Category: reason

Here’s “Dane-geld” (1911) by Rudyard Kipling (1865-1936):

It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: —
“We invaded you last night–we are quite prepared to fight,
Unless you pay us cash to go away.”

And that is called asking for Dane-geld,
And the people who ask it explain
That you’ve only to pay ’em the Dane-geld
And then you’ll get rid of the Dane!…

For the rest of my “Sasha Reads” playlist, click here. Past poems are:

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” (“Evening Harmony”) by Charles Baudelaire
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” (“The Jinns”) by Victor Hugo
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman
12. “Узник” (“Uznik”, “The Prisoner” or “The Captive”) by Aleksandr Pushkin
13. “God’s Grandeur” by Gerard Manley Hopkins
14. “The Song of Wandering Aengus” by William Butler Yeats
15. “Je crains pas ça tellment” (“I’m not that scard about”) by Raymond Queneau
16. “The Naming of Cats” by T.S. Eliot
17. “The reticent volcano keeps…” by Emily Dickinson
18. “Она” (“Ona”, “She”) by Zinaida Gippius
19. “Would I Be Shrived?” by John D. Swain
20. “Evolution” by Langdon Smith
21. “Chanson d’automne” by Oscar Milosz
22. “love is more thicker than forget” by e.e. cummings
23. “My Three Loves” by Henry S. Leigh
24. “Я мечтою ловил уходящие тени” (“Ia mechtoiu lovil ukhodiashchie teni”, “With my dreams I caught the departing shadows”) by Konstantin Balmont

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The Senate Judiciary Committee will kick off confirmation hearings today for Merrick Garland, the former federal prosecutor and long-serving federal judge tapped by President Joe Biden to serve as the next U.S. attorney general. In an open letter to the nominee, Cynthia W. Roseberry of the American Civil Liberties Union urges Garland to use his hearings as an opportunity “to make clear, on-the-record commitments” to various criminal justice reform efforts, such as vowing to “reduce mass incarceration,” “unwind the War on Drugs, starting with marijuana,” and hold “police departments and officers accountable for misconduct.”

That is certainly a welcome agenda for the next attorney general. Unfortunately, Garland’s judicial record suggests that he might not always satisfy the high hopes of criminal justice reform advocates.

Take the Fourth Amendment. In 2003, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in a case known as United States v. Brown. At issue was whether a warrantless car search violated the Fourth Amendment. Judge Garland wrote the opinion that ruled for the cops. In dissent, one of his colleagues charged Garland with “cobbling together innocent circumstances, and drawing inferences in favor of the government that are unsupported by the evidence.”

The matter originated with reports of gunfire in the parking lot of a Washington, D.C., apartment building on the night of April 13, 2001. Several hours after the reports came in, two officers from the Metropolitan Police Department arrived on the scene. A building resident told the officers that the occupants of a parked white car might be involved. According to the officers’ account, while questioning the folks in the white car, they became suspicious about the occupants of a black car that was parked nearby, claiming that one of the black car’s occupants seemed to be “sizing us up.”

The officers approached the black car. After knocking on a rear window, Officer Joshua Branson opened a rear door to get a better look inside. He spotted a handgun on the floor. That led him to pull Rocky Lee Brown out of the car and place him in handcuffs. Officer Branson then took the keys out of the ignition, opened the trunk, and discovered an AR-15 rifle and several rounds of ammunition.

In Terry v. Ohio (1968), the U.S. Supreme Court held that police officers must have a “particularized suspicion” of criminal wrongdoing before conducting that sort of investigatory stop. An officer’s “inchoate and unparticularized suspicion or ‘hunch,'” the Court stressed, is not enough to create an exception to the Fourth Amendment’s guarantee against unreasonable searches and seizures.

Garland’s opinion in U.S. v. Brown, however, granted Officer Branson exactly the sort of hunch-based leeway that Terry prohibited. Indeed, as Judge Judith Rogers complained in her dissent from Garland’s judgment, “there was no evidence that the police had any grounds to think the occupants of the black car, which was lawfully parked in a residential lot, were guilty of a traffic violation or engaged in any criminal activity….So far as the government’s evidence indicated, the occupants of the black car were innocent, uninvolved bystanders and nothing more.”

During his long stint on the D.C. Circuit, Garland tended to tip the scales in favor of law enforcement in these sorts of disputes, practicing a style of judicial deference that gave police and prosecutors the benefit of the doubt. Time will tell if Attorney General Garland will follow suit.

