Category: reason

Was it really just a few years ago that Americans started to agree that cops are too militarized, too in-your-face, and too likely to target people who can’t fight back? When legal experts warned that law is always violent and cautioned that we needed to think twice before making rules to be enforced by armed police?

For a brief time, we seemed to be taking the dangers of official force to heart. Then the pandemic came along, and we started repeating all the old mistakes. Now, rulers and the public are learning, again, that it’s unlikely you’ll make the world a better place by twisting people’s arms.

As COVID-19 spread across the country, and states and localities tightened the screws on what people were and were not allowed to do as part of efforts to limit viral transmission, politicians quickly went to their happy place: threatening people with violence for not doing what they’re told.

“My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period,” New York City Mayor Bill de Blasio threatened, infuriated that city residents weren’t marching in lockstep to his dictates.

His soulmate in Chicago, Mayor Lori Lightfoot, took a similar tone. “Don’t make us treat you like a criminal, but if you act like a criminal and you violate the law and refuse to do what’s necessary to save lives in the middle of a pandemic, we will take you to jail. Period,” she snarled in response to reports that some people continued to attend house parties.

Threats to arrest people for violating stay-at-home orders are especially ironic, given reports of rapid contagion in crowded jails and prisons. Mass imprisonment, it seems, isn’t a great public health tactic.

Even before unhygienic cells enter the picture, arrests of social-distancing scofflaws are perilous, too.

Cops across the country busted people for “social-distancing violations” including hanging out with friends, playing with their children in public parks, and failing to wear face masks. Police in Brooklyn “cuffed a mother and pinned her to the ground” because her mask was around her neck instead of over her nose and mouth.

Everybody is potentially on the receiving end of such treatment, but cops always lean most heavily on the people they prefer to target—often members of minority communities who are less able to push back.

“Of those arrested, 35 people were black, four were Hispanic and one was white,” The New York Times reported after a spate of especially brutal enforcement of rules allegedly intended (we were told) to protect people’s health in New York City.

All of this, every bit of it, could have been predicted by anybody paying attention to discussions about laws and law enforcement over the previous decade.

“On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce,” Yale Law School’s Stephen L. Carter wrote in 2014 after New York City cops killed Eric Garner during a confrontation rooted in suspicion that he was illegally selling loose cigarettes. “I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.”

Carter penned his piece as legal experts and journalists warned that the country has too many laws and too much law enforcement. An estimated 70 percent of Americans have committed a crime that could land them behind bars, Rutgers University’s Douglas Husak wrote in his 2008 book Overcriminalization: The Limits of the Criminal Law.

The cops hired to put all of those Americans behind bars were increasingly trained and equipped more like an army of occupation than like keepers of the peace and are deployed accordingly, as former Reason staffer Radley Balko pointed out in Rise of the Warrior Cop: The Militarization of America’s Police Forces.

“We can see cops stopping and arresting people, roughing people up, and administering street justice. We think, ‘Good. They’re getting the bad guys off the streets,'” Balko commented at the 2017 Reason Media Awards ceremony. “What we don’t see: The orders from mayors and senior officials in cities like Baltimore, St. Louis, and Chicago for police to initiate mass arrests, usually for petty offenses, sometimes for no offense at all.”

But we are seeing that with a vengeance now, in terms of arrests of “bad guys” guilty of failing to put a bit of fabric over their faces, or of spending time with friends in defiance of edicts to the contrary. Of illicitly reopening businesses they hope to save, or of venturing out for sunshine and open air when politicians have commanded that they stay confined to their homes. In the name of public health, of limiting contagion, and saving lives, government issues edicts to be enforced by those who “go armed to enforce the will of the state.”

That turns out to be not so terribly health-friendly, some officials belatedly concede.

“What we’ve been doing is we really are encouraging education and voluntary compliance,” Seattle Police Chief Carmen Best said last week after discussing the risks of jamming people into jail cells where they’re likely to get infected. “But we also know that we can’t arrest our way out of a pandemic.”

“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio announced after a flurry of videos of people having their health protected by cops grinding their faces into concrete. This, just weeks after he threatened mass arrests.

