Category: reason

From Mullane v. Breaking Media, Inc., decided Monday by Judge Patti B. Saris (D. Mass.), the facts:

Plaintiff, Jonathan Mullane, a former student of the University of Miami Law School, brings this action against Breaking Media, Inc., and journalist Elie Mystal alleging that an article on the legal website “Above the Law” was defamatory….

Mullane was a student at the University of Miami School of Law beginning in the fall of 2017. During the spring of 2018, Mullane served as a legal intern with the United States Attorney’s Office (“USAO”) in the Southern District of Florida.

While employed with the USAO, Mullane was party to a pro se civil lawsuit involving a credit card dispute pending before Judge Federico Moreno in the United States District Court for the Southern District of Florida. In April 2018, Mullane entered Judge Moreno’s chambers, allegedly to request that the clerk make an entry of default in connection with this personal civil dispute.

Judge Moreno subsequently summoned Mullane to a hearing on April 10, 2018. During the hearing, Mullane appeared to acknowledge that he had sought to file a writ of mandamus in his pending case. See Docket No. 57-1 at 13:14-18 (“THE COURT: Did you mention the word petition for mandamus? … MR. MULLANE: I did.”); id. at 25:17-19 (“THE COURT: What was the question? MR. MULLANE: I can’t remember exactly. It was about how to file the mandamus request or something.”). But see id. at 7:19-20 (“MR. MULLANE: I said that I had a specific question about the entry of default.”). Judge Moreno reprimanded Mullane for his actions. Mullane was terminated from his internship at the USAO soon after the hearing…..

On April 30, 2018, the legal news publication “Above the Law” published an article, titled “Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid.” The Article was authored by Mystal, the Executive Editor of “Above the Law.” …

The Article describes the April 10, 2018 hearing. It states, [among other things]:

“[Mullane] was trying to file a petition of mandamus—which basically asks an appellate court to order Judge Moreno to work on his case faster. That’s pretty rude. He didn’t know where to file the petition, and ended up asking the judge’s career clerk, in the judge’s chambers, ex-parte, what to do about it. That’s pretty dumb. Initially, the clerk wasn’t even going to let him in, but Mullane said he worked for the U.S. Attorney’s office (he’s an intern), which gained him access to the chambers to discuss his own personal case. That’s pretty unethical.”

“Basically Mullane was an idiot ….”

“[T]o gain entry into those chambers, he dropped his USAO cred, even though he was just an intern, and even though he was there for reasons that had nothing to do with his internship.”

“It also appears that Mullane is a little entitled ponce ….”

“Turns out the kid’s father is also an attorney … wonder if that helped him get his sweet internship.”

“Okay, so Jon Mullane is a little brat who [sic] with a USAO internship who had an ex-parte conversation in judge’s chambers while trying to file a motion arguing that the judge was lazily ignoring his pro se complaint.”

“If Mullane is a dauphin ….”

“The kid wasn’t trying to upend the wheels of justice, he made a series of dumb mistakes.”

Following the publication of the Article, the Securities Exchange Commission  … rescinded Mullane’s invitation to serve as a “Student Honors Volunteer.” Mullane later withdrew from the University of Miami School of Law….

Mullane sued Above The Law for libel, but the court held that much of the article was a fair report of a judicial proceeding:

Massachusetts recognizes “a privilege for fair and accurate reports of official actions and statements.” The privilege provides immunity “from liability for claims arising out of such reports.” To qualify as “fair and accurate” reporting, an article need only give a “rough-and-ready summary” that was “substantially correct.” Importantly, “accuracy” refers to “the factual correctness of the events reported and not to the truth of the events that actually transpired.” The Fair Report Privilege encompasses reports on judicial proceedings, even if the reports are not “in technically precise language.” Massachusetts requires “that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation.”

Notwithstanding the Fair Report Privilege, a Massachusetts statute “permits a plaintiff to recover for a truthful defamatory statement published in writing (or its equivalent) with actual malice … except as confined by” the First Amendment. Under the state statute, “actual malice” is defined as “ill will” or “malevolent intent” … ([which distinguishes] “actual malice” under the Massachusetts statute from the First Amendment standard for “actual malice” as defined in New York Times v. Sullivan, 376 U.S. 254, 280 (1964)). The Massachusetts Supreme Judicial Court has declared [this “actual malice” exception to the privilege] unconstitutional as applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc. (Mass. 1998)….

