Category: reason

Post-Pandemic Americans May Be Done With Taking Orders

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On June 19, the mayor of Cottonwood, Arizona, unilaterally ordered city residents to wear face masks in public places. A week later, my family went downtown to grab some lunch at a favorite barbecue joint. The proclamation might as well have never been issued; we were among the very few people wearing masks on the street or in the stores.

The residents of Cottonwood aren’t alone; compliance with orders from on-high is losing popularity across the country. One of the COVID-19 pandemic’s legacies may well be an overwhelming public fatigue with being told what to do.

Truthfully, Cottonwood Mayor Tim Elinski couldn’t have handled the mask order any more poorly. His order came after he lost a vote on the issue—which he admitted after the fact that he had held only because he thought he would win. The end result, then, was predetermined; he just didn’t get the cover he’d anticipated from the city council. That annoyed people as much as the mask mandate itself.

It didn’t have to be that way. A few days later I watched a woman stop in front of a sign posted in front of the local Safeway. She reached into her purse, pulled out a mask, and then entered the supermarket with her face covered as requested. As I watched, a steady stream of people mostly did the same. Asking nicely proved more effective than government commands at getting people to don masks.

But governments aren’t about asking; ordering is what they do. And they’re getting a lot of pushback.

Even at the beginning of the pandemic, when fear and uncertainty were at their height, many Americans worried that they would lose more to economic stagnation and social isolation than they gained from society-wide lockdowns. Closing businesses and banning gatherings might slow the spread of disease, but it also chokes off commerce, kills jobs, and sends people to the brink of despair.

“We’re trying our best to stay afloat,” the owner of a hair salon in Placer County, California, said at the end of April as she prepared to defy the state lockdown. “We had to open the shop because our families are depending on us.”

That salon owner was joined by many others across the country who defied rules in order to put food on the table. And they’re often willing to forcefully tell authorities where to get off.

“Frustrated small-business owners have turned to heavily armed, militia-style protesters … to serve as reopening security squads” to deter government officials from enforcing closure orders, The New York Times reported in mid-May. Disobedience morphed into open rebellion as people chafed against draconian commands and the resulting dwindling bank accounts.

It isn’t only a matter of dollars and cents, either. In New York City, parents sick of confinement at home and unable to legally let their children blow off steam in playgrounds “cut the locks and chains on gates that had kept them closed for months,” according to the New York Daily News.

Likewise, Santa Cruz County, California, reopened its beaches last week because people ignored lockdown orders. “It’s become impossible for law enforcement to continue to enforce the closures,” admitted Santa Cruz’s health officer, Gail Newel. “People are not willing to be governed anymore in that regard.”

Americans’ unwillingness to be governed any further by officials who responded to the pandemic with a series of botched policy initiatives, personal exemptions, and seemingly arbitrary commands to the public is understandable. Why would you take orders from people who seem to have no idea what they’re doing and clearly don’t intend to follow the rules themselves?

Besides, it’s not at all clear that the myriad dictates from authorities helped slow the spread of COVID-19 as promised. That’s not to say they were entirely ineffective—experts debate the impact of the orders. But “months of mixed messages have left many exhausted and wondering how much of what they did was worth it,” as a report in The New York Times concedes.

That uncertainty comes at a high price. Economic activity in the U.S. is expected to drop by about 8 percent this year, with a decade to come of reduced prosperity. Research suggests that government efforts to offset this economic carnage did little to preserve employment or to help the businesses most affected by people’s reactions to the pandemic —both government-mandated and voluntary.

Yes, voluntary! As exemplified by the mask-wearers I saw entering Safeway, people are capable of responding on their own to requests and to personal health concerns. Analysis of cellphone data shows that Americans not only resumed moving around well before lockdown orders were lifted, they had also curtailed their movements before being told to do so. Once again, asking nicely may work better than issuing orders.

Of course, voluntary curtailment of economic and social activity has costs, too. But costs that result from individual decisions are unlikely to spark the resentment and rebellion that we get in response to mandates.

Yet more mandates are what we’re getting. With cases of COVID-19 up (though death rates are down), many states are tightening the screws again on economic and social activity. But with growing numbers of people fed up with the frustrations and costs of lockdowns, and pretty much over being told what to do, it’s unlikely that we’ll see even the incomplete compliance that the pre-fatigue early days of the pandemic brought us.

That’s unfortunate, because some measures to combat the pandemic might well be good ideas despite the best efforts of officials to provoke us into defiance with ill-considered commands. Wearing masks, improving hygiene, emphasizing curb-side and delivery services, and increasing social-distancing could help to slow the spread of COVID-19 so that medical facilities aren’t overwhelmed, at least until vaccines and better treatments become available. The unmasked shoppers and diners in downtown Cottonwood effectively demonstrated the mayor’s impotence, but they may not have done themselves any favors.

But I suspect that the days of widespread compliance with do-it-or-else mandates meant to curb COVID-19 are over. Government officials will have to go against their instincts and learn that, instead of commanding, they have to be satisfied with the results of polite requests.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, IJ and its clients won a huge victory at the Supreme Court, where SCOTUS ruled that it’s unconstitutional for school choice programs to exclude religious schools. Click here to read Anthony Sanders, the director of IJ’s Center for Judicial Engagement, explain how we obtained the ruling only by the skin of our teeth, overcoming some truly metaphysical arguments about time and space. And click here for an in-depth podcast episode about the case.

  • Allegation: In 1992, Connecticut officials open new prison built on former waste site that they know is likely leaking radon, the leading cause of lung cancer among nonsmokers. Subsequent testing confirms excessive radon levels, but the mitigating system they install in 2014 doesn’t remedy radon in the cell blocks. Officials: There may be precedent saying we can’t subject inmates to other carcinogens, but there is no precedent regarding radon specifically. Second Circuit: No qualified immunity.
  • In which the Second Circuit allows the release pending trial of two defendants—attorneys in their early 30s who, in response to the death of George Floyd, allegedly threw a Molotov cocktail at an unoccupied NYPD cruiser.
  • Distraught at losing a place on the varsity cheer team to a freshman—a freshman!—Pennsylvania high school sophomore shares some choice words on social media. Fellow students alert the cheerleading coaches, who promptly cut the complaining student from the JV team. Student sues, alleging a First Amendment violation. Third Circuit: And she wins. Her off-campus speech was fully protected by the First Amendment. Concurrence: We don’t have to go quite that far to hold that she wins.
  • Huntington, W.Va. officers respond to report of a closing-time brawl outside the ironically named Rehab bar. Upon arriving, one officer is told by a bystander that a black man with red pants and a gun had just left. Other officers locate a black man with red pants a block away, frisk him, and find a gun. Which in no way violated the man’s Fourth Amendment rights, holds two-thirds of a Fourth Circuit panel.
  • In 2018, Maryland banned “rapid fire trigger activators”—devices that permit guns to be fired faster. Unlike other states, however, Maryland didn’t grandfather in existing owners; everyone has to get rid of their devices. Gun rights group sues, alleging a taking in violation of the Fifth Amendment. Fourth Circuit: The law doesn’t require owners to turn the devices over to the government or a third party; they could also just throw them out. So no taking. Dissent: Forcing someone to get rid of their stuff is a taking.
  • Oberlin College’s hearing panels for sexual assault allegations may be a kangaroo court, but is it a kangaroo court that treats the Bruces worse than the Sheilas, in violation of Title IX? Sixth Circuit: Taking the allegations as fair dinkum, the aggrieved bloke has a case. Dissent: Pig’s arse!  
  • In the Sixth Circuit, a Michigan man convicted of murdering a woman will get a new trial. Without overwhelming evidence of guilt, the court cannot ignore that the man was shackled in front of the jury. “Visible shackling undermines the presumption of innocence.”
  • Inmate at Muskegan, Mich. prison files pro se lawsuit against guard, alleging that guard repeatedly brandished a knife and threatened to kill him. District court dismisses the case without requiring the guard to answer (a shortcut blessed by the Prison Litigation Reform Act). Sixth Circuit: That was premature; the inmate’s Eighth Amendment claim is at least colorable. Dissent: The claim is decidedly not colorable. And even if it were, the district court could have sua sponte asserted qualified immunity on the guard’s behalf and dismissed on that ground.
  • The Seventh Circuit brings us its latest installment addressing the propriety of certain Wisconsin election laws under the Constitution and the Voting Rights Act. The upshot: The state can limit the hours and days for early voting; the state can require people live there for 28 or more days before becoming eligible to vote for offices other than the president; the state can require documentary proof of residence to register; the state can limit sending absentee ballots via email or fax to just a few narrow categories of voters; the state cannot require educational institutions to indicate whether students are citizens for them to be able to use college IDs; the state can refuse to accept expired student IDs; the state cannot demand students provide proof of current enrollment in addition to ID; and the district court must reassess whether the state has made it too hard to get a voting credential for people who cannot readily obtain one.  
  • Racine, Wisc. man impersonates a DEA agent so that he can get reacquainted with a high school crush. Not amused, the object of the faux-agent’s affection calls the cops. Defendant: I’m not a criminal, just “a hopeless romantic.” Seventh Circuit: “Those roles need not be mutually exclusive.”
  • After Christian County, Mo. sheriff pleads guilty to embezzling $50k from the county (and after he stockpiled three tons of food in the county jail’s basement in preparation for Armageddon), a new sheriff is elected. He promptly fires two deputy sheriffs who supported his opponent in the election. Were they fired for their political activity in violation of the First Amendment? Eighth Circuit: A deputy sheriff is the sheriff’s alter ego (in Missouri, anyway), so the sheriff can demand political loyalty upon pain of firing.
  • Suspected drug dealer flees from St. Louis police, striking a patrol car and an officer. The officers see a gun in the suspect’s vehicle, and one of them says he’s “going to kill this motherfucker, don’t you know it.” That cop does, indeed, shoot and kill the suspect. Prosecutors decline to charge the cop, but, after activists protest, they reverse course and charge him with first-degree murder. He’s acquitted. Eighth Circuit: And he cannot sue the prosecutor for bringing charges against him. 
  • When Congress failed to appropriate money to build a wall on the border with Mexico, was the Trump administration authorized to divert $2.5 bil in DoD funds to build it anyways? Ninth Circuit (over a dissent): No and no. 
  • “I SAID, THE ELEVENTH CIRCUIT UPHELD TWO FLORIDA STATUTES REGULATING HEARING AIDS WHILE REMANDING FOR THE DISTRICT COURT TO CONSIDER A THIRD SUCH LAW ON THE MERITS.”
  • In 1937, the Missouri Supreme Court upheld state-mandated racial segregation, ruling that barring a black student from the University of Missouri School of Law did not violate equal protection because the state was willing to pay his tuition at an out-of-state school. (The Supreme Court reversed, but the student went missing and his fate is unknown.) Missouri Supreme Court (2020, see footnote 7): Parties really need to stop citing our 1937 decision, even for otherwise unassailable points of law.
  • And in en banc news, the Ninth Circuit will not reconsider its decision allowing the “Fairbanks Four” to sue the city and police officers over their now-vacated murder convictions and subsequent 18-year incarcerations. Dissent: Their convictions were vacated by agreement with prosecutors, not after judicial review; so the convictions haven’t been invalidated. We’re the only circuit to allow damages claims to go forward in such circumstances. 

