Category: reason

See Judge C.J. Williams’ opinion today in Nunes v. Lizza (N.D. Iowa), which seems generally correct to me. Lizza’s motion to dismiss was granted in its entirety as to the substance of the case. It was denied in part chiefly to the extent that it sought attorneys’ fees and costs under the California anti-SLAPP statute (the judge concluded that this state statute couldn’t apply in federal court, an important procedural  question on which federal courts are split).

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From Marin County (Cal.) Judge Roy O. Chernus’s decision last week in People v. Velyvis:

[T]he Family Law court granted petitioner John Velyvis’ application for a Family Code § 6218 Domestic Violence Protective Order (DVPO) against his former wife Melissanne Velyvis (Velyvis or defendant), finding that she “harassed” petitioner in violation of Family Code§ 6320(a) by posting a March 13, 2018 “blog” on WordPress.com, entitled: “Non­Fatal Strangulation Administered by Husband Dr., John H. Velyvis, from Victim to Survivor … The Untold Story 2018.”

Among the prohibitions, the court ordered Velyvis to remove “all social media, blogs and internet” postings regarding petitioner and his children and barred her from making any new social media postings about them[:] …

“The intent of this restraining order is to curtail ongoing posting and communications made by Melissanne Velyvis involving John Velyvis. While recognizing an individual’s freedom of expression, in connection with this dissolution and given the relationship qualifying for a domestic violence restraining order, the court has found the statements to have been made for the purpose of harassing Petitioner, damaging Petitioner’s reputation, interfering with Petitioner’s professional livelihood and damaging Petitioner’s personal relationships. Accordingly:

“Melissanne Velyvis shall remove any postings on social media/biogs/internet regarding Petitioner or his children. This includes direct and indirect postings (Example referring to Petitioner as [‘]former husband/person with fiduciary duty[‘] and then using Melissanne Velyvis as identification of author).

“Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children.

“Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order. This includes, but is not limited to providing defamatory statements and documents to third parties about Petitioner. Melissanne Velyvis shall refrain from interjection into custody proceedings involving or related to John Velyvis, directly or indirectly, absent a court order.

“Melissanne Velyvis shall remove John Velyvis’ likeness from her own social posting and remove any references indicating they are currently married ….”

Six months later, the Marin County District Attorney filed a misdemeanor complaint against Velyvis .alleging one count of Penal Code§ 273.6; i.e., between July 19 to July 25, 2019 Velyvis “willfully, unlawfully, and knowingly” violated the DVPO “issued by Marin County Superior Court case number FL1603174.”

The complaint did not describe the offending activities. Defendant states, without contradiction, that she is charged with violating the “no speech” prohibition….

The court in the criminal case began by noting that, under California law, a criminal defendant who is being prosecuted for violating a court order can raise the unconstitutionality of the order as a defense. California thus rejects the “collateral bar” rule (which is applied in federal court for federal orders), under which the target of an order has to object to it by appealing it, and generally can’t just violate it and defend herself by arguing that the order is unconstitutional.

And the court then went on to conclude that the family court order was indeed unconstitutional (quite correctly, I think, for reasons given in this article):

Defendant asserts the broad language in the DVPO that directs: “Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children” and “Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order,” constitutes an invalid prior restraint that impermissibly infringes on her free speech rights …. Defendant contends this overbroad language of the DVPO unlawfully prevents her from sharing her life experiences and feelings she attributes to her marriage to petitioner with her family, friends and other adults willing to read her comments and criticisms ….

The People respond by asserting that the restraining order may lawfully limit speech that exhibits a pattern of conduct the court deems “abusive.” As proof of this pattern of abuse, the People rely on evidence presented at the hearing which showed, in addition to posting the blog, … defendant interjected herself into other family law matters involving her ex-husband: she made unsolicited comments to a custody evaluator during the current contested custody hearing involving petitioner and his first ex-wife; and defendant made disparaging remarks about petitioner during his current girlfriend’s divorce proceedings to another man. The People also cite defendant’s plans to file a complaint against petitioner with the California Medical Board….

In California, a court must find that “extraordinary circumstances” exist in order to restrain the defendant’s right to share independently obtained information about another adult with other willing adults. The fact the public sharing of these comments might be humiliating to the targeted adult, or cause emotional distress or even cause harm to the subject’s professional reputation, does not rise to the level of a compelling or extraordinary circumstance.

