Category: reason

Several unpublished decisions had already allowed this, but this one is binding precedent; it’s TT v. KL, decided yesterday (written by Justice Jane Markey and joined by Justices Mark Boonstra and Karen Fort Hood):

We thus choose to apply the modern trend and conclude that when a respondent
challenges a request for a PPO [personal protective order] on the basis that the PPO would prohibit constitutionally protected speech and the petitioner counters that the posted messages are defamatory, the petitioner need not show economic injury.

Consistent with the modern trend, the trier of fact must determine that the statements or posts were definitively false. The trial court here did so, and its ruling was supported by the evidence.

But to also be consistent with the modern trend, the PPO needs to be specifically limited to the adjudicated speech. In this case, the amended PPO prohibited respondent “from posting defamatory statements about [p]etitioner on social media and/or from publishing such statements elsewhere.” This language is much too broad …. The trial court should have amended the PPO to provide that, absent petitioner’s consent, respondent is prohibited from posting online messages which [make the specific factual assertion that had been adjudicated to be false] ….

This logic should equally apply to ordinary libel lawsuits that aren’t funneled through the personal protective order statute. (Thanks to Michael F. Smith for the pointer.)

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As of 9 a.m. ET Friday morning, 93 hours before the first voting locations open on Election Day, polling for Libertarian Party (L.P.) presidential nominee Jo Jorgensen exceeded the distance between President Donald Trump and former Vice President Joe Biden in five critical states: Texas (with its 38 electoral votes), Ohio (18), Georgia (16), Iowa (six), and, in extremely limited polling, Alaska (three).

All five states went for Trump by at least five percentage points in 2016. Texas hasn’t voted for a Democrat since Jimmy Carter; Alaska hasn’t since Lyndon B. Johnson.

Jorgensen was also within one percentage point of the Trump-Biden margin in hotly contested Florida (29 electoral votes), North Carolina (15), and Arizona (11); each of which, too, chose Trump four years ago. (For a breakdown of the numbers, including some for Green Party nominee Howie Hawkins, scroll to the bottom of this post.)

This news may come as a surprise to those who assumed—with plenty of reason—that the incredible shrinking third-party voter wouldn’t play much if any role in the most-important-election-in-the-history-of-our-country, Flight 93 face-off between two malapropism–prone major-party septuagenarians.

And yet! Four years after the razor-thin Trump-Hillary Clinton margin was exceeded in 11 states by Libertarian Gary Johnson, four states by Green Party nominee Jill Stein, and—no, really!—one state by independent Evan McMullin, one of the 2020 election’s low-key puzzlers is that the presidential candidate from the only third party to be on all 51 ballots for three cycles running has not appeared in a single poll in nearly one-third of the country.

That means no Jorgensen polling in North Dakota, which went 6.2 percent for Johnson in 2016, the Libertarian’s second-best showing behind his home state of New Mexico. No South Dakota, either, which at 5.6 percent was his sixth-best. (Even without third-party candidates on the ballot, the Dakotas, which Trump won by 30+ points last time around, are two of his worst five states for 2016-2020 declines, at minus seventeen percentage points each.)

Trump will probably win the Dakotas, which is one of the main reasons we don’t see much third-party polling there, or in deep-red or deep-blue states such as Tennessee and Rhode Island. Political competition drives interest, for better or worse, and with the hollowing out of non-national news organizations, there just aren’t many volunteers for the job of public opinion research in Connecticut and Mississippi.

But this void may be somewhat warping our view of Tuesday’s election. When crunching Jorgensen’s numbers three weeks ago, I pointed out the absurdity of not polling nontraditional candidates in famously nonconformist Alaska, the state where the L.P. had its best showings in 1976, 1980, 1984, and 1988, and many other third-partiers have done likewise. Sure enough, the one and only poll to include the Libertarian in 2020 showed her with 8 percent (!) of the vote, compared to a six-point gap between Trump and Biden.

