Category: reason

Last term, the Supreme Court decided that the structure of the Consumer Finance Protection Bureau (CFPB) violated the separation of powers. In Seila Law v. CFPB, on appeal from the Ninth Circuit, the Trump Administration declined to defend the agency. Circuit Justice Elena Kagan appointed Paul Clement, the former Solicitor General, to take that position. (I wrote about that choice here).

In the wake of Seila Law, the Supreme Court granted review in Collins v. Mnuchin. This appeal from the Fifth Circuit considers a challenge to the Federal Housing Finance Agency (FHFA). The Fifth Circuit found that the FHFA was unconstitutional, but sharply divided on the remedy. The FHFA, like the CFPB, is headed by a single-director protected by for-cause protection. Indeed, Chief Justice Roberts’s majority opinion flagged the similarities between the FHFA and the CFPB:

[The CFPB] regulates primarily Government-sponsored enterprises, not purely private actors. And its single-Director structure is a source of ongoing controversy. Indeed, it was recently held unconstitutional by the Fifth Circuit, sitting en banc. See Collins v. Mnuchin, 938 F. 3d 553, 587–588 (2019).

The Trump Administration has declined to defend the FHFA. As a result, Circuit Justice Alito appointed his former clerk, Professor Aaron Nielson (BYU), to argue the case. Nielson also clerked for Judge Jerry Smith on the Fifth Circuit. Congratulations to Aaron on what will be his first oral argument before the Supreme Court. I have no doubt he will give the FHFA the best defense it can get.

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The U.S. Court of Appeals for the Second Circuit denied a petition for rehearing en banc in CREW v. Trump, one of three ongoing suits alleging that President Donald Trump is violating the Constitution’s foreign emoluments clause.

Judges Cabranes and Menashi each wrote opinions dissenting from the denial, the latter joined by Judges Livingson and Sullivan. Senior Judge Walker, who was not eligible to participate in the vote, published a “statement with respect to the denial of rehearing en banc,” explaining why he thinks the case is en banc worthy. Judge Leval also filed an opinion, defending the court’s decision not to grant en banc review. Judge Park did not participate. So of the twelve judges participating, at least four supported en banc rehearing. (We are not entirely sure of the number, as the court does not release the vote tally.)

The Second Circuit’s decision is not too surprising, even if only because the court is notoriously stingy about granting en banc review. That said, I think this case certainly staisfies the “question of exceptional importance” threshold, as Judge Cabranes argued in his opinion. I also agree with Judge Menashi that the three-judge panel’s decision that the CREW plainiffs have standing was incorrect, for reasons I detailed these three posts. As Judge Menashi notes, the panel opinion adopted a particularly loose approach to competitor standing, but apparently a majority of his colleagues did not agree.

I suspect that the Trump Administration will file a petition for certiorari. There are three emoluments cases potentially ready for Supreme Court review, and I would think the Court would take at least one of them. Then again, depending on the outcome of the election, the cases could be moot before the Supreme Court has the opportunity to decide one.

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From Jeffrey C. Brown PLLC v. Gold Star Taxi & Transp. Serv. Corp., decided today by Minnesota Court of Appeals Judge Bjorkman, joined by Judges Bratvold and Cochran:

Appellant Jeffrey C. Brown is an attorney and part-time conciliation court referee in Hennepin County District Court. In 2018, he presided over a matter involving respondents Gold Star Taxi and Transportation Service Corporation and its chief executive officer, Nabil Ali (collectively, Gold Star). Ali was not pleased with Brown’s handling of the case.

On August 24, 2018, Ali posted a one-star review on the Jeffrey C. Brown, PLLC Google My Business website listing. In addition to the single star, Ali posted the sentence “Need to go back to law school.” Brown commenced this action on behalf of himself and his law firm (collectively, Brown) alleging the statement is defamatory and violates the Uniform Deceptive Trade Practices Act …. The complaint seeks damages in excess of $170,000 and injunctive relief….

The fact that a message conveys a negative or derogatory meaning does not, in and of itself, make it defamatory; the message must be a false statement of fact. This is so because of the broad constitutional protection afforded to speech….

