Category: reason

Judge Michael W. Mosman announced his oral decision yesterday, promising a written “opinion to follow.” I’ll blog about the opinion when it’s out, but in the meantime you can see the pageant’s motion for summary judgment (which the court granted), the would-be contestant’s opposition, and the pageant’s reply.

You can also read Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. 2011), the Too Many Straights case:

This case arises from the disqualification of a softball team from the 2008 Gay Softball World Series (GSWS). The event was operated by Defendant North American Gay Amateur Athletic Alliance (NAGAAA) and attended by Plaintiffs Steven Apilado, LaRon Charles, and Jon Russ. The Plaintiffs’ team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta league filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team.

Rule 7.05 states that “[a] maximum of two Heterosexual players are permitted on a GSWS roster.” Penalties for violation of this rule include permanent suspension of the heterosexual player, disqualification and forfeiture of the offending team’s games, one year’s suspension of the team’s manager, and a minimum $100 fine imposed against the team’s association. Under Softball Code Section 1.15, Gay means “having a predominant sexual interest in a member or members of the same sex and includes both gay men and lesbians.” Softball Code Section 1.18 defines heterosexual as “having a predominant sexual interest in a member or members of the opposite sex.”

The Softball Code also establishes a mechanism for enforcing rule 7.05: the protest hearing. Rule 8.04 states that a protest can be filed by the manager of the opposing team, an open division director, or an association’s commissioner. Rule 8.06 establishes the procedure for these hearings: a protest committee convenes, the protest committee chairperson begins the proceedings by explaining the procedures, the protesting party explains the basis for the protest and presents any available evidence, the protested party has an opportunity to rebut the argument, the protest committee may interview players, and the protest committee conducts a vote by secret ballot to determine the outcome.

D2 lost the championship game. When it was over, NAGAAA’s protest committee conducted a hearing. Upon conclusion of the hearing, the protest committee determined that Plaintiffs were “non-gay,” and, therefore, that D2 was not eligible to compete in GSWS. The protest committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that Plaintiffs be suspended from NAGAAA softball play for one year.

[The Court finds] that NAGAAA is a “public accommodation” under Washington’s Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60 et seq., and that NAGAAA unlawfully discriminated against Plaintiffs [in violation of this law] based on their actual or perceived sexual orientation …, but that the First Amendment protects [NAGAAA’s] right to exclude those whose membership would negatively impact their expressive activity…. The first part of this Order [thus] holds that Defendant has a constitutional right to exclude anybody who does not share in its values….

The second part of the Order holds that Plaintiffs did not show a real and immediate threat of repeated harm [from the supposedly intrusive way in which the policy was applied -EV] because their injury resulted from the manner in which the written policy was applied, not from the language of the policy itself. [Text moved: The alleged events that led to Plaintiffs’ injuries — the protest committee asking personal and intrusive questions in front of approximately twenty-five delegates and observers, repeating votes until a verdict of “non-gay” was reached, and widely publicizing the verdict — cannot be directly traced to the written policy.] It did not appear to the Court that Plaintiffs were arguing that they were injured simply because NAGAAA adopted particular definitions of gay and straight, but rather because NAGAAA inquired into Plaintiffs’ sexual orientation in a way that was intrusive and disrespectful.

Accordingly, the Court’s analysis is confined to the allegedly intrusive questioning, not the definitions of gay and straight…. Defendant could still be liable for its actions [in the questioning]. In a recent case, the Supreme Court looked to the activities of the Westboro Baptist Church, a virulently anti-gay group who display hateful signs at soldiers’ funerals. Snyder v. Phelps. The Court concluded that the First amendment does not protect all speech from claims of intentional infliction of emotional distress or invasion of privacy. Whether or not Defendant’s treatment of Plaintiffs at the protest hearing is deserving of First Amendment protection remains to be seen….

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From today’s First Circuit decision in Mullane v. Breaking Media, Inc.:

[W]e conclude that the district court did not err when it granted the Rule 12(b)(6) motion to dismiss based on the application of the Massachusetts fair report privilege and First Amendment principles.  To the extent Mullane intended also to challenge the district court’s personal-jurisdiction-based dismissal of the claims asserted against other defendants, Mullane has failed with his brief to develop any challenge to that ruling.