That’s a welcome, though hardly universal, reversal among government officials whose go-to reaction is always to punish dissenters and force compliance with rules, even when that leads to a chain of worsening consequences. Maybe this time the contrast was too great between public health goals and decidedly unhealthy criminal enforcement. Flattening noses, after all, isn’t synonymous with flattening the curve.

I’d like to think that we’ll take a lesson from this and back away from a reliance on laws, orders, and edicts which must be enforced with violence that exacts a bloody toll of its own. More likely, though, the next crisis will yet again feature officials shocked—shocked!—that their efforts to impose their will have costs measured in violence, injuries, and death.

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The stock market this morning offers a useful event study on how much of the social value of a vaccine the producer of the vaccine may expect to be able to capture. The good news from Moderna’s early-stage coronavirus vaccine trials lifted the Dow about 3 percent and Moderna itself around 30 percent, according to the Washington Post. We can’t be sure, of course, that these increases were solely because of this news, but let’s assume that this is a good first approximation. The market cap of the Dow increased by around $216 billion, while the market cap of Moderna increased by around $6 billion.

Keep in mind that the value of global stock markets is more than ten times as great as the value of the Dow. Also keep in mind that a cure would produce benefits not reflected in equities, perhaps multiple times over. Whatever the exact math, it is clear that the markets expect that a company that produces a successful vaccine would only be able to capture a small percentage of the social value of that vaccine. This may be in part because if one vaccine maker is successful, several others are also likely to be successful, but the profits to all hypothetically successful vaccine makers in total are likely to exceed the private value to the vaccine company by many, many times.

My claim is not that the Moderna vaccine will be successful, a question on which I have no expertise. My point is simply that market participants were somewhat more confident about our economic future as a result of the news, and stocks therefore became more valuable. Moderna benefited from the news more than any other stock, but the total economic benefits of the vaccine are expected to be much larger than the benefits to Moderna.

What are the consequences for law and policy? It suggests that any government policy that reduces incentives to bring successful vaccines to market may be costly. For example, if vaccine manufacturers believe that governmental restraints on price gouging or public criticism will prevent them from selling at anything other than a low price, their incentives will be reduced. Fewer vaccine candidates may be tested, and those that are tested may be tested at a more leisurely pace than they otherwise would be. If that pace reduces social value by even 10%, that social loss may be much greater than the benefits of suppressing price. The analysis also highlights the potential value of government subsidies, such as Advanced Purchase Commitments. A group of economics professors has argued, persuasively in my view, that the government should commit billions of dollars to that effort.

The above considerations highlight a core argument for allowing patentees largely unfettered market power, at least where government subsidies will be modest or nonexistent: the more social value that a patentee is able to capture, the greater the incentives to invent in the first place. The informal event study this morning suggests that this argument may be especially important in COVID-19 vaccine development. Perhaps with some pharmaceuticals or other inventions, patentees are able to capture a solid chunk of the social welfare benefits. But vaccines have very large positive externalities, reducing the infection risk even of those not vaccinated, and a successful vaccine could help revive the economy. If even the recipient of a vaccine captures only some of the social welfare benefits from vaccination, it isn’t surprising that the stock market does not expect patentees to be able to capture much of social welfare.

The general counterargument to the claim that patentees should enjoy considerable market power is that there is no reason for patentees to receive any more profits than were necessary to induce the invention and its commercialization. If one believes that a patentee would have invented and commercialized even with much lower profits, then social welfare will be maximized by reducing exploitability, for example by reducing patent scope or patent duration. In many cases, these arguments have a major flaw: If the ex ante incentives for research and development were supercompensatory were so much larger than necessary, then why didn’t some other pharmaceutical company invent even earlier? John Duffy has rigorously shown that rents from patents are generally dissipated by patent races, with patent races beginning at such a time that the race participants expect zero economic profit. Sometimes, those who complain about excessive profits by a patentee underestimate the risk that the patentee faced, during the patent race and also at the earlier stages where the company that ultimately engaged in the research and/or commercialization was founded.

