Meat Bills Are on the Menu in Congress

topicsfood

America’s meat supply has been hammered by COVID-19 outbreaks at many of the nation’s largest meat processing plants, and consumer meat prices have spiked as a result. The nation’s small- and mid-sized farms and ranches could help address these issues if ranchers and farmers had better access to small-scale slaughtering and processing facilities and to local and regional markets. But to get those things, they first need Congress to get off its rump and vote.

Three very different meat processing reform bills are now before Congress. One is great. One is good. And one is suspect. Just what does each bill propose to do?

The New Markets for State-Inspected Meat and Poultry Act—the good bill—would foster regional food systems by lifting a senseless ban on the interstate sale of state-inspected meat. Under current federal law, meat produced and inspected by authorities in 20 states cannot be sold elsewhere solely because those states use their own inspectors, rather than U.S. Department of Agriculture (USDA) employees, to enforce food-safety regulations. That approach makes so little sense that even the USDA has said it embraces the aims of the bill.

What the New Markets Act doesn’t address, though, is the overall capacity or supply shortfalls that have caused the present meat crisis. That’s where the great bill—the PRIME Act—shines. That bill would create and strengthen local food systems by allowing the intrastate sale of uninspected meat and meat products.

Under current law, cuts of meat from a ranch that uses what’s known as a “custom” facility—subject to a host of federal and state regulations but without an on-site government inspector—cannot be sold to the public at all. The PRIME Act would allow such ranchers to sell that meat within their home states directly to consumers and through local grocers, butchers, and restaurants. By allowing the local sale of meat from these operations, the PRIME Act would encourage the proliferation of small-scale processors, adding diversity, resilience, and badly needed additional capacity to our national processing system. (The bill would also allow states to adapt or adopt their own inspection requirements for custom facilities.)

Now the more dubious option: The RAMP-UP Act would authorize the USDA to provide five- and six-figure grants to existing small- and mid-sized processing facilities, which owners could use to pursue USDA facility inspection. The process for obtaining USDA meat inspection—which can take years and is deeply flawed—would remain unchanged under the bill.

What’s more, if the RAMP-UP Act were to succeed at its stated goal—to bring still more facilities under USDA inspection—it would require the agency to hire many more Food Safety and Inspection Service (FSIS) inspectors. That’s a fool’s errand, given that FSIS has long suffered from inspector staffing shortages.

Many supporters of the RAMP-UP Act (including many of the large processors that have had thousands of workers sickened by COVID-19) are also steadfast opponents of the PRIME Act. They cite concerns about allowing uninspected meat on the intrastate market, but that’s fearmongering. A USDA exemption already allows many poultry farmers to slaughter thousands of their own chickens on their farms without continuous federal or state inspection and to sell those chickens to grocers. Zero cases of foodborne illness have been tied to this uninspected poultry. That’s in sharp contrast to the nation’s largest processors, which have faced numerous meat recalls and foodborne illness cases.

The PRIME Act is solid legislation, and the New Markets Act is an eminently sensible bill. But the RAMP-UP Act won’t change the rules of the game for farmers and ranchers and would have little or no immediate impact on the meat supply. It may, in fact, be little more than a stalking horse for large agricultural firms and other special interests that’s intended to suppress competition and supplant actual reform.

The COVID-19 pandemic has proven that significant changes are required to ensure the nation’s meat supply is safe, affordable, diversified, and available. We shouldn’t wait another day to rebuild and strengthen our local food systems.

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Meat Bills Are on the Menu in Congress

topicsfood

America’s meat supply has been hammered by COVID-19 outbreaks at many of the nation’s largest meat processing plants, and consumer meat prices have spiked as a result. The nation’s small- and mid-sized farms and ranches could help address these issues if ranchers and farmers had better access to small-scale slaughtering and processing facilities and to local and regional markets. But to get those things, they first need Congress to get off its rump and vote.

Three very different meat processing reform bills are now before Congress. One is great. One is good. And one is suspect. Just what does each bill propose to do?

The New Markets for State-Inspected Meat and Poultry Act—the good bill—would foster regional food systems by lifting a senseless ban on the interstate sale of state-inspected meat. Under current federal law, meat produced and inspected by authorities in 20 states cannot be sold elsewhere solely because those states use their own inspectors, rather than U.S. Department of Agriculture (USDA) employees, to enforce food-safety regulations. That approach makes so little sense that even the USDA has said it embraces the aims of the bill.

What the New Markets Act doesn’t address, though, is the overall capacity or supply shortfalls that have caused the present meat crisis. That’s where the great bill—the PRIME Act—shines. That bill would create and strengthen local food systems by allowing the intrastate sale of uninspected meat and meat products.