Here’s an excerpt from the District Court decision that was affirmed:

Plaintiff, Jonathan Mullane, a former student of the University of Miami Law School, brings this action against Breaking Media, Inc., and journalist Elie Mystal alleging that an article on the legal website “Above the Law” was defamatory….

Mullane was a student at the University of Miami School of Law beginning in the fall of 2017. During the spring of 2018, Mullane served as a legal intern with the United States Attorney’s Office (“USAO”) in the Southern District of Florida.

While employed with the USAO, Mullane was party to a pro se civil lawsuit involving a credit card dispute pending before Judge Federico Moreno in the United States District Court for the Southern District of Florida. In April 2018, Mullane entered Judge Moreno’s chambers, allegedly to request that the clerk make an entry of default in connection with this personal civil dispute.

Judge Moreno subsequently summoned Mullane to a hearing on April 10, 2018. During the hearing, Mullane appeared to acknowledge that he had sought to file a writ of mandamus in his pending case. See Docket No. 57-1 at 13:14-18 (“THE COURT: Did you mention the word petition for mandamus? … MR. MULLANE: I did.”); id. at 25:17-19 (“THE COURT: What was the question? MR. MULLANE: I can’t remember exactly. It was about how to file the mandamus request or something.”). But see id. at 7:19-20 (“MR. MULLANE: I said that I had a specific question about the entry of default.”). Judge Moreno reprimanded Mullane for his actions. Mullane was terminated from his internship at the USAO soon after the hearing…..

On April 30, 2018, the legal news publication “Above the Law” published an article, titled “Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid.” The Article was authored by Mystal, the Executive Editor of “Above the Law.” …

The Article describes the April 10, 2018 hearing. It states, [among other things]:

“[Mullane] was trying to file a petition of mandamus—which basically asks an appellate court to order Judge Moreno to work on his case faster. That’s pretty rude. He didn’t know where to file the petition, and ended up asking the judge’s career clerk, in the judge’s chambers, ex-parte, what to do about it. That’s pretty dumb. Initially, the clerk wasn’t even going to let him in, but Mullane said he worked for the U.S. Attorney’s office (he’s an intern), which gained him access to the chambers to discuss his own personal case. That’s pretty unethical.”

“Basically Mullane was an idiot ….”

“[T]o gain entry into those chambers, he dropped his USAO cred, even though he was just an intern, and even though he was there for reasons that had nothing to do with his internship.”

“It also appears that Mullane is a little entitled ponce ….”

“Turns out the kid’s father is also an attorney … wonder if that helped him get his sweet internship.”

“Okay, so Jon Mullane is a little brat who [sic] with a USAO internship who had an ex-parte conversation in judge’s chambers while trying to file a motion arguing that the judge was lazily ignoring his pro se complaint.”

“If Mullane is a dauphin ….”

“The kid wasn’t trying to upend the wheels of justice, he made a series of dumb mistakes.”

Following the publication of the Article, the Securities Exchange Commission  … rescinded Mullane’s invitation to serve as a “Student Honors Volunteer.” Mullane later withdrew from the University of Miami School of Law….

Mullane sued Above The Law for libel, but the court held that much of the article was a fair report of a judicial proceeding:

Massachusetts recognizes “a privilege for fair and accurate reports of official actions and statements.” The privilege provides immunity “from liability for claims arising out of such reports.” To qualify as “fair and accurate” reporting, an article need only give a “rough-and-ready summary” that was “substantially correct.” Importantly, “accuracy” refers to “the factual correctness of the events reported and not to the truth of the events that actually transpired.” The Fair Report Privilege encompasses reports on judicial proceedings, even if the reports are not “in technically precise language.” Massachusetts requires “that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation.”

Notwithstanding the Fair Report Privilege, a Massachusetts statute “permits a plaintiff to recover for a truthful defamatory statement published in writing (or its equivalent) with actual malice … except as confined by” the First Amendment. Under the state statute, “actual malice” is defined as “ill will” or “malevolent intent” … ([which distinguishes] “actual malice” under the Massachusetts statute from the First Amendment standard for “actual malice” as defined in New York Times v. Sullivan, 376 U.S. 254, 280 (1964)). The Massachusetts Supreme Judicial Court has declared [this “actual malice” exception to the privilege] unconstitutional as applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc. (Mass. 1998)….