The Fair Report Privilege protects many of the statements challenged by Mullane, including the portions of the Article that directly quote the court reporter’s transcript of the April 10, 2018 hearing and the portions that summarize the topics discussed in that hearing. These statements provide a “rough-and-ready summary” of the hearing that was “substantially correct.”

Mullane’s arguments [that the article is inaccurate] fail because “‘accuracy’ for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired.” As to the question of what Mullane sought to file in his Florida case, Mullane stated during the April 2018 hearing that he was seeking a petition for mandamus. As to potential accusations of “criminal conduct,” the Article only summarized statements made by Judge Moreno. The reporting sections of the Article are therefore protected by the Fair Report Privilege.

Plaintiff argues that Massachusetts’ “actual malice” exception applies in this case because of the pejorative language in the Article {“homophobic, pejorative language and personal slights”}. [But] Mass. Gen. Laws ch. 231 § 92 is inapplicable here because the Article reported on a matter of public concern—a court proceeding. A contentious interaction between a federal judge and a law student can be “fairly considered” as a matter of “concern to the community.” …

The court also held that the article’s criticisms of Mullane were constitutionally protected opinion:

Mullane also challenges Defendants’ statements referring to Mullane as “rude,” “dumb,” “unethical,” a “little entitled ponce,” and a “dauphin.” … Statements of pure opinion are constitutionally protected because “they are not susceptible of being proved true or false.” A statement “couched as an opinion” may be actionable if it “presents or implies the existence of facts which are capable of being proven true or false.” Thus, “the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of [defamatory] fact.” The court may determine as a matter of law whether a statement is a pure opinion or a verifiable fact. This requires examining “the totality of the circumstances in which the specific challenged statements were made, including the general tenor and context of the conversation.”

Even if an opinion implies a provably false assertion of fact, that statement will not be actionable if “it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.” A speaker is thus protected from defamation liability if he “communicates the non-defamatory facts that undergird his opinion.” … “[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.” … The “crucial distinction” is whether the speaker’s statements can reasonably be interpreted to suggest that the speaker had access to information not accessible to others.

“[R]idicule and simple verbal abuse” do not give rise to liability for defamation. Many of the challenged statements—such as those referring to Mullane as “rude,” “dumb,” “unethical,” a “little entitled ponce,” or a “dauphin”—are mere “epithets” that are “insufficiently fact-based” to ground a defamation claim.

Mullane argues that the Defendants’ use of the word “ponce” is actionable because it is a “homophobic and derogatory” manner of “referring to [Mullane] as an ‘effeminate man.'” But the First Amendment “shield[s]” such “figurative language.”

The Article also contains this statement: “Turns out [Mullane’s] father is an attorney—wonder if that helped him get his sweet internship.” This statement might imply a defamatory fact. But here, “although the allegation of [nepotism] might be provable as true or false, the sum effect of the format, tone, and entire content of the [Article] is to make it unmistakably clear that the author was expressing a point of view only, rather than stating actual facts” about how Mullane obtained his internship. The statement is an opinion protected by the First Amendment.

Defendants are also protected from defamation liability because they do not suggest that the statement was “arrived at on the basis of undisclosed facts. On the contrary, the [Article] set forth the facts on which the conclusion[] purported to be based.” Because the Article provided the “full factual basis” for the statement—namely, that Plaintiff’s father is an attorney—the Article “cannot reasonably be interpreted to suggest that the author had access to information about plaintiff’s claim that was not accessible to others.” The Article “simply posed [a] question[] and suggested [an] answer[], as a matter of opinion.” The Defendants’ statement is “speculative” and at most amounts to a “personal conclusion[] about the information presented.”

The court also rejected Mullane’s claims for tortious interference with contract and with prospective business relations, and for intentional infliction of emotional distress.

And it rejected the claim that the article was “unlawful discrimination based on sexual orientation” (“ostensibly referring to the Article’s use of the word ‘ponce'”) in violation of the Massachusetts Consumer Protection Act, which bars “unfair or deceptive acts or practices in the conduct of any trade or commerce”—”where allegedly defamatory statements do not support a cause of action for defamation, they also do not support a cause of action under [the Act],” and even “statements that allegedly implied that plaintiff was homosexual” (not that the court held that the statements here did so imply) “could not be construed as defamatory.”

