Category: reason

Lenny Pozner, the father of a boy (Noah Pozner) killed in the Sandy Hook shooting, sued James Fetzer and Mike Palacek, who cowrote the book “Nobody Died at Sandy Hook.” The book had claimed, among other things, that

• “Noah Pozner’s death certificate is a fake, which we have proven on a dozen or more grounds.”
• “[Mr. Pozner] sent her a death certificate, which turned out to be a fabrication.”
• “As many Sandy Hook researchers are aware, the very document Pozner circulated in 2014, with its inconsistent tones, fonts, and clear digital manipulation, was clearly a forgery.”

Pozner said this libeled him, and in June 2019 a Wisconsin judge agreed, and granted Pozner summary judgment on liability. In October, the jury awarded Pozner $450,000 in damages, and in December, the judge issued an injunction barring Fetzer “from communicating by any means” these libelous statements. (Such anti-libel injunctions, following a judgment on the merits, are generally viewed as constitutional by most courts that have recently considered the matter.)

But in October, a request was submitted to Google, in Pozner’s name, seeking to deindex material that simply discussed the case and criticized the court decision, such as various copies of “The Legal Lynching of a Truth-Seeker: Jim Fetzer’s Stalinist-Style Show Trial” and “Sandy Hook and the Murder of the First Amendment.” The court’s judgment of course didn’t find these items (posted in response to the judgment) to be libelous, and it offers no basis for Google to deindex them.

In November, I wrote about this, and in January I learned that Amazon Web Services had gotten a takedown demand (which Amazon didn’t act on) to remove that post. So I wrote about that, and today I learned that Google had gotten a request to deindex that post, also submitted under the name “Leonard Pozner.” (When I last corresponded with Pozner about his Amazon Web Services takedown demand, he said that he didn’t want me to contact him again, so I haven’t checked with him whether this latest deindexing request was also actually from him.) So we now have an attempt to vanish a post about an attempt to vanish a post about an attempt to vanish posts critical of the Sandy Hook hoax libel judgment, hence the title of this post.

Of course, there’s no real basis for this deindexing request. My posts weren’t the subject of any injunction; they were, to my knowledge, entirely accurate (they certainly don’t endorse the libel to which they indirectly refer); no-one ever sued over them. The PDFs attached to the deindexing request are documents from the original libel case, but those were against people who claimed the Sandy Hook shooting was a hoax, not against me (and not in reference to my posts). My posts do criticize the earlier vanishing requests, but of course nothing in the court order can preclude such criticism, or purports to preclude such criticism.

I’m pretty sure Google won’t do anything about this deindexing request, but I thought I’d mention it just to illustrate how some people are trying to vanish criticism from the Internet.

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The Supreme Court ruled today that the Sixth Amendment right to a jury trial requires criminal convictions to be decided unanimously in most cases in state courts, overturning a previous decision from the 1970s.

Prior to Ramos v. Louisiana making its way up to the Supreme Court, 48 states and federal courts already required a unanimous conviction for most criminal charges. Louisiana and Oregon were both outliers, permitting 10-2 verdicts.

Evangelisto Ramos was convicted in 2015 of second-degree murder by one of those split juries in Louisiana. He challenged his conviction, hoping the Supreme Court would affirm that the Sixth Amendment required unanimous convictions and that this provision applies to state convictions under the 14th Amendment, not just federal convictions.

Today he got his wish. The ruling is rather complicated in part because of a Supreme Court ruling from 1972, Apodaca v. Oregon, which upheld non-unanimous verdicts for state courts. Today’s decision reverses Apodaca, and that helps explain the unusual combination of dissenters. Supporting today’s ruling (in various degrees and for varying justifications) were justices Neil Gorsuch (who wrote the decision), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Clarence Thomas. Opposing were Chief Justice John Roberts, Samuel Alito (who wrote the dissent), and Elena Kagan.