The Fair Report Privilege protects many of the statements challenged by Mullane, including the portions of the Article that directly quote the court reporter’s transcript of the April 10, 2018 hearing and the portions that summarize the topics discussed in that hearing. These statements provide a “rough-and-ready summary” of the hearing that was “substantially correct.”

Mullane’s arguments [that the article is inaccurate] fail because “‘accuracy’ for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired.” As to the question of what Mullane sought to file in his Florida case, Mullane stated during the April 2018 hearing that he was seeking a petition for mandamus. As to potential accusations of “criminal conduct,” the Article only summarized statements made by Judge Moreno. The reporting sections of the Article are therefore protected by the Fair Report Privilege.

Plaintiff argues that Massachusetts’ “actual malice” exception applies in this case because of the pejorative language in the Article {“homophobic, pejorative language and personal slights”}. [But] Mass. Gen. Laws ch. 231 § 92 is inapplicable here because the Article reported on a matter of public concern—a court proceeding. A contentious interaction between a federal judge and a law student can be “fairly considered” as a matter of “concern to the community.” …

The court also held that the article’s criticisms of Mullane were constitutionally protected opinion:

Mullane also challenges Defendants’ statements referring to Mullane as “rude,” “dumb,” “unethical,” a “little entitled ponce,” and a “dauphin.” … Statements of pure opinion are constitutionally protected because “they are not susceptible of being proved true or false.” A statement “couched as an opinion” may be actionable if it “presents or implies the existence of facts which are capable of being proven true or false.” Thus, “the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of [defamatory] fact.” The court may determine as a matter of law whether a statement is a pure opinion or a verifiable fact. This requires examining “the totality of the circumstances in which the specific challenged statements were made, including the general tenor and context of the conversation.”

Even if an opinion implies a provably false assertion of fact, that statement will not be actionable if “it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.” A speaker is thus protected from defamation liability if he “communicates the non-defamatory facts that undergird his opinion.” … “[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.” … The “crucial distinction” is whether the speaker’s statements can reasonably be interpreted to suggest that the speaker had access to information not accessible to others.

“[R]idicule and simple verbal abuse” do not give rise to liability for defamation. Many of the challenged statements—such as those referring to Mullane as “rude,” “dumb,” “unethical,” a “little entitled ponce,” or a “dauphin”—are mere “epithets” that are “insufficiently fact-based” to ground a defamation claim.

Mullane argues that the Defendants’ use of the word “ponce” is actionable because it is a “homophobic and derogatory” manner of “referring to [Mullane] as an ‘effeminate man.'” But the First Amendment “shield[s]” such “figurative language.”

The Article also contains this statement: “Turns out [Mullane’s] father is an attorney—wonder if that helped him get his sweet internship.” This statement might imply a defamatory fact. But here, “although the allegation of [nepotism] might be provable as true or false, the sum effect of the format, tone, and entire content of the [Article] is to make it unmistakably clear that the author was expressing a point of view only, rather than stating actual facts” about how Mullane obtained his internship. The statement is an opinion protected by the First Amendment.

Defendants are also protected from defamation liability because they do not suggest that the statement was “arrived at on the basis of undisclosed facts. On the contrary, the [Article] set forth the facts on which the conclusion[] purported to be based.” Because the Article provided the “full factual basis” for the statement—namely, that Plaintiff’s father is an attorney—the Article “cannot reasonably be interpreted to suggest that the author had access to information about plaintiff’s claim that was not accessible to others.” The Article “simply posed [a] question[] and suggested [an] answer[], as a matter of opinion.” The Defendants’ statement is “speculative” and at most amounts to a “personal conclusion[] about the information presented.”

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From Powell v. Jones-Soderman & Foundation for the Child Victims of the Family Courts, decided today by the Second Circuit (Judges Dennis Jacobs, Joseph F. Bianco & Michael H. Park), affirming the decision below:

[Scott] Powell brought various state law claims against [Jill] Jones-Soderman arising from her publication of allegedly defamatory statements on her public website falsely accusing Powell of sexually abusing his two minor children…. Following a bench trial, Magistrate Judge Robert M. Spector found that Jones-Soderman was liable for defamation per se and [false light] invasion of privacy because she had acted with reckless disregard for the veracity of the defamatory statements and awarded Powell $40,000 in general damages for emotional distress, as well as $60,000 in economic damages for lost income….

