Category: reason

“The best vaccine for you is the first one you can get,” advise most public health experts. Michigan Department of Health & Human Services spokesperson Lynn Sutfin concurs: “Michiganders should make the choice to receive any vaccine that becomes available to them.”

Detroit Mayor Mike Duggan apparently disagrees.

The Detroit Free Press reports that the mayor declined to accept a shipment of 6,200 doses of the Johnson & Johnson one-shot vaccine. Why? At a press conference on Tuesday, the mayor asserted, “Johnson & Johnson is a very good vaccine. Moderna and Pfizer are the best. And I am going to do everything I can to make sure the residents of the city of Detroit get the best.”

What does the mayor mean by “best”? Duggan stated, “The Moderna and Pfizer vaccines are 95% effective if you get two shots. Johnson & Johnson is one shot, which is nicer, but it’s about 67% effective.”

Actually, in the United States arm of the Johnson & Johnson (J&J) clinical trial, the vaccine’s ability to prevent moderate to severe infection was 72 percent and it is 85 percent effective at preventing severe disease. In addition, the J&J vaccine has been shown to be effective against the new, more contagious COVID-19 variants that are now spreading across the country. And it is likely that many citizens would prefer the convenience of getting a one-and-done J&J shot as opposed to waiting nearly a month to get a second Moderna or Pfizer/BioNTech shot.

But more importantly, all three vaccines are essentially 100 percent effective at preventing hospitalizations and deaths from COVID-19. Protecting Detroit’s citizens against those severe outcomes by taking advantage of available vaccine doses would seem to be a worthy endeavor. After all, a slower rate of vaccination means more lives lost.

It bears mentioning that Detroit will not receive additional doses of the Moderna and Pfizer/BioNTech vaccines to replace the J&J doses it rejected.

As Crain’s Detroit Business points out, the city lags behind other local jurisdictions and the state in the percentage of citizens already vaccinated. In Detroit, 11 percent of adults have been vaccinated, while that figure is 16.5 percent for neighboring Macomb County; 19.1 percent for Oakland County; 18.6 percent for outer Wayne County; and 18.5 percent for Michigan as a whole. Possibly owing to Duggan’s decision, both Macomb County and Oakland County happily received more doses of the J&J vaccine than they were expecting. It’s worth noting that the median household incomes for Macomb County, Oakland County, and Detroit are $63,000, $80,000, and $31,000, respectively, meaning the mayor’s rejection of the J&J vaccine will impact disadvantaged populations.

Misleading Americans into thinking that the J&J vaccine is somehow “second-class” could also set back the goal of reaching herd immunity. That involves vaccinating as many Americans as quickly as possible in order to get to the point where the virus cannot circulate widely throughout the population.

Duggan says that the city can meet the current demand for vaccinations with its current allocation of the Moderna and Pfizer/BioNTech vaccines. Demand, however, is set to surge in the next few weeks as Michigan begins to offer vaccinations to people over age 50. Detroiters waiting longer for vaccination appointments later this month may disagree with what the mayor thinks is “best” for them.

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President Joe Biden this week said Texas Gov. Greg Abbott’s decision to lift most of his state’s remaining COVID-19 restrictions was “a big mistake” that reflected “Neanderthal thinking” about the pandemic. Biden inaccurately suggested that Abbott was dismissing the value of face masks because he was no longer legally requiring them, when in fact Abbott “strongly encouraged” Texans to continue covering their faces in public when they are in close proximity to other people.

Abbott fired back on Twitter with an equally misleading charge against Biden, accusing him of promoting virus transmission by “recklessly releasing hundreds of illegal immigrants who have COVID into Texas communities.” That policy, he averred, is a “callous act that exposes Texans & Americans to COVID.”

Fox News host Jeanine Pirro echoed that charge on her show last night. “We’ve got people being released at the border right now who’ve got COVID,” an outraged Pirro shouted at Geraldo Rivera, who unsuccessfully tried to get in a word of rebuttal. “Wait a minute, I listened to you; you listen to me! They’ve got COVID! They’ve got all kinds of diseases! They are being released into the United States!”