In In re Marriage of Candiotti (1995) 34 Cal. App. 4th 718, the court struck down a protective order which permitted the ex-wife’s (Debra) to share negative, independently obtained information about her ex-husband’s new wife during contentious child custody proceedings, only to a specific set of adults and professionals associated with the court proceedings.

The court held that while the state has a compelling interest to restrain Debra from disparaging the new wife to the divorced couple’s children or in the children’s presence, “the order here went further, actually impinging on a parent’s right to speak about another adult, outside the presence of the children. Such an order, under these circumstances, constitutes undue prior restraint of speech. It would prevent Debra from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children’s living situation.”

In reaching this conclusion, the court in Candiotti recognized that the emotional discomfort or harm to reputation that disparaging comments may cause to the targeted adult do not constitute sufficiently compelling reasons to restrain them:

“Thus, while we agree that the court certainly has the power to prevent Debra from undermining Thomas’s parental relationship by alienating the children from Donna, the order here was much more far-reaching, aimed at conduct that might cause others, outside the immediate family, to think ill of Donna. Such remarks by Debra may be rude or unkind. They may be motivated by hostility. To the extent they are libelous, they may be actionable. But they are too attenuated from conduct directly affecting the children to support a prior restraint on Debra’s constitutional right to utter them.”

Likewise, in Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, the trial court issued a preliminary injunction prohibiting plaintiff actress Gilbert’s ex-husband Brinkman from disclosing any information regarding Gilbert’s drug or alcohol use or sexual relations with other men that Brinkman acquired before, during or after their marriage, to anyone (except as necessary to the current court proceedings).

The court held the preliminary injunction was an invalid prior restraint on Brinkman’s free speech rights and that Gilbert’s claimed emotional distress and reputational damage are not sufficiently compelling reasons to justify the prohibition….

Under circumstances similar to our case, the trial court in Molinaro v. Molinaro, supra, 33 Cal. App. 5th 824 issued a DVPO prohibiting the husband Michael from posting anything about his pending divorce from Bertha on Facebook. Bertha complained that Michael had physically obstructed her from moving out of the couple’s home and had physically intimidated her. At a contested hearing on her application for the DVPO, Bertha complained that Michael was posting everything about the divorce case on Facebook; he gave their children ages 18, 17 and 13 years old, copies of Bertha’s pleadings; he posted on Facebook false statements that Bertha ran away with $250,000 from the couple’s home equity line of credit and that she is crazy and has hallucinations; and she said his behavior was getting worse and she feared for her life and her children’s safety.

The DVPO issued by the court included a stay-away order and ordered Michael not “‘to post anything about the case on Facebook'” and “‘not to discuss the case with the children.'”

On appeal from the DVPO, the appellate court held that the portion of the restraining order barring Michael from “posting anything about the case on Facebook” was unconstitutionally overbroad and impermissibly infringed on his free speech rights. It found that his “posts were not specifically directed to the minor children, but in many cases invited comments from Michael’s adult friends and extended family,” and that most of his posts “expressed his apparent despair about the divorce and his separation from the children.” The court concluded, as did the court in Candiotti, that such comments were “‘too attenuated from conduct directly affecting the children to support a prior restraint on [Michael’s] constitutional right to utter them.'”

Our courts also recognize that a person has a constitutional right to repeat or comment upon public or private information, not previously found by a trial court to be defamatory. “‘The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press….'” (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1158 [injunction may properly issue after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory]; accord. Evans, supra, 162 Cal.App.4th at p. 1169 [“[A] court may not constitutionally prevent a person from uttering a ‘defamatory’ statement before it has been determined at trial that the statement was defamatory.”].) There is nothing on the face of the complaint, or in the Family Court judge’s judicially­ noticed fmdings of fact to indicate any of defendant’s communications were previously found to be defamatory.

As stated in the DVPO, the Family Law judge found that defendant’s statements about Dr. Velyvis were intentionally harassing, damaged his reputation and interfered with his personal relationships.

Based on the authorities discussed above, these reasons are insufficient to justify such a broad prohibition. The court finds that the portion of the DVPO restraining defendant from posting on the internet or communicating any information about defendant’s ex-husband or his children is impermissibly overbroad and constitutes an invalid prior restraint under the federal and California constitutions. Violation of this portion of the DVPO, therefore, is not an actionable offense.

I’m particularly pleased to see the use of Molinaro; when that case was first handed down, it was as a nonprecedential opinion, but two groups and I filed letters asking that the First Amendment analysis be published—on the grounds that it would set a precedent that would be useful to future courts—and the Court of Appeal agreed. I’m pleased to see that this case justifies the predictions we had made.