The district court recounted Powell’s trial testimony in which he, among other things, vehemently denied the false accusations, and stated that there was “never a scintilla of truth to any of those accusations.” The district court also summarized, in detail, the evidence in the record that supported a finding that the defamatory statements were false, including the fact that the Connecticut Superior Court had previously discredited the allegations that Powell had sexually abused his two children. Moreover, in its legal reasoning, the district court cited case authority that pertained to circumstances where defamatory statements are “demonstrably false and groundless.” … [T]he district court found that Powell had sufficiently proven that the defamatory statements were false.

We also are unpersuaded by Jones-Soderman’s argument that the trial evidence did not support a falsity finding as to her defamatory statements. As outlined in the district court’s findings of fact, the Connecticut Superior Court, pursuant to a March 21, 2016 emergency application bringing sexual abuse allegations against Powell and seeking to transfer custody of his children, conducted a full evidentiary hearing regarding those allegations and concluded that Powell did not present “an immediate and present risk of physical danger or psychological harm” to his children, and that the children should be returned to his “sole legal and physical custody.” Thus, in conjunction with Powell’s trial testimony, the findings of the Connecticut Superior Court …, provided a sufficient basis for the district court to find that Powell had proven the falsity of the alleged defamatory statements.

The First Amendment also requires a plaintiff alleging defamation to prove that the defendant acted with some degree of fault…. [T]he requisite degree of fault a private individual alleging defamation must prove is the “constitutional minimum of negligence.” … Jones-Soderman has failed to even argue that she has not acted negligently in publishing the defamatory statements, and as a result, she has waived any such argument on appeal….

To the extent that Jones-Soderman contends that Powell has failed to prove actual malice under state law …, we also find that argument to be unavailing. In Connecticut, “[a] defendant may shield h[er]self from liability for defamation by asserting the defense that the communication is protected by a qualified privilege.” However, a plaintiff may prove actual malice to defeat a qualified privilege defense. “[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth.” “[R]eckless disregard may be found when an individual publishes defamatory statements with a high degree of awareness of probable falsity or entertained serious doubts as to the truth of the publication.”

There is no basis to disturb the finding by the district court, after weighing the evidence and making the necessary credibility determinations at trial, that Jones-Soderman had published statements accusing Powell of sexually abusing his two minor children with reckless disregard for their truth. In making this determination regarding scienter, the district court relied on, inter alia, the following evidence:

(1) Jones-Soderman had been paid and retained by Powell’s ex-spouse to conduct an evaluation so that she could try to regain custody of the two children, who were in Powell’s custody;

(2) prior to publishing the allegations on her website, Jones-Soderman had reviewed clinical findings in an expert’s 2011 report revealing that Powell’s children may have suffered from various psychological disorders that would strongly militate against the credibility of the children’s sexual abuse accusations against Powell and “conclud[ing] that the children were not being truthful in making allegations of sexual abuse”;

(3) Jones-Soderman was “well aware that the earlier court records [in 2011] documented a history of neglect by [Powell’s ex-spouse] and that [a Connecticut judge] had transferred custody to Powell only after considering [the expert’s] reports and hearing evidence from witnesses, including [Department of Children and Families (“DCF”) ] workers, school officials, [the ex-spouse’s] therapist, and a former nanny of the children;

(4) “Jones-Soderman was aware, as [the Connecticut Superior Court] had noted, that previous allegations of the children against Scott Powell of sexual assault, harm, emotional neglect, [and] physical and emotional abuse were investigated by DCF, and the police, and have always been unfounded”; and

(5) “Jones-Soderman was well aware …, in particular, that [the Connecticut Superior Court] had based [its] April 2016 decision to return [the children] to Scott Powell’s custody on a consideration of a substantial amount of evidence, including the complex history of this custody dispute in which there had been absolutely no support for the allegations of physical or sexual abuse” and “[t]his evidence consistently raised doubt as to the veracity of the claims [the children] leveled against their father.”