And as I mentioned at the beginning of the month, disincluding the marvelously named hardcore Alaskan Independence Party candidate John Wayne Howe in U.S. Senate polls in the Last Frontier was giving a distorting picture perhaps even about which major party ultimately controls the World’s (Allegedly) Greatest Deliberative Body. In three surveys since, Howe has averaged a great-for-marginal-candidates 6 percent, while FiveThirtyEight’s confidence in Republican incumbent Dan Sullivan’s reelection prospects has declined from 84 percent to 75 percent.

This all may seem like small (if delicious!) beer, and it probably is. But not necessarily to third parties, for whom polling support is not just the usual feedback mechanism for messaging impact, but also a crucial indicator of whether a state party is poised to hit typically onerous, ever-changing voting thresholds for automatic inclusion on the next season’s ballots. Are we gonna have to stand in the rain to collect signatures again next year, Ma?

Six of the top nine states in 2016 for third-party, independent, and write-in presidential candidates, ranging from Idaho‘s combined 13.2 percent vote haul to North Dakota’s 9.8 percent, have not seen a general-election poll this year with more than two names on it. Two of the remaining three states from that group, Alaska and New Mexico, have featured just a single such survey. Will Jorgensen really get 8 percent in Alaska? Probably not, but who the hell knows? Such data has not been deemed important, regardless of the one in 10 voters who in a given place and time might disagree.

As for Jorgensen, any intensity of attention paid toward her results next week will be directly proportional to the closeness of the big-ticket race. If it all comes down to Pennsylvania next Wednesday, Thursday, or beyond, the eye of Sauron will turn on Jorgensen (polling at 2.3 percent in 18 polls there this month), Hawkins (0.0 percent in four), or even Kanye West (0.3 percent in three).

But even though the eight states where Jorgensen’s totals are likeliest to exceed the Trump-Biden margin all went GOP last time, the Libertarian is less likely to face the same vitriol that greeted Green Jill Stein after 2016.

Why? Because in a world where, as former Judge Andrew Napolitano put it this week, “We have one party: the Big Government Party,” with “a Democratic wing that likes war and individual welfare and borrowing and taxes and staying in power — and a Republican wing that likes war and corporate welfare and borrowing and taxes and staying in power,” there is less expectation than ever that Libertarian voters are just weed-smoking Republicans who occasionally stray off the reservation.

In fact, polls have repeatedly shown that 2016 third-party voters—57 percent of whom pulled the lever for Johnson—disproportionately favor the Democrat in 2020. A Morning Consult poll Oct. 16–18 had 2016 third-partiers going 53 percent for Biden, 21 percent for Trump, 14 percent third party again, with 12 percent undecided. A New York Times/Siena College poll of six northern battleground states Oct. 12 showed 2016 Johnson voters going 38 percent Biden, 29 percent Jorgensen, and just 14 percent Trump.

Here are the states where Jorgensen’s percentage point polling in October exceeds or is within striking distance of what FiveThirtyEight estimates as the current Trump-Biden gap. Please keep in mind that last-day polling support for third-party and independent candidates typically overshoot their actual results by around one-third.

1) Iowa +1.5 (Biden 47.0, Trump 46.7, Jorgensen 1.8, Hawkins 0.3)

2) Ohio +1.0 (DT 47.2, JB 46.3, JJ 2.0, HH 0.7).

3) Texas +0.7 (DT 48.2, JB 46.9, JJ 2.0, HH 0.7).

4) Alaska +0.5 (DT 50.9, JB 43.4, JJ 8.0).

5) Georgia +0.3 (JB 48.4, DT 46.8, JJ 1.9, HH 0.7).

6) North Carolina -0.4 (JB 48.9, DT 47.0, JJ 1.5, Don Blankenship 0.5, Kanye West 0.0).

7) Arizona -0.6 (JB 48.7, DT 45.6, JJ 2.5, HH 0.3, KW 0.3).

8) Florida -0.7 (JB 48.6, DT 46.6, JJ 1.3, HH 0.7).