Calling themselves end-of-life doulas, some kindly senior citizens in rural California have drawn the ire of state regulators for teaching the terminally ill and their families how to hold home funerals. Though home funerals are legal in California, officials are cracking down on the volunteer doulas for acting as “funeral directors” without a state license and demanding that their tiny nonprofit build a million–dollar funeral home. Do the people of California really need to be “protected” from the likes of retiree Donna Peizer, an 80-year-old doula with three university degrees who helps families as a labor of love? IJ doesn’t think so. That’s why we’ve teamed up with Donna, her fellow doulas, and Californians who want their wisdom and assistance to vindicate the First Amendment right to give advice and hold home funerals on private property without pointless government interference. Click here to learn more.

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Overtime July begins with Emanations and Penumbras from the Shadow Docket

Blue June is so last month. Now, we are in Overtime July. Yes, the Supreme Court term has gone into extra innings. Eight months were not enough. Now, we need a ninth. So far, we do not have any signed opinions from July. But the Court has made a number of significant moves on the shadow docket. The Court’s first action for Overtime July was a short, three-page order. The Court quietly ruled ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.

Abortion

If you blinked, you’d miss the fact that the Court passed on six abortion-related petitions! First, the Court GVR’d Box v. Planned Parenthood of Indiana and Kentucky in light of June Medical. This case has been lingering for some time. In September 2018, Indiana filed a petition for a writ of certiorari. It presented two questions presented:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The case was distributed at 15 (!) conferences. Finally, in May 2019, the Court issued a three-page per curiam decision. The Court GVR’d on Question 1. It explained that the Seventh Circuit failed to apply the appropriate standard of review. However, the Court denied review on Question 2.

Indiana filed another cert petition in this litigation on February 4, 2019. This case presented a different question:

May a State, consistent with the Fourteenth Amendment, require an ultrasound as part of in-formed consent at least eighteen hours before an abortion?

This case was distributed at seven conferences. And finally, on July 2, the Court GVR’d the ultrasound case in light of June Medical.

Indiana had filed yet another cert petition in December 2019. This petition raised the third-party standing issue, which has now been resolved. The petition also presented a notification-related question:

Whether Indiana may, consistent with the Fourteenth Amendment, generally require lawyers for unemancipated minors to notify parents of court-authorized abortions, subject to judicial bypass upon a finding that such notice would be against the mi-nor’s best interests.

Presumably both of these Box cases will come back on appeal next year. And in that case, the Chief will likely only consider whether the law imposes an “undue burden,” and not consider whether the law provides any actual health benefits. The notification law seems like the sort of law that would survive under Casey, as re-envisioned by the Chief.

On July 2, the Court also quietly denied review in four other abortion cases. First, the Court denied review in Yost v. Planned Parenthood. This case raised the third-party standing issue, and a question about attorneys’ fees. Second, the Court denied review in Hill v. Whole Woman’s Health. This raised some issues about the licensing of abortion clinics. Third, the Court denied review in Reilly v. City of Harrisburg and Price v. City of Chicago. Both of these cases considered challenges to “buffer zones” surrounding abortion clinics. Justice Thomas would have granted the petition in Price. That case expressly asked the Court to reconsider Hill v. Colorado in light of Reed v. Town of Gilbert and McCullen v. Coakley.

The Court quietly dropped six abortion cases from its docket without a blip. The Chief is waiting for his preferred abortion vehicle at the right time. The game of 87-dimensional chess continues.

Free Exercise

On July 2, the Court also GVR’d St. Augustine School v. Stand in light of Espinoza. This case presented two-free exercise issues.

1. Whether the Free Exercise Clause prohibits the government from requiring a religious adherent to choose between following his or her faith tradition as he or she sees fit and the receipt of otherwise-available government benefits.

2. Whether the Religion Clauses prohibit the government from rejecting a private party’s assertion that it is not affiliated with a specific organized religious group, where the sole basis for the government’s decision is the religious label the party has assigned to itself.

This case now heads back to the Seventh Circuit.

Mueller Report

Remember the Mueller Report? For some time, it was the most important document around. Now, it barely warrants a mention. You may recall that parts of the Mueller Report were redacted. D.D.C., and later the D.C. Circuit, ordered the Trump Administration to release redacted portions of the report. In May, the Solicitor General sought a stay from the Supreme Court. It was granted on May 20, so long as a cert petition was filed by June 1. The briefing was fully completed on June 18. After distributions at two conferences, the petition was granted on July 2.

The cert grant, by itself, is a temporary victory for the Trump Administration. Had cert been denied, the stay would have been lifted, and D.D.C.’s order would have gone into effect. Now, this issue may linger till June 2021. At that point, President Trump could be out of office, and the House Committee would have a lessened need to access the documents. In any event, the redactions will not be made public before the election

There is another possible angle. Judge Rao’s dissent in the D.C. Circuit suggested that the House may lack Article III standing. In theory, the Court could remand the Mueller case after it decides the House Committee’s tax return case. But the fact that the Court granted here, and didn’t wait for a GVR, signals that a the tax case may not affect the outcome of the Mueller case.

Election Law

Here in Texas, people over the age of 65 are eligible to receive an absentee ballot. But people under the age of 65 have to meet certain criteria. The Texas Democratic Party argues that this regime violates the Twenty-Sixth Amendment. The Fifth Circuit disagreed. The Petitioners then asked the Supreme Court for an emergency application to stay the Fifth Circuit’s ruling. They also filed a petition for a writ of certiorari before judgment.

On June 26, the Court denied the stay. Justice Sotomayor wrote a statement respecting the denial:

This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not dis-agree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.

Six days later, on July 2, the Court denied the motion to expedite consideration of the petition. As a result, there is no likely chance this issue is resolved before the November election.

Later in the evening, the Court decided another abortion related case. A federal district court in Alabama had issued an order to remove some restrictions on voting during the pandemic. Alabama sought a stay from the Supreme Court on June 29. Three days later, it was granted. The Court split 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan in dissent.

Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.

Suspension Clause

In my view, DHS v. Thuraissigiam has interred the Supreme Court’s Suspension Clause jurisprudence (See here, here, and here). And on July 2, the Court quietly denied another Suspension Clause challenge. Hamama v. Adducci considered a statute that divests the district courts of jurisdiction to hear claims brought under the Convention against Torture. After Thuraissigiam, there was no interest to decide whether this statute violates the Suspension Clause.

Stay tuned for opinions on Monday, as Overtime July continues.

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Golden State Killer’s Capture Complicates Documentary I’ll Be Gone in the Dark

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I’ll Be Gone in the Dark. Available now on HBO Go and HBO Now.

I’ll Be Gone in the Dark as an account of a true-crime blogger’s pursuit of a serial killer is a confused, confusing, and yet compelling piece of work. When Executive Producer Liz Garbus started shooting her six-hour documentary, she didn’t know that the killer—a former cop who raped and murdered up and down California for at least a dozen years—would be captured before she finished. Even less was she aware that all the hard—even obsessed—work of her blogger heroine, Michelle McNamara, would turn out to be almost entirely irrelevant to the resolution of the case.

