Category: reason

From Hegar v. Texas BLC, Inc., decided Tuesday (written by Justice Peter Kelly and joined by Justices Hightower and Countiss):

Texas BLC, Inc. is an association of “bikini/latex clubs”—businesses that authorize consumption of alcohol on their premises but deny that their entertainers are topless because they cover themselves with opaque latex applied in a liquid or semi-liquid state.

The Comptroller of Public Accounts adopted a rule that set forth its interpretation of “clothing” for the purpose of determining which businesses are sexually oriented and subject to the statutory fee. Under this rule, Texas BLC’s members’ businesses would be considered sexually oriented businesses and liable to pay the fee. Texas BLC sought a declaratory judgment under the Administrative Procedures Act (“APA”) to declare the Comptroller’s rule invalid. It argued that the rule does not comport with and imposes burdens in excess of the sexually oriented business fee statute. The trial court held that the rule was invalid, and the Comptroller appealed, challenging that ruling in a single issue….

We reverse the trial court’s declaratory judgment and render judgment that the Comptroller’s rule is valid under the [Administrative Procedure Act]….

The facts in this case are not in dispute. The parties agree that the entertainers in Texas BLC’s member businesses wear “opaque latex cover-up that covers” their “breasts below the top of the areola (and the dancers’ buttocks to the extent not completely covered up by the bikini bathing suit bottoms).” …

An “agency’s interpretation of a statute is entitled to ‘serious consideration.'” But we defer to the agency’s construction of a statute “only when the statutory language is ambiguous.” If the statute is unambiguous, agency deference “has no place.” …

The [Sexually Oriented Business Fee] statute defines “nude” as “(A) entirely unclothed” or “(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the person is female, or any portion of the genitals or buttocks.” Neither party argues that the statute is ambiguous. We likewise do not find that the statutory language yields “more than one reasonable interpretation.”

Instead the parties dispute the meaning of the undefined terms “unclothed,” “clothed,” “uncovered,” and “clothing,” to which we accord their ordinary meanings. “Clothe” means “to cover with or as if with cloth or clothing: dress” or “to provide with clothes.” “Clothing” means “garments in general; also: COVERING.” “Uncovered” means “not covered” or “not supplied with a covering.” “Covering” is defined as “something that covers or conceals.”

Although the dictionary definition of clothing includes the word “covering,” our interpretation of the SOBF statute must take into consideration the context in which the words are used and must not render any word meaningless. The statute requires specified body parts to be covered by “fully opaque clothing” for the business to escape payment of the SOB fee. Construing “clothing” to mean any “covering” would ignore the Legislature’s semantic choice, which we must presume is intentional….

Our task in this appeal, however, is not to formulate a precise definition of clothing but to determine whether the Comptroller’s rule contravenes the statute. The challenged SOBF Rule defined “clothing” as a “garment used to cover the body, or a part of the body, typically consisting of cloth or a cloth-like material.” This is consistent with the SOBF statute. The second sentence states the Comptroller’s interpretation of what is not clothing: “Paint, latex, wax, gel, foam, film, coatings, and other substances applied to the body in a liquid or semi-liquid state are not clothing.” This is also consistent with the SOBF statute, which requires entertainers to be covered by clothing, such as a tangible garment or an item designed and used to cover the body and commonly regarded as an article of dress….

Texas BLC argues that the SOBF statute is about the visibility of certain body parts and that the test for whether a business is subject to the SOB fee is “whether certain body areas are sufficiently covered.” But that formulation of the test ignores the statute’s requirement that the entertainer be covered by clothing….

Texas BLC … argues that liquid latex is more modest than clothing, which can be pulled or brushed aside. It therefore contends that liquid latex use better effectuates the purpose of the SOBF Rule. Our task, however, is to construe the language in the statute. That language does not concern whether the covering is modest or demure, rather it requires that the entertainers be covered by clothing. {Moreover, although the entertainers’ bodies may be covered by latex, liquid latex can be used to cover an entertainer’s body in a manner that simulates nudity, which would not necessarily further the objective of the SOBF statute.}

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8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a “record.”

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I’ve been reading the New York Times since fifth grade, and the quirks I’ve noticed over the years have been interesting. For example, until I saw that someone referred in print to Russell Baker has a “humorist,” I had no idea they were supposed to be funny, though I had stopped reading them years earlier because they were so dull.