Abbott and Pirro seem to have been reacting to reports that a small fraction of asylum seekers released in Brownsville have tested positive for COVID-19. The city, which tests migrants at the bus station after they are released from Border Patrol custody, this week said 108, or 6.3 percent of the total tested between January 25 and March 1, were carrying the coronavirus. Like anyone else who tests positive for COVID-19, they were urged to quarantine themselves.

To put that number in perspective, Texas has recorded nearly 2.7 million COVID-19 cases since the beginning of the pandemic. COVID-19 modeler Youyang Gu estimates that the actual number, taking into account people who have not been tested, is more than 9 million. The state’s estimate of active cases is more than 170,000, while Gu thinks the total is close to 300,000. The seven-day average of newly identified infections in Texas, per Worldometer, was about 6,600 as of yesterday.

Based on the official numbers, those 108 COVID-positive migrants represent about 0.06 percent of current infections in Texas. Based on Gu’s estimate, their share is more like 0.04 percent. The foreign-born COVID-19 carriers who sent Pirro into a fit of apoplexy represent less than 2 percent of the new cases that Texas detects every day.

The notion that such a tiny cohort is contributing significantly to the epidemic in Texas, even assuming that they completely ignore the recommended precautions, is hard to take seriously. But it jibes with hoary stereotypes about immigrants, who have long been feared because they supposedly carry “all sorts of diseases.”

Today former House Speaker Newt Gingrich complained that he “just got suspended by Twitter” because of a post “saying that having illegal immigrants come in without any controls is a public health issue in the time of COVID.” Gingrich’s account actually seems to still be active. But the offending tweet has been removed for an unspecified violation of Twitter’s rules.

“If there is a covid surge in Texas,” Gingrich said, “the fault will not be Governor Abbott’s comon [sic] sense reforms. The greatest threat of a covid surge comes from Biden’s untested illegal immigrants pouring across the border. We have no way of knowing how many of them are bringing covid with them.” Or as Gingrich put it more pithily in a Fox News interview with Tucker Carlson yesterday, “If there’s a problem with COVID in Texas, it’s not Gov. Abbott; it’s Biden’s illegals.”

It is simply bonkers to argue that admitting “hundreds” of COVID-positive asylum seekers poses a grave “public health issue” in a country with millions of active carriers, all of whom are just as free to disregard quarantine advice. Abbott likewise is weirdly fixated on an infinitesimal share of people infected by the coronavirus. If he is guilty of “Neanderthal thinking,” this is a much better example than his decision to lift the face mask mandate.

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Politico reports today that President Joe Biden is willing to work with Congress to repeal the Authorizations for Use of Military Force (AUMFs) that launched the wars in Iraq and Afghanistan and continue to be invoked today to justify military intervention throughout the Middle East.

This could be great news, depending on what ultimately gets negotiated. The problem is that while Biden talks a good game about ending “forever wars” (as did his two predecessors), the most recent military strike on Syria shows that our president wants to keep the authority to engage in some surgical uses of force. And while Biden did campaign on ending the wars (as did all the Democratic candidates), he still wants to keep some military forces active in Afghanistan and elsewhere in the Middle East to collect intelligence.

The statement White House Press Secretary Jen Psaki sent Politico said Biden wants to “ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”

Reading between the lines, though, while Biden wants to end the full military authorizations, he still wants to be able to act on what the administration sees as threats without having to get the approval of Congress.

On Wednesday, Sens. Tim Kaine (D–Va.) and Todd Young (R–Ind.) introduced bipartisan legislation to repeal two AUMFs passed in 1991 and 2002 that authorized military force in Iraq.

At the moment, that’s all the resolution does. It repeals the two AUMFs, does nothing else, and replaces them with nothing. This is good, meaning that there aren’t any exceptions here authorizing strategic or smaller military interventions in Iraq.

But the resolution most notably does not repeal the AUMF passed in 2001 just days after September 11, which authorizes the use of the military against any nation, terrorist group, or individual the president deems to have been involved in the attacks. That AUMF is why we still have troops in Afghanistan, and so this resolution will not end our military intervention there.