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Joe Biden enjoys a comfortable lead over President Donald Trump in most polls, but the former senator and vice president is famous for gaffes that worry his supporters virtually every time he opens his mouth, especially without a script.

In an interview earlier today with CBS’s Errol Barnett, Biden scoffed at the idea that because of his advanced age—he would be the oldest person ever to take office if elected in November—he should take a test to show he has his wits about him (a few weeks ago, Trump discussed taking a cognitive test on Fox News).

“Why the hell would I take a test?” he asked angrily before launching a rant:

That’s like saying, ‘You—before you got on this program you took a test where you’re taking cocaine or not, what do you think? Huh? Are you a junkie?’

The weirdness doesn’t end there. Throughout the exchange, Biden’s affect is exaggerated and he repeatedly stammers and cuts himself off, at one point stumbling repeatedly when announcing that he’s confident he will shine in any debate with Trump.

I am very willing to let the American public judge my physical and mental fil…my physical as well as my mental fil…and mental fitness…and to make a judgement about how I am.

Either Trump, who is 74, or Biden, who is 77, will be elected president come November. The behavior and speech of each have given rise to legitimate questions about their cognitive functioning at the exact moment when the United States is skewing younger (more than 50 percent of Americans are below the age of 40). The sort of display Biden put on today is only going to sharpen concerns about our gerontocracy. Based on their campaign plans and past performances in office, I don’t plan on voting for either Trump or Biden. But if they are going to wreck the country, it would be good to know that they at least knew what they were doing.

Click below for the 90-second clip. Go here for the full interview.

“Why the hell would I take a test?”@JoeBiden scoffs at idea of taking a cognitive test.

Suggests @realDonaldTrump “can’t figure out the difference between an elephant and a lion.”

Full interview at @NABJ @NAHJ virtual convention Thursday 8am ET.@CBSNews pic.twitter.com/rGNJpjfbF6

— errol barnett (@errolbarnett) August 5, 2020

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There is a precedent for the White House’s moves against TikTok, the Chinese-owned video app that President Donald Trump first threatened to ban and now wants to push into the arms of an American buyer. A century ago, worried about the power another foreign-owned company might wield over a different communications medium, the U.S. government found a way to shift that power into American businessmen’s hands.

The story wasn’t completely analogous to the current saga. Unlike the present occupant of the Oval Office, Woodrow Wilson didn’t declare that he had the unilateral presidential authority to prohibit a platform for people’s speech. Nor did he suggest that the U.S. Treasury should grab a “very substantial portion” of the sale price. And it remains to be seen whether Trump’s efforts will have as long-lasting an effect as the Wilson administration’s scheme, whose impact reverberated for decades.

But there certainly are some similarities between the situations.

The tale begins in the aftermath of World War I. During the fighting, the U.S. Navy had nationalized the American airwaves: It took control of 53 point-to-point wireless stations and shut down virtually all the others. After the armistice, Congress considered a proposal to make this system permanent. Both President Wilson and Navy Secretary Josephus Daniels backed the bill, but it soon became clear that the legislature wasn’t going to pass it.

Yet Washington still wanted to ensure that foreigners would not control America’s long-distance wireless stations or the technologies those stations used. In particular, they wanted to do something about the American branch of the U.K.-based Marconi Company, which was ready to retake its old stations from before the war. “Fears of Marconi monopoly and fears of British imperialism fed on each other,” Hugh Aitken recounts in The Continuous Wave: Technology and American Radio, 1900–1932. Both fears, he added, “were, if not baseless, at least exaggerated”: Britain’s economy was in bad shape, the Marconi network no longer held a formidable technological lead, and the British government’s relationship with Marconi was not “as harmonious as outsiders, particularly Americans, assumed.” Still, U.S. officials felt they’d be safer with the company in American hands—and those American hands were happy to receive the goods.

And so, as Susan Douglas put it in Inventing American Broadcasting, 1899–1922, Naval officers “began orchestrating the formation of an all-American company that would buy out American Marconi and remove, once and for all, foreign interests from America’s wireless communications networks.” Those efforts bore fruit in October 1919, when a new company owned by General Electric took over Marconi’s American stations and patents. The newborn operation was called the Radio Corporation of America—better known by its initials, RCA.