As to Jones-Soderman’s claim that she was acting in the best interest of the children in publishing these allegations, the district court noted that, even though she acknowledged that she was a legally “mandated reporter” of sexual abuse as an unlicensed counselor, she did not call DCF to report any of these allegations of abuse, and that her inaction “weigh[ed] against” her purported purpose.

In sum, this evidence, as well as the other evidence in the trial record thoroughly analyzed by the district court, provided a sufficient basis for the district court to conclude that Jones-Soderman acted with actual malice by virtue of her reckless disregard for the truth of her statements, particularly because under Connecticut law, “[i]t is axiomatic that a defendant who closes h[er] eyes to the facts before h[er] cannot insulate h[er]self from a defamation charge merely by claiming that [s]he believed h[er] unlikely statement.” Accordingly, we conclude that Connecticut’s qualified privilege defense did not protect Jones-Soderman from liability for publishing the alleged defamatory statements….

To recover economic damages under Connecticut law, “the plaintiff must prove that he suffered economic loss that was legally caused by the defendant’s defamatory statements.” … Powell testified that for more than a dozen years leading up to 2016, he worked as a director at a summer day camp for children ages three to ten. Powell further explained that, immediately after Jones-Soderman published her statements accusing him of sexually abusing his own children, the summer camp did not rehire him as a summer camp director and simply told him that they wanted to go in a different direction. In view of the fact that Jones-Soderman’s sexual abuse accusations spoke directly to Powell’s capacity to work with children at a summer camp, and considering Powell’s long tenure at the summer camp and the camp’s sudden refusal to rehire him immediately following the publication of Jones-Soderman’s statements, we conclude that there is sufficient evidence to support a reasonable inference that Jones-Soderman’s defamatory statements caused Powell to lose his summer position as a camp director….

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Have you heard about the newest national emergency?

No, not the COVID-19 pandemic. The most recent national emergency was declared just two weeks ago—when President Joe Biden granted himself emergency powers to freeze the property and assets of individuals and businesses connected to Myanmar’s military, following an attempted coup in the southeast Asian country.

It didn’t make national news. But why would it? It’s just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the “emergency” never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.

Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does. For example, Trump’s declaration of a national emergency along America’s southern border as a way to redirect funds to the building of a border wall was blocked by Congress in 2019.

But doing so requires a supermajority of both chambers and, generally, Congress can’t be persuaded to get off its collective duff. That’s why Clinton’s 1997 emergency trade embargo against Sudan—a country that obviously represents a serious threat to U.S. national security even 24 years later, natch—is still active. Obama’s emergency sanctions targeting Moammar Gadhafi are too, even though he’s been dead since 2011.

Congressional inaction and executive power-grabbing are nothing new, of course, but Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) are once again teaming up to try to force that to change. Under a bill the two senators reintroduced on Friday, all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.

The Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution (REPUBLIC) Act effectively flips Congress’ role from one of a passive bystander to an active participant. Paul and Wyden say that in cases of true national emergencies there should be no problem convening a session of Congress within three days to approve a presidential declaration, and the consideration of a national emergency would get immediate priority.

“Congress cannot allow any White House to declare phony emergencies just to get around the legislative process envisioned by the Constitution,” Wyden said in a statement. The proposal would “reassert Congress’ role as a coequal branch of government, while still allowing a president to address real emergencies,” he said.

The bill would automatically sunset national emergencies after 90 days unless Congress voted again to renew the emergency declaration. The bill would also repeal Section 706 of the Communications Act of 1934—a law written long before cell phones or the internet, but one with language so broad that some legal experts worry it could be effectively used as a “kill switch” for the internet.

Unfortunately, the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies, including the most recent declaration issued by Biden.

Still, the Paul/Wyden bill should be part of a broader debate over the balance of power between Congress and the White House—a debate that is long overdue.

As Reason‘s Peter Suderman highlighted earlier this week, the federal government has been operating in a nonstop crisis mode—sometimes in response to officially declared national emergencies and other times due to its own incompetence—for more than two decades. “These emergencies have become excuses for permanent political power grabs, for restrictions on individual liberties large and small, for mass bureaucratization and mass expansion of government spending, trillions of dollars’ worth of non-solutions to deep-rooted problems,” Suderman wrote. “With every crisis, government grows. And now the crisis is government itself.”