We are being warned that, despite the promises made both to Americans and the Afghan government, the Biden administration may not pull military forces out by the established May deadline.

Politico says that Biden’s office is looking to Kaine to lead a bipartisan discussion of the repeals of the AUMFs. Keep an eye on what Kaine actually ends up writing. Back in 2018, after Trump’s unauthorized military strike on Syria, he drafted a resolution that actually expanded the president’s authority to engage in military strikes against selected terrorist organizations without having to get permission from Congress.

That language is fortunately not in the resolution introduced this week. But because Kaine and Young didn’t include the 2001 AUMF in the resolution, we can predict that the administration is looking to negotiate keeping at least some military forces in Afghanistan and perhaps elsewhere in the Middle East.

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The Paycheck Protection Program “authorize[s] the Small Business Administration … to
guarantee favorable loans to certain businesses affected by the COVID-19 pandemic,” but the program excludes “businesses presenting ‘live performances of a prurient sexual nature.'” Not a First Amendment violation, the Second Circuit held yesterday in Pharaohs GC, Inc. v. U.S. Small Business Administration (written by Judge Michael Park, joined by Judge Raymond Lohier and District Judge Jed Rakoff). Government subsidies, the court held, could include viewpoint-based restrictions on which First Amendment activities are subsidized, and the exclusion of “prurient” “live performances” is viewpoint-neutral:

The word “prurient” operates in the SBA’s regulation to describe the subject matter—or content—of businesses excluded from SBA loans. Businesses that present live performances are excluded if the nature of those performances is prurient. The restriction does not describe a viewpoint; one could not have a prurient view of American policy in the Middle East or antitrust regulation, for example. Indeed, the Supreme Court has treated prurience as a content-based restriction, suggesting in dicta [in R.A.V. v. City of St. Paul (1992)] that “prurience and patent offensiveness are … permissible grounds on which to discriminate—and by implication, they do not constitute ‘viewpoints.'”

Thanks to Prof. George Wright for the pointer.

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Go ahead and finish off that bottle of Laphroaig, because a temporary reprieve in tariffs on imported Scotch whisky likely means relief for American consumers beset by high booze prices.

Perhaps more importantly, the announcement on Thursday that the United States would suspend those tariffs demonstrates that the Biden administration is looking to de-escalate trade conflicts with American allies, even though it has signaled an unwillingness to roll back the Trump administration’s broad tariffs on steel, aluminum, and goods made in China. In a joint statement, the American and British governments said they would use the four-month suspension of tariffs as an opportunity “to ease the burden on industry and take a bold, joint step towards resolving” a long-running dispute over subsidies for airplane manufacturers.

That conflict dates back to the Bush administration, but it came to a head during the Trump years. In 2019 the Trump administration imposed a series of tariffs on European cultural goods, including Scotch whisky and French cheeses, in response to what the U.S. sees as unfair European Union subsidies for Airbus, a European airplane manufacturer.

But the United Kingdom is no longer part of the European Union. In January, the British government announced that it was lifting retaliatory tariffs on American goods imposed as part of the Airbus dispute. This week’s move by the Biden administration is a tit-for-tat de-escalation.

White House Press Secretary Jen Psaki said Thursday’s announcement was meant to “create space for a negotiated settlement to the Airbus and Boeing disputes,” but declined to comment on what the next steps might be.

The move is also a clear win for British Prime Minister Boris Johnson, who said in a statement that it “shows what the U.K. can do as an independent trading nation, striking deals that back our businesses and support free and fair trade.” The American tariffs had put a serious dent in Scotch whisky exports to the U.S., which had dropped 37 percent in 2020 according to data tracked by the Distilled Spirits Council of the United States (DISCUS), an industry group.

But while Scotch distillers and American drinkers might cheer the removal of U.S. tariffs, American whiskey will still be subject to 25 percent tariffs levied by the U.K. and E.U. governments. Those tariffs are not connected to the Airbus dispute but were imposed in response to the Trump administration’s tariffs on steel and aluminum, which remain in place.

American whiskey exports to the U.K. have fallen by 53 percent as a result of those tariffs, according to DISCUS’ data, costing distillers $79 million in sales since 2018.