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Just how corrupt can the government’s case against Backpage get? First, prosecutors tried to have the defendants’ longtime lawyers disqualified on dubious grounds (a judge said no). Then, they turned over to the defense secret memos that contradict their claims—and could help clear defendants of the charges in question—but the court ruled these memos inadmissible since the government hadn’t meant to let anyone see them. In addition, authorities seized from former staff assets that had nothing to do with the now-defunct classified advertising website, leaving them struggling to pay for lawyers to defend them against charges of facilitating prostitution and money laundering in the face of repeated trial postponements.

Now, the judge on the Backpage case is refusing to recuse herself despite a very clear conflict of interest.

Assigned to the case is U.S. District Judge Susan M. Brnovich—wife of Arizona Attorney General (A.G.) Mark Brnovich, who has repeatedly made public and prejudicial statements related to the case.

As one example, the defense points to a booklet put out by Brnovich and his office called “Human Trafficking: Arizona’s Not Buying It.” The booklet—published two months after the April 2018 arrest of Backpage founders Michael Lacey and James Larkin and others associated with the site—asserts that online ads and social media are the primary facilitators of child sex trafficking and specifically call out Backpage as a guilty party. It contains unfounded statistics about both sex trafficking and child abuse generally and Backpage specifically, while copiously citing and promoting groups whose leaders are on the U.S. government’s witness list against Backpage.

Brnovich’s website, webinars, and social media accounts also cite these government witness groups approvingly and make statements similar to those in the booklet. Currently, under the webinar section of his website, a presentation titled “human trafficking for parents” states that “Backpage.com is where the vast majority of all advertisements were posted for sex trafficking.”

In 2017, Brnovich signed on to a letter calling for Congress to change or abolish Section 230 of federal communications law so he and other state attorneys general could sue Backpage and other websites that run third-party content they don’t like. In it, Brnovich and the other attorneys general assert directly that Backpage is guilty of promoting child sex trafficking.

“Defendants are entitled to a case presided over by a judge whose impartiality cannot be reasonably questioned,” their September 23 motion for recusal states. “Defendants move Judge Brnovich to recuse herself from this matter on the grounds that…her spouse has interests that could be substantially affected by the outcome of this proceeding” and “her spouse’s interests, and public statements and actions, create an appearance of partiality.”

Both things are grounds for recusal under U.S. law.

“In my opinion, the court has a duty…to recuse,” wrote retired federal judge Vaughn R Walker in a statement to the court. Brnovich “has expressly targeted an entity with which these defendants are identified. This makes it impossible to dissociate the views of the Attorney General from the issues in this case,” stated Walker.

The trial—now slated for April 2021—will leave defendants’ fate to a jury, but Judge Brnovich has had and will continue to have significant influence on the outcome of the case through her rulings on various motions, including a motion for acquittal and motions regarding what testimony can be included or excluded.

For Judge Brnovich to rule a certain way on these motions would be to suggest her husband is a serial liar. It’s hard not to see how that could affect her decisions.

But the government’s response motion, submitted October 7, suggests it’s ridiculous to think a judge couldn’t rule impartially just because their spouse had repeatedly accused the defendants of the conduct they’re on trial for. “In the year 2020, it is anachronistic to suggest that a federal judge with 17 years of judicial experience is unable to preside impartially because of her husband’s views,” write U.S. prosecutors.

That’s simply not true, of course—in the year 2020, we (thankfully) haven’t yet become such a banana republic that judges aren’t generally expected to recuse themselves from cases in which their spouses, family members, or other close ties have a direct interest.

The government claims that A.G. Brnovich doesn’t really have an “interest” in this case because he doesn’t stand to directly gain or lose money from its outcome, nor does he own a private business which may be adversely financially affected by said outcome.

But presumably, Brnovich will not be Arizona’s top cop forever, and his future private business forays will be judged by his time and reputation as A.G. It’s also not unreasonable to think that his future as an elected Arizona official depends on his reputation, which could be affected by this case.