The result is a documentary that fitfully lurches one way, then another: a troubling tale of a journalistic Captain Queeg, her grip on life slipping away as she pursues a phantasmagorical murderer who may not even be alive; a gripping portrayal of rape survivors trying to put their lives back together after a terrifying experience that they’re not entirely certain has ended; and an illuminating but frustratingly incomplete portrait of a psychopath and his fractured descent from burglar to rapist to murderer.

Some of these stories are told better than others, and the transitions can be flabby and repetitive. A skillful editor probably could have trimmed 90 minutes out of I’ll Be Gone in the Dark that wouldn’t be missed.

But the sinewy thread at its center—of survival and surrender, of the pebble-in-a-pond ripples that spread out from crime and violence to claim victims far from the scene—is in the end a commanding presence. Stopping the show once you’ve started is nearly impossible.

Though he’s off-screen for much of I’ll Be Gone in the Dark and a blurry confection of scared-witless accounts when he’s there, the character that keeps the documentary’s motor running is the East Area Rapist, as he’s known in Northern California, or the Original Night Stalker, as he’s called in the south. Ultimately he would be dubbed the Golden State Killer by McNamara, a name that stuck.

He had type-A blood, a tiny penis, and a knife he wielded like a malevolent artist. He wore a ski mask over his face and disguised his voice by speaking through clenched teeth. Increasingly arrogant as his toll of rape victims mounted—there would be at least 50 before he was done, along with 13 murders—he would stroll the house, making himself snacks and once even eating a Christmas turkey as the women (and their boyfriends or husbands, if present) lay hog-tied in bed.

One female detective, despairing at how long it was taking to catch him, sought advice on how the women might resist him. A shrink who tried to administer therapy to rapists locked up in the California prison system agreed to talk to some of them. Replied one, recounting one of his attacks, “She fought back, and she’s dead.” The shaken shrink advised her detective friend: “You better catch him.” Eventually, the killings began.

The police were not the only ones pursuing him. Michelle McNamara, an aspiring Hollywood screenwriter with a fascination for crime since the murder of one of her childhood neighbors, authored a popular blog on unsolved crimes called True Crime Diary. It increasingly focused on the East Area Rapist.

And as McNamara linked up with message boards full of like-minded true-crime fanatics, she found herself as the unofficial commander of a cyber-vigilante squad stalking the rapist. They called themselves “citizen detectives,” and that was in their modest moments. “We’re crusaders. We’re warriors. We’re on the path,” says one of them interviewed in I’ll Be Gone in the Dark.

Online congregations of DIY detectives are nothing new. They go back at least to the O.J. Simpson trial, when message boards bristled with theories that the real killer was probably Simpson’s airheaded houseguest Kato Kaehlin. Some of the East Area Rapist hive-mind set was at least as daft. One of them, prosecuting a grudge against an old boyfriend, actually hijacked a sample of his DNA to be tested against that of the rapist. (Spoiler alert: No match.)

McNamara didn’t do anything that stupid, or maybe anything stupid at all. She was a genuine journalist, interviewing cops constantly and becoming, as several of them acknowledged, a genuine expert on the case—to such a degree that they gave her 37 cartons of old notes and reports.

Eventually she published a chilling story in Los Angeles magazine—reading it, her editor said, was “like an elevator plunging 20,000 stories”—that revived interest in what was by then becoming a cold case. The story attracted interest from everybody from Stephen King to crime novelist Gillian Flynn, and McNamara got a book contract.

“I have 18 months to do it. I know I’m going to have periods of total stress and doubt,” she wrote. “But I think I have it in me to finish this thing.

“Plus, I have drugs. God help me.”

That bit of foreshadowing was as accurate as it was harrowing. Caught up in the certainty that she was closing in on the East Area Rapist, McNamara was awash in paranoia (she and her husband even bought a fake gun that fired only blanks) that she kept at bay only with a rash of prescription drugs, including Adderall, opiates, and antidepressants. Some of them she got legitimately; others, not so much. Her emails and voicemails are littered with pleas scrounging spare Percocet and Ambien from friends and loved ones, and her pursuit of Xanax sounds suspiciously like an addiction. In 2016, she died in her sleep of an accidental overdose, her book unfinished.

The book would finally be published in 2018, just a couple of months before the arrest of the East Area Rapist/Original Night Stalker. He turned out to be a former cop named Joseph DiAngelo who used his police training to minimize the clues he left behind.

His capture had nothing to do with McNamara or her work. (His name did not appear in any of her research materials, and nothing investigators found in house suggested he was aware of her blog or book.) He was done in by a crime-solving technique that he could not possibly have foreseen when he began his crime spree nearly five decades ago: DNA matching, a process that required cops to painstakingly reconstruct family trees going back to the 1840s and took years to complete. In the end, DiAngelo couldn’t disappear into the dark, as he swaggeringly declared he would to one of his early rape victims. But McNamara, tragically, did, one more victim of a man who lived to inflict hurt and was all too successful at it.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, IJ and its clients won a huge victory at the Supreme Court, where SCOTUS ruled that it’s unconstitutional for school choice programs to exclude religious schools. Click here to read Anthony Sanders, the director of IJ’s Center for Judicial Engagement, explain how we obtained the ruling only by the skin of our teeth, overcoming some truly metaphysical arguments about time and space. And click here for an in-depth podcast episode about the case.

  • Allegation: In 1992, Connecticut officials open new prison built on former waste site that they know is likely leaking radon, the leading cause of lung cancer among nonsmokers. Subsequent testing confirms excessive radon levels, but the mitigating system they install in 2014 doesn’t remedy radon in the cell blocks. Officials: There may be precedent saying we can’t subject inmates to other carcinogens, but there is no precedent regarding radon specifically. Second Circuit: No qualified immunity.
  • In which the Second Circuit allows the release pending trial of two defendants—attorneys in their early 30s who, in response to the death of George Floyd, allegedly threw a Molotov cocktail at an unoccupied NYPD cruiser.
  • Distraught at losing a place on the varsity cheer team to a freshman—a freshman!—Pennsylvania high school sophomore shares some choice words on social media. Fellow students alert the cheerleading coaches, who promptly cut the complaining student from the JV team. Student sues, alleging a First Amendment violation. Third Circuit: And she wins. Her off-campus speech was fully protected by the First Amendment. Concurrence: We don’t have to go quite that far to hold that she wins.
  • Huntington, W.Va. officers respond to report of a closing-time brawl outside the ironically named Rehab bar. Upon arriving, one officer is told by a bystander that a black man with red pants and a gun had just left. Other officers locate a black man with red pants a block away, frisk him, and find a gun. Which in no way violated the man’s Fourth Amendment rights, holds two-thirds of a Fourth Circuit panel.
  • In 2018, Maryland banned “rapid fire trigger activators”—devices that permit guns to be fired faster. Unlike other states, however, Maryland didn’t grandfather in existing owners; everyone has to get rid of their devices. Gun rights group sues, alleging a taking in violation of the Fifth Amendment. Fourth Circuit: The law doesn’t require owners to turn the devices over to the government or a third party; they could also just throw them out. So no taking. Dissent: Forcing someone to get rid of their stuff is a taking.
  • Oberlin College’s hearing panels for sexual assault allegations may be a kangaroo court, but is it a kangaroo court that treats the Bruces worse than the Sheilas, in violation of Title IX? Sixth Circuit: Taking the allegations as fair dinkum, the aggrieved bloke has a case. Dissent: Pig’s arse!  
  • In the Sixth Circuit, a Michigan man convicted of murdering a woman will get a new trial. Without overwhelming evidence of guilt, the court cannot ignore that the man was shackled in front of the jury. “Visible shackling undermines the presumption of innocence.”
  • Inmate at Muskegan, Mich. prison files pro se lawsuit against guard, alleging that guard repeatedly brandished a knife and threatened to kill him. District court dismisses the case without requiring the guard to answer (a shortcut blessed by the Prison Litigation Reform Act). Sixth Circuit: That was premature; the inmate’s Eighth Amendment claim is at least colorable. Dissent: The claim is decidedly not colorable. And even if it were, the district court could have sua sponte asserted qualified immunity on the guard’s behalf and dismissed on that ground.
  • The Seventh Circuit brings us its latest installment addressing the propriety of certain Wisconsin election laws under the Constitution and the Voting Rights Act. The upshot: The state can limit the hours and days for early voting; the state can require people live there for 28 or more days before becoming eligible to vote for offices other than the president; the state can require documentary proof of residence to register; the state can limit sending absentee ballots via email or fax to just a few narrow categories of voters; the state cannot require educational institutions to indicate whether students are citizens for them to be able to use college IDs; the state can refuse to accept expired student IDs; the state cannot demand students provide proof of current enrollment in addition to ID; and the district court must reassess whether the state has made it too hard to get a voting credential for people who cannot readily obtain one.  
  • Racine, Wisc. man impersonates a DEA agent so that he can get reacquainted with a high school crush. Not amused, the object of the faux-agent’s affection calls the cops. Defendant: I’m not a criminal, just “a hopeless romantic.” Seventh Circuit: “Those roles need not be mutually exclusive.”
  • After Christian County, Mo. sheriff pleads guilty to embezzling $50k from the county (and after he stockpiled three tons of food in the county jail’s basement in preparation for Armageddon), a new sheriff is elected. He promptly fires two deputy sheriffs who supported his opponent in the election. Were they fired for their political activity in violation of the First Amendment? Eighth Circuit: A deputy sheriff is the sheriff’s alter ego (in Missouri, anyway), so the sheriff can demand political loyalty upon pain of firing.
  • Suspected drug dealer flees from St. Louis police, striking a patrol car and an officer. The officers see a gun in the suspect’s vehicle, and one of them says he’s “going to kill this motherfucker, don’t you know it.” That cop does, indeed, shoot and kill the suspect. Prosecutors decline to charge the cop, but, after activists protest, they reverse course and charge him with first-degree murder. He’s acquitted. Eighth Circuit: And he cannot sue the prosecutor for bringing charges against him. 
  • When Congress failed to appropriate money to build a wall on the border with Mexico, was the Trump administration authorized to divert $2.5 bil in DoD funds to build it anyways? Ninth Circuit (over a dissent): No and no. 
  • “I SAID, THE ELEVENTH CIRCUIT UPHELD TWO FLORIDA STATUTES REGULATING HEARING AIDS WHILE REMANDING FOR THE DISTRICT COURT TO CONSIDER A THIRD SUCH LAW ON THE MERITS.”
  • In 1937, the Missouri Supreme Court upheld state-mandated racial segregation, ruling that barring a black student from the University of Missouri School of Law did not violate equal protection because the state was willing to pay his tuition at an out-of-state school. (The Supreme Court reversed, but the student went missing and his fate is unknown.) Missouri Supreme Court (2020, see footnote 7): Parties really need to stop citing our 1937 decision, even for otherwise unassailable points of law.
  • And in en banc news, the Ninth Circuit will not reconsider its decision allowing the “Fairbanks Four” to sue the city and police officers over their now-vacated murder convictions and subsequent 18-year incarcerations. Dissent: Their convictions were vacated by agreement with prosecutors, not after judicial review; so the convictions haven’t been invalidated. We’re the only circuit to allow damages claims to go forward in such circumstances. 

