made some eyebrow-raising statements, like suggesting that if the Democrats’ voting rights legislation didn’t pass (and it didn’t), the legitimacy of this year’s elections—or at least people’s sense that they’re legitimate—couldn’t be assured. From Roll Call:

[Biden] was asked multiple times whether he thought upcoming elections would be viewed as legitimate without the voting rights bills reaching his desk.

“Well, it all depends on whether or not we’re able to make the case to the American people that some of this is being set up to try to alter the outcome of the election,” Biden said.

Later in the news conference, he said, in reference to the midterms, that “the increase in prospect of it being illegitimate is in direct proportion to us not being able to get these reforms passed.”

Biden also did a few more admirable things, like standing firm on withdrawing American troops from Afghanistan (“I make no apologies for what I did”) and semi-admitted that the Democratic talking point about corporate concentration causing our current inflation woes doesn’t quite cut it. (“It’s not been the reason we’ve had high inflation today,” said Biden. “It’s not the only reason.”)

Mostly, however, Biden seemed to spew a lot of the types of platitudes that his base likes to hear.

See also:

FREE MINDS 

Reason‘s Nick Gillespie talks to First Amendment lawyer Bob Corn-Revere, author of the new book The Mind of the Censor and the Eye of the Beholder:

Corn-Revere tells me that although no one cops to being a censor these days, attempts to delegitimate the First Amendment are everywhere around us, especially when it comes to limiting speech in the name of supposedly protecting the feelings of religious, ethnic, and sexual minorities. “If you look at the history of this, you find it is the protection of individuals’ speech rights that has made all of the mass movements by minorities and previously marginalized people possible,” says Corn-Revere. “There wouldn’t have been a gay rights movement or a women’s movement. Certainly the civil rights movement was a defining time for protecting the speech of individuals.”

He also talks about worrying shifts away from robust defenses of the First Amendment among Millennials and Gen Z, why every plan to put elected officials in charge of speech would be worse than trusting the relatively unregulated marketplace of ideas, and why he’s ultimately optimistic about the future of free expression.

Listen here.

FREE MARKETS

The SHOP SAFE Act is being sold as protection from counterfeit products sold via the internet. Don’t buy it. There are ample problems with the SHOP SAFE Act, including the fact that its supporters exaggerate the problem it sets out to solve and the fact that it would resonate far, far beyond the specific issues it aims to address. Reason‘s Robby Soave has more details on this bad bill, which Democrats are considering adding to the bipartisan Endless Frontier Act.

QUICK HITS

• Drone footage of a U.S. military strike that killed 10 civilians (including seven kids) last August clearly shows that children were nearby prior to the strike.

• Some good news on omicron:

• Reason‘s Ron Bailey explains the “ginned up tempest of online moral outrage” over an Elon Musk exchange about artificial wombs.

• Efforts by Democrats in the Senate to change filibuster rules have failed, as has their voting bill. “The twin defeats were never in doubt,” notes The New York Times. “They did succeed in forcing the Senate for the first time to debate the bill, leading to hours of raw and emotional arguments on the floor over civil rights, racism and how elections are conducted.”

• A Supreme Court decision yesterday means the National Archives can turn over Trump documents to Congress’ January 6 committee that the former president asserted were covered under executive privilege.

• Biden’s approval rating is now at a low for his presidency. Less than a third of those surveyed say they want him to run for reelection in 2024 (though 48 percent of Democrats say so). And a majority—56 percent—disapproves of how he’s now doing as president.

• New legislation in Kentucky would “make operating a charitable bail organization unlawful.”

• It never fails…

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Accepting Sub Teacher Job at School Where Your Ex Teaches Isn’t “Stalking”

From yesterday’s Florida Court of Appeal decision in Ahern v. Leon, in an opinion by Judge Alan Forst, joined by Judges Melanie May and Jonathan Gerber; seems quite correct to me:

Appellant and Appellee briefly dated in mid-2016 and again from March through July 2017. In October 2017, Appellee informed Appellant that he wished to terminate all relations with Appellant. Appellee testified that Appellant contacted two women he was dating, in December 2017 and June 2018, and told them she had dated Appellee, ultimately leaving the women with a negative impression of him…. Appellant agreed that she became acquainted with Appellee’s then-girlfriend in February 2018, claiming that she met this woman on a professional basis and did not realize the woman was dating Appellee until June 2018, at which time she admitted to “warning” the woman about him. Neither party testified to any contact between one another or between Appellant and Appellee’s acquaintances after June 2018.