Under current law, cuts of meat from a ranch that uses what’s known as a “custom” facility—subject to a host of federal and state regulations but without an on-site government inspector—cannot be sold to the public at all. The PRIME Act would allow such ranchers to sell that meat within their home states directly to consumers and through local grocers, butchers, and restaurants. By allowing the local sale of meat from these operations, the PRIME Act would encourage the proliferation of small-scale processors, adding diversity, resilience, and badly needed additional capacity to our national processing system. (The bill would also allow states to adapt or adopt their own inspection requirements for custom facilities.)

Now the more dubious option: The RAMP-UP Act would authorize the USDA to provide five- and six-figure grants to existing small- and mid-sized processing facilities, which owners could use to pursue USDA facility inspection. The process for obtaining USDA meat inspection—which can take years and is deeply flawed—would remain unchanged under the bill.

What’s more, if the RAMP-UP Act were to succeed at its stated goal—to bring still more facilities under USDA inspection—it would require the agency to hire many more Food Safety and Inspection Service (FSIS) inspectors. That’s a fool’s errand, given that FSIS has long suffered from inspector staffing shortages.

Many supporters of the RAMP-UP Act (including many of the large processors that have had thousands of workers sickened by COVID-19) are also steadfast opponents of the PRIME Act. They cite concerns about allowing uninspected meat on the intrastate market, but that’s fearmongering. A USDA exemption already allows many poultry farmers to slaughter thousands of their own chickens on their farms without continuous federal or state inspection and to sell those chickens to grocers. Zero cases of foodborne illness have been tied to this uninspected poultry. That’s in sharp contrast to the nation’s largest processors, which have faced numerous meat recalls and foodborne illness cases.

The PRIME Act is solid legislation, and the New Markets Act is an eminently sensible bill. But the RAMP-UP Act won’t change the rules of the game for farmers and ranchers and would have little or no immediate impact on the meat supply. It may, in fact, be little more than a stalking horse for large agricultural firms and other special interests that’s intended to suppress competition and supplant actual reform.

The COVID-19 pandemic has proven that significant changes are required to ensure the nation’s meat supply is safe, affordable, diversified, and available. We shouldn’t wait another day to rebuild and strengthen our local food systems.

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Brickbat: Virginia Isn’t for Lovers of Privacy

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Virginia’s Supreme Court has overturned a lower court ruling that barred the Fairfax Police Department from using automatic license plate scanners. The Supreme Court ruled that because the system doesn’t include personal information such as phone numbers or addresses it doesn’t violate the state’s privacy law. The court noted that law enforcement can cross-reference license plate data with other databases to obtain such information. But because that other data isn’t part of the license plate scanner data it isn’t illegal.

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Brickbat: Virginia Isn’t for Lovers of Privacy

VAplates_1161x653

Virginia’s Supreme Court has overturned a lower court ruling that barred the Fairfax Police Department from using automatic license plate scanners. The Supreme Court ruled that because the system doesn’t include personal information such as phone numbers or addresses it doesn’t violate the state’s privacy law. The court noted that law enforcement can cross-reference license plate data with other databases to obtain such information. But because that other data isn’t part of the license plate scanner data it isn’t illegal.

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Dishonest Politics and Coronavirus Relief

zumaamericastwentyeight900342

Why people continue to trust government officials is a mystery. Often disconnected from the problems at hand, their policies also often contradict their supporters’ frequently expressed beliefs. While suffering from cost overruns and increasing budget deficits, these policies handsomely reward their cronies, too.

A good example is the latest attempt to pass yet another COVID-19 relief bill. House Speaker Nancy Pelosi called Republicans’ failure to agree to her $2.2 trillion bill “malfeasance.” Never mind that the White House’s $1.8 trillion proposal was right up there with hers.

It’s right to help those low-income Americans hurt by the pandemic-induced recession. But that relief bill shouldn’t cost anywhere near $2 trillion. Think about this: When the economy was more solidly locked down back in March, unemployment was above 14 percent; growth was collapsing; people were scared; and when politicians were throwing all the money they could grab at anything that crossed their minds, Congress passed the $2.2 trillion Coronavirus Aid, Relief and Economic Security Act. Today, unemployment is down by half; the economy is growing again; pretty much everything is improving; but both the Democrats and the White House still want another $2 trillion.

The $500 billion “skinny” stimulus bill proposed by Senate Republicans is more in line with the current circumstances.

Making matters worse, the White House and Democrats want to spend that $2 trillion on the same programs as before. Given the flaws exposed in the previously approved programs, this repetitiveness is inexcusable.