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“If I owned Texas and Hell,” Gen. Philip Sheridan once said, “I would rent out Texas and live in Hell.” He probably was thinking about our hot summers, but after last week Hell’s central heating is starting to seem appealing. Millions of Texans were left without electricity, heat, and in some cases water service.

The Texas blackouts are shaping up to be the costliest disaster in state history, and the loss of life remains unknown. People are justifiably very angry. And when people are angry, politicians look around for someone to blame. Many have trotted out their favorite villains for the occasion. Many on the right have picked Don Quixote’s old enemy, the windmill, while many on the left jumped at the chance to blame deregulation. Neither explanation really holds up. While it will be some time before all the specifics are known, what we do know doesn’t support any easy political narrative.

The central fact about the chain of events that led to the blackouts is deceptively simple: It got super cold.

In order to keep the lights on, electric generation must match demand on a minute-by-minute basis. For that reason, the system’s planners and forecasters focus their attention on the times of the year when demand is typically highest. In Texas, that’s the heat of summer. Many features of our electric grid are designed to work optimally during the summer, with the understanding that in the winter we will usually have far more electric capacity that we need.

The state was not prepared for record cold temperatures stretching across all 254 Texas counties. This generated summer levels of electric demand, and it also caused significant amounts of generation to become unusable. Because really cold temperatures are rare in Texas, many plants contain components that are not protected from the elements. This is true for generators of all fuel types, from wind to nuclear. In addition, Texas typically relies heavily on natural gas to meet its peak electric demand, as natural gas plants are easier to ramp up or down on short notice. During the summer that’s not a problem. In the winter, though, gas is also used for heating, and many gas plants did not have firm contracts to deliver fuel and had trouble buying it on the open market. Finally, the winter is a time when some plants shut down for scheduled maintenance.

The result: In the early morning hours of February 15, the state’s grid operator—the Electric Reliability Council of Texas, or ERCOT—found itself facing a supply shortfall with more than a third of the grid’s thermal generation capacity (natural gas, coal, and nuclear) unusable. To prevent total system failure, ERCOT ordered utilities to curtail service, plunging millions of homes into darkness and cold.

The sheer size of the supply hole makes it hard to blame either wind or deregulation for the failure. While pictures of frozen wind turbines may be evocative, ERCOT’s forecasts do not rely on a large amount of wind to sustain the system—and wind ended up meeting those expectations. Some have argued that the low cost of wind power over the last decade has forced the retirement of more reliable power plants that could have helped make up the gap had they been there. I’ve addressed those arguments at length elsewhere; here I’ll add that many of the recently retired Texas plants were rendered unprofitable not by wind but by the fracking-induced fall in natural gas prices. And given how many thermal plants failed, it doesn’t seem plausible that having a few more of them would have made the difference.

Similarly, there is little reason to think that Texas’ competitive electric system is to blame. ERCOT’s most recent winter forecast included a worst-case scenario for the grid that roughly predicted the needed demand but underestimated the amount of generation that would be unusable by almost half. A more centralized or state-run electric system almost certainly would have relied on the same forecast and ended up in the same situation. In retrospect, it’s easy to blame generators for not doing more to protect their plants from cold. But if a plant had known that unprecedented cold was coming and had weatherized, it would now be reaping millions in benefits. The problem was not a lack of incentives but a lack of imagination.

One outstanding question has to do with the fact that Texas maintains its own separate electric grid (the rest of the continental United States is split between an eastern and western grid). This has given the state more control over electric policy, and the state is large enough that historically not being part of a larger grid has not been a problem. Would Texas have been able to avoid its problems if it had been part of one of these larger interconnects? So far I don’t think we have the data to answer this question one way or the other. In theory, a larger geography should help, and while neighboring states also had to resort to rolling blackouts, they did not do so on nearly the same scale. However, I’ve yet to see any detailed analysis of whether being part of a larger system would have reduced the overall number of outages or simply spread them out over a greater area.  

That’s not a very satisfying answer, and I’m sure that there are many decisions made in the days and years leading up to the blackouts that will and should be second-guessed. But fundamentally the blackouts happened because across the entire system, people did not anticipate how bad things could get. It was a failure to expect the unexpected.

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I’m delighted to announce the founding of the Journal of Free Speech Law, a new faculty-edited law journal. (Motto: “It is an experiment, as all life is an experiment.“) The journal will publish in print as well as electronically; the first issue—a symposium on regulation of social media removal decisions—will come out in Summer 2021. (Many thanks to the Stanton Foundation for a generous multiyear grant that will allow all this to happen.)