Anyway, the Times always had a liberal bias in its news pages, but the bias was almost entirely in what was covered and how it was covered. The stories themselves were written and edited in a careful, nonpartisan way. At some point, the Times starting to run “news analysis,” which gave reporters an opportunity to shade things the way they saw them, but the readers at least knew in advance these weren’t straight news stories.

Things have been slipping ever since the 2008 presidential campaign, when for the first time I thought the tone of coverage made it clear which side the reporters were on. Nevertheless, it was relatively subtle, and even during the Trump-Clinton campaign, with passions obviously very high, the Times was still a world away from NPR, whose reporting seethed with Trump-loathing.

Since 2016, the Times has faced a revolt from its staff regarding neutrality, as they believe that the Times should have gone full resistance against Trump, and its failure to do so bears responsibility for Trump’s election. It’s been a downhill spiral ever since, including widely reported internal meetings in which the staff made clear that it doesn’t believe in “objective journalism.”

All that said, after reading the Times off and on for over forty years, I did a double-take when I read this in a straight reporting story (not an op-ed, not even a “news analysis”):

The fact that an outsider like Mr. Mellon has emerged as one of the few supporters willing to be so generous illustrates a surprising problem for the president: his struggle to attract and retain a reliable stable of millionaires and billionaires willing to write seven-figure checks, despite his takeover of the Republican Party and a policy agenda that largely serves the interests of America’s ultrawealthy.

This is the sort of overt opinion-stating in a news story that must have an earlier generation of news editors rolling in their graves. In one sentence, three separate opinions are expressed: (1) Implicitly but clearly, that one would expect very rich people to donate money based on what serves the interests of very rich people, not on whatever other values or opinions they might have; (2) That Trump caters to the super-rich, and not just here and there, but “largely”; and (3)That these policies in fact in practice largely serve the super-rich’s interests, which contains two sub-opinions (a) that what’s benefiting the super-rich isn’t benefiting the rest of America; and (b) that whatever unnamed policies Trump is pursuing to help the super-rich is in fact largely serving their interests. On (b), surely some progressives would argue that Trump’s tax cuts or whatever are bankrupting the country and that this will hurt all Americans in the long-run by eventually creating a budget crisis, which will in turn hurt everyone, but perhaps disproportionately those who benefit from stable capital markets, i.e., investors with large portfolios.

The sort of people who tend to big fans of the New York Times used to chortle at Fox News overtly biased news coverage. It turns out that their favorite paper is using it as a model.

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From Goudreau v. Nikas, decided Monday:

In March 2014, Ipswich police officers investigated the theft of two guns from Patriot Arms, a local gun shop co-owned by Goudreau and Richard Munyon. The investigation culminated in the issuance of a criminal complaint charging Goudreau with two counts of improperly storing a firearm, in violation of § 131L.

After a hearing on Goudreau’s motion to dismiss the charges, a District Court judge was persuaded by Goudreau’s argument that § 131L does not apply to guns kept in a gun shop. In July 2014, the judge allowed Goudreau’s motion to dismiss the criminal complaint for lack of probable cause.

Nearly two years later, Goudreau filed a verified complaint seeking damages from the town of Ipswich, its police chief, Paul Nikas, and Ipswich police lieutenant John Hubbard, for malicious prosecution, tortious interference with contractual relations, and defamation….

But this time, Goudreau lost, both at the trial court and on appeal:

[Section] 131L contains no exception for firearm dealers or guns kept in a commercial setting. We decline Goudreau’s invitation to read such an exception into the statute. First, doing so would violate the well-settled tenet that “an express exception in a statute … comprises the only limit on the operation of the statute and no others will be implied.” Second, “common sense” dictates that § 131L applies to commercial gun owners, who store “a potential majority” of the firearms in this Commonwealth, because the “impact on the public would be greater” if commercial gun owners failed to secure their inventory….

[On the facts of this case,] Hubbard is entitled to qualified immunity because a reasonable officer could conclude that Goudreau violated § 131L.

Hubbard’s investigation revealed that Goudreau had allowed [his son] Stephen [who was convicted of stealing the guns] to be in Patriot Arms unsupervised on February 28, even though Stephen was neither an employee nor a person authorized to access firearms, given his criminal history. Stephen’s unfettered access enabled him to place two boxes beneath his shirt, walk to the garage, remove guns from the unlocked boxes, and walk away without anyone noticing…. [N]o reasonable juror could conclude from these undisputed facts that the firearms were under the control of Goudreau, Munyon, or any other authorized user when Stephen walked out of Patriot Arms…. There simply is no dispute, and therefore it was reasonable for Hubbard to conclude, that the stolen firearms were being “stored or kept” within the meaning of § 131L (a).

