Category: reason

On Friday, when the Supreme Court considered whether it should block enforcement of the Biden administration’s COVID-19 vaccine mandate for private employers, most of the discussion focused on whether the Occupational Safety and Health Administration (OSHA) has the statutory authority to issue that rule. But the justices and lawyers also touched on a constitutional argument against the mandate, one that hinges on the distinction between state and federal powers.

Justice Sonia Sotomayor claimed not to understand this distinction.

OSHA’s “emergency temporary standard” (ETS), which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated or wear face masks and submit to weekly virus testing. While arguing that OSHA does not have the power to issue such an order, Ohio Solicitor General Benjamin Flowers said “there may be many states, subject to their own state laws, that could impose this [policy] themselves.” Sotomayor said she found that concession puzzling.

“If it’s within the police power to protect the health and welfare of workers,” she said, “you seem to be saying the states can do it, but you’re saying the federal government can’t, even though it’s facing the same crisis in interstate commerce that states are facing within their own borders. I’m not sure I understand the distinction—why the states would have the power but the federal government wouldn’t.”

Flowers noted that “the federal government has no police power”—the general authority to enact legislation aimed at protecting public health, safety, morals, and welfare. While states retain that broad authority under the Constitution, the federal government is limited to specifically enumerated powers. This principle is reflected in the 10th Amendment, which says “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Sotomayor alluded to one of those delegated powers: the regulation of interstate commerce, which is the constitutional rationale for the law that authorizes OSHA to issue regulations aimed at protecting employees from workplace hazards. But when Flowers noted that the Commerce Clause, notwithstanding how broadly the Supreme Court has interpreted it, does not give the federal government a general police power, Sotomayor seemed to disagree:

Sotomayor: It does have power with respect to protecting the health and safety of workers. We have accept[ed] the constitutionality of OSHA.

Flowers: Yes. I took you to be asking if they had a police power to protect public health.

Sotomayor: No, they have a police power to protect workers.

Flowers: I would not call it a police power. I think the Commerce Clause power allows them to address health…in the context of the workplace.

Sotomayor: Exactly.

At this point, Chief Justice John Roberts interrupted the exchange, saying, “It’s a good time to move to our sequential questioning.”

Sotomayor’s reference to a federal “police power” was not quite as striking as her false claims about the omicron variant’s impact on children. But her exchange with Flowers raised some eyebrows.

“Sotomayor professed not to be able to understand the distinction between federal authority and state police powers,” National Review‘s Isaac Schorr wrote. “Sotomayor claims not to understand [the] distinction between state and federal power,” Ilya Shapiro, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, tweeted. “Mind-boggling. Calls OSHA’s regulatory authority…a ‘police power.’ OH SG tries to explain con law 101, eventually Roberts rescues the embarrassing discourse.”

Perhaps Sotomayor misspoke, referring to a “police power” when what she really had in mind was the federal government’s authority under the Commerce Clause. But the extent of that authority—and whether it covers a policy that arguably amounts to a general vaccine mandate—is one of the issues in this case.

When the U.S. Court of Appeals for the 5th Circuit extended its stay on the ETS in November, the unanimous three-judge panel said the mandate “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.” After the challenges to the ETS were consolidated and assigned to the U.S. Court of Appeals for the 6th Circuit, a divided three-judge panel lifted that stay. In addition to the other arguments that the 5th Circuit found persuasive, the majority rejected the idea that the ETS “regulates noneconomic inactivity”—i.e., the choice to forgo vaccination. That claim “miss[es] the mark,” Judge Jane Stranch wrote, because “the ETS regulates employers with more than 100 employees, not individuals,” and “it is indisputable that those employers are engaged in commercial activity that Congress has the power to regulate when hiring employees, producing, selling and buying goods, etc.”

Prior to that decision, 6th Circuit Chief Judge Jeffrey Sutton had expressed more sympathy for the Commerce Clause argument against the ETS. “Does this regulation of noncommercial inactivity—a requirement that the unvaccinated get shots or weekly tests—exceed Congress’s Commerce Clause power?” Sutton asked in a dissent when 16 judges split evenly on the question of whether they should hear the case rather than leave it to a three-judge panel. “It’s doubtful this federal power sweeps this broadly given the vertical separation of powers embedded in our Constitution. There is a Commerce Clause, yes. It gives Congress broad powers, to be sure. And it helps the Federal Government to resolve some collective-action problems affecting interstate commerce, no doubt. But through it all, it remains a Commerce Clause, not a collective-action clause—and not a clause that grants the national government all of the police powers customarily associated with state governments in order to fix any new societal challenge.”