For instance, the $600 bonus unemployment benefit created incentives for workers to leave their jobs to collect the government payment. The government’s Payroll Protection Program, or PPP, loans, administered by the Small Business Administration, were a disaster to implement. It also soon became known that most of the PPP loans went to areas relatively unharmed by the pandemic. And, let’s not forget, the $25 billion airline bailout that was meant to prevent layoffs only postponed them until the beginning of October. The bailout, however, did clearly benefit shareholders and creditors.

The Congressional Budget Office tried to calculate the economic impact of these programs, and the results are underwhelming. For every dollar invested in unemployment benefits, we got a 67-cent return. The PPP returned 36 cents. Aid to state and local governments returned 88 cents on the dollar. The overall coronavirus relief bill returned 60 cents in economic growth per dollar invested. In other words, the COVID-19 relief was depressive, not stimulative. Yet as a result, our budget deficit is now $3.3 trillion.

We might excuse the failure of these policies if they were, in fact, the product of a lack of time to consider the economic impact and consequences of the programs Congress was designing. But they have now had nine months to observe and consider new measures. And they still propose what is effectively the Coronavirus Aid, Relief and Economic Security Act 2.0.

Indeed, Pelosi’s bill contains another round of payments up to $1,200 for individuals and $500 for each dependent, with more $600 weekly enhanced federal unemployment payments through January 2021, followed by a transition period through March 2021. It also provides for an extension of the Pandemic Unemployment Assistance program through the same period (January/March), $225 billion for child care and education, more funding for the PPP, another $25 billion airline bailout, and plenty of state and local government aid.

The White House proposal includes much of the same, minus an extension of the state and local tax deduction (which mostly benefits higher-income taxpayers) that Democrats have been pining for ever since it was capped by the Republicans’ 2017 tax reform.

So, again, I ask, why do people trust politicians? Are our memories so faulty? Case in point: During the last presidential debate, Joe Biden claimed that no one lost insurance due to the implementation of the Affordable Care Act. That’s a bold claim to make. That same statement, when made by former President Barack Obama as he pushed for the legislation before its implementation, was once named the “Lie of the Year” by PolitiFact. But Biden still felt it was safe to make such a claim.

If it’s the case that politicians don’t really try to pass policies that will succeed, keep the deficit low, and tell the truth—because they can get away with bad policies, misleading claims, and spectacular deficits—then shame on them. But if we keep letting them get away with this ruse, then the shame ultimately lies with us.

COPYRIGHT 2020 CREATORS.COM

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Dishonest Politics and Coronavirus Relief

zumaamericastwentyeight900342

Why people continue to trust government officials is a mystery. Often disconnected from the problems at hand, their policies also often contradict their supporters’ frequently expressed beliefs. While suffering from cost overruns and increasing budget deficits, these policies handsomely reward their cronies, too.

A good example is the latest attempt to pass yet another COVID-19 relief bill. House Speaker Nancy Pelosi called Republicans’ failure to agree to her $2.2 trillion bill “malfeasance.” Never mind that the White House’s $1.8 trillion proposal was right up there with hers.

It’s right to help those low-income Americans hurt by the pandemic-induced recession. But that relief bill shouldn’t cost anywhere near $2 trillion. Think about this: When the economy was more solidly locked down back in March, unemployment was above 14 percent; growth was collapsing; people were scared; and when politicians were throwing all the money they could grab at anything that crossed their minds, Congress passed the $2.2 trillion Coronavirus Aid, Relief and Economic Security Act. Today, unemployment is down by half; the economy is growing again; pretty much everything is improving; but both the Democrats and the White House still want another $2 trillion.

The $500 billion “skinny” stimulus bill proposed by Senate Republicans is more in line with the current circumstances.

Making matters worse, the White House and Democrats want to spend that $2 trillion on the same programs as before. Given the flaws exposed in the previously approved programs, this repetitiveness is inexcusable.

For instance, the $600 bonus unemployment benefit created incentives for workers to leave their jobs to collect the government payment. The government’s Payroll Protection Program, or PPP, loans, administered by the Small Business Administration, were a disaster to implement. It also soon became known that most of the PPP loans went to areas relatively unharmed by the pandemic. And, let’s not forget, the $25 billion airline bailout that was meant to prevent layoffs only postponed them until the beginning of October. The bailout, however, did clearly benefit shareholders and creditors.

The Congressional Budget Office tried to calculate the economic impact of these programs, and the results are underwhelming. For every dollar invested in unemployment benefits, we got a 67-cent return. The PPP returned 36 cents. Aid to state and local governments returned 88 cents on the dollar. The overall coronavirus relief bill returned 60 cents in economic growth per dollar invested. In other words, the COVID-19 relief was depressive, not stimulative. Yet as a result, our budget deficit is now $3.3 trillion.

