Category: reason

A lawsuit from Rep. Tulsi Gabbard (D–Hawaii) that sought to radically alter the First Amendment and its application to private companies was rejected by a federal judge on Tuesday.

The congresswoman and presidential candidate sued Google for infringing on her right to free speech when the company temporarily suspended her campaign advertising site for six hours after the first Democratic debate.

“Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,” wrote District Judge Stephen Wilson of the United States District Court for the Central District of California, noting that the First Amendment prohibits government censorship, but does not apply to the decisions made by private businesses.

Gabbard contended that Google became a public utility by permitting candidates to advertise on its platform. But that isn’t enough to render it a state actor, said Wilson, as “web services or online political advertising” have never been “exclusive government functions.”

The suit is the latest in a string of tech bias claims, and the decision once again affirms the obvious: The First Amendment does not govern the choices made by private actors. Wilson didn’t have to look far in citing recent precedent: The judge pulled from last week’s decision in Prager University v Google LLC et al, in which the Ninth Circuit Court of Appeals rejected the conservative content maker’s allegations that YouTube, a Google subsidiary, violated its free speech rights by placing a small portion of the nonprofit’s videos on “Restricted Mode.”

“PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent,” wrote Circuit Judge M. Margaret McKeown.

Gabbard and PragerU may very well have cause to be miffed at the companies for their review processes. In Gabbard’s case, Google said that its automated system flags accounts with large changes in spending, and in this case, it allegedly triggered a suspension.

As I’ve written previously, the tech behemoths are unconvincing when they say their content assessments are devoid of bias. No algorithm has been optimized beyond error, and no human reviewer is completely impartial. But those are not First Amendment issues.

These lawsuits seemingly fail to consider what would happen should the plaintiffs defy the impossible and prevail in court. For one, tech companies would lose their right to moderate any content, which both Republicans and Democrats may take issue with in the event that porn begins appearing on platforms that currently police such content. It’s also possible that companies would cease to claim political neutrality and start scrubbing more content in an effort to avoid like-minded lawsuits.

Gabbard’s suit was probably nothing more than a PR stunt, but such efforts waste time and resources. What’s more, it suggests she either doesn’t understand or respect the Constitution, which doesn’t bode well for a potential President Gabbard.

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On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB’s structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), the Fifth Circuit decided CFPB v. American Check Cashing. This case also considered the constitutionality of the CFPB’s structure.

Why would a federal court of appeals decide a case that is pending before the Supreme Court? I have criticized this practice before.

On February 15, 2018, the en banc Fourth Circuit declared Travel Ban 3.0 unlawful. But the Supreme Court had already granted cert Trump v. Hawaii on January 19, 2018. Perhaps the opinion offered some of the Justices alternate arguments to consider. Indeed, one commentator praised this aspect of post-cert circuit opinions. At the time, I described this decision as a judicial “amicus brief.” That is, another document to influence the Supreme Court justices.

Flash back three more years. On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans. This case considered whether Texas could deny a special vanity plate to the Sons of Confederate Veterans. On May 22, 2015, the Second Circuit decided Children First Foundation, Inc. v. Fiala. This case presented a very similar case, in which New York denied a “Pro Life” vanity plate. The Second Circuit ruled for New York. Ultimately, Justice Alito’s Walker dissent cited Fiala. (I recall being critical of the Second Circuit’s post-cert decision, but I can’t find any tweets or blog posts I wrote at the time.)

Back to the Fifth Circuit. Shortly after Seila was argued, a divided-panel ruled that the CFPB was constitutional. What did the Justices say about the timing. Well, the issue is a bit fuzzy. There are three judges on the panel: Judges Higginbotham and Higginson were in the majority, and Judge Smith dissented.

The opinion begins with a two-page statement by Judge Higginson, which I think serves as the majority opinion. Judge Higginbotham wrote a lengthy “concurring” opinion, joined by Judge Higginson, that provided all of the analysis. (Circuit practice can be strange.) Here is an excerpt from Judge Higginson’s explanation, which no one else joined:

Therefore, I look forward to its [Seila’s] likely resolution by the Supreme Court. As my colleagues are aware, my own preference in this specific, post-Collins case would have been to hold our matter several months in abeyance. FN1

* FN1: As I emphasize in my opening sentence, the constitutionality of the CFPB’s removal provision was left open by the Collins majority, notwithstanding the contrary viewpoint expressed by my dissenting colleague. I would also add that there would have been no need for this panel’s intercession had the court chosen to place this case in abeyance until the Supreme Court decides the identical issue that it heard today.

That preference was unpersuasive for reasons I respect and, indeed, I now am confident that views they may choose to elaborate will offer new insights to the Supreme Court. Three circuits have now weighed in on this important question, and the Supreme Court will benefit from those perspectives, as well as the comprehensive and well-reasoned brief of court-appointed amicus curiae. Given the many eloquent voices that have spoken on this question—in majority, concurring, and dissenting opinions—I see little reason to “re-plow the same ground here,” Seila Law, 923 F.3d at 682

I agree with Judge Higginson’s initial position: the case should be held in abeyance. To the extent that Judge Higginbotham and/or Judge Smith wanted to decide the case on March 3, the date of oral arguments, they erred.