(“As long as [Judge Brnovich] put our heads on pikes, her husband would get to trumpet our conviction as a family affair in his next election,” writes Backpage co-defendant and veteran newspaper editor Lacey in a blog post this week.)

It’s certainly not unreasonable to suggest that Mark Brnovich’s reputation may take a hit if—after years of bashing Backpage, partnering with the government’s witnesses against Backpage on various initiatives, and putting out myriad public statements that turn on the core issues in this case—the Backpage crew is not only acquitted of the government’s allegations but his wife plays a role in that.

This isn’t to suggest that Judge Brnovich absolutely couldn’t or wouldn’t rule impartially. But even the suggestion of potential bias is enough to merit a recusal. Again and again (and again and again), federal courts have ruled that “the test for disqualification…is an objective one: whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”

Based on this, the defendants argue that “it is irrelevant whether Judge Brnovich subjectively believes she is capable of impartially presiding over the case. If AG Brnovich has an interest and it could be substantially affected, Judge Brnovich must recuse, even if she believes she can be impartial.”

“The undisputed facts show AG Brnovich (and others acting on his behalf): have railed against the particular business at the core of this case (Backpage.com, LLC); have made public statements that reasonable people would conclude mean AG Brnovich believes Defendants are guilty of the crimes charged in this case; have directed the public to websites making similar claims and containing inflammatory and highly prejudicial statements about Backpage.com and Defendants; and have directly or indirectly vouched for the credibility of many of the government’s witnesses in this case,” they noted in a reply to the government’s response motion.

The government did not contest the idea that many of A.G. Brnovich’s statements were matters that the prosecution intended to bring up at trial and points which would be hotly debated. Rather, it suggested that because Brnovich’s position on Backpage has “been widely known to the internet-viewing public for years,” the defendants’ recent motions are too late and “should be afforded little weight.”

But the fact that a lot of people—including potential jurors—may have heard or seen the A.G. trashing the defendants for years seems like an argument for recusal, not against.

Perhaps the craziest part of all of this is that Judge Brnovich gets the final say in whether a reasonable person might find she has a potential conflict. Unsurprisingly, she said no—since her husband didn’t stand to make or lose any money from the outcome, there was no conflict of interest.

In an October 23 motion, Brnovich denied the defendants’ motion for recusal, writing that a “reasonable person apprised of the facts would not question the Court’s impartiality.”

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Donald Rainmaker, the Libertarian Party’s (L.P.) candidate for governor of Indiana, has racked up some unprecedented polling numbers for a Libertarian in a race in which both major parties are running candidates. The 57-year-old Navy veteran and information technology professional hit as high as 24 percent in a Change Research poll back in September.

While that very high result was an outlier, Rainwater has in the past week polled at 14 percent (in a Ragnar Research Partners poll) and 15 percent (in a Cygnal poll). Previous Libertarian candidates for governor in Indiana earned 3.2 percent of the final vote in 2016, and 4 percent in 2012.

The secret to this unusually high polling for the L.P.’s candidate seems to be voter backlash to incumbent Republican Gov. Eric Holcomb’s reaction to COVID-19, seen by Rainwater and many voters, according to local media reports, as unduly authoritarian. Rainwater said in a phone interview yesterday that, “during the pandemic year [Holcomb] has been able to declare an emergency and then he has ruled by executive order without bringing the General Assembly into the conversation.”

Holcomb’s COVID-19 reaction included “threatening mask mandates with criminal penalties, then he backed off that when his own party’s attorney general said you can’t do that,” Rainwater says. He slammed Holcomb for trying to designate Easter church gatherings as nonessential. Rainwater thinks individuals should make their own choices about protecting themselves and others from the risks of COVID-19, without forced government shutdowns of businesses or gatherings.