Calling themselves end-of-life doulas, some kindly senior citizens in rural California have drawn the ire of state regulators for teaching the terminally ill and their families how to hold home funerals. Though home funerals are legal in California, officials are cracking down on the volunteer doulas for acting as “funeral directors” without a state license and demanding that their tiny nonprofit build a million–dollar funeral home. Do the people of California really need to be “protected” from the likes of retiree Donna Peizer, an 80-year-old doula with three university degrees who helps families as a labor of love? IJ doesn’t think so. That’s why we’ve teamed up with Donna, her fellow doulas, and Californians who want their wisdom and assistance to vindicate the First Amendment right to give advice and hold home funerals on private property without pointless government interference. Click here to learn more.

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Overtime July begins with Emanations and Penumbras from the Shadow Docket

Blue June is so last month. Now, we are in Overtime July. Yes, the Supreme Court term has gone into extra innings. Eight months were not enough. Now, we need a ninth. So far, we do not have any signed opinions from July. But the Court has made a number of significant moves on the shadow docket. The Court’s first action for Overtime July was a short, three-page order. The Court quietly ruled ruled on Abortion, Free Exercise, the Mueller Report, Voting Rights, and the Suspension Clause.

Abortion

If you blinked, you’d miss the fact that the Court passed on six abortion-related petitions! First, the Court GVR’d Box v. Planned Parenthood of Indiana and Kentucky in light of June Medical. This case has been lingering for some time. In September 2018, Indiana filed a petition for a writ of certiorari. It presented two questions presented:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The case was distributed at 15 (!) conferences. Finally, in May 2019, the Court issued a three-page per curiam decision. The Court GVR’d on Question 1. It explained that the Seventh Circuit failed to apply the appropriate standard of review. However, the Court denied review on Question 2.

Indiana filed another cert petition in this litigation on February 4, 2019. This case presented a different question:

May a State, consistent with the Fourteenth Amendment, require an ultrasound as part of in-formed consent at least eighteen hours before an abortion?

This case was distributed at seven conferences. And finally, on July 2, the Court GVR’d the ultrasound case in light of June Medical.

Indiana had filed yet another cert petition in December 2019. This petition raised the third-party standing issue, which has now been resolved. The petition also presented a notification-related question:

Whether Indiana may, consistent with the Fourteenth Amendment, generally require lawyers for unemancipated minors to notify parents of court-authorized abortions, subject to judicial bypass upon a finding that such notice would be against the mi-nor’s best interests.

Presumably both of these Box cases will come back on appeal next year. And in that case, the Chief will likely only consider whether the law imposes an “undue burden,” and not consider whether the law provides any actual health benefits. The notification law seems like the sort of law that would survive under Casey, as re-envisioned by the Chief.

On July 2, the Court also quietly denied review in four other abortion cases. First, the Court denied review in Yost v. Planned Parenthood. This case raised the third-party standing issue, and a question about attorneys’ fees. Second, the Court denied review in Hill v. Whole Woman’s Health. This raised some issues about the licensing of abortion clinics. Third, the Court denied review in Reilly v. City of Harrisburg and Price v. City of Chicago. Both of these cases considered challenges to “buffer zones” surrounding abortion clinics. Justice Thomas would have granted the petition in Price. That case expressly asked the Court to reconsider Hill v. Colorado in light of Reed v. Town of Gilbert and McCullen v. Coakley.

The Court quietly dropped six abortion cases from its docket without a blip. The Chief is waiting for his preferred abortion vehicle at the right time. The game of 87-dimensional chess continues.

Free Exercise

On July 2, the Court also GVR’d St. Augustine School v. Stand in light of Espinoza. This case presented two-free exercise issues.

1. Whether the Free Exercise Clause prohibits the government from requiring a religious adherent to choose between following his or her faith tradition as he or she sees fit and the receipt of otherwise-available government benefits.

2. Whether the Religion Clauses prohibit the government from rejecting a private party’s assertion that it is not affiliated with a specific organized religious group, where the sole basis for the government’s decision is the religious label the party has assigned to itself.

This case now heads back to the Seventh Circuit.

Mueller Report

Remember the Mueller Report? For some time, it was the most important document around. Now, it barely warrants a mention. You may recall that parts of the Mueller Report were redacted. D.D.C., and later the D.C. Circuit, ordered the Trump Administration to release redacted portions of the report. In May, the Solicitor General sought a stay from the Supreme Court. It was granted on May 20, so long as a cert petition was filed by June 1. The briefing was fully completed on June 18. After distributions at two conferences, the petition was granted on July 2.

The cert grant, by itself, is a temporary victory for the Trump Administration. Had cert been denied, the stay would have been lifted, and D.D.C.’s order would have gone into effect. Now, this issue may linger till June 2021. At that point, President Trump could be out of office, and the House Committee would have a lessened need to access the documents. In any event, the redactions will not be made public before the election

There is another possible angle. Judge Rao’s dissent in the D.C. Circuit suggested that the House may lack Article III standing. In theory, the Court could remand the Mueller case after it decides the House Committee’s tax return case. But the fact that the Court granted here, and didn’t wait for a GVR, signals that a the tax case may not affect the outcome of the Mueller case.

Election Law

Here in Texas, people over the age of 65 are eligible to receive an absentee ballot. But people under the age of 65 have to meet certain criteria. The Texas Democratic Party argues that this regime violates the Twenty-Sixth Amendment. The Fifth Circuit disagreed. The Petitioners then asked the Supreme Court for an emergency application to stay the Fifth Circuit’s ruling. They also filed a petition for a writ of certiorari before judgment.

On June 26, the Court denied the stay. Justice Sotomayor wrote a statement respecting the denial:

This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not dis-agree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.

Six days later, on July 2, the Court denied the motion to expedite consideration of the petition. As a result, there is no likely chance this issue is resolved before the November election.

Later in the evening, the Court decided another abortion related case. A federal district court in Alabama had issued an order to remove some restrictions on voting during the pandemic. Alabama sought a stay from the Supreme Court on June 29. Three days later, it was granted. The Court split 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan in dissent.

Say what you will about the Chief, but he is locked in on voting rights cases. I think every district court order that makes it easier to vote before an election will be stayed, 5-4.

Suspension Clause

In my view, DHS v. Thuraissigiam has interred the Supreme Court’s Suspension Clause jurisprudence (See here, here, and here). And on July 2, the Court quietly denied another Suspension Clause challenge. Hamama v. Adducci considered a statute that divests the district courts of jurisdiction to hear claims brought under the Convention against Torture. After Thuraissigiam, there was no interest to decide whether this statute violates the Suspension Clause.

Stay tuned for opinions on Monday, as Overtime July continues.

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Golden State Killer’s Capture Complicates Documentary I’ll Be Gone in the Dark

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I’ll Be Gone in the Dark. Available now on HBO Go and HBO Now.

I’ll Be Gone in the Dark as an account of a true-crime blogger’s pursuit of a serial killer is a confused, confusing, and yet compelling piece of work. When Executive Producer Liz Garbus started shooting her six-hour documentary, she didn’t know that the killer—a former cop who raped and murdered up and down California for at least a dozen years—would be captured before she finished. Even less was she aware that all the hard—even obsessed—work of her blogger heroine, Michelle McNamara, would turn out to be almost entirely irrelevant to the resolution of the case.