But I disagree with Judge Higginson’s post-hoc endorsement of his colleague’s position. It is a mistake to view a court decision as simply another “perspective,” akin to the “court-appointed amicus curiae.” Paul Clement (the court-appointed amicus) filed a brief, which Kannon Shanmugam (counsel for petitioner) could respond to. By filing the panel opinion after the case was argued, none of the parties can reply. This decision resembles what is known as “virtual briefing,” where non-parties weigh in on a case after it has been submitted. (I’ve done it myself!) Now, the Justices can consider the Fifth Circuit opinion, without any substantive response. Issuing the decision the day of arguments, and before the Justices’ conference, is the worst possible option. It would have been better to drop the opinion last week, so the parties could at least talk about it before the Court.

I suspect Clement will notify the Supreme Court of the Fifth Circuit’s decision. If so, the Supreme Court should allow an opportunity for supplemental briefing–don’t let the Fifth Circuit get the final word.

I read the remainder of the Fifth Circuit’s opinion, and I do not see any other reference to why the case was not held in abeyance. Judge Higginson may have been referencing some internal deliberations. I am also critical of judges who peel back the curtains. It would have been enough for Judge Higginson to say “I would have held the case in abeyance,” without commenting on how his colleagues chose to proceed. Sometimes, less is more.

I would usually discuss the merits of this case, but frankly, it would not be a good usage of time. The Supreme Court will decide Seila in a few months. The Fifth Circuit’s decision decision will either be GVR’d, or affirmed-but-supplanted by Seila.

Circuit Judges should know their role. When a Supreme Court case is pending, hold your pens.

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If you’re freaked out by the coronavirus—the growing pandemic that is shutting down travel from China, Iran, Italy, and elsewhere and has been the cause of at least nine deaths in Washington state—stop what you’re doing and listen to the new Reason Interview With Nick Gillespie. It’s 30 minutes that will give you peace of mind.

Ronald Bailey, Reason‘s science correspondent, provides comprehensive information about the origins and extent of the coronavirus (also known as COVID-19), which steps are being taken to slow its spread, and whether the United States, President Donald Trump, and the Centers for Disease Control and Prevention (CDC) are up to the task of battling a sickness that has already disrupted global trade and travel. The short version: COVID-19 is a serious problem, especially for older, sicker people with pre-existing medical problems, but its ultimate effects will be “like a particularly bad flu season, with a case-fatality rate somewhere between 0.2 and 0.5 percent.”

Audio production by Ian Keyser.

 

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The Drug Enforcement Administration (DEA) will return more than $82,000 that it seized from an elderly Pittsburgh man and his daughter after a federal class-action lawsuit was filed on their behalf last month.

The Institute for Justice, the libertarian-leaning public interest law firm that filed the lawsuit, announced today that the DEA will return $82,373 that it seized from Rebecca Brown six months ago at a Pittsburgh airport. The money was the life savings of her father, Terry Rolin, a 79-year-old retired railroad engineer. She says she intended to deposit the money in a bank but ran out of time before her flight.

According to Brown, a DEA agent met her at her gate and grilled her about the money. Brown told The Washington Post that the agent demanded she put her confused father on the phone, and, when their stories didn’t exactly match, the agent seized the cash.

“I’m grateful that my father’s life savings will soon be returned, but the money never should have been taken in the first place. I can’t believe they’re not even offering an apology for the stress and pain they caused for my family,” Brown said in a press release today. “Without this money, my father was forced to put off necessary dental work—causing him serious pain for several months—and could not make critical repairs to his truck.”

In cases like Rolin’s, the DEA seizes cash using civil asset forfeiture, a practice that allows police to seize cash and property suspected of being connected to criminal activity, even if the owner is not charged with a crime.

After the seizure, the DEA notified Brown that it was seeking to permanently forfeit Rolin’s life savings. Neither Rolin or Brown were charged with a crime.

Law enforcement groups say civil asset forfeiture is a vital tool to disrupt organized drug trafficking by targeting its illicit revenues. However civil liberties groups say there are too few protections for innocent owners and too many perverse profit incentives for police. More than half of all U.S. states have passed some form of asset forfeiture reform because of these concerns, but it is less constrained at the federal level.

Although it is legal to fly domestically with large amounts of undeclared cash, the Institute for Justice lawsuit claims the DEA has a practice or policy of seizing currency from travelers at U.S. airports without probable cause simply if the dollar amount is greater than $5,000. This practice, the suit argues, violates travelers’ Fourth Amendment rights.

“We are glad that Terry will get his money back, but it is shameful that it takes a lawsuit and an international outcry for the federal government to do the right thing,” said Institute for Justice senior attorney Dan Alban. “We know that this routinely happens to other travelers at airports across the United States.”

