Category: reason

Leslie Harris is a Northwestern University historian who helped fact-check the 1619 Project, The New York Times‘s recent package of articles that recast chattel slavery as a foundational aspect of America. The project has been praised for drawing attention to underscrutinized racial inequities throughout American history. But has also attracted criticism from historians who say that some of the project’s claims are false. Harris is one of those critics—but when she raised her objections with Nikole Hannah-Jones, the Times reporter who spearheaded the 1619 Project, she received no response.

“On August 19 of last year I listened in stunned silence as Nikole Hannah-Jones, a reporter for the New York Times, repeated an idea that I had vigorously argued against,” writes Harris in Politico.

When a fact-checker asked Harris to verify some of the project’s statements, Harris “vigorously disputed” the claim that protecting the institution of slavery was a major reason the American colonies rebelled against British rule:

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The Liberty and Law Center at the Antonin Scalia Law School is looking for a Free Speech Clinic Fellow to run its Free Speech Clinic for law students, which was launched in Fall of 2018. The Free Speech Clinic Fellow will collaborate with the Clinic Director to manage, instruct, and support the activities of the Free Speech Clinic. It is anticipated that the Clinic will focus on two core First Amendment objectives: (1) litigating and supporting cases and other legal proceedings that further the cause of free speech; and (2) training a group of future lawyers who want to advance their knowledge of the status of freedom of speech in the United States, and seek practical training in protecting freedom of speech. The position will start in Summer 2020, and is for one year, renewable for an additional year.

Duties:
At the direction of the Clinic Director and the Center’s leadership, the Fellow’s responsibilities include but are not limited to:
 Serve as the day-to-day manager of the Clinic.
 Provide supervision and instruction to students in the Clinic, including feedback, mentoring, and training.
 Solicit and manage ongoing cases, ensuring that the work is done in a timely and professional manner.
 Assist with the organization and teaching of the Clinic, focusing on substantive knowledge of First Amendment doctrine and the litigation process, as well as effective legal writing, advocacy, and client relations skills.
 Develop the focus of cases the Clinic will work on, including developing and maintaining relationships with public interest law firms with which the Clinic expects to collaborate.
 Assist in managing the marketing and promotion of the Clinic.
 Initiate Clinic and free speech focused events for Clinic students and the larger community.

Qualifications:
Required qualifications:
 A juris doctor;
 License to practice law in Virginia, or ability to obtain a Virginia bar license within a short timeframe;
 Either (1) At least one year of litigation experience; or (2) a demonstrated interest in constitutional law and public interest litigation; and
 Highly self-motivated and detail-oriented with an ability to advance projects in a self-directed way.

Desired qualifications and skills:
 A strong interest in freedom of speech and the First Amendment;
 2 or more years of relevant experience;
 Demonstrated ability to collaborate with others and execute projects;
 Strong analytical and research skills; and
 Strong spoken and written communication skills.

Apply at position FA23FZ https://jobs.gmu.edu. You can also shoot me an email at dbernste@gmu.edu if you want more information or to let me know you applied. Salary is in the range of similar fellowships.

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San Francisco has created a lot more jobs than housing in recent years, helping to make it one of the most expensive places in the world to live. To fix this imbalance, city residents have voted for a ballot measure that would restrict the development of new office space until the city starts building enough affordable housing. Whenever it gets around to that.

On Super Tuesday, 55 percent of San Francisco voters ticked yes on Prop E. The complicated ballot measure would revise the city’s existing cap on large office developments (set at 875,000 square feet per year) downward by the same percentage that it falls short of its affordable housing goals.

So if San Francisco builds only 90 percent of the affordable housing units it has given itself the goal of completing (which is currently about 2,000 units a year), the amount of office space that can be permitted that year will also fall by 10 percent.

“Either we’re going to significantly increase our affordable housing or reduce our office development,” John Elberling, the sponsor of the initiative, said to CityLab in January. “It’s going to be one or the other.”

It could also be neither.

Prop E doesn’t appropriate any new money to build affordable housing (a technical term meaning income-restricted units that are rented out at below-market rates). Nor does it streamline permitting or remove zoning restrictions that would make it easier to build such projects.