In general, Rainwater accuses the Republican incumbent of being “really out of touch with how to govern with the consent of the governed,” chiding him as well for fee and tax increases. When voters saw that, “they looked around to see if anybody is actually talking about limited government and preserving the Bill of Rights,” leading them to Rainwater and the L.P.

“I don’t think there’s anything special about me,” says Rainwater, who got nearly 40 percent of the vote in his 2019 run for mayor of Westfield, Indiana, against a Republican incumbent. “There’s something special about the message of limited government and government actually safeguarding individual freedom and rights. In the state of Indiana, I believe the situation that has transpired due to the pandemic has shone a very bright light on what is wrong with big government. There are a lot of people just tired of the status quo and tired of the government picking winners and losers and making decisions about who it’s OK to sacrifice in order to project somebody else. That has caused people to start looking for that limited government option.”

Rainwater’s campaign website issue page is strongly against various taxes, including the personal income tax, residential property tax, and yearly vehicle registration fees, all of which he would like to ax. His first L.P. run, which was for the state Senate in 2016, was inspired by his view that Indiana’s Republicans were insufficiently anti-taxation.

Rainwater says Indiana’s existing 7 percent sales tax ought to be enough to fund the things a state government needs to do. “We need to focus on better government, which means we need to upgrade and modernize and not just ‘modernize’ in word but physically do the work of updating processes and systems within state government, many of which are decades old,” he says, “and make government more cost-effective, and do that within the context of not eliminating any services that citizens currently expect from state government.”

Rainwater also emphasizes that three states surrounding Indiana have legalized cannabis for medicinal or recreational adult use, and he strongly wants Indiana to join them. In a legal cannabis environment, Rainwater says, “the agricultural, manufacturing, and retail possibilities for Hoosiers are going to be significant, and that will generate additional sales tax revenue.”

The organization that runs the state’s political debates has long been friendly to third parties, Rainwater says, so it was not unique that he participated on an equal basis with the incumbent and his Democratic challenger Woody Myers in virtual debates twice. An online poll conducted by WEHT Eyewitness News asking who won one of the debates had Rainwater receiving 187 out of 203 votes cast.

Rainwater’s high polling helped spur an unusually large amount of fundraising, a majority from out-of-state libertarians wanting to see results worth bragging about. He says he’s pulled around $250,000, “and spent near all of it,” which allowed him to pay for radio and TV commercials. (Holcomb raised over $10 million.)

Volunteers have crowdsourced funds for billboards. With door-to-door campaigning not as prominent as in a normal year, his people are contacting voters via web messages and phone banking for getting out the vote. Rainwater is thrilled that he can make a video of him saying things once and reach audiences far larger than would ever show up to a physical event, thanks to virtual avenues.

“We are getting support from traditional Republican voters and traditional Democratic voters,” Rainwater says, guessing his pull is roughly 70-30 between the two major parties. “People who don’t normally look at Libertarians are looking at Libertarians. I get emails and Facebook messages all the time from people who say, ‘I voted this way all my life, but now I look at your campaign, and I think I’m more Libertarian than whatever it is I was voting for before.'”

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Digging through a modern major-party candidate’s proposals for good ideas is like wading into a cesspool in search of treasure; maybe you’ll find it, but don’t get your hopes up. But Democratic nominee Joe Biden—who looks likely to win the presidential election—actually has a gem hidden amidst a lot of, well, what you’d expect to find in a cesspool: he favors easing occupational licensing requirements. That’s not only a good idea, it’s a rare bit of wise policy that wins support across the political spectrum.

“Put an end to unnecessary occupational licensing requirements,” Biden’s campaign website promises, though you have to scroll through a lot of blather about evil corporations and saintly unions to find it. “While licensing is important in some occupations to protect consumers, in many occupations licensing does nothing but thwart economic opportunity. If licensed workers choose to move to new states for higher-paying jobs, they often have to get certified all over again.”

Biden isn’t a newcomer to occupational licensing reform, either; it’s a theme he’s maintained through the years and during the course of his presidential campaign.