In December 2019, Appellant accepted a substitute teaching assignment at the school where Appellee was employed as a full-time teacher. Neither party testified that Appellant physically encountered Appellee or spoke about him with any school personnel or students. Nevertheless, upon learning that Appellant was teaching at his school, Appellee petitioned for an injunction for protection against stalking. Following a hearing at which the parties were the only witnesses, the trial court granted the petition ….

Courts have the authority to enjoin stalking and/or cyberstalking under section 784.0485, Florida Statutes (2015). “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” “‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.”

Here, it is questionable whether Appellant’s conversations with Appellee’s then-girlfriends, allegedly “warning” them about Appellant, constitute “harassment” necessitating an injunction, particularly because Appellant gave unrebutted testimony that she was professionally acquainted with the second girlfriend before learning of that individual’s relationship with Appellee. See, e.g., Leach v. Kersey (Fla. 2d DCA 2015) (holding that phone calls, messages, and “friend” requests on Facebook were not grounds for an injunction against stalking when made “for the legitimate purpose” of urging the petitioner to stay away from the respondent’s husband, with whom the petitioner had been having an affair). Moreover, as we noted in David v. Textor (Fla. 4th DCA 2016):

“[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” An injunction may not be directed to prevent defamatory speech. “‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.'” Section 784.048 itself recognizes the First Amendment rights of individuals by concluding that a “course of conduct” for purposes of the statute does not include protected speech. This includes speech that may be offensive or vituperative.

In any case, the petition for injunction was filed in January 2020. At that point, it had been two years since the parties last had contact and approximately eighteen months since Appellant spoke with anyone about Appellee. The trial court nonetheless implicitly characterized Appellant’s acceptance of a substitute teaching assignment as “stalking,” speculating at the hearing that “the showing up at the particular place where [Appellee] works, I don’t believe was a coincidence by any stretch of the imagination.”

“Speculative testimony is not competent substantial evidence.” However, even if the trial court had a factual basis to support its disbelief, which we do not glean from the record, the gap in time between the last incident of purported stalking leads to the conclusion that Appellant’s conduct falls outside the statutory definition of stalking. In the context of a similar statute, Florida courts have found the remoteness of the prior acts of abuse may render the injunction improper.

As noted above, “[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” Here, Appellee did not present competent evidence that Appellant “repeatedly follow[ed]” him. Appellee’s testimony that a neighbor saw Appellant driving by Appellee’s residence was uncorroborated hearsay. Nor did Appellee present any evidence that the parties were in verbal or physical contact after a January 2018 phone call, two years before he filed the petition.

Nor can we conclude that Appellant “repeatedly … harass[ed]” Appellee. “‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” The last alleged “harassment” occurred in mid-2018, eighteen months before Appellee filed the petition. Appellee admitted that, before December 2019, he did not feel it necessary to file a restraining order or contact the police because of any threat posed by Appellant.

While that fact is not dispositive, the mere circumstance that Appellant was contracted to work at Appellee’s place of employment (eighteen months after her last contact with Appellant) is not a harassing “course of conduct” under the statute. Moreover, Appellant accepting a substitute teaching assignment at the school where Appellee was employed serves a “legitimate purpose,” both for Appellee and the school…. “[C]ourts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.”

Despite acknowledging that Appellant had never physically assaulted him and never threatened him with physical harm, Appellee testified that Appellant’s “presence in my school is a threat to my safety and the safety of my students.” But Appellee’s subjective belief is not dispositive. “In determining whether substantial emotional distress has been established [as statutorily required], ‘courts use a reasonable person standard, not a subjective one.'” From an objective standpoint, a reasonable person would not be in emotional distress due to the mere fact that a former paramour (who had never physically abused Appellee or threatened physical abuse) was scheduled to work for a couple of days at the same workplace, with no certainty that the two would even encounter each other….

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