We might excuse the failure of these policies if they were, in fact, the product of a lack of time to consider the economic impact and consequences of the programs Congress was designing. But they have now had nine months to observe and consider new measures. And they still propose what is effectively the Coronavirus Aid, Relief and Economic Security Act 2.0.

Indeed, Pelosi’s bill contains another round of payments up to $1,200 for individuals and $500 for each dependent, with more $600 weekly enhanced federal unemployment payments through January 2021, followed by a transition period through March 2021. It also provides for an extension of the Pandemic Unemployment Assistance program through the same period (January/March), $225 billion for child care and education, more funding for the PPP, another $25 billion airline bailout, and plenty of state and local government aid.

The White House proposal includes much of the same, minus an extension of the state and local tax deduction (which mostly benefits higher-income taxpayers) that Democrats have been pining for ever since it was capped by the Republicans’ 2017 tax reform.

So, again, I ask, why do people trust politicians? Are our memories so faulty? Case in point: During the last presidential debate, Joe Biden claimed that no one lost insurance due to the implementation of the Affordable Care Act. That’s a bold claim to make. That same statement, when made by former President Barack Obama as he pushed for the legislation before its implementation, was once named the “Lie of the Year” by PolitiFact. But Biden still felt it was safe to make such a claim.

If it’s the case that politicians don’t really try to pass policies that will succeed, keep the deficit low, and tell the truth—because they can get away with bad policies, misleading claims, and spectacular deficits—then shame on them. But if we keep letting them get away with this ruse, then the shame ultimately lies with us.

COPYRIGHT 2020 CREATORS.COM

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Fifth Circuit Speaks Out Against Campus Speech Codes (in University of Texas Case)

In today’s Speech First, Inc. v. Fenves, Fifth Circuit Judge Edith H. Jones, joined by Judge Carolyn Dineen King (with Judge Gregg Costa concurring in the judgment), held that Speech First had standing to challenge various University of Texas speech codes, on behalf of its members:

The chilling effect of allegedly vague [campus speech] regulations, coupled with a range of potential penalties for violating the regulations, … [is] sufficient “injury” to ensure that Speech First “has a ‘personal stake in the outcome of the controversy.'” …

[The University of Texas-Austin student code forbids, among other speech,] “[h]arassment,” which is the “mak[ing], distribut[ing], or display[ing] on the campus any statement that constitutes verbal harassment of another.” “Verbal harassment” is defined as “hostile or offensive speech, oral, written, or symbolic,” that:

[A.] is not necessary to the expression of any idea described in the following subsection [“an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea is not verbal harassment even if some listeners are offended by the argument or idea”];

[B.] is sufficiently severe, pervasive, or persistent to create an objectively hostile environment that interferes with or diminishes the victim’s ability to participate in or benefit from the services, activities, or privileges provided by the University; and

[C.] personally describes or is personally directed to one or more specific individuals.

The Rules elaborate that “[v]erbal harassment may consist of threats, insults, epithets, ridicule, [and] personal attacks,” and “is often based on the victim’s appearance, personal characteristics, or group membership, including but not limited to race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, gender identity or gender expression, ideology, political views, or political affiliation.” …

The [UT] Acceptable Use Policy outlines permitted and prohibited uses of the information technology devices and systems provided and maintained by the University…. [It provides]:

Be civil. Do not send rude or harassing correspondence.

[1.] If someone asks you to stop communicating with him or her, you should. If you fail to do so, the person can file a complaint and you can be disciplined.

[2.] If you ever feel that you are being harassed, university staff members will assist you in filing a complaint….

[T]he Policy notes, “In general, expressions of opinion by members of the university community that do not otherwise violate state and federal laws or university rules are protected as ‘free speech.'” Also: “Disagreements between people, even heated arguments, unless threatening or otherwise unlawful, are not considered violations. UT Austin does, however, strongly encourage all its users to be polite and courteous.” …

The “Personal Responsibility and Student Conduct” section of the Residence Hall Manual includes sections on “Harassment” and “Incivility.”

Under “Harassment,” the University states a policy “to maintain an educational environment free from harassment and intimidation” and states a related “commit[ment] to responding appropriately to acts of racism, sexism, heterosexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or group of individuals.” …

Immediately following, under “Incivility,” the University states:

“Students are expected to behave in a civil manner that is respectful of their community and does not disrupt academic or residential activity. Uncivil behaviors and language that interfere with the privacy, health, welfare, individuality, or safety of other persons are not permitted.” …

Finally, within the University’s Handbook of operating procedures is the “Hate and Bias Incidents” policy. According to its “Policy Statement,” the University “unequivocally condemns and prohibits … harassment,” “is committed to an academic and work environment free from acts of intolerance, hate, bias or prejudice,” and “is committed to the principles of free inquiry and expression and is dedicated to creating an environment where the expansion of knowledge and the freedom to exchange ideas is safeguarded.”