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As the head of a Pittsburgh-based metal fabrication and manufacturing firm, Robert Wetherbee has firsthand experience with the consequences of President Donald Trump’s trade policies.

They’ve worked so well, Wetherbee wrote in an op-ed for The Wall Street Journal, that he might have to close his doors.

“Tariffs are blunt instruments and have also harmed many American companies, including my own Allegheny Technologies Inc,” writes Wetherbee. “Our Midland [Pennsylvania] plant is hemorrhaging money.”

Allegheny Technologies, which employs about 100 people, is the type of company that is especially vulnerable to Trump’s tariffs. It imports stainless steel slab from Indonesia and turns it into sheet metal, which it then sells to other manufacturers who incorporate it into car parts, kitchen appliances, and more.

Being in the middle of the supply chain is rough when you’re also in the middle of a trade war. Companies like Allegheny Technologies have to pay for Trump’s 25 percent tariffs on imported steel, and then have little choice but to pass on that cost increase to their customers. But, as Wetherbee laments, that makes it difficult for a company like his to compete against foreign manufacturers who can make and sell sheet metal without having to account for an extra 25 percent import tax.

Buying American doesn’t work, either, since U.S. steel is more expensive. One domestic supplier, Wetherbee writes, “quoted us a price for 60-inch slabs that was so high, the raw materials would have cost us more than we charge for the finished product.”

Wetherbee’s story is a perfect illustration of why tariffs fail in principle as well as why these specific ones have failed in practice.

Given all that, you’d probably expect Wetherbee to be a critic of Trump’s trade policies.

Not so fast. Wetherbee’s purpose in penning an op-ed for The Wall Street Journal is to ask for special treatment. He wants everyone else to continue paying Trump’s tariffs, as long as his company gets a break—an exemption from having to pay the tariffs that Wetherbee says he still supports.

Give me a break.

It’s true that the Commerce Department has set up a process for awarding tariff exemptions—technically, they are called “exclusions”—but the process is, unsurprisingly, a bureaucratic mess. It is opaque and unaccountable, with little recourse for companies whose requests are denied. Even such rudimentary details as which Commerce Department officials are responsible for making final determinations, or the metrics by which those decisions are made, remain a secret.

At best, the combination of tariffs and tariff exemptions gives the Commerce Department the power to pick winners and losers. At worst, the process allows for serious cronyism. As CNN reported last year, large companies such as U.S. Steel are actively trying to block many exemption requests made by smaller business—because U.S. Steel is better able to absorb the added cost of tariffs than, say, a small metal fabrication business with 100 employees.

All of this, of course, is the entirely predictable result of giving the federal government greater control over trade and expecting federal officials to fairly and correctly decide which economic levers to yank.

Seeking special treatment from the government is a time-honored tradition, of course. However, it is surprising to see the editorial board of the usually pro-market Wall Street Journal give a megaphone to such a blatant call for cronyism.

At least there’s one good thing to come from this: There is no better snapshot of the current state of Trump’s trade policies than a CEO proclaiming that the president’s tariffs are great while simultaneously begging to be saved from them.

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House Speaker Nancy Pelosi (D–Calif.) announced this afternoon that the House will take up a resolution stopping the White House from engaging in further hostilities against Iran without a vote from Congress.

“Members of Congress have serious, urgent concerns about the Administration’s decision to engage in hostilities against Iran and about its lack of strategy moving forward,” Pelosi said in a statement announcing the pending vote. “Our concerns were not addressed by the President’s insufficient War Powers Act notification and by the Administration’s briefing today.”

The House will be considering a War Powers Resolution introduced by Rep. Elissa Slotkin (D–Mich.), sent to its Rules Committee tonight. Pelosi will hold a full House vote Thursday.

The resolution is based on one introduced in the Senate by Sen. Tim Kaine (D–Va.). Kaine’s resolution reads, in part, “Congress hereby directs the President to remove United States Armed Forces from hostilities against the Islamic Republic of Iran or any part of its government or military, by not later than the date that is 30 days after the date of the enactment of this joint resolution unless explicitly authorized by a declaration of war or specific authorization for use of military force.” Read the resolution here.

The resolution is intended to make it clear that the current Authorization for Use of Military Force (AUMF) permitting strikes in Iraq and Afghanistan against terrorists connected to Al Qaeda does not permit President Donald Trump to order military strikes against Iran.

