Category: reason

The case in Eliot v. Lions Gate Entertainment (C.D. Cal.), filed by motivational speaker and author Marc Eliot. From the introduction:

[B]y misleading splicing of words, editing, and use of Plaintiff’s images, Defendants insinuate that Plaintiff is dangerous, has been trained to kill, is capable of killing himself if told to, and condones sexual violence against women. Further, in the series Defendants equate Plaintiff to the likening of a rapist, an ISIS and Al Qaeda terrorist, a Nazi experimenter, and a murderer on command.

I don’t know whether the lawsuit is well-founded, but the underlying story has been in the news, including as to odd legal procedural details, so I thought I’d note this latest twist.

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Some courts have allowed a plaintiff or a defendant to proceed pseudonymously based on a finding that identifying the party would yield “mental harm,” e.g.,

Plaintiff’s primary therapist from 2010 to 2011 has declared under penalty of perjury that not allowing Plaintiff to litigate this action under a pseudonym “has the serious risk of causing Jennifer to relapse into her eating disorder behaviors.”

and

[P]laintiff offers the opinion of … a psychiatric specialist in Dissociative Identity Disorder, from which the plaintiff suffers, that proceeding publicly would “cause her to decompensate [psychologically] to a point at which she could not … pursue the current legal process and would suffer severe risk to her safety and to her survival.” … [T]he plaintiff has presented particularized and undisputed evidence that proceeding publicly would seriously threaten her mental health, requiring her to choose between dropping her action and placing her life in jeopardy. As a result of this newly provided evidence, the court finds that the plaintiff has provided evidence of an exceptional circumstance warranting authorization to proceed anonymously.

Do any of you know (whether based on your experience as psychologists, as lawyers, or otherwise) how reliable these sorts of evaluations might be?

My sense is that very many people who are faced with litigation that risks public disclosure of various things would be quite upset by that. If someone was accusing you of, say, sexual assault or embezzlement or malpractice—or if you were suing for libel or wrongful firing or wrongful expulsion that stemmed from such allegations—I expect you might be worried about the prospect that this information would become public. I would think you might feel anxiety; lose sleep; be tempted to turn to alcohol or drugs; or perhaps even contemplate suicide, especially if you feel that public exposure would yield professional ruin.

This makes me wonder whether courts can reliably sort “the foreseeable stress of being a named defendant in a lawsuit,” especially one that involves serious allegations, from other kinds of more serious psychological risk. And that would be especially so when the pseudonymity determination is based (as these things generally are) not on a contested evidentiary hearing, but just on an affidavit from a psychologist or therapist chosen by the party who seeks anonymity, with no cross-examination. But perhaps I’m mistaken, and psychologists are reluctant to make such assertions absent real evidence that their clients are unusually vulnerable; or perhaps there are other tools to make sure of that. Do any of you either have personal experience along these lines, or can point me to articles that deal with the matter (or experts who might be able to give me some perspective)? Thanks!

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California Gov. Gavin Newsom signed a trio of good alcohol-related bills last week. The measures extend relaxed alcohol rules for bars and restaurants that were put in place in response to the COVID-19 pandemic.

“Two of the three bills extend outdoor dining permits and alcohol sales at the pandemic-era parklets for a year after the state of emergency ends, giving businesses time to seek permission for permanent approval,” the Associated Press reports. “The third allows restaurants, bars, breweries and wineries that sell food to continue offering to-go alcoholic beverages with food orders through Dec. 31, 2026.”

Generally, deregulatory measures of this type enjoy widespread public support. And while the California Restaurant Association, Distilled Spirits Council of the United States, and other groups hailed the California vote, not everyone’s happy with these laws. 

As I reported in 2020, alcohol prohibitionists always opposed Covid-related deregulation that benefited bars, restaurants, and consumers. For example, an April 2020 report by Movendi—a Sweden-based anti-alcohol group—claimed only one U.S. state, Pennsylvania, had “improved alcohol laws” in response to the pandemic. How exactly had Pennsylvania improved its alcohol laws? Movendi hailed Pennsylvania for having “close[d] all liquor stores and other alcohol distributors.”

This spring, the Wall St. Journal noted anti-alcohol forces had increased calls for state and local governments to re-ban to-go cocktails and axe other Covid-related alcohol deregulation. So it’s little surprise that a coalition of anti-alcohol groups, including California-based Alcohol Justice, opposed the recent California measures. 

Generally, Alcohol Justice, Movendi, and others argue so-called “Big Alcohol” is behind these Covid-related deregulatory measures. And while it makes sense that large alcohol companies support efforts to remove barriers that make it harder for adult consumers to buy their products, much of the impetus for extending deregulatory alcohol measures put in place over the past year or so come from small, locally owned bars and restaurants—businesses that have been among the hardest hit by the pandemic.

In fact, for all their talk about “Big Alcohol,” opponents of extending Covid-related alcohol deregulation, including Alcohol Justice, find some of their top allies in opposing alcohol deregulation to be, well, “Big Alcohol”—namely, “trade groups representing liquor stores“—which don’t want bars and restaurants competing with them for consumers’ to-go alcohol dollars. It’s yet another spin on the old concept of Bootleggers and Baptists.

Reached for comment this week, Alcohol Justice told me the group would be unable to comment by my deadline. But the group made its position on the recent California legislation clear in a media release it shared last week.