Shapiro makes the same point in a Newsweek essay. “It’s axiomatic to the American system of government that sovereignty is divided such that states wield power in their domains, while Washington, D.C. governs national issues like defense and interstate commerce,” he writes. “Modern constitutional law has blurred that distinction and expanded federal power, but there’s still no question that the Virginia Department of Labor could impose an occupational vaccine mandate in my home state, while OSHA’s attempt to do so has literally become a federal case.”

Shapiro notes that “federal lawmaking powers are constitutionally enumerated—and thus limited to those listed in Article I, Section 8—while states enjoy a broader ‘police power’ to regulate on behalf of public health, safety, welfare and morals.” This is the crucial distinction that Sotomayor blurred when she talked about a federal “police power.”

When President Joe Biden announced the OSHA rule in September, he presented it as part of his plan for “vaccinating the unvaccinated.” MSNBC anchor Stephanie Ruhle called the ETS “the ultimate work-around for the Federal govt to require vaccinations.” White House Chief of Staff Ronald Klain retweeted Ruhle’s comment, reinforcing the impression that Biden was trying to disguise a general vaccine mandate as a workplace safety measure authorized by the Commerce Clause.

On Friday, Chief Justice John Roberts alluded to that incident, saying the ETS “has been referred to…as a work-around.” Justice Neil Gorsuch used the same term. “Given that no federal agency can impose a general mandate, precisely because the federal government lacks a police power,” Shapiro writes, “OSHA’s ‘work-around’ is just an attempted short-circuiting of the law.”

The post Defending OSHA's Vaccine Mandate, Sonia Sotomayor Says 'I'm Not Sure I Understand the Distinction' Between State and Federal Powers appeared first on Reason.com.

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Washington Gov. Jay Inslee wants to make it a misdemeanor for politicians to lie about election results. Yes, of course this would violate the First Amendment.

To justify the idea, Inslee is invoking the anniversary of the riot at the U.S. Capitol. “January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy. They are willing to do this by provoking violence, and today I proposed we do something about that,” he wrote last week.

He does not indicate what this has to do with elections in Washington state, all the way on the other side of the country, which is the only place where his law would apply.

In August, five Republican legislators in Inslee’s state held a rally encouraging the conspiracy theory that the 2020 presidential election was fraudulent. They cannot be punished for such speech, because the First Amendment protects such arguments—yes, even false arguments.

Inslee thinks he can get around these protections by targeting falsehoods that are spread “for the purpose of undermining the election process” and “likely to incite or cause lawlessness.” The wording of the bill is not publicly available yet, but the governor seems sure that it will fit within the limits of Brandenburg v. Ohio, the 1969 Supreme Court case establishing that speech inciting lawless action is not protected.

But that precedent requires the threat of lawless action to be “imminent.” Eugene Volokh, a law professor at UCLA, notes that this is not a minor threshold.

“If I’m standing outside a police station and yelling ‘burn it down,'” that counts as calling for imminent lawless action, Volokh explains. “But just saying an election is a fraud and we should do about it isn’t incitement.” And to the extent that speech can incite imminent violence, Washington already has a law criminalizing it.

Volokh also notes that courts have historically been reluctant to give officials the authority to punish certain types of false speech about the government itself. Some laws, like those that forbid lying about when and where elections take place, have passed muster. But trying to outlaw speech that questions the legitimacy of election results echoes the Sedition Act of 1798, which permitted the punishment of anybody publishing “false, scandalous, or malicious writing” about the United States. “This is part of the debate in the U.S. that is literally 225 years old,” Volokh says.

The Sedition Act expired in 1801, but Inslee’s arguments echo the arguments made for the act back then—the idea that if false speech undermines the government’s credibility, it may foster violence against the government. Since then, many courts have recognized that such censorship can suppress legitimate allegations about government misconduct. The court precedents are not in Inslee’s favor here, Volokh says. (Volokh has written more on the proposal here.)