It’s good to see Congress asserting its authority over the declaration of war. Billy Binion noted this morning that it’s not clear that Republicans are interested in restraining President Donald Trump’s actions in Iran, so this all may come to naught in the Senate. Trump’s speech earlier today suggests that he’s not actually interested in pursuing further escalation, and that might be used by his supporters in the Senate to argue the resolution isn’t necessary.

But there are some Republican senators coming forward now to support Kaine’s resolution. Sens. Mike Lee (R–Utah) and Rand Paul (R–Ky.) emerged from a briefing for senators this afternoon and announced they’d support the War Powers Resolution. Lee even went so far as to say it was “the worst briefing [he’s] seen on a military issue” during his time in the Senate. He was reportedly furious:

Republican senator Mike Lee blasts the Trump administrations post-Iran briefing, says they were told they could not dissent from Trump, couldn't debate it, and if Trump needed justification to go to war "I'm sure we could think of something" pic.twitter.com/bfyPqoSf8c

— Andrew Lawrence (@ndrew_lawrence) January 8, 2020

Pelosi also noted that she is considering other bills to restrain our Middle East involvement, adding, “The House may also soon consider additional legislation on the Floor to keep America safe. This legislation includes Congresswoman Barbara Lee’s resolution to repeal the 2002 Iraq Authorization for Use of Military Force (AUMF) and Congressman Ro Khanna’s legislation to prohibit funding for military action against Iran not authorized by Congress.”

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Matthew Luckhurst of the San Antonio Police Department (SAPD) tried to feed a homeless man a sandwich made of dog feces. While Luckhurst was initially fired for such crappy behavior, Reason reported in March 2019 that his employment was fully restored.

Luckhurst was able to rejoin the force following an arbitration hearing required by the collective bargaining agreement the San Antonio Police Officers Association has with the city. Since the department could not prove the exact date of the crap sandwich incident, the department had no choice but to accept that it missed the 180-day window in which it could discipline Luckhurst, and the arbitration panel ruled in Luckhurst’s favor.

The San Antonio Current reported this week that Luckhurst’s story is not an exception to the rule. Twenty-seven of the 40 SAPD police officers fired between 2010 and 2019 have managed to get their jobs back through arbitration. Only 13 firings were upheld in that entire time.

Other officers who have benefitted from arbitration include an officer fired for using the N-word while arresting a black suspect and an officer who challenged a prisoner to a fistfight in exchange for his freedom.

The union has long erected barriers that make it difficult to keep bad officers off the force. The union once thwarted suggested reforms and then used them to negotiate a substantial pay increase. One of the suggested reforms at the time would have allowed supervisors to consider suspensions older than two years to factor into discipline for new offenses. The union has also called for the resignation of a chief who angered the group by attempting to reform use-of-force policies.

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The Cato Institute, a libertarian think tank, is calling on Congress to investigate whether the FBI is spying on it and other domestic political groups after public records requests raised the possibility that the Bureau has files on Cato and others. 

Patrick Eddington, a research fellow at Cato, has submitted more than 200 Freedom of Information Act (FOIA) requests for FBI files on political advocacy groups, civil liberties organizations, think tanks, and publications across the political spectrum.

For about two dozen of those requests so far, the FBI said it could neither confirm or deny whether it had collected national security or foreign intelligence records on the groups. Those organizations include the immigrant rights group Kids in Need of Defense; the Transgender Law Center; former Rep. Ron Paul’s (R–Texas) Campaign for Liberty; the grassroots Fourth Amendment advocacy group Restore the Fourth; the Cato Institute; and the Reason Foundation, which publishes Reason. 

(You can see the Justice Department response upholding the FBI’s refusal to confirm or deny the existence of national security or foreign intelligence records on Reason here.)

In a press release issued Tuesday, the Cato Institute said the responses “reveal the need for Congress to launch an aggressive investigation into FBI domestic surveillance practices.”

The well-worn “can neither confirm nor deny” phrase is known as a “Glomar response.” The term originated from a 1975 FOIA lawsuit by a Rolling Stone journalist against the CIA seeking records on the Glomar Explorer, a salvage ship the spy agency used in an audacious attempt to recover a sunken Soviet nuclear submarine.

A federal judge ruled that the CIA could refuse to acknowledge the existence of such records if doing so would in and of itself compromise national security. The Glomar doctrine has since spread to other federal agencies, and even trickled down to state and local government agencies, such as the NYPD.