“All [Prop E] could do is reduce future office development,” notes SPUR, a Bay Area think tank, which also points out that less office development would also mean less money for affordable housing. “Reducing office development would also reduce impact fees that pay for affordable housing—precisely the opposite of the measure’s goal.”

Proponents made a couple of arguments for the ballot measure. One is that it boosts affordable housing production in the short run by grandfathering in several large office developments that are already in the pipeline and that come with an affordable housing component.

More broadly, Elberling has argued that linking housing and office development will give commercial developers and business interests an incentive to support more affordable housing funding in the long-run. So even if the measure itself doesn’t create affordable housing, they think it could create the political will to get the job done. Four-dimensional chess by ballot measure.

It is possible that Prop E will succeed in creating this powerful pro-affordable-housing coalition, which will then go on to get the hundreds of millions of additional funding needed to build all the affordable housing the city needs, and then triumph over the NIMBYs who frequently delay these projects. But there is also—how shall I put this?—a fair chance that this won’t happen.

Meanwhile, Prop E comes with some pretty concrete costs. Given the city’s chronic inability to meet its affordable housing goals, City Controller Ben Rosenfield found that Prop E would have reduced allowable office space development by a cumulative 5.6 million, and net tax revenues by $4–7 million per year, had it been in place for the last decade. Alternatively, the city would have had to spend $200–500 million more each year over the same time period to meet its affordable housing goals, and thus avoid any reduction in allowable office space development.

Opponents of Prop E argue it would reduce impact fees paid by office space developers by $600–900 million over the next 20 years. A report from the city’s chief economist estimates that city GDP will be 8.5 percent lower by 2040 than it would have been without Prop E.

Artificially capping the amount of new office space that can be built would also likely raise office rents, pushing out smaller businesses that can’t outbid deeper-pocketed corporations for existing space. After all, that’s what supply constraints have done to the city’s housing market.

The city is still counting mail-in ballots from Tuesday’s election, so Prop E’s victory isn’t official yet. But “barring unforeseen lunacy”, as Mission Local put it, the measure will easily pass.

That really is a shame. San Francisco has continually tried to plan itself out of its housing affordability problems through limits on the “wrong” kinds of development, whether that’s buildings that are too big, too luxurious, or now, come with too many jobs. These efforts have failed to work. San Francisco voters, politicians, and activists should stop trying to dictate how exactly their city will change over the years. They’re not very good at it.

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In State v. Anonymous (1976-8), 6 Conn. Cir. Ct. 751, 360 A.2d 909 (App. Div. 1974), the defendant had been convicted under a statute with the heading “Breach of the peace. Intimidation. Libel”, which forbade anyone from “disturb[ing] or break[ing] the peace … or writ[ing] or print[ing] and publicly exhibit[ing] or distribut[ing] … any offensive, indecent or abusive matter concerning any person.” The matter was this:

The court “decline[d] to reach the very significant constitutional questions raised” by the prosecution, because it reversed the conviction on the following (constitutional-ish) grounds:

The theory of criminal libel ever since De Libellis Famosis (1609), has been that the government has the right to punish certain utterances because they inevitably lead to breaches of the peace. ‘Any publication which has a tendency to disturb the public peace or good order of society is a libel by the common law, and is indictable as such.’ It is clear that the tendency of the utterance to create breach of the peace is at least nominally the basis of the crime. The crime is not defined in terms of its tendency to create violence and its possible effect on the public; rather, it is formulated in terms of the substantial character of the utterance, the assumption being that, given certain speech, violence may be conclusively presumed to result.

With the passage of [time], however, there has been an effort to expand and alter somewhat the original, narrow meaning of criminal libel. The emphasis is no longer on the effect of the libel on the public peace, but on the tendency of the publication to damage the individual. Thus, focus has shifted from the tendency of the utterance to create disorder to its tendency to harm individual reputation….

[U]nlike the few reported cases involving libel by means of political cartoons the drawing in this case bore no caption or other graphic display from which any inference of fact might possible be drawn….