In 2016, a USA Today investigation found the DEA seized more than $209 million from at least 5,200 travelers in 15 major airports over the previous decade.

A 2017 report by the Justice Department Office of Inspector General found that the DEA seized more than $4 billion in cash from people suspected of drug activity over the previous decade, but $3.2 billion of those seizures were never connected to any criminal charges.

The report reviewed 100 cash seizures and found that only 44 of those were connected to or advanced a criminal investigation. The majority of seizures occurred in airports, train stations, and bus terminals, where the DEA regularly snoops on travel records and maintains a network of travel industry employees who act as confidential informants.

“When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution,” the Inspector General warned.

That warning has not been heeded, and Brown and the Institute for Justice plan to continue pursuing their lawsuit.

“The government shouldn’t be able to take money for no reason, hang on to it for months, and then give it back like nothing happened, which is why the lawsuit we filed will continue,” Brown said. “No one should be forced to go through this nightmare.”

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Super Tuesday, which vaulted former Vice President Joe Biden ahead of Sen. Bernie Sanders (I–Vt.), looks like a victory for the Democratic Party’s moderate forces. 

In the days leading up to the vote, the party’s less progressive voters and candidates consolidated around Biden. Both Sen. Amy Klobuchar (D–Minn.) and South Bend, Indiana, Mayor Pete Buttigieg, who had cast themselves as moderate alternatives to Sanders, ended their campaigns and endorsed Biden. Biden surged in national polling, and Democratic voters largely ignored former New York Mayor Michael Bloomberg, who spent hundreds of millions of his personal dollars attempting to portray himself as the candidate of moderate consensus. (So much for buying the presidency.)  

In the end, however, Biden claimed that mantle. With Sen. Elizabeth Warren (D–Mass.) flailing and Rep. Tulsi Gabbard (D–Hawaii) barely registering, the Democratic primary is now a de facto two-man race, with Sanders the favorite of the socialist-friendly left, and Biden representing the party’s moderate, centrist voters. Even President Donald Trump, who has loudly criticized Democrats for appearing to embrace Sanders-style socialism, seems to essentially accept this frame. 

But there is a problem with this view: Biden is a moderate compared to Sanders, but he is notably to the left of previous Democratic standard-bearers. To describe Biden as a moderate without this context is to ignore the specifics of his agenda, and the leftward shift in Democratic Party politics it represents. 

Consider Biden’s health care plan. Although he has criticized Medicare for All, the fully government-run system favored by Sanders, Biden has proposed a significant expansion of the Affordable Care Act that his campaign estimates would cost $750 billion over a decade, nearly as much as the original bill signed by President Barack Obama. Although it would not nationalize the financing of health insurance, as the Sanders plan would, Biden’s proposal would nevertheless set up a new, government-run insurance plan, expand eligibility for insurance subsidies well into the middle class, and make benefits available to people who can access coverage through their employer. If enacted, it would represent a major increase in government spending on health care and a substantial increase in the government’s involvement in the health care system. 

Beyond health care, Biden has proposed a $1.7 trillion climate plan that is similar in scope to many candidates on his left and a $750 billion education plan that would be used, among other things, to increase teacher salaries and provide expanded access to pre-kindergarten. He favors an assault weapons ban and other gun control measures, a national $15 minimum wage, and a raft of subsidies, loans, and other government-granted nudges designed to promote rural economies. Has proposed $3.4 trillion worth of tax hikes—more than double what former Secretary of State Hillary Clinton proposed when she ran in 2016. 

To some extent, this just makes Joe Biden a Democrat in 2020, a successor to President Obama whose approach to policy could be summed up as, “Obama, but more.” 

That alone puts him to the left of previous presidential nominees. As a recent article in Vox put it, over the course of his campaign, Biden has “outlined a suite of policies that, taken on their own terms, would be the most ambitious governing agenda of any modern Democrat.” If he won, he would “be the most progressive Democratic nominee in history.”

Biden, in other words, would be the leftmost presidential nominee in memory even while representing the party’s center. And that tells us something important—not just about Biden, but about the Democratic party. 

Biden, arguably more than any other contemporary American politician, has long embodied the Democratic establishment consensus, from its tough-on-crime days in the 1990s to its wrong-about-Iraq days in the early 2000s to its technocratic economic policy gambles under Obama, when Biden played pivotal roles in the stimulus, the auto bailout, and high-stakes congressional budget deals. Biden is an avatar of the party’s self-conception, the closest thing capitol-D Democrats have to a mascot. 

Biden’s leftward drift is thus the party’s leftward shift. He isn’t a Sanders-style socialist, but he is, as I wrote last year, a big-government liberal, a candidate whose current incarnation was shaped and informed by progressive politics, if not wholly captured by them. That he looks moderate relative to Sanders is just another sign of how the party center has moved. If, as now seems plausible, he bests Sanders in the primary, the party’s current moderates will have won—but true moderation will have lost.  

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