“Choosing public drinking over public health is a social justice issue for low-income and communities of color, pedestrians and drivers already severely compromised by heavy policing, lack of resources, and limited access to walkable and family-friendly city streets,” Alcohol Justice wrote. “In addition, promoting the need for non-union, low paying jobs for communities of color to justify alcohol deregulation co-opts social justice and equity to advance alcohol-related profits.”

Really? As the Sacramento Bee reported last week, Gov. Newsom signed the new alcohol legislation at a Jamaican restaurant in Oakland that might have been forced to close without alcohol deregulation.

“The restaurant’s owner, Nigel Jones, said the state’s temporary rules that allowed him to sell takeout drinks helped keep his business afloat during the pandemic,” the Bee reports. “He said his restaurant has ‘bounced back’ thanks to the to-go drinks and the pandemic rules that let him expand his restaurant’s eating area outside.”

Jones isn’t some anecdotal outlier, either. As last week’s A.P. report notes, a state lawmaker who sponsored one of the three bills “said six of 10 restaurants in California are owned by people of color, whom he noted have been hit harder than others in the pandemic.”

In a 2020 column, I hailed “the loosening of state and local alcohol regulations [as] perhaps the most noticeable, welcome, and widespread” deregulatory effort undertaken in response to Covid. I hailed Iowa for making permanent some of its deregulatory measures, and noted at least four other states looked set to follow suit. They did, and others have, too. In April, for example, a bi-partisan group of Washington State lawmakers extended to-go alcohol rules in the state for two more years. And this summer, Massachusetts lawmakers extended a similar law in that state. They’re among at least 20 states, CNBC reported in June, that have moved to make permanent their Covid-related rules allowing to-go cocktails.

In my 2020 column, I noted my own support for alcohol deregulation “before, during, and after the pandemic.” I’m pleasantly surprised to see so many lawmakers around the country agree.

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10/16/1898: Justice William O. Douglas’s birthday.

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In 2020, the Supreme Court decided Little Sisters of the Poor v. United States. This case held that the ACA provided the Trump Administration with the authority to promulgate religious and moral exemptions from the contraception mandate.

The Cato Institute and the Jewish Coalition for Religious Liberty submitted an amicus brief that suggested a different way to resolve this case. We argued that the ACA did not delegate the authority to create the Obama Administration’s initial “accommodation.” Our brief was premised on the non-delegation doctrine, as well as the major question doctrine. Here is an excerpt from the introduction:

At base, the ACA did not delegate the authority to draw that arbitrary distinction and resolve this “major question.” The fact that the rulemaking here was premised not on health, financial, or labor-related criteria, but on subjective determinations of which employees more closely adhere to their employers’ religious views, “confirms that the authority claimed by” the agencies “is beyond [their] expertise and incongruous with the statutory purposes and design.” Gonzales v. Oregon, 546 U.S. 243, 267 (2006). If “Congress wished to assign that question to an agency, it surely would have done so expressly.” Id.

Had Congress intended to give the Departments discretion to decide which religious institutions should be subject to the mandate, it would have legislated to that effect. “It is especially unlikely that Congress would have delegated this decision to” the agencies, “which ha[ve] no expertise in crafting”religious accommodations “of this sort” without clear statutory guidance. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Gonzales, 546 U.S. at 266–67). In the light of the narrow “breadth of the authority” that Congress has given to the executive branch over this controversial issue of religious liberty, the Court is not “obliged to defer . . . to the agency’s expansive construction of the statute.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).

Ultimately, the Supreme Court did not reach this issue. Justice Thomas’s majority opinion observed that the question was waived:

No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions

This issue should be pressed in the upcoming OSHA mandate litigation. The Biden Administration will likely craft some type of religious exemption. Indeed, OSHA may mirror the regime established by the Obama Administration’s contraception mandate. For example, the Department of Labor may completely exempt houses of worship with more than 100 employees. But religious orders will not be exempted. Instead, groups like the Little Sisters of the Poor will be accommodated. That is, employees will not be subject to the mandate if they satisfy some criteria established by the Department of Labor. For a preview, federal employees need to answer the following seven questions:

1. Please describe the nature of your objection to the COVID-19 vaccination requirement.
2. Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise? If so, please explain how.
3. How long have you held the religious belief underlying your objection?
4. Please describe whether, as an adult, you have received any vaccines against any other diseases(such as a flu vaccine or a tetanus vaccine) and, if so, what vaccine you most recently received and when, to the best of your recollection.
5. If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines.
6. If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them.
7. Please provide any additional information that you think may be helpful in reviewing your request.

After people of faith fill out these forms, OSHA bureaucrats will have to assess whether an accommodation is warranted. And if the bureaucrat determines an accommodation is not warranted, employers will be subject to ruinous fines.

There is a problem with this approach. The Department of Labor has no expertise to decide which types of people of faith are exempted, and which types of people of faith are accommodated. On what basis can OSHA craft such an intricate framework based on difficult questions of faith? And they have no delegated authority to decide whether a person’s beliefs warrant an accommodation. OSHA inspectors check workplaces for hazards, not beliefs. The Congress in 1970 that enacted OSHA said nothing at all about this matter. The Biden Administration is completely out of its league.

When the OSHA rule is finally issued, Plaintiffs should raise a “constitutional challenge to the breadth of the delegation.”

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