Gorsuch’s ruling notes that the implementation of Louisiana’s and Oregon’s non-unanimous convictions were deeply and openly rooted in racism. They were designed so that black members of the jury could be overruled by white jurors to convict black defendants. It’s not even a controversial interpretation of what happened. Leaders in the states who pushed these jury rules were very open about it at the time. And despite the Apodaca ruling, the Supreme Court has regularly held in at least 13 other rulings that the Sixth Amendment requires unanimity. Gorsuch writes:

This Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.” A few decades later, the Court elaborated that the Sixth Amendment affords a right to “a trial by jury as understood and applied at common law…includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted.”

Sotomayor wrote a concurring ruling to emphasize that Apodaca was a particularly unique ruling that was simply irreconcilable with other rulings about the Sixth Amendment and its application to jury unanimity. She notes that stare decisis—the legal principle that the Supreme Court should be reluctant to overturn past precedents—is at its weakest when those previous decisions “implicate fundamental constitutional protections.” Kavanaugh also wrote separately to take note, like Sotomayor, of the number of times that the court has abandoned stare decisis to overrule any number of former Supreme Court precedents and declares the Apodaca ruling “egregiously wrong.” Thomas wrote separately to concur with the judgment but to argue that the Privileges and Immunities Clause of the Fourteenth Amendment, not the Due Process Clause, calls for the reversal of Apodaca.

The reason for the dissent by Roberts, Alito, and Kagan is not because the three are big fans of racially motivated conviction guidelines but because they are concerned about potential impacts of this deviation from stare decisis. Alito is concerned that Oregon and Louisiana may now have to go back and contend with these non-unanimous verdicts.

Ultimately, the ruling seems to be much less about jury decisions in general (Louisiana voters subsequently passed a referendum in 2018 requiring unanimous jury decisions), and more about the circumstances by which the Supreme Court overturns previous precedents and its meaning for future cases that might come before the court. As Jonathan Adler at The Volokh Conspiracy notes, Kagan is one of the court’s strongest supporters of stare decisis, explaining why she might break from some colleagues she’s typically aligned with for this case. Analysis of this case may revolve less around what it means for criminal justice (though certainly establishing that criminal verdicts must be unanimous is important) and more around what it means for controversial challenges to past Supreme Court rulings that might be taken up in the future.

Read the verdict here.

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I blogged last week about the Supreme Court’s pending cert petition in Van Buren v. United States, on the meaning of unauthorized access to a computer, and why I expected the Supreme Court to take the case.  I’m pleased to that that the Supreme Court has agreed to hear the case.

The fundamental question in the case is what Congress did when it criminalized unauthorized access to a computer.  In particular, what makes an access to a computer unauthorized?   Do the terms of service control?   Does there need to be some sort of technical restriction on access that is breached?

To put the question in colloquial terms, the question is, what is the crime of hacking?**

Given the Supreme Court’s recent trend toward favoring the narrow interpretation of vague criminal statutes, I would guess that the Court likely will rule in the defendant’s favor.  But every case is different, so we’ll have to wait and see.  As always, stay tuned.

_____________

** I realize that there are many in the technical community who insist that the correct word for unlawful unauthorized access to a computer is “cracking,” not “hacking,” and that most people use the term “hacking” incorrectly.  But most people follow colloquial usage, pretty much by definition, so I think it’s fair to put the question that way.

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Measured by marijuana sales, 4/20 came early this year as cannabis consumers scrambled to stock up, apparently worried that COVID-19 lockdowns might cut off their legal supply. After local governments in the San Francisco Bay Area imposed stay-at-home orders in March, The New York Times reports, sales of edibles “surged to levels typically only seen around April 20, or ‘4/20,’ the annual, if unofficial, marijuana appreciation holiday.”

That initial panic, which the chief executive of a medical dispensary in Pennsylvania likened to “hoarding toilet paper,” seems to have subsided now that the legal status of marijuana sales under state and local lockdowns has been clarified. The vast majority of states where cannabis is legal have deemed marijuana merchants “essential,” meaning they are exempt from business closure orders, although new restrictions may apply.

According to a tally by Marijuana Business Daily, medical dispensaries are exempt from business closure orders in 28 of the 33 states that allow patients to use cannabis for symptom relief. Of the 10 states that have legalized recreational sales, eight are allowing them to continue. Licensed recreational stores have not opened yet in Maine, although it has been four years since voters approved them. Only Massachusetts has closed recreational outlets while allowing medical sales to continue.