Undoing that permanent state of emergency should be a top priority for anyone concerned about the centralization of power and the executive branch’s unilateral decision-making on everything from who gets bombed to who gets bailed out. Setting some basic limits on how long presidential national emergency declarations can last should be relatively low-hanging fruit.

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We’d love to have our blog automatically feed to a MeWe page, as we do on Facebook, Twitter, and Parler; but MeWe doesn’t seem to offer such a feature, the way dlvr.it and similar services do it for Facebook and Twitter, and the way Parler does it automatically for us. And while we theoretically could just hand-post each new post to MeWe, practically that wouldn’t be sustainable.

Can anyone suggest any product or code that can be used or adapted to do that? Thanks!

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From the majority opinion in State v. Blake, by Justice Sheryl Gordon McCloud:

Washington’s strict liability drug possession statute, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.

This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power….

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including Shannon Blake. At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Blake’s jeans. The State charged Blake with possession of a controlled substance in violation of RCW 69.50.4013.

At trial, Blake relied on the judicially created affirmative defense of “unwitting possession.” She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest. Blake said she had never used methamphetamine and did not know the jeans had drugs in the pocket. She acknowledged that the drugs had been “on [her]” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend….

The “constitutional protection[s] afforded certain personal liberties” implicated by RCW 69.50.4013 are (1) the principle that ” ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence'” and (2) the rule that the government cannot criminalize “essentially innocent” conduct.

With regard to the first constitutional limit, the principle that mens rea is generally a prerequisite to criminalization in “Anglo-American jurisprudence,” it is certainly true that this general rule has exceptions. In Washington, for example, the legislature can still create strict liability crimes in certain circumstances: “our legislature has the plenary power to criminalize conduct regardless of whether the actor intended wrongdoing.” In particular, the legislature may create “strict liability offenses to protect the public from the harms that have come with modern life by putting the burden of care on those in the best position to avoid those harms.”

But the second constitutional limit, the rule against criminalizing “essentially innocent” conduct, does not have such exceptions, and it applies with special force to passive conduct—or nonconduct—that is unaccompanied by intent, knowledge, or mens rea.

The United States Supreme Court explained this over 60 years ago in Lambert v. California (1957). In Lambert, Los Angeles had criminalized “remain[ing] in Los Angeles for a period of more than five days without registering” with the city. [This was limited to defendants who had past felony convictions. -EV] A defendant charged with violating this ordinance was “given no opportunity to comply with the law and avoid its penalty, even though her default [failure to register] was entirely innocent.” The United States Supreme Court held that this exercise of the police power to criminalize entirely passive, innocent nonconduct deprived defendant Virginia Lambert of her liberty without due process of law.

The United States Supreme Court applied the same reasoning to a similar statute 15 years later. In Papachristou v. City of Jacksonville (1972), that Court considered the constitutionality of a Florida ordinance that criminalized, among other things, “nightwalking.” The Florida Supreme Court had upheld the ordinance after construing it “not to make criminal one night’s wandering, only the ‘habitual’ wanderer or, as the ordinance describe[d] it, ‘common night walkers.'” But the United States Supreme Court reversed. It explained that walking, strolling, and wandering—even at night—are “historically part of the amenities of life as we have known them.” It continued that criminalizing such historically innocent conduct was impermissible for many reasons, including the fact that it made “criminal activities which by modern standards are normally innocent” and did so without proof of any “intent to commit an unlawful act.” It concluded that criminalizing passive nonconduct while eliminating the requirement of a guilty mind violated due process clause protections, “cannot be squared with our constitutional standards[,] and is plainly unconstitutional.” Lambert‘s and Papachristou‘s holdings rested on the due process clause of the Fourteenth Amendment.

Our state constitution’s due process clause provides even greater protection of individual rights in certain circumstances. Thus, this court’s precedent also enforces the constitutional due process limit on the reach of the State’s police power (though often without specifying the specific constitutional source of that limit)…. [W]e have analyzed whether “the area of regulation [was] within the government’s scope of authority and [whether] the particular ordinance [was] a reasonable regulatory measure in support of the area of concern.” Applying that test, we have held that criminalization of passive nonconduct without mens rea “makes no distinction between conduct calculated to harm and that which is essentially innocent” and therefore exceeds the State’s police power.