In a statement, DISCUS urged the American and British governments to “build on this positive momentum by negotiating an agreement to simultaneously eliminate retaliatory tariffs on all distilled spirits, which will benefit hospitality businesses on both sides of the Atlantic that are struggling to recover and rebuild from the global pandemic.”

The clock is ticking. European and British tariffs on American whiskey will automatically rise from 25 percent to 50 percent in June unless an agreement is reached.

The tangled mess of booze tariffs on both sides of the Atlantic provides a useful demonstration of the damage that trade wars can cause. Distillers have been caught up in a series of costly trade conflicts that have little, if anything, to do with their businesses. Consumers in America should cheer for this latest development, but Biden has more work to do unwinding these counterproductive trade policies so the whisk(e)y can flow freely.

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An article on the State v. Criscione case in Cleveland.com (Cory Shaffer):

A 64-year-old woman’s Facebook posts blaming a Brook Park nursing home and its administrator for her mother’s death could land her in prison for up to a year in a case that has ignited a battle over the First Amendment.

Lawyers representing Gina Criscione say the first-degree misdemeanor telecommunications harassment and menacing by stalking charges she faces in response to her criticisms of East Park Care Center and administrator Sara Thurmer violate Criscione’s freedom of speech.

A Berea Municipal Court magistrate on Friday held a brief hearing to determine whether there is enough evidence for the case to go to trial. The magistrate, Chris Greene, is expected to issue a ruling next week and, if the case goes forward, schedule another hearing to discuss the First Amendment issues.

Criscione’s attorneys from the Chandra Law Firm and six law school deans and professors who teach First Amendment law in Cleveland and one in Los Angeles filed briefs asking the court to drop the charges and find that the First Amendment protects the Criscione’s posts.

Prosecuting Criscione, the experts warn, would send a message that anyone who dares criticize a business or medical institution online could face the wrath of a vindictive business owner if they can convince a local prosecutor that the negative comments caused them harm.

I blogged about our brief in the case here; an excerpt:

Summary of Argument

[1.] The telecommunications harassment statute and menacing by stalking statute are unconstitutionally overbroad:

• The telecommunications harassment statute bars knowingly posting anything “on an internet … web page for the purpose of abusing, threatening, or harassing another person,” R.C. 2917.21(B)(2)—criminalizing any online statement that is seen as being ill-intentioned.
• The menacing by stalking statute bars people from making multiple posts online if they know that their pattern of conduct would cause another “mental distress” (or, possibly, would cause another to believe that future conduct will cause mental distress), R.C. 2903.211(A)(1)-(2).

These statutes criminalize a substantial amount of protected speech, including speech on matters of public concern. They could, for instance, expose a person to criminal liability for repeatedly ridiculing a local community leader based on a political position the leader has taken—though such a prosecution would violate the First Amendment, see Rynearson v. Ferguson, 355 F.Supp.3d 964, 972 (W.D. Wash. 2019). Moreover, even speech on matters of private concern is protected by the First Amendment. See Bey v. Rasawehr, __ N.E.3d __, 2020-Ohio-3301, ¶ 59.

Unlike traditional telephone harassment statutes, these statutes are not limited to unwanted speech said to an unwilling listener—speech that can in some situations be properly restricted, regardless of its subject matter. Rather, they extend even to critical public expression of opinions or true statements of fact about a person, which is generally constitutionally protected.

[2.] The statutes are not saved by their mens rea requirements. Even if speakers are “motivated by hatred or ill-will,” their speech on matters of public concern is still protected by the First Amendment. Bey, 2020-Ohio-3301, ¶ 59. And Bey makes clear that the same is true of speech on matters of private concern. Id. There is no First Amendment exception for discomforting or upsetting speech made to the public, even if the speech is made with bad intent or with knowledge that some will find it disturbing.