Here is a summary of the rules for marijuana merchants in states that have legalized recreational sales:

Alaska

Recreational and medical marijuana retailers remain open, subject to social distancing rules. The cannabis industry is urging the state to legalize curbside pickup.

California

The Bureau of Cannabis Control notes that Gov. Gavin Newsom’s March 19 business closure order “identifies certain services as essential, including food, prescriptions, and healthcare.” And “because cannabis is an essential medicine for many residents, licensees may continue to operate at this time so long as their operations comply with local rules and regulations.”

Colorado

Gov. Jared Polis is temporarily allowing online sales of marijuana, which means “both Medical and Retail Marijuana Stores may accept and complete online and telephone sales transactions.” Colorado’s Marijuana Enforcement Division is allowing curbside pickup, as long as it is consistent with local regulations and the transactions occur on private property, as well as sales from drive-through or walk-up windows.

Illinois

Gov. J.B. Pritzker’s March 21 business closure order classifies “licensed medical and adult use cannabis dispensaries” as essential. Like other exempt retailers, they have to follow social distancing rules.

Maine

Although a 2016 ballot initiative legalized recreational use, licensed sales to recreational consumers have not begun yet. Dispensaries serving state-approved patients have been classified as essential “medical facilities.” Various precautions apply to in-store sales.

Massachusetts

Gov. Charlie Baker is allowing sales to registered patients but has ordered recreational stores to close. “Licensed medical marijuana retailers” are exempt from Baker’s March 23 business closure order because they provide essential “health care services.” Recreational retailers did not make the cut, although liquor stores did, under the heading of “food and agriculture.”

Michigan

Gov. Gretchen Whitmer, who has banned sales of vegetable seeds, paint, and other products she deems nonessential, is nevertheless allowing medical and recreational marijuana sales to continue. Michigan’s Marijuana Regulatory Agency is temporarily allowing home delivery and “encourages” consumers to use that option “when applicable.” Regulators are also temporarily allowing curbside pickup.

Nevada

The Department of Taxation says “licensed cannabis stores and medical dispensaries will remain open but must adhere to strict social distancing protocol during this time.” That means “licensees must not allow individuals to congregate in stores or outside while waiting”; “patient consultations should be limited to phone or video only”; and “consumers are strongly encouraged to utilize delivery services when applicable, or complete orders online or over the phone.”

Oregon

The Liquor Control Commission, which also regulates marijuana sales, is temporarily allowing curbside delivery of cannabis products. In-store sales are also permitted. The commission has increased the daily limit from eight to 24 ounces for medical marijuana buyers.

Washington

The Liquor and Cannabis Board says “cannabis producers, processors, retailers and approved labs are considered essential and not required to close due to the coronavirus restrictions.” To facilitate social distancing, the board is allowing recreational consumers as well as patients to use curbside pickup. General retailing restrictions, such as keeping customers at least 6 feet apart, apply to in-store sales.

The Times says the exemptions for marijuana merchants constitute “official recognition that for some Americans, cannabis is as necessary as milk and bread.” Except in Massachusetts, where it is not even as necessary as booze.

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Facebook will remove coronavirus-related misinformation that directly threatens imminent harm, CEO Mark Zuckerberg told ABC News. But contrary to several media reports, Facebook is not taking action against all lockdown protests that are being organized on the site.

“Unless government prohibits the event during this time, we allow it to be organized on Facebook,” a company spokesperson tells Reason. “For this same reason, events that defy government’s guidance on social distancing aren’t allowed on Facebook.”

This is slightly but critically different from what was reported by The Hill, which made it sound like Zuckerberg had endorsed some kind of blanket ban on anti-lockdown activism:

Facebook CEO Mark Zuckerberg on Monday told ABC’s George Stephanopoulos that protests against stay-at-home orders organized through his social media site qualify as “harmful misinformation” and are taken down.