The Hate and Bias Incidents policy describes verbal harassment in the same language as the Institutional Rules…. The policy’s “Responsibilities & Procedures” section includes a “Campus Climate Incident” subsection, which states:

The University strongly encourages individuals who believe they have been discriminated against or have experienced threatened or actual violence on the basis of their race, color, religion, national origin, gender, gender identity or gender expression, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation to report such incidents as provided in this policy.

Individuals may report a campus climate incident to the University’s Campus Climate Response Team by clicking on the “Report a Bias Incident Campus Climate Response Team” button ….  Individuals may report concerns such as a student organization hosting a party with a racist theme, derogatory graffiti regarding sexual orientation or gender identity and expression, malicious threats that intimidate another person because of his or her religion or concerns that someone has created a hostile or offensive classroom environment….

The University amended some of these policies when the case was on appeal, but the court concluded that such “voluntary cessation” of allegedly unconstitutional activity doesn’t moot the challenge to the old policies. The court went on to conclude that the policies chilled the speech of Speech First’s members enough to allow the challenge to go forward:

“[C]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” Speech First must clearly show a likelihood that its members’ constitutionally protected speech is arguably proscribed, or at least arguably regulated, by the University speech policies….

[T]he categories of speech arguably covered by the University’s Institutional Rule on “verbal harassment,” the Acceptable Use Policy’s requirement to be “civil” and not to send “rude” correspondence, the Residence Hall Manual proscriptions of “harassment,” “intimidation,” and “incivility,” and the Hate and Bias Incidents policies against “bias incident[s]” and “campus climate incident[s]” [are broad]. Terms like “harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for clarification. These pejoratives arguably cover the plaintiffs’ intended speech….

Nor is it tenable, as the district court found, that the CCRT Campus Climate Response Team] “does not engage in investigations or punishment of any sort.” The implicit suggestion here is that, insofar as the Hate and Bias Incidents Policy is enforced by the CCRT, it is not sufficiently proscriptive…. [But] “[t]he Response Team’s ability to make referrals—i.e., to inform [the university administrative authorities] or the police about  reported conduct—is a real consequence  that  objectively chills speech.” …

[University President Gregory] Fenves ultimately wraps the University in the flag of its policies’ paeans to the freedom of speech. According to Fenves, “the University’s policies expressly protect and encourage [the speech at issue].” … The Institutional Rules … [do] explicitly exclude from “verbal harassment” the “mak[ing] [of] an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea.” …

[But s]tated more precisely, the definition is this: “verbal harassment” includes “hostile or offensive” speech that “is not necessary to the expression of any idea [defined as “an argument for or against the substance of any political … idea].” Interpreted grammatically, the exclusion applies only to speech that conveys the substance of an idea and is necessary to such conveyance. Such a qualified limitation on the scope of the term “verbal harassment” increases rather than decreases its uncertainty.

In sum, while purporting to invoke free speech, the Institutional Rules qualify protected speech and fail to cabin the terms “harassment,” “intimidation,” “rude[ness],” “incivility,” and “bias.” …

Adding to the credible threat that the policies pose to the exercise of protected speech are two other circumstances: the University’s awareness that verbal harassment policies must be applied “narrowly” and the operation of the Hate and Bias Incidents Policy, through the CCRT, to deter those who would express controversial views.

The Institutional Rules’ definition of verbal harassment consumes nearly a full page of small type. This alone might raise questions about vagueness, but the uncertainty is magnified by the University’s caveat that:

“Verbal harassment has been interpreted very narrowly by the federal courts. Policies on verbal harassment or hate speech at many universities have been held unconstitutional. This policy should be interpreted as narrowly as need be to preserve its constitutionality.”

Put in terms of prospective enforcement, what does this mean? Surely it reasonably implies that the University will protect and enforce its verbal harassment policy as far as possible, but the distance to that horizon is unknown by the University and unknowable to those regulated by it.

Likewise, insofar as the CCRT’s evaluations of bias incident reports is based on the same definition of verbal harassment, the entire University community has been encouraged to and has funneled into the CCRT hundreds of wide-ranging complaints. Moreover, the CCRT has “referred” a large number of reporting individuals “to appropriate sources of support and/or coordinate[d] with a university entity as appropriate.” The CCRT describes its work, judgmentally, in terms of “targets” and “initiators” of incidents.

Further, examples of CCRT responses to reported incidents have included “facilitating conversation between those who were targeted by and those who initiated an incident; and making referrals to campus resources such as the UT Austin Police Department, the Office of the Dean of Students, and the Office for Inclusion and Equity (OIE).” The CCRT, in some measure, represents the clenched fist in the velvet glove of student speech regulation.