The result is a documentary that fitfully lurches one way, then another: a troubling tale of a journalistic Captain Queeg, her grip on life slipping away as she pursues a phantasmagorical murderer who may not even be alive; a gripping portrayal of rape survivors trying to put their lives back together after a terrifying experience that they’re not entirely certain has ended; and an illuminating but frustratingly incomplete portrait of a psychopath and his fractured descent from burglar to rapist to murderer.

Some of these stories are told better than others, and the transitions can be flabby and repetitive. A skillful editor probably could have trimmed 90 minutes out of I’ll Be Gone in the Dark that wouldn’t be missed.

But the sinewy thread at its center—of survival and surrender, of the pebble-in-a-pond ripples that spread out from crime and violence to claim victims far from the scene—is in the end a commanding presence. Stopping the show once you’ve started is nearly impossible.

Though he’s off-screen for much of I’ll Be Gone in the Dark and a blurry confection of scared-witless accounts when he’s there, the character that keeps the documentary’s motor running is the East Area Rapist, as he’s known in Northern California, or the Original Night Stalker, as he’s called in the south. Ultimately he would be dubbed the Golden State Killer by McNamara, a name that stuck.

He had type-A blood, a tiny penis, and a knife he wielded like a malevolent artist. He wore a ski mask over his face and disguised his voice by speaking through clenched teeth. Increasingly arrogant as his toll of rape victims mounted—there would be at least 50 before he was done, along with 13 murders—he would stroll the house, making himself snacks and once even eating a Christmas turkey as the women (and their boyfriends or husbands, if present) lay hog-tied in bed.

One female detective, despairing at how long it was taking to catch him, sought advice on how the women might resist him. A shrink who tried to administer therapy to rapists locked up in the California prison system agreed to talk to some of them. Replied one, recounting one of his attacks, “She fought back, and she’s dead.” The shaken shrink advised her detective friend: “You better catch him.” Eventually, the killings began.

The police were not the only ones pursuing him. Michelle McNamara, an aspiring Hollywood screenwriter with a fascination for crime since the murder of one of her childhood neighbors, authored a popular blog on unsolved crimes called True Crime Diary. It increasingly focused on the East Area Rapist.

And as McNamara linked up with message boards full of like-minded true-crime fanatics, she found herself as the unofficial commander of a cyber-vigilante squad stalking the rapist. They called themselves “citizen detectives,” and that was in their modest moments. “We’re crusaders. We’re warriors. We’re on the path,” says one of them interviewed in I’ll Be Gone in the Dark.

Online congregations of DIY detectives are nothing new. They go back at least to the O.J. Simpson trial, when message boards bristled with theories that the real killer was probably Simpson’s airheaded houseguest Kato Kaehlin. Some of the East Area Rapist hive-mind set was at least as daft. One of them, prosecuting a grudge against an old boyfriend, actually hijacked a sample of his DNA to be tested against that of the rapist. (Spoiler alert: No match.)

McNamara didn’t do anything that stupid, or maybe anything stupid at all. She was a genuine journalist, interviewing cops constantly and becoming, as several of them acknowledged, a genuine expert on the case—to such a degree that they gave her 37 cartons of old notes and reports.

Eventually she published a chilling story in Los Angeles magazine—reading it, her editor said, was “like an elevator plunging 20,000 stories”—that revived interest in what was by then becoming a cold case. The story attracted interest from everybody from Stephen King to crime novelist Gillian Flynn, and McNamara got a book contract.

“I have 18 months to do it. I know I’m going to have periods of total stress and doubt,” she wrote. “But I think I have it in me to finish this thing.

“Plus, I have drugs. God help me.”

That bit of foreshadowing was as accurate as it was harrowing. Caught up in the certainty that she was closing in on the East Area Rapist, McNamara was awash in paranoia (she and her husband even bought a fake gun that fired only blanks) that she kept at bay only with a rash of prescription drugs, including Adderall, opiates, and antidepressants. Some of them she got legitimately; others, not so much. Her emails and voicemails are littered with pleas scrounging spare Percocet and Ambien from friends and loved ones, and her pursuit of Xanax sounds suspiciously like an addiction. In 2016, she died in her sleep of an accidental overdose, her book unfinished.

The book would finally be published in 2018, just a couple of months before the arrest of the East Area Rapist/Original Night Stalker. He turned out to be a former cop named Joseph DiAngelo who used his police training to minimize the clues he left behind.

His capture had nothing to do with McNamara or her work. (His name did not appear in any of her research materials, and nothing investigators found in house suggested he was aware of her blog or book.) He was done in by a crime-solving technique that he could not possibly have foreseen when he began his crime spree nearly five decades ago: DNA matching, a process that required cops to painstakingly reconstruct family trees going back to the 1840s and took years to complete. In the end, DiAngelo couldn’t disappear into the dark, as he swaggeringly declared he would to one of his early rape victims. But McNamara, tragically, did, one more victim of a man who lived to inflict hurt and was all too successful at it.

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Brandon Straka’s #WalkAway Lawsuit Against LGBT Community Center Thrown Out

From Justice Kathryn E. Freed’s decision Wednesday in Straka v. Lesbian Gay Bisexual & Transgender Community Center, Inc., dismissing a lawsuit that got some news coverage in 2019:

Plaintiff Straka is the founder and executive director of #WalkAway, a New York State licensed domestic not-for-profit limited liability company, and co-plaintiffs Harlow and White are “associates” of #WalkAway’s who assist in its non-profit activities. The complaint describes those activities as holding or promoting events that are designed to promote “peaceful social discourse, political awareness and promotion of alternative expressions of gay identity and LGBT identity within the LGBT Community.” … LGBTCC … is engaged in the business of “offering the LGBT Communities of New York City, advocacy, health and wellness programs, arts, entertainment, cultural events and various social and cultural services.” …

The amended complaint alleges that, on March 14, 2019, Straka executed a contract with the LGBTCC to reserve space at its New York County location to hold a proposed #WalkAway panel discussion there, and also remitted payment to the LGBTCC of $650.00…. The complaint … allege[s] that the LGBTCC cancelled the scheduled #WalkAway event on March 22, 2019 “without valid reason or prior warning,” and that the LGBTCC thereafter returned [the] $650.00 payment ….

The amended complaint further alleges that: 1) on May 19, 2019, defendant Rosenberg posted a defamatory Tweet about the scheduled #WalkAway event on the Twitter social media platform; 2) on March 21, 2019, defendant Beeferman prepared and posted a document entitled “An Open Letter to the LGBT Center” on the Airtable social media platform which contained several defamatory statements about #WalkAway, and which demanded that the LGBTCC cancel the scheduled #WalkAway event; and 3) on March 22, 2019, [defendant] Testone posted responses to the “Open Letter” on Twitter and on the LGBTCC’s website that contained defamatory statements about #WalkAway, and that acknowledged that the LGBTCC had decided to cancel #WalkAway’s scheduled event so as not to violate the LGBTCC’s policies and mission….

[1.] Plaintiffs claimed that this violated state and local bans on discrimination based on sexual and gender identity, but the court concluded that,

The LGBTCC’s announcement concerning its cancellation of the March 28, 2019 #WalkAway event stated as follows: “In recent days we have learned that certain of the panelists announced for this event have made repeated, well-documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are. Our space is a place of safety and refuge for those most vulnerable among us, and we will do everything in our power to protect that. Permitting this event to proceed would make many of our community members feel unsafe and, among other things, interfere with their ability to participate in other Center programming.”

Plaintiffs assert that the amended complaint does “not allege discrimination based upon [their] political views, but rather that they “were discriminated against because of their sexual and gender identities.” However, this assertion is belied by the text of the LGBTCC announcement, which refers to the center’s “mission,” but plainly does not mention sexual or gender identities. The court also notes that plaintiffs own ensuing assertion, that the LGBTCC “used its policies as a pretext, or cover, for not wanting to permit one of their own to express controversial views,” appears to admit that the LGBTCC objected to their political views rather than their sexual or gender identities.

[2.] Plaintiffs also claimed that the defendants “engag[ed] in a pattern of egregious cyberbullying,” but the court concluded that New York law doesn’t create a civil action for cyberbullying. Plaintiffs had pointed to New York Human Rights Law § 8-102(26), which added at one pointed defined “cyberbullying”, but that provision has apparently since been removed, and in any event was never accompanied with a prohibition of “cyberbullying.” The court added that,

[A] recent Court of Appeals decision … invalidated the cyberbullying provision of an Albany County local law (“the Dignity for All Students Act”) on the ground that it violated the Free Speech Clause of the First Amendment of the U.S. Constitution as overbroad. People v Marquan M., 24 NY3d 1 (2014). The Court opined that “cyberbullying is not conceptually immune from government regulation,” but it did not recognize a cause of action created by the Albany County local law. Because plaintiffs have failed to establish that New York law recognizes a cause of action for “cyberbullying,” or that HRL § 8-102 (26) creates such a cause of action, this Court grants so much of both the LGBTCC defendants’ and the individual defendants’ motions as seek dismissal of plaintiffs’ second cause of action.