The model, however, does not work with COVID-19. Vaccine manufacturers could not have begun their research until the COVID-19 outbreak started. It is thus possible that there would be just as much effort toward producing a vaccine if, say, there were a tax on half of all COVID-19 vaccine profits. On this theory, everyone developing a plausible vaccine candidate has more than sufficient incentives to engage in the research. That seems plausible; it seems doubtful that we need more vaccine candidates, because it seems unlikely that the 101st best idea will work if the first hundred fail. And so, the argument would go, there is little reason to give a successful manufacturer assurance that it will be able to charge high prices or receive a substantial government subsidy.

Similarly, the counterargument might continue, if much greater profit potential existed, that would not mean that we could expect a vaccine to appear any earlier. That seems much less plausible. Even if we are providing sufficient incentives to allow for many vaccine candidates to be research, we may not be providing sufficient incentives to maximize the speed at which vaccine development occurs. Third parties like Bill Gates are stepping in to fund production of vaccines that have not yet been proven effective. But it is not yet clear that philanthropy will move the timeline forward as much as is optimal.

Vaccines are on a much faster track than any previous vaccine in history. But they may well not be on the fastest possible track. Any single vaccine manufacturer has relatively little incentive to argue for speeding up the vaccine testing and approval process. If such an effort is successful, then all of the vaccine manufacturers likely benefit from the same speedup. The benefit to the manufacturer is thus only that fewer people might need a vaccine if it comes out later, because some will have natural immunity from infection and because improvements in therapeutics might diminish the need for vaccination. Thus, if part of what is needed is to argue for changes to the conventional approval process–say, in the form of new regulations or new statutes–vaccine companies might not have sufficient incentives to bear the financial and publicity cost of lobbying.

Might this explain why we haven’t had human challenge trials? There have been a number of commentators who have argued for such trials. The counterarguments are largely based on ethics rather than cost-benefit analysis, and since when have deontological considerations won the day on a major issue of global import? Arguably, even the aggressive calls for challenge trials are not aggressive enough. It seems plausible given the number of people dying from COVID-19 that a cost-benefit analysis might justify a much faster timeline, a couple of weeks with a small number of individuals and a couple of months with a few thousand. I suspect that public authorities in at least some countries could be convinced to go along with plans much more aggressive than the current ones. But there is no reason for a company to risk the liability that might develop with such an aggressive approach when the benefits to manufacturers are relatively low.

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The Balkinization site is running a symposium on two important new books on secession: Timothy William Waters’s Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley’s American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020). I am one of the contributors, and my piece is available here. Among other things, it draws on my own new book Free to Move: Foot Voting, Migration, and Political Freedom, which offers an alternative (and in my view better) path towards enhancing political choice than expanding secession rights. Here is an excerpt:

The conventional wisdom on secession is that it is rarely justified and should only be used as a last resort for escaping severe oppression, as a means of “decolonization,” or perhaps to give autonomy to some ethnic group that deserves a state of its own. In different ways, Timothy William Waters and my George Mason University colleague Frank Buckley offer powerful challenges to that conventional wisdom. Waters contends that any group that wins a majority-vote referendum within a given territory with a population of at least 1 million people should have a presumptive right to secede and form their own independent state. Buckley suggests that the people of the United States might be better off if secession movements resulted in its partition, though he ultimately shies away from recommending such a course of action.

Waters and Buckley are right to argue that secession is justifiable in a wider range of circumstances than conventionally thought. But I am not convinced that secession rights should be as ubiquitous as the former advocates, or that the world would be a better place if secession led to the breakup of the United States. Both Waters and Buckley also do not give sufficient weight to some significant downsides of secession, such as the role of political ignorance in promoting secession movements, and the danger that the newly established governments might be severely oppressive. For these reasons, the problems that secessionists seek to address will often be better managed through decentralization of power within federal systems and expansion of opportunities for people to “vote with their feet….”

Like secession, expanding foot voting opportunities would enable more people to escape governments they abhor and live under those whose policies they like better. But foot voting also has three major advantages over secessionism. One is that foot voters can make individually decisive choices. If allowed to migrate freely, each individual or household would have a high chance of determining their own fate, as opposed to casting a vote in a referendum that has only infinitesimal chance of affecting the result. This is both valuable in itself, and incentivizes foot voters to be better-informed than ballot box voters. Empirical evidence indicates they generally are.