That the CCRT invites anonymous reports carries particular overtones of intimidation to students whose views are “outside the mainstream.” As one expert explains, “[i]n both concept and design, such efforts [by ‘bias response teams;] to encourage students to anonymously initiate disciplinary proceedings for perceived acts of bias or to shelter themselves from disagreeable ideas are likely to subvert free and open inquiry and invite fears of political favoritism.” Keith Whittington, Free Speech and the Diverse University (2019); see also Hon. Jose Cabranes, For Freedom of Expression, For Due Process, and For Yale: The Emerging Threat to Academic Freedom at a Great University (2017) (lamenting potential dangers of anonymous reports and recordkeeping by campus bias “police”).

The panel therefore held that plaintiff had standing to challenge the police, and sent the case back to the trial court to decide the merits. But the panel added:

[W]e note the consistent line of cases that have uniformly found campus speech codes unconstitutionally overbroad or vague. {See, e.g., McCauley v. Univ. of V.I. (3d Cir. 2010); DeJohn v. Temple Univ. (3d Cir. 2008); Dambrot v. Central Mich. Univ. (6th Cir. 1995); Shaw v. Burke (C.D. Cal. 2018); Univ. of Cinc. Chapter of Young Ams. for Liberty v. Williams (S.D. Ohio 2012); Smith v. Tarrant Cty. Coll. Dist. (N.D. Tex. 2010); Coll. Repub’s at S.F. State Univ. v. Reed (N.D. Cal. 2007); Pro-Life Cougars v. Univ. of Houston (S.D. Tex. 2003); UWM Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys. (E.D. Wis. 1991); Doe v. Univ. of Mich. (E.D. Mich. 1989).}

Of course, not every utterance is worth protecting under the First Amendment. In our current national condition, however, in which “institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,” courts must be especially vigilant against assaults on speech in the Constitution’s care. Otherwise, the people may not “be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences,” to “transmit their resulting views and conclusions to their elected representatives,” “to influence the public policy enacted by elected representatives,” and thereby to realize the political and human common good.

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Fifth Circuit Speaks Out Against Campus Speech Codes (in University of Texas Case)

In today’s Speech First, Inc. v. Fenves, Fifth Circuit Judge Edith H. Jones, joined by Judge Carolyn Dineen King (with Judge Gregg Costa concurring in the judgment), held that Speech First had standing to challenge various University of Texas speech codes, on behalf of its members:

The chilling effect of allegedly vague [campus speech] regulations, coupled with a range of potential penalties for violating the regulations, … [is] sufficient “injury” to ensure that Speech First “has a ‘personal stake in the outcome of the controversy.'” …

[The University of Texas-Austin student code forbids, among other speech,] “[h]arassment,” which is the “mak[ing], distribut[ing], or display[ing] on the campus any statement that constitutes verbal harassment of another.” “Verbal harassment” is defined as “hostile or offensive speech, oral, written, or symbolic,” that:

[A.] is not necessary to the expression of any idea described in the following subsection [“an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea is not verbal harassment even if some listeners are offended by the argument or idea”];

[B.] is sufficiently severe, pervasive, or persistent to create an objectively hostile environment that interferes with or diminishes the victim’s ability to participate in or benefit from the services, activities, or privileges provided by the University; and

[C.] personally describes or is personally directed to one or more specific individuals.

The Rules elaborate that “[v]erbal harassment may consist of threats, insults, epithets, ridicule, [and] personal attacks,” and “is often based on the victim’s appearance, personal characteristics, or group membership, including but not limited to race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, gender identity or gender expression, ideology, political views, or political affiliation.” …

The [UT] Acceptable Use Policy outlines permitted and prohibited uses of the information technology devices and systems provided and maintained by the University…. [It provides]:

Be civil. Do not send rude or harassing correspondence.

[1.] If someone asks you to stop communicating with him or her, you should. If you fail to do so, the person can file a complaint and you can be disciplined.

[2.] If you ever feel that you are being harassed, university staff members will assist you in filing a complaint….

[T]he Policy notes, “In general, expressions of opinion by members of the university community that do not otherwise violate state and federal laws or university rules are protected as ‘free speech.'” Also: “Disagreements between people, even heated arguments, unless threatening or otherwise unlawful, are not considered violations. UT Austin does, however, strongly encourage all its users to be polite and courteous.” …

The “Personal Responsibility and Student Conduct” section of the Residence Hall Manual includes sections on “Harassment” and “Incivility.”