The strict liability drug possession statute challenged in this case is similar to the strict liability curfew ordinance challenged in Pullman. In Pullman, the defendant challenged a Seattle ordinance that prohibited “accompanying a child during curfew hours.” By the language of the ordinance, “any minor under the age of 18 could be arrested for standing or playing on the sidewalk in front of his home at 10:01 p.m. on a warm summer evening.” Justice Utter, writing for the majority, recognized that the government has an “independent interest in the well-being of its youth” and hence has authority to “enact laws to assist those whose primary responsibility is for the well-being of minors.”

But the challenged law made “no distinction between conduct calculated to harm and that which is essentially innocent,” and it bore “an insufficient relationship to the objective of safeguarding minors.” We therefore concluded that the law was “an unreasonable exercise of the police power.” We explained that the record before the court was “absolutely devoid of any evidence showing ‘bad conduct’…. [T]he mere fact that the defendant was in the presence of two minors during curfew hours resulted in this prosecution.”

Pullman stands for the rule that the state legislature’s exercise of its otherwise plenary police power to criminalize entirely passive and innocent nonconduct with no mens rea or guilty mind violates the due process clause of the state and federal constitutions….

[T]he legislature criminalized exactly that sort of passive and innocent nonconduct in this case…. Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct. States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated. The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession. The statute would criminalize, to list a few examples:

“a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.” “A person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse. Or a child might carry an adult’s backpack, not knowing that it contains the adult’s illegal drugs.” …

This court [has] recognized the harshness of its [earlier statutory holding] holding that RCW 69.50.4013 permissibly criminalized innocent, passive, unknowing possession. It addressed that harsh result with what it admitted was an “anomalous” device: the court created a brand new affirmative defense out of whole cloth. Cleppe decided that an “unwitting possession” affirmative defense, that the defendant had the burden to prove, would “ameliorate[]” the harshness of its strict liability decision….  [But while a] judicially created affirmative defense may “ameliorate the harshness” of criminalizing innocent nonconduct, but it cannot save an unconstitutional statute….

We do nothing here today to disturb the legislature’s power to enact strict liability crimes…. The key distinction between this simple possession statute and other, valid, strict liability crimes is that the former statute penalizes passive and innocent nonconduct (without mens rea) while the latter statutes do not.

For example, to prove that a defendant practiced law unlawfully, the State must show that the defendant actually “practice[d] law, or [held] himself or herself out as entitled to practice law.” That conduct is, well, conduct. To be sure, Yishmael held that the defendant need not know that his or her conduct constituted the “practice of law.” But we continued that the State must still prove the activity of practicing law, and that, of course, requires the State to show intentional activity (not passivity). As we explained, “Yishmael did not dispute that he gave his clients advice about homesteading, adverse possession, and talking with the police, and that he offered assistance in completing documents to be filed with the county recorder’s office.” Not surprisingly, Yishmael did not claim that he had not intended any of those actions.

Similarly, to convict a defendant of rape of a child, the State must prove that the defendant “ha[d] sexual intercourse with another” who is under a particular age, depending on the degree of the crime. Sexual intercourse is conduct, not passivity. The crime is “strict liability” in the sense that the State need prove only “‘the doing of the acts constituting the offense'”; the State need not prove that the defendant knew the victim’s age, which is what makes the acts constituting the offense criminal. But the State must certainly show the activity of sexual intercourse, not just innocent passivity.

The drug possession statute is different. It does not require the State to prove any intent or even any action. And in this case, the State did not prove that Blake did anything except wear jeans that had pockets. Valid strict liability crimes require that the defendant actually perform some conduct. Blake did not. Under the due process clauses of the state and federal constitutions, the legislature may not criminalize such nonconduct….

Justice Charles Johnson dissented (for three Justices), concluding that “The legislative power to enact strict liability crimes remains consistent and undiminished …. Our continued recognition of this legislative power applies with special force in this case given the length of time that the crime of possession of a controlled substance has been upheld as a strict liability crime. The constitutional analysis in the majority’s decision is not convincing enough to outweigh those considerations.”

Justice Debra L. Stephens concurred in part and dissenting in part, concluding that the statute should be interpreted to avoid strict liability.

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