There’s a sharp irony to Inslee’s efforts. A law that censors critiques of elections, even if these critiques are outright lies, would surely fan doubts about elections’ legitimacy. By trying to suppress distrust in government, the law would foster it instead.

In case there are any questions about whether Inslee grasps the limits on the government’s power to censor, he has defended his proposal by blithely invoking the “yelling ‘fire’ in a crowded theater” cliché. When a public figure deploys that quote from 1919’s Schenck v. United States, it’s virtually always a sign that he knows very little about the First Amendment’s history. If you want to convince people that you’ll censor in a restrained way, don’t quote from a case authorizing the imprisonment of protesters who had been distributing anti-draft pamphlets.

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Gov. Jay Inslee released the following statement [Thursday] announcing his support for legislation currently being written that would outlaw attempts by candidates and elected officials to spread lies about free and fair elections when it has the likelihood to stoke violence.

“January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy. They are willing to do this by provoking violence, and today I proposed we do something about that in Washington.

“Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections. The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness,” Inslee said.

The U.S. Supreme Court has made it clear that speech can be limited where it is likely to incite lawlessness, Brandenburg v. Ohio, 395 U.S. 444 (1969). Unlike the state supreme court decision in Rickert v. State, Public Disclosure Com’n, 161 Wash.2d 843 (2007), which addresses false statements made by one candidate about another candidate, this legislation is not about what candidates can say about each other.

“This legislation attempts to follow the relevant U.S. and state supreme court opinions on this issue. We’re talking about candidates and elected officers knowingly throwing bombs at democracy itself when doing so is likely to result in violence,” Inslee said. “We can outlaw actions that provoke political violence and in doing so also protect our democracy. There is more that can be done by states and Congress to protect our democracy. I am open to any proposal that will protect the will of the voters and the institutions they use to decide who governs them.”

There’s apparently no draft statutory language yet, and it’s possible that the law would be so limited as to be both constitutional and likely redundant of existing law: If it’s limited to speech that (1) had the purpose of persuading people to commit crimes (and not just “the purpose of undermining the election process or results”), was (2) likely to have that result, and (3) the result was intended to and likely to be imminent, which likely means within hours or days (an element missing from Inslee’s description ), it would indeed fit within the Brandenburg v. Ohio “incitement” exception.

Shouting “burn it down” or “break in and ransack” to a mob standing in front of a building, with the purpose of causing them to commit crimes, is constitutionally unprotected—indeed, whether the speech consists of knowing lies or even opinions or truthful statements. (R.A.V. v. City of St. Paul might preclude incitement laws that are selectively targeted towards statements about elections, but that’s a complex question.) Yet such speech is already likely illegal under Washington’s general criminal law (see also this case interpreting that statute).

But I assume, based on the Governor’s general statement, that he has bigger fish to fry: I take it that he’s after knowing lies that risk long-term harms (whether attempted revolution or criminal noncompliance with the law) and not just imminent ones. This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

The Act’s backers stressed that the law (unlike the English common law of seditious libel) was limited to “false” and “malicious” statements; and they noted the importance of restricting those statements. Here is Justice Chase’s instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.

And here is one from Justice Iredell in Case of Fries, dealing with a treason prosecution arising out of the Fries Rebellion in Pennsylvania in 1799; Iredell was defending the Sedition Act of 1798, though Fries wasn’t tried under that Act:

Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.

In consequence of such misrepresentations, a civil war had nearly desolated our country [I believe this refers to the Whiskey Rebellion -EV], and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.

The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity-increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief….

Men who are at a distance from the source of information must rely almost altogether on the accounts they receive from others. If their accounts are founded in truth, their heads or hearts must be to blame, if they think or act wrongly. But, if their accounts are false, the best head and the best heart cannot be proof against their influence; nor is it possible to calculate the combined effect of innumerable artifices, either by direct falsehood, or invidious insinuations, told day by day, upon minds both able and virtuous.

Such being unquestionably the case, can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power….

Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?

It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust….