[3.] Plaintiffs also claimed defamation, but the court concluded that the defendants’ statements were opinions, not actionable false statements of fact:

[The LBTCC’s allegedly defamatory statement] made passing references to plaintiffs’ previous activities in order to explain why the LGBTCC had decided to cancel the #WalkAway event; to wit: “we have learned that certain of the panelists announced for this event have made repeated, well- documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are.” However, the cancellation notice did not mention those “repeated, well-documented past statements” any further. Instead, it stated that the LGBTCC had determined that #WalkAway’s goals and values were so incompatible with its own that holding the #WalkAway event might “negatively impact people and/or organizations that use the LGBTCC, and/or cause conflict or interference with other LGBTCC programs.” The remainder of the notice’s four paragraphs were devoted to extolling the LGBTCC’s own goals and values.

This Court believes that a “reasonable reader” would be likely to derive two things from the cancellation notice: 1) the information that the LGBTCC had cancelled the #WalkAway event; and 2) the LGBTCC’s reason for doing so—i.e., that it considered that #WalkAway’s mission and methods were incompatible with its own.  Further, this Court finds that a “reasonable reader” would likely regard the former item (the cancellation) as a fact, and the latter item (the explanation for the cancellation) as a result of the LGBTCC’s low opinion of #WalkAway, which is what drove its decision. This Court does not believe that a “reasonable reader” would likely understand the cancellation notice to convey any particular negative facts about #Walkaway, since it simply does not contain any.

The LGBTCC’s subsequent Twitter posting says even less; merely informing the public that:

“Upon further review and consideration, the [LGBTCC] has cancelled the March 28 #WalkAway event. Full statement available at [LGBTCC website].”

In any event, because the court concludes that the cancellation notice contains an expression of the LGBTCC’s opinion about #WalkAway, but not any actionable false statements, and because the First Amendment protects expressions of opinion from defamation claims, the court finds that plaintiffs’ fourth cause of action must fail, as a matter of law.

Plaintiffs also sued for defamation based on the following:

Rosenberg’s March 19, 2019 Tweet consisted of the following short statement: “Like are y’all that desperate for money? This is incredibly egregious that you’d host an event where panelists have used queer slurs and stood behind policies that put the community at great risk. Stand for something. SOMETHING.”

The individual defendants first argue that “every single statement identified in the complaint is true or at the least substantially true.” Plaintiffs respond that “defendants’ statements are factually inaccurate and patently untrue.” The individual defendants’ reply papers restate their original argument, and cite to certain documentary submissions which, they assert, chronicle plaintiffs’ alleged “queer slurs.” …

Here, the individual defendants have presented documents which establish that: 1) plaintiffs Straka, Harlow and White were scheduled to be panelists at the cancelled #Walkaway event at the LGBTCC; 2) on October 22, 2018, Straka posted a Twitter comment that derided the terms “trans,” “genderfluid,” “genderqueer” and “non-binary” as “not real” and “leftist crap”; 3) on August 23, 2019 Straka posted another Twitter comment that used the pejorative term “gaystapo” in reference to the LGBTCC; 4) on November 29, 2018, Harlow posted a comment on Google’s social media platform which equated the term “queer” with “fetishized dysfunction” and “emotional instability,” and as a synonym for “worthless,” “mildly insane,” “obsessed,” and “disparaging”; and 5) since January 2017, White has intermittently created and uploaded episodes of a video series entitled “Triggering Trannies” which features taunts of people who identify as “trans.”

In this Court’s view, all of these comments may be fairly described as “queer slurs” because they were clearly intended as insults. As a result, this Court finds that the individual defendants have demonstrated, by documentary evidence, that the assertion in Rosenberg’s March 19, 2019 Tweet, that “panelists have used queer slurs,” was a true statement. Because of this, New York law immunizes it against plaintiffs’ defamation claim. Therefore, this Court grants the individual defendants’ motion to dismiss so much of plaintiffs’ fourth cause of action as is based on Rosenberg’s March 19, 2019 Tweet.

Beeferman’s March 21, 2019 Airtable post entitled “An Open Letter to the LGBT Center” (which Rosenberg also signed) is longer and more specific than Rosenberg’s Tweet. The portions of it that are relevant to this motion to dismiss are as follows:

“The speakers booked for March 28th’s Town Hall, Brandon Straka, Blaire White, Rob Smith, and Mike Harlow, espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities. Straka, the organizer of the #WalkAway Campaign, has been on the programs of Tucker Carlson, Laura Ingraham, and Alex Jones, all of whom give credence to violently anti-immigrant, racist, sexist, and queerphobic ideologies. Straka and Harlow even appeared on Gavin McInnes’s CRTV show to talk about #WalkAway two weeks after McInnes’s violent Proud Boys gang attacked counter-protesters on the Upper East Side, kicking and punching young queers while yelling ‘Faggot!’

“The stated goal of ‘WalkAway’ is to draw LGBTQI+ people to the right. However, as a cursory search of the speakers’ public statements shows, they are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the ‘Alt Right’ white nationalist movement. What’s more, their ‘WalkAway’ platform is the arm of a partisan propaganda machine which accuses their political opponents of supporting ‘special rights’ for gender and sexual minorities….

“Please see the link below for detailed documentation of their transphobic, Islamophobic, antifeminist, and racist incitement. Recent history from Christchurch to Charlottesville shows that giving a platform to such peddlers of hate empowers self-described white supremacists, sexists, transphobes, and homophobes, and encourages them to escalate their activity from hateful speech to physical violence against our communities. Giving a platform to these speakers is deeply irresponsible at this moment.”

Here, this Court finds that the Open Letter contains … non-actionable opinion ….

In the first quoted paragraph of the Open Letter, Beeferman states that plaintiffs “espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities.” He then recites that plaintiffs have appeared on television shows hosted by Tucker Carlson, Laura Ingraham, Alex Jones and Gavin McInnes. The first statement clearly expresses Beeferman’s opinion that plaintiffs hold views about LGBTQI+ people which he characterizes as “bigoted” and “dangerous.” The second sentence recites that plaintiffs have publicly appeared on television shows where they have discussed those views with hosts who are known to share them. The first sentence expresses an opinion. The second sentence expresses a factual basis for that opinion. Taken together, they are a “statement of opinion which is accompanied by a recitation of the facts upon which it is based.” As such, they are not actionable.

In the second quoted paragraph of the Open Letter, Beeferman states that plaintiffs “are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the ‘Alt Right.'” It also states that #WalkAway is “the arm of a partisan propaganda machine which accuses their political opponents of supporting ‘special rights’ for gender and sexual minorities.”

Leaving aside, for the moment, Beeferman’s personal characterizations of plaintiffs as “far-right provocateurs” and of #WalkAway as “the arm of a partisan propaganda machine,” the balance of the paragraph expresses Beeferman’s opinions that: 1) as a result of their views, plaintiffs “share responsibility for incitement to violence against” certain minority groups; and 2) the “propaganda machine” that #WalkAway is a part of “accuses its political opponents of supporting ‘special rights’ for gender and sexual minorities.” Although this paragraph does not supply a factual basis of the reason for Beeferman’s opinions, as the preceding one did, this Court notes that the second paragraph is qualified by the portion of the Open Letter’s last paragraph, which invites the reader to “[p]lease see the link below for detailed documentation of their [plaintiffs’] transphobic, Islamophobic, antifeminist, and racist incitement.” … [A] “remark [which is ] is prompted by or responsive to a hyperlink …is ‘accompanied by a recitation of the facts upon which it is based,’ and therefore qualifies as ‘pure opinion.'” Here, because the link in the final paragraph provides information to support the opinions alluded to in the second paragraph, this Court concludes that this portion of Beeferman’s Open Letter is not actionable either, because it “does not imply that it is based upon undisclosed facts.”

Returning now to Beeferman’s personal characterizations of plaintiffs as “far-right provocateurs” and of #WalkAway as “the arm of a partisan propaganda machine,” this Court is cognizant of the rule that “‘[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in … circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.'” In the context of today’s hotly debated political disagreements over LGBTQI+ rights, the court believes that it is only reasonable to expect the use of “epithets, fiery rhetoric or hyperbole,” and that is what this Court deems Beeferman’s ungenerous personal characterizations of plaintiffs to be. As a result, this Court finds that those statements do not constitute actionable defamation….

[4.] Plaintiffs also sued for breach of contact, but the court concluded that “plaintiffs’ failure to produce the alleged contract or to plead which of its terms were breached and how, is fatal to its claim against the LGBTCC defendants.”

The court’s analysis looks correct to me (except that I haven’t followed the breach of contract issue closely enough to speak to that).

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Brandon Straka’s #WalkAway Lawsuit Against LGBT Community Center Thrown Out

From Justice Kathryn E. Freed’s decision Wednesday in Straka v. Lesbian Gay Bisexual & Transgender Community Center, Inc., dismissing a lawsuit that got some news coverage in 2019:

Plaintiff Straka is the founder and executive director of #WalkAway, a New York State licensed domestic not-for-profit limited liability company, and co-plaintiffs Harlow and White are “associates” of #WalkAway’s who assist in its non-profit activities. The complaint describes those activities as holding or promoting events that are designed to promote “peaceful social discourse, political awareness and promotion of alternative expressions of gay identity and LGBT identity within the LGBT Community.” … LGBTCC … is engaged in the business of “offering the LGBT Communities of New York City, advocacy, health and wellness programs, arts, entertainment, cultural events and various social and cultural services.” …

The amended complaint alleges that, on March 14, 2019, Straka executed a contract with the LGBTCC to reserve space at its New York County location to hold a proposed #WalkAway panel discussion there, and also remitted payment to the LGBTCC of $650.00…. The complaint … allege[s] that the LGBTCC cancelled the scheduled #WalkAway event on March 22, 2019 “without valid reason or prior warning,” and that the LGBTCC thereafter returned [the] $650.00 payment ….

