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Clarkesworld, a well-regarded science fiction and fantasy web magazine, recently published first-time author Isabel Fall. The title of her story, “I Sexually Identify as an Attack Helicopter,” alludes to a meme typically used to delegitimize transgender people. But the tale is anything but anti-trans: It’s a surreal, mind-bending war story that turns the meme on its head. It was read and approved by sensitivity reviewers—some of them trans. Its author, Fall, is herself trans.

As far as I can tell, most of the social-media reaction to the story was positive. But a small number of militantly unhappy people attacked the story for offending them. Their harassment of Fall was so unpleasant that she asked Clarkesworld to un-publish the story, and the editor complied. “I Sexually Identify as an Attack Helicopter” is canceled.

Clarkesworld editor Neil Clarke published a lengthy note about the removal that politely objected to the critics’ most unreasonable claims. Some had apparently claimed that Fall’s stated birth year—1988—was an alt-right dog whistle, since the double eights could be seen as referencing H.H. (H being the eighth letter of the alphabet), or “heil Hitler.” This, of course, is conspiratorial nonsense (though I was also born in 1988, so some people will probably think the conspiracy just runs a little deeper).

But for the most part, Clarke accepted the criticism and apologized for publishing a piece that had offended a group of pathologically unreasonable people:

Even with ownvoices authorship [authors writing about their own race, class, sex, etc.] and ownvoices sensitivity reading, it is still possible to miss something. In this case we can see two groups of trans readers with directly opposing views that are deeply rooted in their own experience and perspectives. In some cases, what made the story speak to some is also what alienated others. Neither perspective is wrong, but they appear to be incompatible with one another on some level. Knowing that this was a potentially controversial story, we should have employed a broader range of sensitivity readers. This is not to say those we worked with failed, but rather that they only represented a slice of the community and additional perspectives could have helped inform us of a potential conflict. It may not have “fixed” things but it would have provided opportunities to better prepare ourselves and our readers for what lay ahead. This was an oversight….

That we didn’t understand enough about trans politics to properly advise a new author who was wading into the deep end. I’m not suggesting that we tell an author what they can and can’t say, but had the previous two items be done correctly, we would have been in a better place to prepare her. Because of those failures, our knowledge gap contributed to the problem….

In the meantime I offer my sincere apologies to those who were hurt by the story or the ensuing storms.

Clarke began his note with this statement: “This is not censorship. She needed this to be done for her own personal safety and health.” An author self-canceling due to venomous harassment from a tiny cabal of ideological activists may not meet the strict definition of censorship, but it’s certainly a blow to the spirit of artistic freedom. A stronger defense of Fall and her work was merited. This is capitulation.

Writing in his newsletter, Jesse Singal astutely summarizes the problem with Clarke’s statement:

Clarke could have easily published a short statement with the general shape of, “Unfortunately, the author of this story, Isabel Fall, received a wave of harassment after it was published. She requested it be unpublished and I have regretfully agreed.” Instead, he chose to stoke the idea that because people were offended by this story, there is something wrong with it. How else can one interpret his claim that someting was ‘missed’ and could have been ‘fixed’? This is what I mean when I say he’s pretending to support Fall but throwing her under the bus: He’s absolutely accepting the framing of the hysterical online critics when he didn’t have to at all.

But nowhere in this almost 1,400-word-long statement will you find a clear explanation of exactly what is wrong with the story. That’s because the only accurate answer to that question is something like “Some people have very superficial but dearly held ideas about what gender is, and because this story took a more complicated and fraught and creative approach to its theories of gender—one which challenged those ideas—those people became deeply offended.” That’s why a story in a major sci-fi outlet had to be unpublished.

This episode demonstrates one of the most salient and oft-overlooked facts of cancel culture: The people most vulnerable to canceling belong to the very marginalized communities that the cancel-culture enforcers are purportedly protecting. These attacks on wrongthink do not help the oppressed. Indeed, it’s often weaponized against them, attack-helicopter style.

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Today a divided panel of the U.S. Court of Appeals for the Ninth Circuit concluded that the plaintiffs in Juliana v. United States—the so-called “Kids Climate Case”—lack Article III standing to pursue their ambitious claim that the federal government is violating their constitutional rights by facilitating the use of fossil fuels and failing to take action to forestall the threat of climate change. This outcome was almost certainly foreordained, for reasons I noted here, as the Supreme Court had made clear it did not think much of the theory behind this suit. At the same time, the panel majority reached the result compelled by a proper understanding of existing precedent.