Gov. Inslee’s argument seems to me to be implicitly premised on the same sort of concern; though the proposed bill would apply to only a particular subset of such “seditious libel” (lies about the supposed corruption or invalidity of elections, rather than lies about the government broadly), it is concerned precisely with the danger that such lies will undermine the government’s credibility and perceived legitimacy, and thus lead to violence or even rebellion.

Again, these concerns are serious concerns, held by serious leaders during the Framing Era. But I think that our legal system has rightly retreated from punishing such seditious libels, partly because criminalizing even outright lies (“false” and “malicious” statements) about the government

• unduly risks suppressing or at least deterring even legitimate opinion,
• unduly risks suppressing allegations that would ultimately prove accurate, and
• unduly risks selective enforcement by officials of that government.

For an example of these problems, see U.S. v. Cooper itself; and the Supreme Court recognized this in 1964, concluding that:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. The invalidity of the Act has also been assumed by Justices of this Court. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….

[Though false, malicious allegations against specific public officials may be punished,] “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”

Likewise, the Washington Supreme Court struck down state statutes that ban lies in election campaigns (whether about initiatives, 119 Vote No! Committee, or candidates, Rickert). The concern in such cases is with fraud on the voters, rather than loss of public confidence in the government, and courts are more split on those. Compare In re Chmura (Mich. 2000); State v. Davis (Ohio App. 1985) (both upholding such election lie statutes) with Susan B. Anthony List v. Driehaus (6th Cir. 2016); 281 Care Comm. v. Arneson (8th Cir. 2014); Commonwealth v. Lucas (2015); and the two Washington Supreme Court cases (all striking them down). (I also think that laws that ban lies about the mechanics of voting, aimed at duping people about when, where, and how to vote, may be constitutional, because they focus on narrow and easily ascertainable questions, and because they aren’t essentially aimed at protecting the government’s reputation.)

But the important thing is that the Washington decisions reaffirmed the impropriety of the punishment of seditious libel: They stressed, with New York Times v. Sullivan, that “the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation,” and rejected laws that generally ban lies about “government affairs” that “coerce[] silence by force of law and presuppose[] the State will ‘separate the truth from the false’ for the citizenry…. The First Amendment exists precisely to protect against laws … which suppress ideas and inhibit free discussion of governmental affairs.”

Again, I agree that lies about the government—whether about election results, police abuse, or many other subjects—can at times lead, have at times led, and will at times lead to criminal violence. But American First Amendment precedents take the view that it’s still more dangerous to allow the government to punish speech on the grounds that it might damage the government’s credibility or legitimacy and thus lead to such crime (even speech that prosecutors, judges, and juries find to be knowingly false).

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Gov. Jay Inslee released the following statement [Thursday] announcing his support for legislation currently being written that would outlaw attempts by candidates and elected officials to spread lies about free and fair elections when it has the likelihood to stoke violence.

“January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy. They are willing to do this by provoking violence, and today I proposed we do something about that in Washington.

“Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections. The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness,” Inslee said.

The U.S. Supreme Court has made it clear that speech can be limited where it is likely to incite lawlessness, Brandenburg v. Ohio, 395 U.S. 444 (1969). Unlike the state supreme court decision in Rickert v. State, Public Disclosure Com’n, 161 Wash.2d 843 (2007), which addresses false statements made by one candidate about another candidate, this legislation is not about what candidates can say about each other.

“This legislation attempts to follow the relevant U.S. and state supreme court opinions on this issue. We’re talking about candidates and elected officers knowingly throwing bombs at democracy itself when doing so is likely to result in violence,” Inslee said. “We can outlaw actions that provoke political violence and in doing so also protect our democracy. There is more that can be done by states and Congress to protect our democracy. I am open to any proposal that will protect the will of the voters and the institutions they use to decide who governs them.”

There’s apparently no draft statutory language yet, and it’s possible that the law would be so limited as to be both constitutional and likely redundant of existing law: If it’s limited to speech that (1) had the purpose of persuading people to commit crimes (and not just “the purpose of undermining the election process or results”), was (2) likely to have that result, and (3) the result was intended to and likely to be imminent, which likely means within hours or days (an element missing from Inslee’s description ), it would indeed fit within the Brandenburg v. Ohio “incitement” exception.