Goudreau’s argument, that Hubbard could not reasonably have believed Goudreau violated § 131L because a door lock, surveillance cameras, and the constant presence of employees rendered Patriot Arms a “locked container,” “ignores the requirement that a container must not only be locked but also secure” in order to comply with § 131L (quotations omitted). “At a minimum, to be secure, any qualifying container must be capable of being unlocked only by means of a key, combination, or other similar means.” Goudreau and Munyon both reported to Hubbard that Patriot Arms was open for business and not locked at the time of the thefts.

Hubbard could conclude that the open shelving in the storage area “did not prevent ready access by anyone other than” Goudreau or Munyon, Parzick, since Stephen was able to remove items and walk alone into the garage. Hubbard was also entitled to conclude that the surveillance measures had been “easily defeated,” where the thefts went unnoticed for two days….

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Earlier this month, Chinese ruler Xi Jinping declared war on food waste. “Waste is shameful and thriftiness is honorable,” Xi said, calling for a combination of “legislation, supervision, and long-term measures” to rein in waste under a “Clean Plate Campaign.” Xi also warned China was facing a “crisis” of food security.

China’s national legislature is expected to introduce a series of anti-food waste laws soon. If early steps are any indication, the campaign is likely to trample on individual rights.

Food waste, as I explain in my book Biting the Hands that Feed Us—quoting a U.N. report—refers to “food that completes the food supply chain up to a final product, of good quality and fit for consumption, but still does not get consumed because it is discarded, whether or not after it is left to spoil.”

It’s a remarkably and troublingly common problem across the globe. Roughly 40% of the food Americans produce goes to waste. Food security, on the other hand, refers to a person’s access to sufficient food.

China has generally been considered to be food-secure—roughly on par with Hungary, the Czech Republic, and Argentina. But food waste is a massive problem in the country. “Chinese cities produce 25 percent of the world’s municipal solid waste, most of it food,” Earth.org reported in April. It’s also a problem the government has been combating for several years. 

Reports suggest several factors have contributed to China’s mushrooming food-waste crisis, including supply-chain disruptions caused by the ongoing COVID-19 pandemic, trade tensions, low food prices that discourage future plantings, overreliance on imported food, and devastating floods that have inundated cropland in the country. Other reports cite additional factors, from droughts and pestilence to higher grain prices.

Given that most of these factors have little or nothing to do with waste, I wonder if the “Clean Plate Campaign” is really about fighting food waste, or it’s instead a response to growing food insecurity in the country? China expert Gordon Chang tweeted last week that Xi’s campaign signaled that China “is facing a severe food shortage.” And a tweet this week from a Hong Kong pro-democracy group claimed China has banned use of words such as “hunger” and “starving” from its anti-food waste campaign.

We should fight food waste. Decomposing food waste releases billions of tons of greenhouse gases into the atmosphere every year. And that’s just one part of the problem.

“Consider that food that goes to waste still used all of the resources needed to produce the food—including any combination of water and fertilizer (to grow crops), pesticides (to keep them free of pests), farmland (often converted from wildlands and tilled, both of which release stored carbon), and oil (to power plows and harvesters),” I explain in Biting the Hands that Feed Us. “Those resources are all used up whether a food is eaten or is left to rot in a field or landfill.”

Thankfully, there are countless ways to reduce food waste—most of which don’t require government to do more. For example, if we were to stop using taxpayer funds to subsidize farmers to grow way more food than consumers demand, we’d save money and waste less food.

Private efforts to fight food waste—some “highly profitable“—already exist in China. But rather than expanding those efforts, Xi sees more government as the answer.

To be fair, some changes enacted in the wake of Xi’s announcement, such as renewed efforts to encourage diners to take their leftovers home, are smart and relatively nonintrusive.

But others are anything but. Spurred by Xi’s plan and criticism from state media, for example, China’s tightly monitored media outlets, including social media giant Sina Weibo, have vowed to crack down on food programming that shows “excessive eating and drinking,” including ones that feature actual or feigned competitive eating.