In determining whether a statement is one of fact or opinion, courts consider: “(1) a statement’s precision and specificity; (2) a statement’s verifiability; (3) the social and literary context in which the statement was made; and (4) a statement’s public context.” If a statement expresses “a subjective view, an interpretation, a theory, conjecture, or surmise … , the statement is not actionable.” If, in context, an audience would understand that an “expression[ ] of opinion, rhetoric, [or] figurative language” was “not a representation of fact,” it is not actionable. Likewise, statements that reflect “mere vituperation and abuse” or “rhetorical hyperbole” are not actionable because they show no real intent to defame and are understood by listeners not to be defamatory.

Application of these four factors leads us to conclude that the statement “[n]eed to go back to law school” can only be interpreted as an expression of pure opinion. McKee is instructive. There, a doctor sued a patient’s son who posted a statement referring to the doctor as “a real tool” on several “rate-your-doctor” websites. The supreme court held that the challenged statement “falls into the category of pure opinion” because the term “cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” Rather, the term “a real tool” is non-actionable “vituperation and abuse” or “rhetorical hyperbole.” …

[T]he statement [“need to go back to law school”] is not verifiable. It does not suggest any facts against which the need to return to law school could be judged, suggesting to readers that the statement cannot be proven true or false. Finally, Ali posted his derogatory statement in the review section of a website that is a repository for opinions about businesses. The forum for and context of the posting are reasonably understood by readers to express opinions rather than factual statements. As in McKee, Ali’s online post is a statement of pure opinion.

We are mindful that derogatory statements of opinion may negatively impact the subject of the statements. And we do not condone abusive comments and rhetoric. But the law does not make such statements actionable….

The court also rejected Brown’s deceptive trade practices claim. First, that claim also required factual assertions and not opinions. Second,

Brown has not shown that Ali posted the statement “in the course of business.” There is no business relationship between the parties. Gold Star is a litigant who appeared, through Ali, before Brown in his capacity as a court referee—the two did not conduct trade with each other or have any sort of business relationship. For this reason, the act, by its terms, does not apply.

Brown, by the way, represented himself on appeal.

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On the latest episode of the Reason Roundtable: conventions and conspiracy theories. 

Less than a week after announcing that Sen. Kamala Harris (D–Calif.) would be Joe Biden’s running mate, Democrats are about to hold their first fully virtual political convention—a party-run Zoom conference direct from their living rooms to yours. No one knows exactly what to expect, but it’s definitely going to be weird. 

Speaking of weird: Republicans in Georgia just nominated a Q-curious candidate for Congress, and she’s likely to win her race. So just how strange are things going to get in this already deeply weird year?

Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and special guest Jesse Walker discuss the strangeness of an all-online political convention, what the selection of Harris says about the future of Democratic Party politics, and the many misunderstandings about QAnon and its place in American politics.  

Audio production by Ian Keyser and Regan Taylor.
Music: “Odd News” by Twin Musicom.

Relevant links:

“Kamala Harris Is a Cop Who Wants To Be (Vice) President,” by Elizabeth Nolan Brown

“From Antifa to UFOs, One Joke Can Spawn a Thousand Conspiracies.” by Jesse Walker

“QAnon and Its Precursors,” by Jesse Walker

“When an Epidemic Spreads, So Do Rumors,” by Jesse Walker

“Joe Biden’s Career Is One Long Lesson About the Dangers of Bipartisan Consensus Politics,” by Eric Boehm

“The Extremely Online Are Less Informed About Political News, More Informed About Conspiracy Theories,” by Elizabeth Nolan Brown 

“America Is Going To Vote by Mail. We’re Not Ready,” by Eric Boehm

“Joe Biden Is No Moderate,” by Peter Suderman

“The Election Could Be Chaotic. Why Is Trump Trying To Make It Worse?” by Eric Boehm

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I’m pleased to report that Parler users can now follow our blog at @VolokhC, https://parler.com/profile/VolokhC/posts (just as you can on Twitter, also at @VolokhC). If you are on Parler, please subscribe, and encourage your friends to do the same!