The second big advantage of expanded foot voting over secession rights is that the former is much less likely to lead to violence or war, because it does not pose anywhere near as grave a threat to existing governments. Expanding foot voting opportunities is often politically difficult. But it is usually less so than carving out entire new nations from the territory of existing ones.

Finally, foot voting has an important edge over secession because it is easier to expand incrementally. Secession is generally an all-or-nothing proposition. Either a new nation is formed on part of the territory of the old, or not. By contrast, we can incrementally expand foot voting opportunities…..

The symposium also includes posts by several prominent academics and political commentators, such as Jack Balkin, Michael Lind, Cynthia Nicoletti, and Robert Tsai. More are forthcoming in the next few days (complete list of contributors here). Buckley and Waters will have an opportunity to respond to the critics, at the end of the symposium.

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[This post is co-authored with Professor Seth Barrett Tillman]

Last week, the en banc Fourth Circuit decided two related cases in the Foreign Emoluments Clause litigation. First, In re: Donald Trump denied the official-capacity defendant’s petition for a writ of mandamus. (The official-capacity defendant is the United States, which is represented by the Department of Justice.) Second, District of Columbia v. Trump dismissed the individual-capacity defendant’s interlocutory appeal for lack of jurisdiction. (The individual-capacity defendant is the President, qua as a government official, represented by the President’s private counsel.) Both cases divided the en-banc court 9-to-6. Judge Motz wrote the majority opinion in both cases. Judge Wilkinson wrote the principal dissent in the official-capacity case. Judge Niemeyer wrote the principal dissent in the individual-capacity case. We filed amicus briefs in both the official-capacity and the individual-capacity cases. 

We will have much more to say about these decisions in due course. Here, we want to focus on a tension in Judge Wilkinson’s erudite dissent. Judge Wilkinson’s dissent, as does Judge Motz’s majority opinion, takes the position that the Foreign Emoluments Clause extends to the presidency. However, Footnote 2 from Judge Wilkinson’s dissent cites President Washington’s conduct, and an analysis of that conduct supports the opposite conclusion. Specifically, Washington’s acceptance of foreign state and diplomatic gifts suggests he did not think he was bound by the Foreign Emoluments Clause.

Footnote 2 begins:

What’s more, plaintiffs’ interpretation of the [Emoluments] Clauses would necessarily brand George Washington a repeat violator—a conclusion that ordinarily speaks more to flaws in a given constitutional interpretation than it does to the first President’s conduct. See American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2087-89 (2019). 

In this litigation, the Plaintiffs have argued for a broad definition of “emolument.” They argue the phrase extends to any benefit, profit, or gain. If that standard were correct, then President Washington was a lawbreaker. We agree emphatically with Judge Wilkinson’s rejoinder. Courts should pause before ruling that Washington violated the Constitution he helped to define. 

Next, Judge Wilkinson looks to three heads of Washington’s conduct. This conduct, he argues, rejects the Plaintiffs’ broad reading of the phrase “emoluments.”

Washington likely [1] purchased several plots of land from the federal government while President; [2] continued to export crops overseas; and [3] received, without consent of Congress, numerous diplomatic gifts from France. 

The first head of conduct informs the meaning of the phrase “emolument” in the Domestic Emoluments Clause. The second head of conduct could possibly inform the meaning of the phrase “emolument” in the Foreign Emoluments Clause. In other words, if the Plaintiffs were correct about the broad meaning of “emoluments,” then Washington’s business transactions would have rendered him a lawbreaker. We agree that Wilkinson’s analysis works for the first head of conduct: President Washington purchased land from the federal government in the nation’s new capital. 

As to the second head of Washington’s conduct, evidence that President Washington sold crops to foreign governments might also support Wilkinson’s narrow definition  of “emoluments.” However, we have not found any concrete evidence that Washington sold crops to foreign governments, in contrast with his simply “export[ing] crops overseas” to private merchants.

The third head of conduct does not support Wilkinson’s position with regard to the meaning of the word “emolument” in the Foreign Emoluments Clause. The Foreign Emoluments Clause prohibits covered office-holders from accepting both “emolument[s]” and “presents” from foreign states. Thus any state or diplomatic gift is squarely precluded. Moreover, these gifts are prohibited even if such diplomatic gifts are also considered “emoluments.” (We think the Plaintiffs’ capacious definition of “emoluments” is especially untenable because it would swallow up, and render superfluous the additional the prohibition involving “presents.”) 