Elsewhere, at least one restaurant in China has drawn customers’ ire by placing scales near its entrance and urging “diners to weigh themselves and then order food accordingly.” The restaurant, which had “recommended that women under 40kg (90lbs) should order no more than two dishes—with suggestions including sautéed beef and steamed fish head—while men weighing 70-80kg could have up to three” dishes, was forced to reverse course after a backlash.

But those women and men who could order up to two or three dishes might be the lucky ones. Since Xi’s announcement, many restaurants have urged consumers to order one fewer dish than the number of people seated at a table. So, for example, four diners eating together should share three dishes. (Solo diners might be out of luck.) One local government agency took Xi’s guidance to heart, vowing to “establish a frugal consumption reminder system” and “supervise consumers to eat frugally.” Sounds lovely. Food-delivery services are also urging customers to order smaller portion sizes. One hotel restaurant is fining diners who waste food from the restaurant buffet.

Critics of Xi’s plans, The Guardian reported, were quick to push back against the new guidelines, with many urging government officials and other wealthy diners to put up or shut up.

Some critics of the plan, reports CGTN, “are calling for boundaries to the campaign, asking if leftovers at restaurants are really such a crime.“

The South China Morning Post reported this week that another obstacle Xi’s plan faces is “long-held attitudes towards entertaining” in China, where sharing a bounty with guests is considered “a symbol of hospitality and social standing.“

Still, China’s crackdown does have its supporters. One self-avowed Marxist chided The Guardian for expressing mild discomfort about China’s oppressive anti-food waste campaign.

Food waste is a problem around the world. Combating it must be a goal. But achieving that goal shouldn’t come at the expense of individual rights—in China or anywhere else.

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From the four-Justice majority opinion (written by Justice Richard Gabriel, joined by Chief Justice Nathan Coats and Justices William Hood and Carlos Samour) in Rocky Mountain Planned Parenthood v. Wagner, decided by the Colorado Supreme Court in June; the case arose from a shooting that killed three (including one inside the building) and injured nine at a Colorado Springs abortion clinic:

Here, the plaintiffs introduced substantial evidence showing that PPRM [Planned Parenthood of the Rocky Mountains] knew for many years that there was a risk of violence against its facilities. In fact, PPRM warned all new physicians that “there is an inherent risk associated with working [at PPRM],” and it provided them with training on how to protect themselves. PPRM even offered to provide all of these physicians with custom-fitted bulletproof vests, free of charge.

The plaintiffs also presented evidence tending to demonstrate that PPRM knew that the level of threats of violence and criminal activity directed against Planned Parenthood facilities increased exponentially in the aftermath of the release of the inflammatory “baby body parts” videos. In fact, after the videos were released, the Medical Director of PPRM personally reported the level of increased threats and more invasive actions to both the president and chief executive officer and the chief operating officer of PPRM, as well as to the president and chief executive officer of PPFA.

In addition to the foregoing, the plaintiffs presented evidence that, despite this awareness, PPRM did not take adequate precautions at the Colorado Springs facility. For example, the plaintiffs offered evidence to show that although PPRM had hired an armed security guard, that guard was on duty only three days per week and only for about four hours each day (until 11:00 a.m. or 12:00 noon), despite the fact that the facility remained open (and doctors were performing abortions there) after the guard had ended his shift. Indeed, the guard had been at work on the day of the shooting but left at 11:00 a.m., shortly before Dear started his shooting rampage at approximately 11:35 a.m. Similarly, the plaintiffs offered evidence that PPRM did not erect a perimeter fence around the Colorado Springs facility, although it had done so at its Denver location, and it did not replace its tempered glass entry door with a steel or otherwise bullet-resistant door, which allowed Dear to shoot through the door to gain entry and continue his rampage.

Finally, the plaintiffs presented a lengthy and detailed affidavit from Lance Foster, an expert in premises security. In his affidavit, Mr. Foster opined, in pertinent part, that (1) the lack of security at the PPRM Colorado Springs facility made it a more likely target and placed it at a much higher risk for an event like that which ensued; (2) fencing would likely have prevented Dear from gaining entry onto the facility’s property in the first place; (3) had the security guard been on duty, the shootings would likely have been prevented; and (4) had steel doors been installed and electronic lock down measures been employed, Dear would not likely have been able to enter the clinic itself. Based on the foregoing, Mr. Foster opined that the shootings at issue “were reasonably preventable and the injurious effects could have been mitigated.”