Under “Harassment,” the University states a policy “to maintain an educational environment free from harassment and intimidation” and states a related “commit[ment] to responding appropriately to acts of racism, sexism, heterosexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or group of individuals.” …

Immediately following, under “Incivility,” the University states:

“Students are expected to behave in a civil manner that is respectful of their community and does not disrupt academic or residential activity. Uncivil behaviors and language that interfere with the privacy, health, welfare, individuality, or safety of other persons are not permitted.” …

Finally, within the University’s Handbook of operating procedures is the “Hate and Bias Incidents” policy. According to its “Policy Statement,” the University “unequivocally condemns and prohibits … harassment,” “is committed to an academic and work environment free from acts of intolerance, hate, bias or prejudice,” and “is committed to the principles of free inquiry and expression and is dedicated to creating an environment where the expansion of knowledge and the freedom to exchange ideas is safeguarded.”

The Hate and Bias Incidents policy describes verbal harassment in the same language as the Institutional Rules…. The policy’s “Responsibilities & Procedures” section includes a “Campus Climate Incident” subsection, which states:

The University strongly encourages individuals who believe they have been discriminated against or have experienced threatened or actual violence on the basis of their race, color, religion, national origin, gender, gender identity or gender expression, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation to report such incidents as provided in this policy.

Individuals may report a campus climate incident to the University’s Campus Climate Response Team by clicking on the “Report a Bias Incident Campus Climate Response Team” button ….  Individuals may report concerns such as a student organization hosting a party with a racist theme, derogatory graffiti regarding sexual orientation or gender identity and expression, malicious threats that intimidate another person because of his or her religion or concerns that someone has created a hostile or offensive classroom environment….

The University amended some of these policies when the case was on appeal, but the court concluded that such “voluntary cessation” of allegedly unconstitutional activity doesn’t moot the challenge to the old policies. The court went on to conclude that the policies chilled the speech of Speech First’s members enough to allow the challenge to go forward:

“[C]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” Speech First must clearly show a likelihood that its members’ constitutionally protected speech is arguably proscribed, or at least arguably regulated, by the University speech policies….

[T]he categories of speech arguably covered by the University’s Institutional Rule on “verbal harassment,” the Acceptable Use Policy’s requirement to be “civil” and not to send “rude” correspondence, the Residence Hall Manual proscriptions of “harassment,” “intimidation,” and “incivility,” and the Hate and Bias Incidents policies against “bias incident[s]” and “campus climate incident[s]” [are broad]. Terms like “harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for clarification. These pejoratives arguably cover the plaintiffs’ intended speech….

Nor is it tenable, as the district court found, that the CCRT Campus Climate Response Team] “does not engage in investigations or punishment of any sort.” The implicit suggestion here is that, insofar as the Hate and Bias Incidents Policy is enforced by the CCRT, it is not sufficiently proscriptive…. [But] “[t]he Response Team’s ability to make referrals—i.e., to inform [the university administrative authorities] or the police about  reported conduct—is a real consequence  that  objectively chills speech.” …

[University President Gregory] Fenves ultimately wraps the University in the flag of its policies’ paeans to the freedom of speech. According to Fenves, “the University’s policies expressly protect and encourage [the speech at issue].” … The Institutional Rules … [do] explicitly exclude from “verbal harassment” the “mak[ing] [of] an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea.” …

[But s]tated more precisely, the definition is this: “verbal harassment” includes “hostile or offensive” speech that “is not necessary to the expression of any idea [defined as “an argument for or against the substance of any political … idea].” Interpreted grammatically, the exclusion applies only to speech that conveys the substance of an idea and is necessary to such conveyance. Such a qualified limitation on the scope of the term “verbal harassment” increases rather than decreases its uncertainty.

In sum, while purporting to invoke free speech, the Institutional Rules qualify protected speech and fail to cabin the terms “harassment,” “intimidation,” “rude[ness],” “incivility,” and “bias.” …

Adding to the credible threat that the policies pose to the exercise of protected speech are two other circumstances: the University’s awareness that verbal harassment policies must be applied “narrowly” and the operation of the Hate and Bias Incidents Policy, through the CCRT, to deter those who would express controversial views.

The Institutional Rules’ definition of verbal harassment consumes nearly a full page of small type. This alone might raise questions about vagueness, but the uncertainty is magnified by the University’s caveat that:

“Verbal harassment has been interpreted very narrowly by the federal courts. Policies on verbal harassment or hate speech at many universities have been held unconstitutional. This policy should be interpreted as narrowly as need be to preserve its constitutionality.”

Put in terms of prospective enforcement, what does this mean? Surely it reasonably implies that the University will protect and enforce its verbal harassment policy as far as possible, but the distance to that horizon is unknown by the University and unknowable to those regulated by it.