[3.] The telecommunications harassment and menacing by stalking statutes are thus facially unconstitutional—but they are also unconstitutional as applied as well. Ms. Criscione spoke publicly on her personal social media page and while picketing on a public sidewalk. She criticized a healthcare organization and its employees for what she perceived as poor job performance. Statements regarding the “quality of … medical care” involve “a public issue of community concern.” Mucci v. Dayton Newspapers, Inc., 71 Ohio Misc. 2d 71, 75, 654 N.E.2d 1068 (Ct. Com. Pl. 1995). Yet Ms. Criscione is being prosecuted for her statements anyway.

[4.]  Since these statutes criminalize speech based on its content, they are unconstitutional unless they pass strict scrutiny. This they cannot do. Even if there is a compelling governmental interest in protecting people from abuse, harassment, and mental distress, barring a broad range of public criticism cannot be narrowly tailored to serve that interest. See Snyder v. Phelps, 562 U.S. 443, 458-59, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (holding that even outrageous speech that causes emotional distress is still constitutionally protected).

East Park and its employees might prevail in a defamation lawsuit against Ms. Criscione, if they can prove that her allegations are false. But Ohio cannot constitutionally prosecute Ms. Criscione for such criticism under the state’s tele­communica­tions harassment and menacing by stalking statutes, which require no showing of libelous falsehood. These charges should therefore be dismissed.

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President Joe Biden is reportedly considering naming federal Judge Ketanji Brown Jackson to fill the vacancy on the U.S. Court of Appeals for the District of Columbia Circuit that will soon be left when Judge Merrick Garland leaves that court to assume the role of attorney general. Sometimes known as the “second-highest court in the land,” the D.C. Circuit is frequently a stepping stone to a spot on the U.S. Supreme Court. In other words, if Biden names Jackson to the D.C. Circuit, it is a good sign that she is on Biden’s SCOTUS shortlist.

So what does Jackson’s judicial record tell us about her?

Criminal justice reform advocates will likely be heartened by Jackson’s decision in the 2013 case Patterson v. United States. At issue was the arrest of an Occupy D.C. protester named Anthony Michael Patterson for using profanity in a public park. According to one of the arresting officers, Patterson yelled “fuck white people” when he saw several Tea Party activists on the scene at an Occupy D.C. protest in Washington’s McPherson Square park. After another officer told Patterson to stop cursing, Patterson allegedly yelled “fuck” a few more times. Patterson was ultimately arrested for disorderly conduct. That charge was dropped a month later.

Patterson sued the officers over the bogus arrest. Here’s how Jackson described the suit in her opinion for the U.S. District Court for the District of Columbia: Patterson “alleges that Sergeant [Todd] Reid violated Patterson’s First Amendment rights when he ordered Officers [Jennifer] Lemke and [Matthew] Cooney to arrest Patterson solely based on the content of protected speech in the absence of probable cause to arrest him for disorderly conduct and that Officers Lemke and Cooney violated Patterson’s First Amendment rights when they complied with that order and actually arrested him.”

The officers moved to have the lawsuit dismissed. Among other arguments, they maintained that their actions were shielded from civil litigation under the doctrine of qualified immunity. According to the Supreme Court’s 1982 ruling in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.” In effect, the officers took the position that it was not “clearly established” that the First Amendment prevents somebody like Anthony Michael Patterson from being arrested for using certain four-letter words in public.

Jackson not only denied the officers qualified immunity, but she practically laughed them out of her courtroom. “The right to be free from a retaliatory arrest in the absence of probable cause is clearly established in this jurisdiction,” she wrote. Indeed, “a police officer is unquestionably on notice that arresting a speaker solely based on the content of his speech and without probable cause to believe that he has committed a crime is a violation of the First Amendment.”

The case easily could have turned out differently in the hands of a different judge, one who was perhaps more deferential toward the police or was simply more amenable to pushing qualified immunity doctrine to the hilt. After all, other federal judges have awarded qualified immunity in cases of truly egregious police misconduct.

Jackson took a different approach. “Because no reasonable officer could conclude that there was probable cause to believe that Patterson was committing disorderly conduct on the facts as alleged in the complaint,” she concluded, “the complaint ably supports the claim that Patterson was arrested in retaliation for his protected speech and that the individual officers therefore violated Patterson’s clearly established First and Fourth Amendment rights.”

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