Judge Learned Hand recognized this [rare] type of libel in Burton v. Crowell Publishing Co. (2d Cir.). There the publication of a picture which held the plaintiff up to ridicule was ruled actionable notwithstanding the fact that the picture did not assume to state a fact or an opinion. In coming to that conclusion, Judge Hand observed that defamation was not a favored cause to action at common law and that any “excuse” pleaded by the defendant might defeat recovery…. That there is a countervailing interest and, hence, an excuse in this case is clear from the opinion of the United States Supreme Court in New York Times Co. v. Sullivan (1964), wherein it was observed: “(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In holding that an Alabama police commissioner could not recover damages from the New York Times for a partially false and allegedly defamatory editorial advertisement appearing in the newspaper, the court formulated what has come to be called the New York Times rule: “The constitutional guarantees require … a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”…

Since the publication of the drawing here directed at a presidential candidate involved comment on a public official within the meaning of New York Times and Garrison v. Louisiana (1964) [which applied the New York Times rule to criminal libel cases], we hold that the defendant was cloaked with the limited privilege recognized by those decisions. Applying the standard enunciated in those cases, … we further hold that the state has the burden of proving that the defendant was in fact actuated by malice toward the target of his publication. It was error for the trial court to rule that malice could be implied from the fact of publication.

In deciding this case as we do today, we are not unmindful of the unpopular and distasteful actions which have been, and will continue to be, immunized by the constitutional guarantees of freedom of speech and the press. Along with Mr. Justice Harlan, however, we measure the survival and success of liberty, in part, by the diversity of opinions and modes of expression entertained by our citizens and fostered by our constitution: “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why ‘(w)holly neutral futilities … come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,’ and why ‘so long as the means are peaceful, the communication need not meet standards of acceptability.'”

It was incumbent upon the state to prove actual malice in order to sustain a conviction for criminal libel; we are forbidden by the New York Times rule to hold that malice may be implied from the mere fact that the drawing was published, however, crude and vulgar the characterization may be.

The constitutional analysis strikes me as a bit perplexing: How could the government prove “actual malice” in the New York Times sense of knowledge or recklessness as to factual falsehood when the cartoon contains nothing “from which any inference of fact might possible be drawn”? It seems to me easier to say that the cartoon is pure opinion, and thus constitutionally protected against libel liability.

But perhaps this stems from the era in which the case was decided. Until not so long ago, any damage to reputation was potentially libelous, unless certain privileges were shown—truth was often a privilege, as was “fair comment,” which covered certain kinds of opinions, but if a privilege was unavailable, even some true statements or statements of opinion could be criminal libel if they damages a person’s reputation. Now, “a statement on matters of public concern must be provable as false before there can be liability under state defamation law,” so opinions are categorically immune. In any event, the conviction for the Nixon cartoon was invalidated in 1974, and it would surely be invalidated today.

You can read more about the case here and here.

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I’ve been slow in posting about these, because I’ve been occupied with several briefs I’ve had to finish and file (I hope to blog about them soon), and because I’m still try to run down a few issues related to these libel lawsuits. But Jacob Gershman (Wall St. J.) has a very good story about them; here is the part that conveys my thoughts:

[R]ecent past presidents looked at libel lawsuits as a political loser or beneath their dignity, says Prof. Eugene Volokh …. He said Mr. Trump [departing from this tradition] may have spotted a chance to expose media bias and burnish his image as a politician who fights back.

But his lawsuits aren’t without risk, said Mr. Volokh. Mr. Trump and past presidents have avoided testifying as defendants in civil lawsuits by arguing that the proceedings would interfere with their public duties. It would be harder for Mr. Trump to dodge deposition when his campaign is the one doing the suing, said Mr. Volokh….

Should the lawsuits survive motions to dismiss, the Times and the Post would likely get an opportunity to examine and cross-examine Mr. Trump under oath about the articles in question and their assertions about his dealings with Russia …. “It’s hard to see how you could resist testifying about that,” said Mr. Volokh.

Note that the lawsuits are nominally brought on behalf of the Trump campaign rather than Trump himself, but I doubt that this would keep Trump from being deposed as to the factual allegations on which he may have personal knowledge.

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