Future articles will be selected by our “robe & gown” editorial board, which currently consists of:

Prof. Jane Bambauer Prof. Ashutosh Bhagwat Judge Stephanos Bibas Prof. Vincent Blasi Judge José A. Cabranes Prof. Clay Calvert Dean Erwin Chemerinsky Prof. Alan Chen Justice Mariano-Florentino Cuéllar

Judge Douglas H. Ginsburg Prof. Jamal Greene Prof. Andrew Koppelman Prof. Ronald J. Krotoszynski, Jr. Prof. Toni Massaro Prof. Michael McConnell Prof. Helen Norton Prof. Robert Post Judge A. Raymond Randolph

Judge Neomi Rao Prof. Jennifer Rothman Judge Robert Sack Prof. Frederick Schauer Dean Rodney A. Smolla Judge David R. Stras Judge Jeffrey S. Sutton Prof. Rebecca Tushnet Prof. Eugene Volokh Prof. James Weinstein

 

The executive editors will be Jane Bambauer, Ashutosh Bhagwat, and me, and I will also serve as the editor-in-chief. If you’re interested in seeing links to our articles, as well as the occasional other announcement, follow us on Twitter at @JournalSpeech.

We plan to publish:

1. Articles that say something we don’t already know.
2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause (which we leave to other publications, such as the Journal of Law & Religion), except if they also substantially discuss religious speech.
5. Articles not just about the First Amendment, but also about state constitutional free speech provisions, federal and state statutes and regulations protecting or restricting speech, common-law rules protecting or restricting speech, and private organizations’ speech regulations.
6. Articles about U.S. law, foreign law, comparative law, or international law.
7. Both big, ambitious work and narrower material.
8. Articles that are useful to the academy, to the bench, or to the bar (and if possible, to all three).
9. Articles arguing for broader speech protection, narrower speech protection, or anything else.

We also plan to publish quickly, without interfering with the author’s style, voice, or perspective.

Our submission guidelines: You can submit to the journal via Scholastica, at https://‌freespeechlaw.scholasticahq.com/.

1. As with many other faculty-edited journals, we require exclusive submission. Any article you submit to us must not be under consideration elsewhere.
2. In exchange, we expect to give you an answer within two weeks.
3. Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it’s the first article to discuss how case X and doctrine Y interact), please let us know.
4. Please submit articles single-spaced, in a proportionally spaced font.
5. Please make sure that the Introduction quickly and clearly explains the main claims you are making.
6. Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
7. Each article should be as short as possible, and as long as necessary.
8. Like everyone else, we like simple, clear, engaging writing.
9. We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

If your article is accepted:

1. We will give you whatever editing feedback we came up with as we were reviewing your article. We will generally not offer line editing.
2. We will assign a starting page number, which you can use for future citations even before it is published, and we willbe prepared to immediatelypublish the article online and on Westlaw and likely Lexis, once the article is suitably revised and polished. (We will publish in print every several months, as enough articles are finished to form an issue.)
3. We will defer to your authorial judgment on editing questions, except when we think accuracy or attention to counterarguments requires changes (in which case we will of course not make any changes without your approval).
4. We expect authors who are professors at American law schools to have cite-checking and proofreading done by their own research assistants. If that is a hardship for you, please let us know.
5. We will have the article proofread near the end of the publishing process, just to catch any remaining glitches.

Please submit your new articles to us, if you have written something that would fit our mission; and please follow us on Twitter at @JournalSpeech.

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Anthony Fauci, President Joe Biden’s chief medical adviser and part of the federal government’s COVID-19 response team, struck an overly cautious note during interviews over the weekend, telling CNN’s Dana Bash that Americans might have to wear masks in 2022.

“I want [COVID-19 cases] to keep going down to a baseline that’s so low there is virtually no threat,” said Fauci. “If you combine getting most of the people in the country vaccinated with getting the level of virus in the community very, very low, then I believe you’re going to be able to say, for the most part, we don’t necessarily have to wear masks.”

Fauci expressed cautious optimism that the country “will be approaching a significant degree of normality” by the end of this year. When pressed by Bash to define what he meant by “normality,” the doctor demurred.

“I can’t say that, Dana,” said Fauci. “Because then it will be a sound bite that’s not true. I’m saying: We don’t know.”

Fauci has admitted that he has previously avoided telling people the plain truth about how long it would take to reach herd immunity because he thought the public wasn’t ready to hear it; thus it’s not always totally clear whether the doctor’s pronouncements reflect genuine uncertainty, public messaging considerations, or a mixture of both.

The strategy currently employed by both Fauci and the rest of the Biden administration seems to be to lower expectations, even at the risk of vastly underselling the vaccine. Government officials have declined to state authoritatively when normal life will resume, and White House Press Secretary Jen Psaki has emphasized the necessity of social distancing and masking even post-vaccination. She also backpedaled on a key administration promise to reopen schools within the first hundred days of Biden’s presidency, instead settling for half of all public schools open just one day a week.