Shouting “burn it down” or “break in and ransack” to a mob standing in front of a building, with the purpose of causing them to commit crimes, is constitutionally unprotected—indeed, whether the speech consists of knowing lies or even opinions or truthful statements. (R.A.V. v. City of St. Paul might preclude incitement laws that are selectively targeted towards statements about elections, but that’s a complex question.) Yet such speech is already likely illegal under Washington’s general criminal law (see also this case interpreting that statute).

But I assume, based on the Governor’s general statement, that he has bigger fish to fry: I take it that he’s after knowing lies that risk long-term harms (whether attempted revolution or criminal noncompliance with the law) and not just imminent ones. This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

The Act’s backers stressed that the law (unlike the English common law of seditious libel) was limited to “false” and “malicious” statements; and they noted the importance of restricting those statements. Here is Justice Chase’s instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.

And here is one from Justice Iredell in Case of Fries, dealing with a treason prosecution arising out of the Fries Rebellion in Pennsylvania in 1799; Iredell was defending the Sedition Act of 1798, though Fries wasn’t tried under that Act:

Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.

In consequence of such misrepresentations, a civil war had nearly desolated our country [I believe this refers to the Whiskey Rebellion -EV], and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.

The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity-increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief….

Men who are at a distance from the source of information must rely almost altogether on the accounts they receive from others. If their accounts are founded in truth, their heads or hearts must be to blame, if they think or act wrongly. But, if their accounts are false, the best head and the best heart cannot be proof against their influence; nor is it possible to calculate the combined effect of innumerable artifices, either by direct falsehood, or invidious insinuations, told day by day, upon minds both able and virtuous.

Such being unquestionably the case, can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power….

Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?

It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust….

Gov. Inslee’s argument seems to me to be implicitly premised on the same sort of concern; though the proposed bill would apply to only a particular subset of such “seditious libel” (lies about the supposed corruption or invalidity of elections, rather than lies about the government broadly), it is concerned precisely with the danger that such lies will undermine the government’s credibility and perceived legitimacy, and thus lead to violence or even rebellion.

Again, these concerns are serious concerns, held by serious leaders during the Framing Era. But I think that our legal system has rightly retreated from punishing such seditious libels, partly because criminalizing even outright lies (“false” and “malicious” statements) about the government

• unduly risks suppressing or at least deterring even legitimate opinion,
• unduly risks suppressing allegations that would ultimately prove accurate, and
• unduly risks selective enforcement by officials of that government.

For an example of these problems, see U.S. v. Cooper itself; and the Supreme Court recognized this in 1964, concluding that:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. The invalidity of the Act has also been assumed by Justices of this Court. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….

[Though false, malicious allegations against specific public officials may be punished,] “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”

Likewise, the Washington Supreme Court struck down state statutes that ban lies in election campaigns (whether about initiatives, 119 Vote No! Committee, or candidates, Rickert). The concern in such cases is with fraud on the voters, rather than loss of public confidence in the government, and courts are more split on those. Compare In re Chmura (Mich. 2000); State v. Davis (Ohio App. 1985) (both upholding such election lie statutes) with Susan B. Anthony List v. Driehaus (6th Cir. 2016); 281 Care Comm. v. Arneson (8th Cir. 2014); Commonwealth v. Lucas (2015); and the two Washington Supreme Court cases (all striking them down). (I also think that laws that ban lies about the mechanics of voting, aimed at duping people about when, where, and how to vote, may be constitutional, because they focus on narrow and easily ascertainable questions, and because they aren’t essentially aimed at protecting the government’s reputation.)

But the important thing is that the Washington decisions reaffirmed the impropriety of the punishment of seditious libel: They stressed, with New York Times v. Sullivan, that “the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation,” and rejected laws that generally ban lies about “government affairs” that “coerce[] silence by force of law and presuppose[] the State will ‘separate the truth from the false’ for the citizenry…. The First Amendment exists precisely to protect against laws … which suppress ideas and inhibit free discussion of governmental affairs.”

Again, I agree that lies about the government—whether about election results, police abuse, or many other subjects—can at times lead, have at times led, and will at times lead to criminal violence. But American First Amendment precedents take the view that it’s still more dangerous to allow the government to punish speech on the grounds that it might damage the government’s credibility or legitimacy and thus lead to such crime (even speech that prosecutors, judges, and juries find to be knowingly false).