We of course don’t know how successful Parler will ultimately prove, but we’re happy to reach more readers wherever we can find them. Parler has been mostly promoted as friendly to conservatives and libertarians, but if there’s a similar liberal-focused platform, we’d of course be glad to have our blog be readable there, too.

From what we hear, many Parler users tend to be more conservative than we are on average. But if we only spoke to people who entirely agreed with us, that wouldn’t be much fun (and we wouldn’t have many readers). We hope to inform and persuade people from all over the political spectrum.

And on some topics, I think we can be especially useful to conservative readers, precisely because we tend to be more or less on their side of the aisle, even if not as far to the right of the aisle as some. (I use “we” cautiously here; some of us Volokh Conspiracy bloggers are hard-core libertarian, some are moderate, some are more conservative—I myself am probably a libertarianish moderate conservative.) That might make some such readers more open to our perspectives, and especially to our expertise, than they would be to someone they see as on the opposite side politically.

Thus, just to give one recent example, I hope my post about Kamala Harris being a natural-born citizen may come across as more persuasive to conservatives than a post from someone whom they see as being a Harris supporter in the first place. (Of course, the same would be true for posts from liberals coming across as more persuasive to other liberals; it’s just human nature.) One strength of our blog, I think, is that we have specialized expertise and not just opinions. But if new readers’ sharing some of our opinions could lead them to be open to our expertise, we’d be delighted.

In any event, “It is an experiment, as all life is an experiment.” Please keep us posted on how it goes, and on anything we can do to make it work better for you.

Oh, and we’re having an odd technical glitch with the pulling of our RSS feed that is keeping our names from being included in the Parler post titles, even though they are right there in the <title> field. If any of you are familiar with such technical matters and can give us some advice about how to fix it, please e-mail me at volokh at law.ucla.edu.

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Under the best of circumstances, reporting on COVID-19 is tough. There are simply too many unknowns, and even when officials aren’t manipulating the truth they aren’t always willing to cop to the fact that they really don’t have solid answers.

But there’s really no excuse for journalism as sloppy and misleading as the August 13 ABC News segment whose headline blared “US reports highest single-day of COVID-19 deaths.” This video was widely shared, appearing not just on the main ABC News site, but also on Good Morning America, MSN.com, and elsewhere. And it simply wasn’t true.

In it, the anchor solemnly intones that the “United States is reporting the highest number of deaths in a single day—nearly 1,500” while a graphic briefly but completely undercuts her point. The graphic at least points out an important qualifier: The 1,490 deaths represent the deadliest day “since mid-May.” In fact, according to The New York Times’ count, the seven-day rolling average number of deaths in April was double what the current numbers are. If you look at the graphic, you can see that peak deaths plainly occurred months ago. But such attention to such an enormously important detail goes completely missing in the ABC segment, and a less-than-attentive viewer could be forgiven for thinking that the country was in fact experiencing record-setting COVID-19 deaths right now.

A similarly misleading story came courtesy of Bloomberg yesteday, which tweeted this clickbait morsel: “JUST IN: Malaysia detects new coronavirus strain that’s 10 times more infectious.” The story itself was originally titled “Malaysia Detects Coronavirus Strain That’s 10 Times More Infectious.”

The headline has since been changed to the less incendiary, “Southeast Asia Detects Mutated Virus Strain Sweeping the World,” possibly because the article never supported those fearful claims. If you read the piece, you’d learn that the strain being discussed actually “is the predominant variant in Europe and the U.S.” and that “there’s no evidence from the epidemiology that the mutation is considerably more infectious than other strains,” according to an epidemiologist cited in the story. There is a suggestion that it “is said to have a higher possibility of transmission or infectiousness,” but there is in fact no evidence that the strain is either new or particularly bad.

The COVID-19 story is a tough one, with new information emerging all the time. But the media, never infallible in the first place, seem increasingly prone to running stories that are not even internally consistent but instead are a hodgepodge of anxiety and apocalypticism. Under such circumstances, it’s more important than ever to develop razor-sharp media-literacy and bullshit-detection skills. Whether or not a coronavirus vaccine ever arrives, but can at least inoculate ourselves against the more obvious failures of the Fourth Estate.

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