Judge Andrew Hurwitz wrote the majority opinion, joined by Judge Mary Murguia. District court judge Josephine Staton (sitting by desination) dissented. Although all three judges accepted the severity of the threat posed by climate change, they disagreed quite strongly on whether this case, as put forward by the plaintiffs, presented a justiciable case or controversy.

Here’s how the majority summarizes the case and its conclusion:

In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.

The majority accepts the “copious expert evidence” in the plaintiffs case showing that the “unprecedented rise” in atmospheric concentrations of greenhouse gases “stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked,” and admits that the federal government “affirmatively promotes fossil fuel use in a host of ways.” Nonetheless, it recognizes that not every grievous wrong is fit for judicial resolution. While rejecting the government’s argument that the plaintiffs should have styled their claims as Administrative Procedure Act challenges to discrete agency actions, it also rejected the plaintiffs’ claims that a heretofore unrecognized constitutional right to a life-sustaining climate system (or, as the dissent would have it, a perpetual nation) meets Article III’s requirements.

On thee question of standing, accepting the allegations made by the plaintiffs, the majority concluded that at least one plaintiff was suffering a concrete and particularized injury-in-fact that was sufficiently traceable to the government’s facilitation of fossil fuel use and development. “There is at least a genuine factual dispute as to whether” the various government policies complained of “were a ‘substantial factor’ in causing the plaintiffs’ injuries,” which was sufficient given the procedural posture of the case.

Then the majority reached the question of redressability:

The more difficult question is whether the plaintiffs’ claimed injuries are redressable by an Article III court. In analyzing that question, we start by stressing what the plaintiffs do and do not assert. They do not claim that the government has violated a statute or a regulation. They do not assert the denial of a procedural right. Nor do they seek damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Rather, their sole claim is that the government has deprived them of a substantive constitutional right to a “climate system capable of sustaining human life,” and they seek remedial declaratory and injunctive relief.

Here, the majority concluded, the plaintiffs had a hard time showing that the relief sought was both within the power of the district court to afford and substantially likely to redress their injuries.

The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, . . . but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.

Indeed. Even accepting the plaintiffs’ inventive claim of constitutional right and that the sorts of remedies sought would redress the harms, the majority was unwilling to accept that a district court could take over climate policy for the nation.

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. . . . These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of “competing social, political, and economic forces,” which must be made by the People’s “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.” Collins v. City of Harker Heights, 503 U.S. 115,
128–29 (1992). . . .

That climate chnage poses a serious threat does not change the underlying analysis. Citing the Supreme Court’s recent decision in Rucho v. Common Cause, Judge Hurwitz explained that “Because ‘it is axiomatic that ‘the Constitution contemplates that democracy is the appropriate process for change,’ . . . , some questions—even those existential in nature—are the province of the political branches.” He further added:

Not every problem posing a threat—even a clear and present danger—to the American Experiment can be solved by federal judges. As Judge Cardozo once aptly warned, a judicial commission does not confer the power of “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness;” rather, we are bound “to exercise a discretion informed by tradition, methodized by analogy, disciplined by system.'” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).

Judge Staton, in dissent, took quite a different view. To call her dissent ambitious and aggressive is an understatement. As a rhetorical exercise, many will find it energizing and inspirational. As a legal opinion, however, I find it unmoored and lacking.

The dissent begins with a flourish:

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief,
and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these
reasons, I respectfully dissent

Judge Staton’s opinion is no doubt earnest, but suffers from multiple fatal flaws. Not only does it enthusiastically embrace a heretofore unrecognized, unackowledged and unarticulated constitutional right to “the perpetuity of the Republic,” she also embraces the notion that if the political branches fail to act in defense of the nation, a district court judge can and should fill the breach. To state the argument plainly, shorn of adorning rhetoric, is to demonstrate its flaws.

Under Judge Staton’s theory that there is a judicially enforceable right barring the “willful dissolution of the Republic,” a federal judge is empowered to overrule the most monumental and consequential decisions of the political branches. Consider the implications: should Congress declare war against a formidable adversary—and should the President seek to prosecute that war even at the risk to the nation’s security—a federal judge could hear a case that such exercises of federal power are unconstitutional and subject to judicial oversight. Like it or not, the political branches do have “the absolute and unreviewable power to destory the Nation,” such as through the imprudent or reckless use of the war powers, as that is the nature of our constitutional structure.