A Glomar response, by design, obscures any attempt to discern the government’s activities, or lack thereof. The responses Eddington received could mean absolutely nothing.

However, Eddington says that, while the Glomar responses don’t prove that the FBI has collected intelligence on these groups, their selective use at least raises the troubling possibility that the groups mentioned above were targeted for unconstitutional surveillance or information gathering.

“We know for a fact that Glomar invocations have been used to conceal actual, ongoing activities, and we also know that they’re not passing out Glomars like candy,” Eddington, a former CIA analyst, says in an interview with Reason.

The FBI declined to comment on this story.

The FBI has a long and sordid history of spying on dissident political groups, from early 20th century socialists and labor organizers, to civil rights leaders and post-9/11 environmentalists and peace activists, to Black Lives Matter protesters. 

In 2013, The Guardian reported that the FBI kept files and created “threat assessments” on the co-founders of Antiwar.com for six years because of a mix-up. Last September, the Ninth Circuit Court of Appeals ruled that the FBI had to expunge its surveillance records on the site.

“We are a post-Edward Snowden organization, and so it is a matter of particular concern to us that we may be under surveillance in some sense by the FBI,” says Alex Marthews, national chair of Restore the Fourth. “We would consider it highly inappropriate if we were, because we know our activities to be entirely peaceful and constitutional.”

Eddington says that any such surveillance is inimical to freedom of speech.

“Anytime [the FBI] is engaged in gathering that kind of data on news organizations or on domestic groups that are exercising their First Amendment rights, that activity should be expressly prohibited in the absence of a genuine criminal predicate,” Eddington says. “It should absolutely be prohibited.”

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One of the most important issues for people worried about the consequences of marijuana legalization is the extent to which cannabis serves as a substitute for alcohol, which is more dangerous is several significant ways. New evidence from Canada and the United States reinforces the hypothesis that people tend to drink less when marijuana is legally available, although the issue is far from settled.

During 2019, the first full year of legalization in Canada, the volume of beer sold there fell by 3 percent as of last November, the Financial Post reports. That drop was large compared to the annual declines seen in the previous five years, which averaged 0.3 percent. Vivien Azer, an industry analyst quoted by the Post, said the accelerated slide is probably related to marijuana legalization, and she predicted that the expansion of cannabis products available from government-licensed (or government-run) sources, which as of this month include vapes, edibles, and beverages, will “perpetuate this trend.”

More rigorous evidence on the relationship between marijuana use and drinking comes from a study reported in the March 2020 issue of the journal Addictive Behaviors. Based on nationwide survey data covering a 10-year period, Zoe Alley and two other researchers at Oregon State University found that college students in states where marijuana had been legalized for recreational use were 6 percent less likely to report binge drinking than college students in other states after taking into account pre-existing trends and several potential confounding variables.

In a second analysis that excluded data from the 2017-18 academic year, when there was a sharp drop in binge drinking among college students in states that had legalized marijuana (regardless of whether legalization had just taken effect), the main result was no longer statistically significant for college students in general. But the researchers found a statistically significant 9 percent decline in binge drinking among students 21 or older, the cutoff for legally purchasing marijuana.

This apparent substitution effect, the authors note, is consistent with earlier studies that found “reductions in alcohol consumption (especially binge drinking in young adults) and alcohol related traffic accidents” following the legalization of medical marijuana. A causal connection is plausible in those studies if we assume that some ostensibly medical use is actually recreational (or that some drinking is functionally medical), such that cannabis consumption would displace the use of alcohol. Another possibly relevant consideration, in addition to marijuana’s less dramatic impact on driving ability, is that drinking is more apt to happen in public settings, making driving under the influence more likely.

“For students ages 21 years and over, binge drinking decreased following” recreational legalization, Alley et al. conclude. “A prior national study of how marijuana and alcohol use change in the years before and after turning 21 may put the present findings in context: Although substance use generally declines across this age period, there is a pronounced decrease in marijuana use that coincides with marked increases in alcohol use after minors reach the legal drinking age. This suggests that once alcohol is more accessible and its use is no longer prohibited, young adults may substitute an illegal substance (marijuana) with a legal one (alcohol). We speculate that legalizing recreational marijuana use may temper this effect, such that college students over the age of 21 who otherwise would have engaged in binge drinking continue using marijuana instead.”

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