Meanwhile, an overlapping process was underway. During the Progressive Era, several American tech companies had developed a strategy of deliberately acquiring patents to block competition. Washington imposed a moratorium on radio patents after America entered the European conflict; in the wake of the war, the government encouraged the corporations that controlled key radio technologies to cross-license their patents. General Electric, Westinghouse, AT&T, and United Fruit ended up forming a patent pool, the members of which all held stock in RCA. This allowed innovation to proceed with less hindrance within those businesses, but with more hindrance outside them; the companies had basically used the government’s intellectual-property regulations to create a cartel.

With time, RCA would enjoy a privileged position not just in radio manufacturing but in radio broadcasting. The Radio Act of 1927 allowed regulators to impose much tighter restrictions on who could use the spectrum, and the ensuing years saw many small operations driven off the air. RCA was among the companies that came out ahead. Four radio networks dominated broadcasting in the 1930s: CBS, Mutual, the NBC Red Network, and the NBC Blue Network. The latter two were both owned by RCA.

The same government that issued those patents and broadcast licenses sometimes intervened to limit the power of the beast it had built. An antitrust suit in 1932 forced GE and Westinghouse to divest themselves of their RCA stock, breaking up what The New York Times called “the great radio patent combine.” (The divorce from GE was not permanent: In 1986, General Electric purchased RCA.) In the 1940s, following further antitrust activity, the NBC Blue Network was spun off as ABC—a new, non-RCA broadcaster.

But the feds didn’t stop doing favors for their war baby. The most infamous came in 1944, as FM radio was just starting to emerge: The Federal Communications Commission abruptly reassigned FM’s section of the spectrum to another fledgling technology, television—a move that instantly rendered every FM receiver obsolete. The chief force pushing for this change was RCA, which didn’t control the FM patent but had been investing heavily in TV.

It was an especially egregious gift to a giant corporation. But Washington’s biggest, most egregious gift to RCA will always be the time it created the company in the first place. Whatever winds up happening with TikTok, let’s hope that’s one chapter of history that doesn’t repeat itself.

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After months of casting suspicion on the whole concept of mail-in voting, the president is suddenly behind it… for states where he has a stronghold. “In Florida I encourage all to request a Ballot & Vote by Mail!” Donald Trump tweeted on Tuesday afternoon. “Whether you call it Vote by Mail or Absentee Voting, in Florida the election system is Safe and Secure, Tried and True,” the president opined on social media. 

Meanwhile, his campaign is suing to stop the state of Nevada from expanding its mail-in voting protocol.

The lawsuit was filed late yesterday in the U.S. District Court for the District of Nevada on behalf of Donald J. Trump for President Inc., the Republican Party of Nevada, and the Republican National Committee. It comes in response to Nevada’s AB4, which was signed into state law on Monday.

AB4 says registered voters will automatically be sent a mail-in ballot for the upcoming general election and any subsequent election that takes place during an official “state of emergency or declaration of disaster.” It also contains several minor, related provisions meant to makes this process easier.

Making it easier and safer for people to vote in November doesn’t seem like it should be a controversial proposition. But the bill split Nevada legislators along party lines and has now riled up Trump’s 2020 presidential campaign.

The campaign’s lawsuit alleges that “major or hasty changes confuse voters, undermine confidence in the electoral process, and create [an] incentive to remain away from the polls.” But the new law—which doesn’t cancel in-person voting but simply expands voters’ options—was passed with the exact opposite aim in mind, after June primaries in Nevada saw folks who wanted to vote being forced to wait in line for hours. Now, voters won’t be forced to choose between risking their health or wasting hours in line to cast a vote.

The lawsuit also objects to AB4’s stipulation that the number of in-person voting locations required in a given county is tied to the population of that county.

Trump told reporters on Monday that the U.S. Postal Service couldn’t handle mail-in voting.

On Wednesday morning, Trump once again urged Florida residents to vote by mail while saying Nevada shouldn’t do it. He has not specified what special postal tricks Florida mail carriers supposedly know that Nevada’s do not.

Nevada has ZERO infrastructure for Mail-In Voting. It will be a corrupt disaster if not ended by the Courts. It will take months, or years, to figure out. Florida has built a great infrastructure, over years, with two great Republican Governors. Florida, send in your Ballots!

— Donald J. Trump (@realDonaldTrump) August 5, 2020

But Nevada went for Clinton in 2016, and Florida went for Trump, so that might be one clue. The president has also criticized the prospect of expanding mail-in ballot access in California, a reliably blue state.