Judge Staton’s opinion is no less problematic at the doctrinal level, as she misstates and misapplies Massachusetts v. EPA in her effort to show that the plaintiffs have satisfied the more mundane requirements of Article III standing and satisfy what she declares is “an ambient presumption of judicial review.” It is as if she knows where she wants the opinion to go, and is willing to roll over those aspects of doctrine that get in the way. (In this regard, Judge Staton’s approach to standing has much in common with that of Judge O’Connor in Texas v. U.S.)

While the Supreme Court found standing in Massachusetts, it was careful to stress both that state plaintiffs, as states, were entitled to a “special solicitude” in the standing analysis and that the existence of a procedural right to challenge the EPA’s failure to act lessened the normal requirements of immediacy and redressability. None of this seems to matter to Judge Staton, however, as she blithely asserts that the lack of a procedural right is of little relevance and then (in footnote 7) makes the completely erroneous claim that the existence of procedural right matters more for “the first and second elements of standing” than for redressability, the express language of Massachusetts v. EPA (and the Kennedy concurrence from Lujan which it was quoting) notwithstanding.

The question now is whether the Ninth CIrcuit’s Juliana decision will put an end to this case. I suspect the plaintiffs will petition for en banc review or certiorari, but I am not sure this is their wisest course. It seems to me that the Juliana majority sought to dismiss this case in the gentlest and narrowest way possible, so as not to preclude future litigation based on more viable legal theories. In many respects, that was the best the plaintiffs could have hoped for (especially after the Supreme Court had made its views on the subject known). In seeking Supreme Court review the plaintiffs would risk a more decisive loss and a more sweeping, nationally preclusive ruling that could forestall climate litigation across the board. They rightly fear the risks posed by climate change. The question now is whether they appreciate the risks of unduly aggressive climate litigation.

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Robotics will soon lead to widespread joblessness and the concentration of wealth in the hands of a few.

That was the resolution of a public debate hosted by the Soho Forum in New York City on January 6, 2020. It featured New York Times bestselling author Martin Ford, arguing the affirmative, versus Antony Sammeroff, spokesperson on economics and environment for the Scottish Libertarian Party. Soho Forum Director Gene Epstein moderated.

It was an Oxford-style debate, in which the audience votes on the resolution at the beginning and end of the event, with many “undecided.” The side that gains the most ground is victorious. Sammeroff prevailed in the debate by convincing 19.64 percent of audience members to come over to his side. Ford picked up 2.68 percent. 

Ford is the author of Rise of the Robots: Technology and the Threat of a Jobless Future, Architects of Intelligence: the Truth about AI from the People Building It, and The Lights in the Tunnel: Automation, Accelerating Technology, and the Economy of the Future.

Sammeroff, who argued for the negative, is the author of Universal Basic Income: For and Against and co-host of the Scottish Liberty Podcast.

The Soho Forum, which is sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Produced by John Osterhoudt.

Photo: Right robot, Photo 144080417 © Boris Medvedev—Dreamstime.com

Photo: Left robot, Photo 141519784 © Kittipong Jirasukhanont—Dreamstime.com

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New IJ cert petition: Is an officer who has consent to “get inside” a house but instead destroys it from the outside entitled to qualified immunity in the absence of precisely factually on-point case law? The Ninth Circuit said yes. We’re asking the Supreme Court to reconsider. Click here to learn more.

New podcast: The U.S. Supreme Court will hear oral argument in an IJ school choice case, Espinoza v. Montana Dep’t of Revenue, this coming Wednesday. So just for fun we put together a little episode on the history of school choice that explores, among other things, how the remnants of 19th-century anti-Catholicism still play an outsized role in educational policy today. (Click here for Apple Podcasts.)