In our brief, we explained that Washington’s acceptance of these foreign state and diplomatic gifts–all done absent congressional consent–suggests that he did not think himself bound by the Foreign Emoluments Clause. Our understanding of these events is confirmed by the fact that neither Washington’s contemporaries nor subsequent academics, in law, history, and other fields, faulted Washington’s conduct. In short, it is not just plaintiffs who would “brand George Washington a repeat violator.” Rather, the same implication flows from Judge Wilkinson’s dissent: President George Washington’s conduct in office was lawless. 

Again, there is a tension. Judge Wilkinson, and all the other members of the Fourth Circuit, concluded that the President is subject to the Foreign Emoluments Clause. (We disagree with this position.) If that conclusion is true, and if Washington did accept “numerous diplomatic gifts from France” (including valuable gifts), then Washington was “a repeat violator” of the Constitution. Wilkinson accused our first President of doing exactly what the Plaintiffs had accused Washington of: violating the Foreign Emoluments Clause.  

Our brief resolves this tension: Washington’s conduct should help us understand both the meaning of “emolument” and the scope of the Foreign Emoluments Clause. First, the benefits from the land transactions were not emoluments. Second, the President could accept foreign state and diplomatic gifts because he was not covered by the Foreign Emoluments Clause. It is problematic to defer to part of Washington’s conduct, but disregard other parts. The better approach is to consider Washington’s conduct as a whole: he properly understood both the meaning of “emolument” and the scope of the Foreign Emoluments Clause. Our position explains why Washington’s contemporaries voiced no complaints and why subsequent academics, in law, history, and other fields, did not assert that Washington behaved lawlessly. Washington’s lawlessness was only discovered in late 2016–as a necessary intellectual precursor to litigation against President Trump.

We found one other nit in Wilkinson’s otherwise exemplary decision. He offered the following analysis to support the proposition that the President is subject to both the Foreign and Domestic Emoluments Clauses: 

Congress may also impeach a President for his non-compliance with the [Emoluments] Clauses. As Alexander Hamilton observed, the proper subjects for impeachment “are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” The Federalist No. 65, at 338 (Hamilton). It is hard to think of a more apt description of an Emoluments Clause violation. The Framers said as much. Randolph recognized that if the President is “discovered” to have received forbidden emoluments, “he may be impeached.” 3 Elliot’s Debates 486; see also 1 Annals of Cong. 661 (1789) (remarks of Rep. Stone) (identifying impeachment as Domestic Emoluments Clause remedy).

No one doubts that the Domestic Emoluments Clause applies to the President. Indeed, it only applies to the President. If the President knowingly accepted prohibited emoluments from the States or the United States, then he could be impeached. But the citation to the Annals of Congress does not discuss such prohibited conduct. Rather Representative Stone was merely discussing the appropriate compensation for the President. Here is the relevant passage:

Mr. Stone thought the President ought to be at liberty to live in any style he thought proper, and that the House ought to give him such compensation as they thought his services merited. If you furnish him with a house, horses, and carriages, you declare that this is his house, the horses, and the carriages which he shall use. There is certainly some degree of indelicacy in this; if he was a private gentlemen, he would be at liberty to use such as he liked best. Suppose he dislikes them, will not have them, he is guilty of a breach of the law, is it intended by the House to impeach him for it? I apprehend it is not, for no part of the constitution gives us a right to dictate to him on this head. He would rather let the President set the example of how to live, then see the Legislature direct him. Economy is by no means disadvantage to the United States; if the President chooses to live in an economical manner, we ought not to prevent him.

We disagree with Judge Wilkinson’s characterization. This passage did not “identify[] impeachment as Domestic Emoluments Clause remedy” in any meaningful sense. Rather, Representative Stone said it would be improper to impeach the President if he chose not to avail himself of certain luxurious benefits provided by Congress as part of his regular compensation. Stone’s comments were sarcastic, if not comic. They were not a free-wheeling disquisition on whether the impeachment power extends to violations of the Domestic Emoluments Clause. 