Zuckerberg’s answer to Stephanopoulos—who had asked about protests that explicitly violate social distancing—was actually more complicated than that. Here was the exact exchange:

Stephanopoulos: How do you deal with the fact that Facebook is now being used to organize a lot of these protests that defy social distancing and defy social distancing guidelines in states? If someone is trying to organize something like that, does that qualify as harmful misinformation because it defies social distancing?

Zuckerberg: This is an important question. If someone is spreading something that is misinformation—certainly, someone saying that social distancing is not effective to help limit the spread of coronavirus—we do classify that as harmful misinformation and we take that down. At the same time, it’s important for people to debate policies, basically give their opinions on different things, so there’s a line on this. But more than normal political discourse, I think, a lot of the things people are saying that is false around a health emergency can be classified as harmful misinformation that has a risk of leading to physical danger, and we will take that down.

At the behest of state governments, Facebook has indeed taken action against some anti-quarantine protests being organized on the site. But that’s because those events were being organized in direct violation of state social distancing dictates, Facebook says. It matters what each state’s guidance has been, and it matters whether the event in question is urging participants to take appropriate precautions.

That’s markedly different from the idea that all opposition to the lockdowns is being treated as harmful misinformation.

In terms of content, Zuckerberg said that only posts advocating imminently harmful actions would be taken down. He cited a theoretical post recommending bleach as a miracle cure for COVID-19 as an example.

“That’s not allowed on our service at all,” said Zuckerberg. “There have been thousands and thousands of pieces of content like that we have to take down.”

Again, the panic-stricken reporting about the Big Tech censorship would have people believe that Facebook is removing all content about the coronavirus that doesn’t toe some government-approved line. But while there are bound to be times when Facebook makes a bad moderation call, on paper, its policy is reasonable.

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Today the Supreme Court decided Ramos v. Louisiana. (Eugene and Jon blogged about it earlier). The votes are very, very complicated:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Justice Kavanaugh offered this explanation of the breakdown:

As noted above, I join the introduction and Parts I, II–A, III, and IV–B–1 of JUSTICE GORSUCH‘s opinion for the Court. The remainder of JUSTICE GORSUCH‘s opinion does not command a majority. That point isimportant with respect to Part IV–A, which only three Justices have joined. It appears that six Justices of the Court treat the result in Apodaca as a precedent and therefore do not subscribe to the analysis in PartIV–A of JUSTICE GORSUCH‘s opinion.

This graph (as best as I can tell) charts the votes in the majority.

I will update the post as I make my way through the 87-page opinion.

Update: The remainder of this post explains the complicated breakdown of the Ramos majority.

Part II-B

Justices Gorsuch, Ginsburg, Breyer, and Sotomayor joined Part II-B . This brief section (pp. 9-11 of the slip opinion) tries to make sense of Apodaca v. Oregon:

So what could we possibly describe as the “holding” of Apodaca?

Really, no one has found a way to make sense of it. In later cases, this Court has labeled Apodaca an “exception,” “unusual,” and in any event “not an endorsement” of JusticePowell’s view of incorporation.³⁴ At the same time, we have continued to recognize the historical need for unanimity.³⁵ We’ve been studiously ambiguous, even inconsistent, about what Apodaca might mean.

Justice Kavanaugh did not join Part II-B.

Part IV-A

Justices Gorsuch, Ginsburg, and Breyer joined Part IV-A (pp. 16-20 of the slip opinion). This section responds to Justice Alito’s dissent. It begins:

If Louisiana’s path to an affirmance is a difficult one, the dissent’s is trickier still. The dissent doesn’t dispute that the Sixth Amendment protects the right to a unanimous jury verdict, or that the Fourteenth Amendment extends this right to state-court trials. But, it insists, we must affirm Mr. Ramos’s conviction anyway. Why? Because the doctrine of stare decisis supposedly commands it. There are two independent reasons why that answer falls short.

Justices Sotomayor and Kavanaugh did not join Part IV-A, for different reasons.

Part IV-B-2

Justices Gorsuch, Ginsburg, Breyer, and Sotomayor joined Part IV-B-2 and Part IV. Justice Kavanaugh did not join Part IV-B-2 and Part IV.

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