This is frustrating. While it’s true that the government can’t accurately predict the specific day that Normalcy Broadly Defined will resume—and that normalcy will look different, for various people, depending on their circumstances—warning everyone about the need to continue social distancing for the rest of the year is excessively pessimistic. The latest evidence suggests that the vaccines don’t just prevent deaths and eliminate severe symptoms: It is likely that they significantly reduce the transmission of COVID-19. New virus variants are a concern, but cases are plummeting nationwide, and the death toll should decline precipitously as the most at-risk population—the very elderly—continues to become vaccinated.

The government should urge everyone to get vaccinated as soon as possible, because vaccinated people are overwhelmingly safe from the disease—and are also much less likely to spread it to others. The message should be that vaccination is both a protective shield and a ticket back to speedy normalcy. People who are vaccinated can start doing normal things with other vaccinated people: They can go to weddings, restaurants, and grandparent hug-a-thons. Keep that mask handy for 2022 is a really demoralizing and unnecessary framing.

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FREE MINDS

“Under the guise of racial progress, Smith College has created a racially hostile environment in which individual acts of discrimination and hostility flourish,” Jodi Shaw, a former administrator at the college, said in a resignation letter. “In this environment, people’s worth as human beings, and the degree to which they deserve to be treated with dignity and respect, is determined by the color of their skin. It is an environment in which dissenting from the new critical race orthodoxy—or even failing to swear fealty to it like some kind of McCarthy-era loyalty oath—is grounds for public humiliation and professional retaliation.”

Bari Weiss has more on this over at her Substack.

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FREE MARKETS

Congress intends to hold yet another hearing on the Big Tech menace, summoning Google CEO Sundar Pichai, Facebook CEO Mark Zuckerberg, and Twitter CEO Jack Dorsey to Washington, D.C., on March 25.

“Whether it be falsehoods about the COVID-19 vaccine or debunked claims of election fraud, these online platforms have allowed misinformation to spread, intensifying national crises with real-life, grim consequences for public health and safety,” said the House Committee on Energy and Commerce, which will host the hearing, in a statement.

Past iterations of these hearings have not exactly inspired confidence in political leaders’ tech savviness.

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QUICK HITS

• The Nation: “West Coast States’ Failure to Reopen Schools Is a Disaster.”

• In a survey of 1,000 Trump voters, the majority said the Republican Party should become more loyal to the former president, not less—even if this means losing the support of establishment Republicans.

• San Francisco School Board President Gabriela Lopez has finally called a halt to the district’s renaming initiative, which was criticized for taking precedent over efforts to actually reopen schools:

We are deeply grateful for the work of the renaming committee and many schools are as well. They are excited about the opportunity to uplift communities that have previously been underrepresented. Our students need to attend schools where they feel valued and seen. This work is anti-racist and we’re proud of that.

But reopening will be our only focus until our children and young people are back in schools. We’re canceling renaming committee meetings for the time being. We will be revising our plans to run a more deliberative process moving forward, which includes engaging historians at nearby universities to help.

In the meantime, this is the last time I’ll comment publicly on renaming until schools are reopened.

• NBC News put out a hit piece on Gov. Ron DeSantis (R–Fla.) that criticized him for…vaccinating elderly Holocaust survivors.

Very weird for NBC News to frame this as a bad thing! https://t.co/Qmocj8p8TJ pic.twitter.com/f0nl6jk6jm

— Robby Soave (@robbysoave) February 20, 2021

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Encrypted messaging is dangerous because it enables contacts among racists and extremists, argues the Southern Poverty Law Center (SPLC) in a recent feature. The piece, though, fails to demonstrate that hiding data from prying eyes is bad in itself, making its emphasis on encryption odd. It’s a choice that can only feed into escalating campaigns by governments and their security services to mandate access to private communications, potentially compromising the civil rights that the SPLC supposedly champions.

“Far-right extremists and white supremacist terrorists have embraced Telegram as their platform of choice, signaling a shift away from these groups’ traditional methods of organizing and toward a dangerous future defined by leaderless resistance and ‘lone actor’ terrorism,” Hannah Gais and Megan Squire argue in “How an Encrypted Messaging Platform is Changing Extremist Movements,” published by the SPLC on February 16. “In addition to enabling the spread of propaganda, Telegram’s built-in features also facilitate recruitment by making it easy for extremists to set up public or private encrypted discussion groups,” they add.