Likewise, insofar as the CCRT’s evaluations of bias incident reports is based on the same definition of verbal harassment, the entire University community has been encouraged to and has funneled into the CCRT hundreds of wide-ranging complaints. Moreover, the CCRT has “referred” a large number of reporting individuals “to appropriate sources of support and/or coordinate[d] with a university entity as appropriate.” The CCRT describes its work, judgmentally, in terms of “targets” and “initiators” of incidents.

Further, examples of CCRT responses to reported incidents have included “facilitating conversation between those who were targeted by and those who initiated an incident; and making referrals to campus resources such as the UT Austin Police Department, the Office of the Dean of Students, and the Office for Inclusion and Equity (OIE).” The CCRT, in some measure, represents the clenched fist in the velvet glove of student speech regulation.

That the CCRT invites anonymous reports carries particular overtones of intimidation to students whose views are “outside the mainstream.” As one expert explains, “[i]n both concept and design, such efforts [by ‘bias response teams;] to encourage students to anonymously initiate disciplinary proceedings for perceived acts of bias or to shelter themselves from disagreeable ideas are likely to subvert free and open inquiry and invite fears of political favoritism.” Keith Whittington, Free Speech and the Diverse University (2019); see also Hon. Jose Cabranes, For Freedom of Expression, For Due Process, and For Yale: The Emerging Threat to Academic Freedom at a Great University (2017) (lamenting potential dangers of anonymous reports and recordkeeping by campus bias “police”).

The panel therefore held that plaintiff had standing to challenge the police, and sent the case back to the trial court to decide the merits. But the panel added:

[W]e note the consistent line of cases that have uniformly found campus speech codes unconstitutionally overbroad or vague. {See, e.g., McCauley v. Univ. of V.I. (3d Cir. 2010); DeJohn v. Temple Univ. (3d Cir. 2008); Dambrot v. Central Mich. Univ. (6th Cir. 1995); Shaw v. Burke (C.D. Cal. 2018); Univ. of Cinc. Chapter of Young Ams. for Liberty v. Williams (S.D. Ohio 2012); Smith v. Tarrant Cty. Coll. Dist. (N.D. Tex. 2010); Coll. Repub’s at S.F. State Univ. v. Reed (N.D. Cal. 2007); Pro-Life Cougars v. Univ. of Houston (S.D. Tex. 2003); UWM Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys. (E.D. Wis. 1991); Doe v. Univ. of Mich. (E.D. Mich. 1989).}

Of course, not every utterance is worth protecting under the First Amendment. In our current national condition, however, in which “institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,” courts must be especially vigilant against assaults on speech in the Constitution’s care. Otherwise, the people may not “be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences,” to “transmit their resulting views and conclusions to their elected representatives,” “to influence the public policy enacted by elected representatives,” and thereby to realize the political and human common good.

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Not All Animals Are Equal, and Some Are More Equal Than Others

In 2018, the federal stalking statute was amended to cover not just threats to “a person” (including the victim, the victim’s immediate family member, and the victim’s spouse or intimate partner) but also threats to:

a pet, a service animal [limited to service dogs -EV], an emotional support animal, or a horse.

“Pet” is defined to mean

a domesticated animal, such as a dog, cat, bird, rodent, fish, turtle, or other animal that is kept for pleasure rather than for commercial purposes.

So horses, alone among animals, are covered regardless of whether they are kept as pets, as service animals, or for emotional support. Even threats to working horses on one’s farm are covered by the statute.

(I assume, by the way, that a dog kept for commercial purposes is not covered by the “pet” definition, because the “that is kept for pleasure rather than for commercial purposes” clause covers all the animals, and not just “other animal.” I realize there is no comma before the “that is kept for pleasure” clause, but in context that seems like the better reading, given that the term being defined is “pet.” Dogs kept by a breeder for sale are domesticated, but not pets, I think.)

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Not All Animals Are Equal, and Some Are More Equal Than Others

In 2018, the federal stalking statute was amended to cover not just threats to “a person” (including the victim, the victim’s immediate family member, and the victim’s spouse or intimate partner) but also threats to:

a pet, a service animal [limited to service dogs -EV], an emotional support animal, or a horse.

“Pet” is defined to mean

a domesticated animal, such as a dog, cat, bird, rodent, fish, turtle, or other animal that is kept for pleasure rather than for commercial purposes.

So horses, alone among animals, are covered regardless of whether they are kept as pets, as service animals, or for emotional support. Even threats to working horses on one’s farm are covered by the statute.

(I assume, by the way, that a dog kept for commercial purposes is not covered by the “pet” definition, because the “that is kept for pleasure rather than for commercial purposes” clause covers all the animals, and not just “other animal.” I realize there is no comma before the “that is kept for pleasure” clause, but in context that seems like the better reading, given that the term being defined is “pet.” Dogs kept by a breeder for sale are domesticated, but not pets, I think.)

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