FREE MINDS

“There is a widening gulf between American aspirations for and assessments of the news media,” reports the Knight Foundation in an introduction to its latest “Trust, Media and Democracy” report. Over the past several years, the foundation’s studies have seen Americans offer “increasingly polarized judgments about the news media and how well it is fulfilling its role in our democracy.”

While a lot of people say they see political bias in the media they consume, they’re confident in their own ability to see through it while worrying (but of course) that others don’t have the same powers of discernment:

Most Americans see bias in their go-to news source; 20% see “a great deal” and another 36% see “a fair amount” of bias in the news source they rely on most often.

Given the choice, however, more Americans say they are concerned about bias in the news other people are getting (69%) than say they worry about their own news being biased (29%).

Surveys for the report were conducted pre-pandemic (from last November through mid-February 2020) and involved more than 20,000 U.S. adults.

ELECTION 2020

August 4 primary highlights. Results are still coming in from primary elections held yesterday in Arizona, Kansas, Michigan, Missouri, and Washington state. A few notable results so far:

• The fate of Democratic Rep. Rashida Tlaib (D–Mich.)—part of the far-left “squad” that has been making a big splash on Capitol Hill the past two years and one of two Muslim women in Congress—is still undetermined. “Tlaib, 44, was leading in early returns. But a large number of votes had still not been counted and the winner was not expected to be determined until later Wednesday,” reports the Associated Press this morning.

• The fate of Maricopa County, Arizona, Sheriff Joe Arpaio is (sigh, somehow) still up in the air, too. (Arpaio background here.)

• Cori Bush, a nurse and Black Lives Matter activist, looks to have defeated 10-term incumbent Rep. William Lacy Clay in Missouri’s Democratic primary, with 72,812 votes so far to Clay’s 68,201. Clay’s “family has represented the District 1 House seat since the late ’60s,” says The St. Louis American.  The paper points out that “the seat is overwhelmingly Democratic, and normally the Democratic nominee is advanced as the winner in November.” If so, that would make Bush Missouri’s first black female representative in Congress.

• Former Kansas Secretary of State Kris Kobach lost in the Republican primary for the U.S. Senate seat he was vying for. “In the past several weeks, the race tightened between the two after a super PAC with links to Democrats spent $5 million boosting Kobach and slamming [his opponent, Rep. Roger] Marshall,” notes USA Today.

FREE MARKETS

ByteDance, the Chinese company behind TikTok, says it may be moving its company headquarters to London, amid Trump’s attempt to either ban the short-video app or force ByteDance to sell TikTok to Microsoft. “ByteDance is committed to being a global company,” a spokesperson told Reuters. “In light of the current situation, ByteDance has been evaluating the possibility of establishing TikTok’s headquarters outside of the U.S., to better serve our global users.”

QUICK HITS

New analysis from @ReasonPensions on state public pension garnishment and forfeiture policies re: convictions of public servants https://t.co/2kKK5WVMaI

— Leonard Gilroy (@lengilroy) August 3, 2020

• At least 100 people are dead and thousands wounded after an explosion at the port in Beirut, say Lebanese authorities. “Lebanese President Michel Aoun said Tuesday’s explosion was caused by 2,750 tonnes of ammonium nitrate—used as a fertilizer in agriculture and as an explosive—that had been stored unsafely in a warehouse,” reports CBS News.

• “India Johnson, 26, and Yasmeen Winston, 25, planned to take their infant sons to splash in the fountains at the World War II Memorial on Thursday afternoon. But before they could climb out of their car, which they’d parked on Constitution Avenue near the White House, a marked Secret Service cruiser drove into their left front bumper” and then agents swarmed and detained them, Winston told The Washington Post. “The women said they were told the vehicle had been reported stolen, but Johnson provided proof she was the owner and said she had never reported it stolen.”

• Masks were contentious a century ago, too.

• Data from Yelp shows more than 2,800 New York City businesses have permanently shut down since March 1 of this year.

• A new HBO documentary called The Swamp looks at Republican Reps. Thomas Massie (Ky.), Matt Gaetz (Fla.), and Ken Buck (Colo.).

• “The husband of Los Angeles County Dist. Atty. Jackie Lacey has been charged with multiple counts of assault in connection with a March incident recorded on video in which he waved a gun at protesters outside the couple’s Granada Hills home,” reports the Los Angeles Times.

• Conor Friedersdorf explains the latest free speech controversy in academia.

• New York legalizes liquor-infused ice cream.

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8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the “smoking gun” tape recorded in the Oval office.

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