In light of this evidence, and cognizant of the settled principle that summary judgment is a drastic remedy, we conclude that on the evidence presented in the summary judgment record here, a reasonable juror could find that Dear was not the predominant cause of the plaintiffs’ injuries and that therefore PPRM’s action or inaction was a substantial factor in causing those injuries. Accordingly, we further conclude that PPRM was not entitled to the entry of summary judgment in this case….

We hasten to say that in ruling as we do, we offer no view as to the merits of the plaintiffs’ claims. Nor should our opinion be read to suggest either (1) that different rules apply to what may be deemed “politically neutral” sites, on the one hand, and potentially “incendiary” sites such as a women’s health clinic, on the other, or (2) that given the risk that a mass shooting could happen virtually anywhere, potential targets—even those that are sadly sometimes attractive to the deranged or sadistic, or those with sociopathic notions of political motivation—must build fortresses to protect against any possible risk.

To the contrary, our ruling is limited to the specific facts of this case, based on the summary judgment record before us. And we do not intend to suggest that summary judgment is never appropriate in a case such as this, although we are likewise unwilling to say … that summary judgment is required in virtually every case involving a mass shooting because the shooter’s actions will almost always be the predominant cause of the victims’ injuries. We say no more than that, on the summary judgment record here, we do not believe that a court can properly decide the predominant cause issue as a matter of law.

Three Justices dissented, in an opinion written by Justice Melissa Hart, joined by Justices Monica Marquez and Brian Boatright:

[T]he majority makes “proximate cause” a determination solely of the foreseeability of a particular event—in this case a mass shooting—occurring at a particular location. The dangerous consequence of this move is to subject a landowner to liability for the irrational actions of a mass murderer, who has no concern about detection or death. And, while the majority asserts that its approach does not turn on the politically controversial nature of the landowner’s business, I fear that in fact the majority is creating the equivalent of a heckler’s veto—if a business owner receives threats of violence because of the nature of his business, the business owner will be subject to a risk of liability that could render his business uninsurable or require impossibly expensive fortifications….

On one hand, we expect all public-facing businesses—including women’s health clinics—to incur the costs of security measures that are reasonably proportionate to the potential risk of harm to their patients. But, because mass shooters are not animated by reason or cost/benefit analysis, it is irrational to ask businesses—or jurors—to engage in the cost/benefit analysis of determining what sorts of preventative measures are sufficient to prevent or mitigate the harm caused by a shooter’s senseless acts of violence….

I fully grant that “‘the concept of foreseeability is central to establishing proximate cause’ and that foreseeability acts ‘as a guidepost to delineate the extent to which a defendant may be held legally responsible for a plaintiff’s injury.'” And unfortunately, Planned Parenthood has suffered a “long history of violent direct attacks, killings and threats” against its various facilities.

But the reason for such threats, largely unacknowledged by the majority, is the well-known fact that PPRM provides abortions—a service fraught with political controversy and heated cultural divide. While the majority asserts that its analysis does not turn on whether a mass shooter’s attack is on a politically controversial business, I fear that the consequence of the court’s approach is that certain businesses and activities will face entirely different risks of liability than others will.

It bears emphasizing that our proximate cause analysis has never, and should not now, turn on how controversial the goods or services offered by a landowner are. But the majority’s approach creates a perverse incentive: Knowing that women’s health clinics are more threat-prone than other public-facing businesses, and that such clinics may be found liable for their failure to mitigate or prevent mass shootings, abortion opponents can increase the frequency and severity of their threats of violence in order to force women’s health clinics to fortify their facilities to extreme levels. This, in turn, makes women’s health clinics both prohibitively expensive to operate and virtually impossible to insure….

Moreover, this risk is not one that will be faced only by women’s health clinics that provide abortion services. After today’s decision, antisemitic fanatics can impose additional costs on synagogues, and White supremacists can inflict the same on Black churches or businesses. Threats of violence often precede acts of violence in these locations, as they did at PPRM.

I fear that the consequences of today’s decision will be felt well beyond this litigation. The majority’s analysis, by focusing so exclusively on foreseeability, significantly changes our proximate cause jurisprudence. In doing so, it ties the liability of the landowner to the nature of its business and ignores the reality that the overwhelming—the predominant—cause of harm to victims of mass shootings is the maniacal determination of the shooter himself.

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