We have not seen this passage cited anywhere in the litigation. Indeed, we haven’t seen this citation anywhere in the literature. We flag it here so other courts and commentators do not make the same mistake. We have experienced a common occurrence during the three-years-plus of Emoluments Clauses litigation: once an incorrect factual claim enters the literature, no matter how unsupported, it becomes a permanent feature of the academic and judicial landscape unless it is promptly criticized. For that reason, we put down our intellectual marker here. 

Judge Wilkinson’s dissent is the first judicial opinion that has engaged these important historical points. The District Court ignored primary sources about President Washington’s land transactions with the federal government, and ignored the foreign state and diplomatic gifts altogether. Indeed, we are grateful the dissent agrees that the French gifts were “diplomatic gifts.” Our critics have challenged the provenance of these gifts; they have argued that the gifts were personal presents. Now, six judges of the Fourth Circuit have signed onto our reading of the gifts. And these historical facts are now well placed to be discussed in any future Supreme Court review of the Fourth Circuit’s proceedings.

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I blogged about this lawsuit (Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News) when it was filed last month; my view is that the suit is based on constitutionally protected expressions of opinion, and therefore barred by the First Amendment. But the plaintiff’s response to Fox’s motion to dismiss did much more than just argue that Fox’s statements were factually false—among other things, it claimed that cable television channels just aren’t protected by the First Amendment:

Fox cites to no Washington case or federal case which confirms that a cable television programmer/content provider has an independent First Amendment right when using a system owned and operated by a cable operator. Nor has it cited to a case that equates a content provider on a cable system to that of a newspaper or broadcast television station. In fact, the law is just the opposite: cable programmers, such as Fox is, have no such rights when using a cable system owned by a separate entity.

Denver Area Educ. Telcoms. Consortium, v. FCC, 518 U.S. 727 (1996) is instructive. There, the Supreme Court was asked to decide upon the constitutionality of certain provisions of the Cable Act which contained provisions requiring access to cable television systems for public access channels and restricted programming which “depicted sexual or excretory activities or organs in a patently offensive manner.” The Court concluded that portions of the challenged provisions were constitutional, and others were not.

Justices Thomas, Rehnquist and Scalia concurred in part and dissented in part and filed a separate opinion. By way of a summary, these Justices stated that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium as recognized by the progression of the law through a number of cases. Justice Thomas stated:

“We implicitly recognized in Turner that the programmer’s right to compete for channel space is derivative of, and subordinate to, the operator’s editorial discretion. Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted.”

This statement is consistent with other cases which hold that First Amendment rights do not exist on private property. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (First Amendment rights not applicable to a shopping mall which is not dedicated to public use). In Lloyd, the court stated:

“We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Here, the same is true: there is no evidence that any cable operator operating in Washington State has dedicated any portion of their cable systems to public use. Given this, noFirst Amendment rights exist on them.”

There is no discernable difference between the cable systems operated by AT&T, Comcast, Spectrum and other cable operators and the owner of a shopping mall—both constitute private property. Further, Fox is not a “cable operator” under the Cable Act…. There is no evidence in this record that Fox owns and operates a cable service over a cable system in Washington State…. Fox … operates as a cable programmer as that term is used in case law as above cited. As such, it does not have First Amendment protections on the cable medium.

But this is flat wrong: Cable channels generally have no First Amendment rights against the private cable operators that choose whether or not to allow them, but they have full First Amendment rights vis-à-vis the government. (See, e.g., U.S. v. Playboy Entertainment Group (2000)). Indeed, that’s the same as in many other media: The First Amendment doesn’t protect me against Reason’s deciding to kick us off their site (or even Reason’s deleting posts it doesn’t like, not that it’s ever tried to do that). But the First Amendment does protect me against the government imposing liability on my posts (unless my posts fall within one of the standard First Amendment exceptions, such as the libel exception).

Book publishers have no First Amendment right to shelf space in privately owned bookstores, but they do have a First Amendment right against the government. (See, e.g., Bantam Books, Inc. v. Sullivan (1963).) The submitters of the political ad in New York Times v. Sullivan (who were sued together with the Times) would have had no First Amendment claim against the newspaper if the newspaper had rejected the ad—but they did have a First Amendment right not to be held legally liable for their ad. Likewise, lawsuits against cable programmers are subject to normal First Amendment analysis, even though a cable system’s decision to eject a cable programmer wouldn’t be, since the cable system isn’t a government actor.