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When public health orders closed his restaurant’s doors, Robert Balitierrez opened a window. Now, city zoning officials are closing that too.

For the past 13 years, Balitierrez has owned and operated the Mexican restaurant Taco Boy from its current location on a corner of busy Mission Street in Mt. Pleasant, Michigan. When the pandemic hit in 2020, Taco Boy—like all food and drink establishments in Michigan—was required by the state to shut down the dining room that brought in almost all its revenue.

In response, Balitierrez decided to open up a dormant drive-thru window that had come with the building and had been used by its previous occupants—a pharmacy and a restaurant. This facilitated enough takeaway orders to keep Taco Boy, a 50-year-old business Balitierrez inherited from his father, on its feet during the worst of COVID-19.

For a time, this proved uncontroversial. Late last year, however, city officials told Balitierrez that the drive-thru window was not allowed by Mt. Pleasant’s zoning code.

Neighboring businesses have their own drive-thrus, and the city concedes that Balitierrez’s drive-thru window is causing no noise or traffic impacts. Nevertheless, the city says it’ll have to close.

“Without [the drive-thru] I don’t even know if I would be able to make it. I would have to let some employees go. It’s gonna hurt,” Balitierrez tells Reason.

He says his drive-thru brought in about 20 percent of his sales last year and continues to be a significant portion of his business.

At issue is a provision in Mt. Pleasant’s zoning code, mandated by state law, that drive-thrus must have a minimum of 200 feet of stacking space (that’s how many cars can fit in the drive-thru) without impeding either the on-site movement of vehicles or access to the property from the street.

Because those 200 feet extend into Taco Boy’s parking lot, city staff say it interferes with the on-site movement of vehicles and thus has to go.

Balitierrez argues he’s being singled out as neighboring businesses with drive-thrus that aren’t up to code are allowed to operate unmolested. He also argues that his drive-thru hasn’t generated any complaints or issues for surrounding property owners.

The city doesn’t disagree with Balitierrez on that latter point. A report prepared by city staff on Balitierrez’s drive-thru notes that “there have been no complaints regarding traffic coming or going from the site or issues associated with noise with adjoining properties.”

But the lack of stacking space makes that a moot point, says Brian Kench, a building official with the Mt. Pleasant city government.

Kench tells Reason that nonconforming drive-thrus are grandfathered into the stacking space requirements so long as they’ve been in continuous operation since the rules came into effect.

“If they cease operation for a year or more, it would have to comply with current zoning requirements,” Kench says. That means that Balitierrez’s drive-thru, which was shuttered for over a decade, can’t be grandfathered in and instead has to meet the new requirements.

Last month, Balitierrez applied for a zoning variance in an effort to legalize his drive-thru. In his application, he argues that he always thought he’d be allowed to use the drive-thru window given that prior owners had done so.

He also says that, outside of the Cinco de Mayo rush, Taco Boy never has enough cars to actually need 200 feet of stacking space.

None of those arguments proved convincing for Mt. Pleasant’s Zoning Board of Appeals, which voted unanimously to deny Balitierrez’s request for a variance on December 15.

Kench says there are a few narrow criteria that would have allowed the board to grant a variance, most of which have to do with the actual shape or topography of the property in question. Balitierrez didn’t meet those criteria, nor were his arguments about economic hardship convincing enough, says Kench.

“It’ll surely have an impact, but I’d remind you he’s been in operation without it for a number of years. It can’t be so general that you don’t want to have 200 feet of stacking space,” Kench says.

Having had his variance request rejected by the zoning board, Balitierrez does have the option of petitioning the circuit court to rehear his case, which he is considering.

Kench says Balitierrez has other options to facility his takeout business, including designated parking spaces for people waiting on orders, partnering with delivery app companies, or potentially reconfiguring the back portion of his lot to accommodate 200 feet of stacking space.

Balitierrez still contends that the costs of shutting down the current window, plus the $10,000 he says he’s spent addressing other code issues on his property, are a real threat to his business.

“This is my livelihood. This is my employees’ livelihood,” he says. “When a small independent business takes a hit like that, it’s hard to survive.”

The post A Drive-Thru Window Saved His Business, but Now He's Being Forced To Shut It Down appeared first on Reason.com.

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