“Why should someone who braids hair have to get 600 hours of training? It makes no sense,” he told a union audience in Pittsburgh last year. “They’re making it harder and harder in a whole range of professions, all to keep competition down.”

Extra credit to the guy for making the case to organized labor, which isn’t generally enthusiastic about reducing barriers to entry for workers.

Biden carries forward his concern about occupational licensing reform from his time as vice president under Barack Obama. Voicing worries about declining labor mobility and disappearing job prospects, the Obama administration produced an in-depth report on the problems posed by requiring people to seek government permission to work in their chosen fields.

“Over the past several decades, the share of U.S. workers holding an occupational license has grown sharply,” the report warned. “There is evidence that licensing requirements raise the price of goods and services, restrict employment opportunities, and make it more difficult for workers to take their skills across State lines.”

The report went on to note that “over 1,100 occupations are regulated in at least one State, but fewer than 60 are regulated in all 50 States” and that “States also have very different requirements for obtaining a license.” The obvious implication is that licensing rules are more often arbitrary bureaucratic hurdles than they are protections for health or safety.

Dedication to encouraging states to ease their licensing rules was among the rare bits of policy continued when Donald J. Trump succeeded Obama as president.

“States must end the practice of excessive licensure,” Ivanka Trump tweeted last year. “In 1950 less than 5% of occupations were licensed. Today it is closer to 30%. The Americans hurt the most by this overreaching regulatory regime are those living on the margins, including returning citizens.”

Karen Pence, Vice President Mike Pence’s wife, has championed reform of occupational licensing rules in her role as an advocate for military families.

“Karen Pence champions occupational licensing reform and recognizes it as a key action to address military spouse employment challenges,” the White House announced about her efforts last week. “Today, approximately one third of military spouses work in fields that require a state-issued professional license or certification in order to practice their professions. Additionally, military spouses move on average every two to three years and those frequent moves and state licensing change requirements have led to significant expenses, lost wages, and gaps in employment.”

The military-spouses angle gives federal officials a platform on a matter that is normally a matter of state policy. D.C. officials chastising governors and state lawmakers over laws that abuse aspiring entrepreneurs and lower-income job seekers might be interpreted as butting-in, but no elected officials want to be seen as mistreating the military.

That angle has also made occupational licensing reform an example of deregulatory policy that—try not to faint!—both Democrat and Republican officials can like. That’s why reform, when it occurs, has been shockingly bipartisan.

“Governor Tom Wolf signed HB 1172 … that cuts bureaucratic red tape to make it easier for new Pennsylvanians, including military spouses, with an out-of-state occupational license to work,” the Democratic governor of Pennsylvania boasted in July 2019. “The license could be issued on an individual basis if the licensure requirements in the other state, territory or country are determined to be substantially similar to Pennsylvania’s requirements.”

“Arizona’s licensing boards and commissions will now be required to recognize occupational licenses granted in other states during the licensing process, something already done for spouses of military personnel deployed to Arizona,” the Grand Canyon State’s Republican Gov. Doug Ducey announced two months later.

That’s not to say that every jurisdiction has embraced making it easier for people to work. California stands out for its resistance to making employment easier (although, even there, some modest improvements have passed). But licensing reform has undoubtedly picked up steam as it becomes obvious that making people seek permission to cut hair or decorate homes has nothing to do with safety and everything to do with protecting existing businesses from upstart competitors.

The pandemic has eroded the alleged wisdom of licensing, too, as state and federal officials cooperated to ease rules that prevented health care workers from crossing state lines to provide the same sort of care they offered at home. Red tape that served only to pad established practitioners’ bank accounts in good times became obstructionist menaces when a crisis hit.

So, good for Joe Biden for championing a cause that helps people, makes the country freer, and has a chance to win support from partisans of all stripes. Let’s hope he spends a lot of time and energy pushing this proposal. Occupational licensing reform may be a rare treasure bobbing in the current political cesspool, but that gives us a place to start.

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