The amended complaint further alleges that: 1) on May 19, 2019, defendant Rosenberg posted a defamatory Tweet about the scheduled #WalkAway event on the Twitter social media platform; 2) on March 21, 2019, defendant Beeferman prepared and posted a document entitled “An Open Letter to the LGBT Center” on the Airtable social media platform which contained several defamatory statements about #WalkAway, and which demanded that the LGBTCC cancel the scheduled #WalkAway event; and 3) on March 22, 2019, [defendant] Testone posted responses to the “Open Letter” on Twitter and on the LGBTCC’s website that contained defamatory statements about #WalkAway, and that acknowledged that the LGBTCC had decided to cancel #WalkAway’s scheduled event so as not to violate the LGBTCC’s policies and mission….

[1.] Plaintiffs claimed that this violated state and local bans on discrimination based on sexual and gender identity, but the court concluded that,

The LGBTCC’s announcement concerning its cancellation of the March 28, 2019 #WalkAway event stated as follows: “In recent days we have learned that certain of the panelists announced for this event have made repeated, well-documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are. Our space is a place of safety and refuge for those most vulnerable among us, and we will do everything in our power to protect that. Permitting this event to proceed would make many of our community members feel unsafe and, among other things, interfere with their ability to participate in other Center programming.”

Plaintiffs assert that the amended complaint does “not allege discrimination based upon [their] political views, but rather that they “were discriminated against because of their sexual and gender identities.” However, this assertion is belied by the text of the LGBTCC announcement, which refers to the center’s “mission,” but plainly does not mention sexual or gender identities. The court also notes that plaintiffs own ensuing assertion, that the LGBTCC “used its policies as a pretext, or cover, for not wanting to permit one of their own to express controversial views,” appears to admit that the LGBTCC objected to their political views rather than their sexual or gender identities.

[2.] Plaintiffs also claimed that the defendants “engag[ed] in a pattern of egregious cyberbullying,” but the court concluded that New York law doesn’t create a civil action for cyberbullying. Plaintiffs had pointed to New York Human Rights Law § 8-102(26), which added at one pointed defined “cyberbullying”, but that provision has apparently since been removed, and in any event was never accompanied with a prohibition of “cyberbullying.” The court added that,

[A] recent Court of Appeals decision … invalidated the cyberbullying provision of an Albany County local law (“the Dignity for All Students Act”) on the ground that it violated the Free Speech Clause of the First Amendment of the U.S. Constitution as overbroad. People v Marquan M., 24 NY3d 1 (2014). The Court opined that “cyberbullying is not conceptually immune from government regulation,” but it did not recognize a cause of action created by the Albany County local law. Because plaintiffs have failed to establish that New York law recognizes a cause of action for “cyberbullying,” or that HRL § 8-102 (26) creates such a cause of action, this Court grants so much of both the LGBTCC defendants’ and the individual defendants’ motions as seek dismissal of plaintiffs’ second cause of action.

[3.] Plaintiffs also claimed defamation, but the court concluded that the defendants’ statements were opinions, not actionable false statements of fact:

[The LBTCC’s allegedly defamatory statement] made passing references to plaintiffs’ previous activities in order to explain why the LGBTCC had decided to cancel the #WalkAway event; to wit: “we have learned that certain of the panelists announced for this event have made repeated, well- documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are.” However, the cancellation notice did not mention those “repeated, well-documented past statements” any further. Instead, it stated that the LGBTCC had determined that #WalkAway’s goals and values were so incompatible with its own that holding the #WalkAway event might “negatively impact people and/or organizations that use the LGBTCC, and/or cause conflict or interference with other LGBTCC programs.” The remainder of the notice’s four paragraphs were devoted to extolling the LGBTCC’s own goals and values.

This Court believes that a “reasonable reader” would be likely to derive two things from the cancellation notice: 1) the information that the LGBTCC had cancelled the #WalkAway event; and 2) the LGBTCC’s reason for doing so—i.e., that it considered that #WalkAway’s mission and methods were incompatible with its own.  Further, this Court finds that a “reasonable reader” would likely regard the former item (the cancellation) as a fact, and the latter item (the explanation for the cancellation) as a result of the LGBTCC’s low opinion of #WalkAway, which is what drove its decision. This Court does not believe that a “reasonable reader” would likely understand the cancellation notice to convey any particular negative facts about #Walkaway, since it simply does not contain any.

The LGBTCC’s subsequent Twitter posting says even less; merely informing the public that:

“Upon further review and consideration, the [LGBTCC] has cancelled the March 28 #WalkAway event. Full statement available at [LGBTCC website].”

In any event, because the court concludes that the cancellation notice contains an expression of the LGBTCC’s opinion about #WalkAway, but not any actionable false statements, and because the First Amendment protects expressions of opinion from defamation claims, the court finds that plaintiffs’ fourth cause of action must fail, as a matter of law.

Plaintiffs also sued for defamation based on the following:

Rosenberg’s March 19, 2019 Tweet consisted of the following short statement: “Like are y’all that desperate for money? This is incredibly egregious that you’d host an event where panelists have used queer slurs and stood behind policies that put the community at great risk. Stand for something. SOMETHING.”

The individual defendants first argue that “every single statement identified in the complaint is true or at the least substantially true.” Plaintiffs respond that “defendants’ statements are factually inaccurate and patently untrue.” The individual defendants’ reply papers restate their original argument, and cite to certain documentary submissions which, they assert, chronicle plaintiffs’ alleged “queer slurs.” …

Here, the individual defendants have presented documents which establish that: 1) plaintiffs Straka, Harlow and White were scheduled to be panelists at the cancelled #Walkaway event at the LGBTCC; 2) on October 22, 2018, Straka posted a Twitter comment that derided the terms “trans,” “genderfluid,” “genderqueer” and “non-binary” as “not real” and “leftist crap”; 3) on August 23, 2019 Straka posted another Twitter comment that used the pejorative term “gaystapo” in reference to the LGBTCC; 4) on November 29, 2018, Harlow posted a comment on Google’s social media platform which equated the term “queer” with “fetishized dysfunction” and “emotional instability,” and as a synonym for “worthless,” “mildly insane,” “obsessed,” and “disparaging”; and 5) since January 2017, White has intermittently created and uploaded episodes of a video series entitled “Triggering Trannies” which features taunts of people who identify as “trans.”

In this Court’s view, all of these comments may be fairly described as “queer slurs” because they were clearly intended as insults. As a result, this Court finds that the individual defendants have demonstrated, by documentary evidence, that the assertion in Rosenberg’s March 19, 2019 Tweet, that “panelists have used queer slurs,” was a true statement. Because of this, New York law immunizes it against plaintiffs’ defamation claim. Therefore, this Court grants the individual defendants’ motion to dismiss so much of plaintiffs’ fourth cause of action as is based on Rosenberg’s March 19, 2019 Tweet.

Beeferman’s March 21, 2019 Airtable post entitled “An Open Letter to the LGBT Center” (which Rosenberg also signed) is longer and more specific than Rosenberg’s Tweet. The portions of it that are relevant to this motion to dismiss are as follows:

“The speakers booked for March 28th’s Town Hall, Brandon Straka, Blaire White, Rob Smith, and Mike Harlow, espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities. Straka, the organizer of the #WalkAway Campaign, has been on the programs of Tucker Carlson, Laura Ingraham, and Alex Jones, all of whom give credence to violently anti-immigrant, racist, sexist, and queerphobic ideologies. Straka and Harlow even appeared on Gavin McInnes’s CRTV show to talk about #WalkAway two weeks after McInnes’s violent Proud Boys gang attacked counter-protesters on the Upper East Side, kicking and punching young queers while yelling ‘Faggot!’

“The stated goal of ‘WalkAway’ is to draw LGBTQI+ people to the right. However, as a cursory search of the speakers’ public statements shows, they are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the ‘Alt Right’ white nationalist movement. What’s more, their ‘WalkAway’ platform is the arm of a partisan propaganda machine which accuses their political opponents of supporting ‘special rights’ for gender and sexual minorities….

“Please see the link below for detailed documentation of their transphobic, Islamophobic, antifeminist, and racist incitement. Recent history from Christchurch to Charlottesville shows that giving a platform to such peddlers of hate empowers self-described white supremacists, sexists, transphobes, and homophobes, and encourages them to escalate their activity from hateful speech to physical violence against our communities. Giving a platform to these speakers is deeply irresponsible at this moment.”

Here, this Court finds that the Open Letter contains … non-actionable opinion ….

In the first quoted paragraph of the Open Letter, Beeferman states that plaintiffs “espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities.” He then recites that plaintiffs have appeared on television shows hosted by Tucker Carlson, Laura Ingraham, Alex Jones and Gavin McInnes. The first statement clearly expresses Beeferman’s opinion that plaintiffs hold views about LGBTQI+ people which he characterizes as “bigoted” and “dangerous.” The second sentence recites that plaintiffs have publicly appeared on television shows where they have discussed those views with hosts who are known to share them. The first sentence expresses an opinion. The second sentence expresses a factual basis for that opinion. Taken together, they are a “statement of opinion which is accompanied by a recitation of the facts upon which it is based.” As such, they are not actionable.