Despite the headline and brief mentions of Telegram’s encryption features, the bulk of the article examines the app’s utility for mass organizing. The authors also object to Telegram’s allegedly permissive attitude towards extremists and the ease with which such groups dodge restrictions. The article, then, is a complaint about the ease with which evolving technology allows even unsavory people to connect with one another, mixed with a guilt-by-association smear of encryption at a time when it’s under renewed assault by the powers that be.

“On Privacy Day, European end-to-end encrypted services ProtonMail, Threema, Tresorit and Tutanota are calling on EU policy makers to rethink proposals made in December’s Council Resolution on Encryption,” the four companies announced on January 28. “While it’s not explicitly stated in the resolution, it’s widely understood that the proposal seeks to allow law enforcement access to encrypted platforms via backdoors. However, the resolution makes a fundamental misunderstanding: encryption is an absolute, data is either encrypted or it isn’t, users have privacy or they don’t.”

The resolution to which they responded, published in December 2020, called for “security through encryption and security despite encryption” and complained “there are instances where encryption renders access to and analysis of evidence extremely challenging or impossible in practice.” It added that “Competent authorities must be able to access data in a lawful and targeted manner” in a signal that the European Union favors encryption only if it doesn’t inconvenience government snoops.

Earlier, in October, the “Five Eyes” intelligence alliance of Australia, Canada, New Zealand, the United Kingdom, and the United States joined with India and Japan in a similar resolution.

“We, the undersigned, support strong encryption, which plays a crucial role in protecting personal data, privacy, intellectual property, trade secrets and cyber security.  It also serves a vital purpose in repressive states to protect journalists, human rights defenders and other vulnerable people,” the governments acknowledged in a joint statement. “Particular implementations of encryption technology, however, pose significant challenges to public safety, including to highly vulnerable members of our societies like sexually exploited children. We urge industry to address our serious concerns where encryption is applied in a way that wholly precludes any legal access to content,” they added.

But, if governments can penetrate communications privacy to address “challenges to public safety,” there’s nothing to stop them from putting “journalists, human rights defenders and other vulnerable people” in that category. Importantly, Pavel Durov, the man who founded the Telegram app to which the SPLC objects, fled Russia after rejecting government demands that he compromise privacy.

“Two years ago, Pavel Durov refused to grant Russian security services access to users’ encrypted messages on his popular Telegram messaging app, then a favorite of Russian opposition groups,” the Washington Post noted last June. “Using a combination of wily cyber-dodging tactics and the force of Telegram’s growing reach, the 35-year-old Russian-born entrepreneur humiliated and outmaneuvered Russia’s state telecommunications regulator, Roskomnadzor.”

Of course, communications and encryption are neutral technologies. If they protect opposition groups against repressive governments, they also shield racists and extremists from scrutiny. Some people seem to have decided that it’s worth sacrificing journalists and political dissidents in order to target unsavory elements. The SPLC isn’t the first group to raise the issue.

“The rise of Telegram and Signal could inflame the debate over encryption, which helps protect the privacy of people’s digital communications but can stymie the authorities in crime investigations because conversations are hidden,” The New York Times pointed out last month. “Any move to the apps by far-right groups in particular has worried U.S. authorities…”

Those same U.S. authorities, let’s remember, have engaged in extensive domestic surveillance that the FBI itself admits “was later rightfully criticized by Congress and the American people for abridging first amendment rights and for other reasons.” The SPLC, born in the civil rights movement but under fire for a seeming loss of purpose, must still understand how useful encryption would have been to activists like Martin Luther King, Jr. The technology could have spared them much grief from hostile government agents.

“The U.S. Federal Bureau of Investigation (FBI) began monitoring Martin Luther King, Jr., in December 1955, during his involvement with the Montgomery bus boycott, and engaged in covert operations against him throughout the 1960s,” notes The Martin Luther King, Jr. Research and Education Institute at Stanford University. “Under the FBI’s domestic counterintelligence program (COINTELPRO) King was subjected to various kinds of FBI surveillance that produced alleged evidence of extramarital affairs, though no evidence of Communist influence.”

It’s not surprising that security agencies would want enhanced capability for their surveillance programs. It is foolish, though, to think that compromising communications privacy for bad actors won’t have the same impact on everybody else, or that encryption can be reserved as a protection only for people somehow designated as on the side of the angels. As the European encrypted services emphasized in their joint statement, “encryption is an absolute, data is either encrypted or it isn’t, users have privacy or they don’t.” We either allow that everybody is entitled to privacy protections, or we place our trust in government agencies that have repeatedly proven themselves to be abusive.

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