This is pretty basic stuff, and highlights, I think, how weak WASHLITE’s lawsuit is. For more, read Fox’s motion to dismiss, WASHLITE’s response, and Fox’s reply, which also discuss various other First Amendment arguments.

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It was back to the races Sunday—but without any fans. After a 10-week hiatus, NASCAR resumed its season, one of the first major U.S. sports to do so since the COVID-19 shutdowns began.

With drivers, officials, and crew masked, with limited press access, and with no audience in the stands, yesterday’s race in Darlington, South Carolina, still seems to have been a hit.

The race “could have gone wrong in a lot of ways,” writes Scott Fowler at the Charlotte Observer. “Instead, it served as a symbol that things can still go right,” carrying “an air of welcome normalcy.”

“Consensus: A little weird, but OK once the race got underway,” concluded Newser.

“I just want to thank everybody from NASCAR and all the teams for letting us do what we do,” winner Kevin Harvick told reporters afterward.

Four more NASCAR races are slated to take place this month. Meanwhile, more contact-heavy sports—from the professionals to the little leagues—are still struggling to figure out when and how they might even begin to relaunch.

Yesterday also saw the return of televised live golf. A charity match in Juno Beach, Florida, had no live observers; players carried their own bags. (“The golf was uneven, the banter flat, the ending kind of unsatisfying. But it was certainly more fun than no golf at all!” concluded Alan Shipnuck of Golf magazine.) Last week, the PGA Tour announced its reopening plans.

Sunday’s sanitized speedway and self-reliant golfers show how athletes are adjusting to the COVID-19 era. They also showcase how the pandemic could reshape popular entertainment, as some options stand much better poised to get back to business than others.

Minimal-contact sports like car racing and golf can carry on with reasonable adjustments. Basketball and football, not so much.

This doesn’t just apply to sports. In the television realm, most production is still suspended, yet some reality TV programs have been able to persist while keeping participants isolated. The Voice and American Idol have carried on by having both singers and judges broadcast from home. And The Real Housewives of Atlanta recently hosted a virtual reunion.

“While it’s still anyone’s guess when traditional production can resume in Hollywood, many reality TV series are finding ways to adapt to the current reality, with subjects self-shooting with their camera phones or over video conference,” notes the Los Angeles Times last week.

Shari Levine, executive vice president of production at Bravo, told the paper that a host of precautions could ultimately change the feel of the final product. That may mean “more of a documentary feel to it, because it may sort of feel more run and gun,” as well as changes in the kinds of interactions that will be filmed. “I really think there is permission, even for Bravo, which is more of a glossy look network, to reflect exactly what’s going on right now.”

Some of these changes will be short-term fixes, but others have the potential to produce longer-term effects. That goes for the film industry, too, as COVID-19 is changing how new feature films are released and consumed.

Drive-in movie theaters, now one of the few safe ways to see movies outside the home, could become more than just a novelty relic of bygone times.

In addition, more new releases might be straight-to-streaming, as movies like Trolls World Tour prove it can be done with no economic downside. Trolls World Tour was released straight to digital rental on April 10 (for $19.99 per rental) and has already netted more revenue than the first Trolls, which had a traditional theatrical release.

If things return to normal fairly quickly, things like that might be but short-term blips in our viewing trajectory. But the longer the pandemic and the lockdowns wear on, the more likely they are to have long-term effects on TV, spectator sports, and other entertainments.

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I’m delighted to report that Judge Robert Bacharach of the Tenth Circuit will be joining us this week for five posts based on his new book, Legal Writing—A Judge’s Perspective on the Science and Rhetoric of the Written Word (just released by the ABA Press). Some praise from Dean Erwin Chemerinsky of Berkeley Law School:

A magnificent book on writing. Drawing on the lessons from psycholinguistics and rhetoric, Judge Bacharach has written a remarkably practical book on how to write effectively. Judge Bacharach illustrates his points with very specific suggestions and countless examples from briefs from top lawyers and opinions of judges. I learned so much from this wonderful book.

I very much look forward to Judge Bacharach’s posts!

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