In the second quoted paragraph of the Open Letter, Beeferman states that plaintiffs “are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the ‘Alt Right.'” It also states that #WalkAway is “the arm of a partisan propaganda machine which accuses their political opponents of supporting ‘special rights’ for gender and sexual minorities.”

Leaving aside, for the moment, Beeferman’s personal characterizations of plaintiffs as “far-right provocateurs” and of #WalkAway as “the arm of a partisan propaganda machine,” the balance of the paragraph expresses Beeferman’s opinions that: 1) as a result of their views, plaintiffs “share responsibility for incitement to violence against” certain minority groups; and 2) the “propaganda machine” that #WalkAway is a part of “accuses its political opponents of supporting ‘special rights’ for gender and sexual minorities.” Although this paragraph does not supply a factual basis of the reason for Beeferman’s opinions, as the preceding one did, this Court notes that the second paragraph is qualified by the portion of the Open Letter’s last paragraph, which invites the reader to “[p]lease see the link below for detailed documentation of their [plaintiffs’] transphobic, Islamophobic, antifeminist, and racist incitement.” … [A] “remark [which is ] is prompted by or responsive to a hyperlink …is ‘accompanied by a recitation of the facts upon which it is based,’ and therefore qualifies as ‘pure opinion.'” Here, because the link in the final paragraph provides information to support the opinions alluded to in the second paragraph, this Court concludes that this portion of Beeferman’s Open Letter is not actionable either, because it “does not imply that it is based upon undisclosed facts.”

Returning now to Beeferman’s personal characterizations of plaintiffs as “far-right provocateurs” and of #WalkAway as “the arm of a partisan propaganda machine,” this Court is cognizant of the rule that “‘[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in … circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.'” In the context of today’s hotly debated political disagreements over LGBTQI+ rights, the court believes that it is only reasonable to expect the use of “epithets, fiery rhetoric or hyperbole,” and that is what this Court deems Beeferman’s ungenerous personal characterizations of plaintiffs to be. As a result, this Court finds that those statements do not constitute actionable defamation….

[4.] Plaintiffs also sued for breach of contact, but the court concluded that “plaintiffs’ failure to produce the alleged contract or to plead which of its terms were breached and how, is fatal to its claim against the LGBTCC defendants.”

The court’s analysis looks correct to me (except that I haven’t followed the breach of contract issue closely enough to speak to that).

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Will Uruguay’s Luis Lacalle Pou Deliver Where Brazil’s Jair Bolsonaro Has Faltered?

President Luis Lacalle Pou

South America’s libertarian moment was supposed to have arrived in Brazil. A free-market economist trained in Chicago, Paulo Guedes, is the finance minister, and several young members from the country’s freedom movement of think tanks, student organizations, and activist groups hold key government posts, which they are using to roll back decades of bureaucratic growth.

The main obstacle to their efforts is President Jair Bolsonaro, a fan of military rule who—despite a photo-op holding books by Claude-Frédéric Bastiat and Ludwig von Mises—is no libertarian when it comes to civil liberties or economics. Brazilian libertarians’ alliance with Bolsonaro may indeed prove to be a Faustian bargain.

While Brazil may have swung and missed, in Uruguay, Brazil’s small neighbor to the southeast, free-market policies are enjoying a resurgence that springs from the top of President Luis Lacalle Pou’s new administration. Although his election last year received scant attention from the global media, Lacalle Pou’s rise to power ended 15 years of government by the leftist Broad Front (Frente Amplio).

Uruguay’s president from 2010 to 2015 was José “Pepe” Mujica, a former member of the violent Tupamaros guerrilla group who achieved notoriety as a plainspoken populist. A smitten Guardian journalist compared Mujica to Nelson Mandela because he was jailed for 13 years in the 1970s and ’80s, and described him in saintly terms for his apparent embrace of simple living: “The man whom most Uruguayans call El Pepe drives a 25-year-old Volkswagen Beetle, lives in a tiny house on a rural smallholding, and gives away 90% of his salary.”

According to Uruguayan writer Hanna Fischer, Mujica’s veneer of private austerity disguised his reckless handling of public finances. His government oversaw “the largest increase in government spending since democracy was restored in Uruguay in 1985.” In a power grab that was eventually overturned by the Supreme Court, Mujica sought to impose double taxation on large landholdings. Much like his leftist allies in the region, Mujica passed a “media law” that the newspaper El País called a threat to free speech. And, although he legalized marijuana in Uruguay, Mujica made sure to include “a state-enforced oligopoly, production and consumption quotas, price-fixing, [and] coerced registrations,” as one commentator explained.

Lacalle Pou’s personal style and policy preferences are a contrast with that of his older Broad Front predecessors, Mujica and Tabaré Vásquez, a socialist doctor who served as president from 2005–2010 and again from 2015–2020. The son of former National Party President Luis Alberto Lacalle (1990–1995), Lacalle Pou, a 46-year-old lawyer, is a skilled surfer who enjoys hunting wild boars. In 2019, he narrowly beat his Broad Front rival with a platform of decentralization, transparency, and cutting red tape. He even admitted casual drug use in his youth, inhaling included.

Defeating the Latin American hard left in a single election does not guarantee successful reforms. Argentina’s Mauricio Macri, a center-right businessman who was elected in 2015 to repair the damage done by 12 years of socialist mismanagement under Presidents Néstor Kirchner and Cristina Fernández de Kirchner. The married couple served four and eight years as president, respectively, and their inflationary, debt-fuelled policies made the Augean Stables look like Marie Kondo’s living room. Macri promised to right the ship, but once elected chose a “gradualist” approach that failed to curb Argentina’s deficits, debt, or inflation. As a result, he was booted out of office last year and Cristina Kirchner returned to power as vice president. As expected, Argentina last May defaulted again on $65 billion of debt.

Argentine politics looms large in Uruguay. Montevideo, Uruguay’s capital, is only a two-hour ferry ride across the River Plate from Buenos Aires. It would have been tempting for Lacalle Pou to opt for a Macri-style move once the COVID-19 epidemic hit. The new president, however, held his ground.

In a video with nearly 2 million Twitter views at the time of writing (Uruguay has a population of 3.5 million), Lacalle Pou explains that his government faced strong pressure to create new taxes on wealth and businesses, but that he had “emphatically rejected” these suggestions. Entrepreneurs, Lacalle Pou states, “are the ones who will push the country forward. But, in the pandemic, if we punish those who create businesses and jobs, those who produce, innovate, and trade, they will be left by the wayside,” leaving everyone worse off as a result.

Instead of taxing wealth creators, Lacalle Pou decided to place an additional 20 percent tax on any state official—himself included—that earned over $1,900 per month: “We wanted to signal that the state has to make an extra effort, not private individuals. Because, once this is over, the state won’t provide for the population,” he said in the video, “it’s the individual who will rev up the engines and move the country onwards.”

Elevating the individual over the collective is extremely rare in Latin America, where statist, asset-destroying policies such as wealth taxes arise from the left and the right with equal frequency. Nor is Lacalle Pou’s defense of free-market capitalism a coronavirus fluke; even before the pandemic, he planned to make Uruguay far more attractive for foreign investors by easing the restrictions to set up tax residency in the country, a measure he already passed into law.

Under Lacalle Pou, Uruguay has handled the pandemic remarkably well. As The Economist noted, “by June 18th Uruguay had reported 849 confirmed cases and 24 deaths from covid-19, the lowest number as a share of the population of any country in South America.” In fact, it was the only country in the region to execute a successful track-and-trace policy. Bloomberg News reports that this allowed Uruguay to avoid “a lockdown, harsh quarantines, or heavy-handed policing,” despite having the largest percentage of elderly citizens in Latin America. Although schools and restaurants closed their doors, “shops and businesses were allowed to stay open.” This only bolstered Lacalle Pou’s initiative to allow an unshackled private sector to lead the economy out of the crisis.    

Uruguayan libertarians are aware of their good fortune. Journalist Pris Guinovart describes Lacalle Pou as a classical liberal who publicly opposes the Hobbesian worldview of unrestricted state power and believes in limiting the size and scope of government. “He is firmly convinced of the importance, value, and need of more freedom in Uruguay and in the rest of the world,” she adds.

For her part, Fischer, who also refers to the president as a classical liberal, says that Lacalle Pou’s sound policies in office have come as a welcome surprise. His previous career as a congressman, she explains, suggested that he was not well prepared, had few ideas of his own, and seemed to have advanced in politics by riding his father’s coattails.

Rather like Henry V, however, Lacalle Pou has shown “the mettle of his pasture” since assuming office. “We now know that he does have his own ideas and that he is an ardent lover of liberty,” Fischer adds, “as he has proven with the way he handled the pandemic, without a mandatory lockdown and appealing to individual responsibility even against the general opinion of his closest advisers, who demanded the opposite.”

Although it is still early in his term, Lacalle Pou has already proven to be a far better model to follow than Bolsonaro.

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