• Electronic service provider ABC Corp. (a pseudonym) received a grand jury subpoena for subscriber information, along with a court-ordered nondisclosure order prohibiting it from telling anyone about the subpoena for one year. An unconstitutional prior restraint on speech? The Supreme Court may have roundly rejected prior restraint, says the Third Circuit, but this is one of the rare cases where one will be upheld.
• The Air Force’s effective ban on deploying HIV-positive airmen is out of step with modern science, says the Fourth Circuit. So no discharging two airmen (who are asymptomatic and whose doctors and commanding officers support their retention) while this lawsuit proceeds.
• Firefighter refuses Leander, Tex. city requirement that all personnel receive a Tdap vaccine, citing his Baptist faith. The dep’t offers him two options: Take a code enforcement job with the same pay and benefits or wear a respirator while on duty. When the firefighter declines both options, he’s fired for insubordination. Illegal religious discrimination? A free exercise violation? Neither, says the Fifth Circuit. The city offered reasonable accommodations that do not burden the firefighter’s religious practice. Judge Ho (concurring/dissenting): I think we need more facts. Also, allow me to tell you at considerable length why both Employment Division v. Smith and qualified immunity are bad.
• Federal inmate writes a letter to the district court explaining that, following a gender transition, they would like the court to change the name on the 6-year-old judgment to reflect their new legal name. District court: A subsequent name change is not a clerical error that a court can fix. Fifth Circuit: As no rule authorized this kind of motion, the district court lacked jurisdiction to entertain it. And we won’t use the inmate’s preferred pronouns because Congress hasn’t told us we must. Dissent: We should not issue drive-by jurisdictional rulings or use non-preferred pronouns.
• As undercover FBI agent reaches police barricade at Garland, Tex. event featuring drawings of the prophet Muhammed, two men with whom the undercover agent had been communicating jump out of the car behind him wearing body armor, carrying hundreds of rounds of ammunition and a photocopied ISIS flag. They shoot a security guard in the leg before being promptly killed themselves. Can the security guard sue the feds? The Fifth Circuit says no.
• Sixth Circuit: I’ve got good news and bad news. The good news is that the Ninth Circuit has changed the way it calculates drug sentences, so if you were sentenced today, you would only get 10 years instead of the 20 you’re serving. Habeas petitioner: That’s great! What’s the bad news? Sixth Circuit (over a dissent): You were not sentenced today.
• Allegation: After Huron County, Mich. officer arrests extremely drunken woman for DUI, he takes her to jail and has her walk up stairs with her hands cuffed behind her back while he waits at the top of the stairs. Gravity + ethanol = head trauma. District court: This is just like another case, where a court held that police can’t leave a drunk person cuffed in a holding cell where they might injure themselves. Sixth Circuit: That (out-of-circuit) case was about holding cells. This case is about stairs. Qualified immunity.
• Bungled prosecution, O. Henry, and Mark 12:17—not to mention the modified categorical approach—are all on display in a bizarre story out of the Sixth Circuit. The upshot? Mosques aren’t used in interstate commerce, even when former congressional candidates plot to blow them up.
• 312-pound teenager with a heart condition runs from a store security guard after being caught shoplifting. Apprehended by Indianapolis police upon collapsing from the exertion, he complains of difficulty breathing after being handcuffed behind his back. Police call paramedics, who examine him, find him breathing normally, and say he’s fine. While waiting for the jail wagon to arrive, he ceases to be fine—he’s unresponsive and his pulse is weak. Police call another ambulance, but paramedics are unable to revive him. The medical examiner determines he had a heart attack exacerbated by (among other things) the handcuffs. Seventh Circuit: This is tragic, but the police didn’t know the handcuffs were causing breathing trouble, and the suspect didn’t complain about the tightness of the cuffs. Qualified immunity.
• Man convicted of 1989 murder learns, years later, that his appointed counsel believed that his black clients were idiots who deserved to be convicted. New trial? Ninth Circuit (2018): No. You didn’t show his racism adversely affected his performance. All three judges, concurring in their own judgment: Unfortunately, we’re bound by Ninth Circuit precedent to reach this result. Ninth Circuit (2020, en banc): The state now concedes a new trial is warranted, so, without reconsidering our precedent, conviction vacated.
• The feds fund teen pregnancy prevention through grant programs with two funding tiers. The first tier is for replicating programs that have been proven effective, and the second tier enables grantees to test new programs. According to Planned Parenthood, the grant programs illegally favored or required abstinence-only programs in 2018. Ninth Circuit: That is indeed the case for the first tier, which demands grantees use two never-before-implemented tools. Something that has never been implemented cannot have been proven effective. As for the second tier, the district court shall address it first.
• Allegation: Healthy 27-year-old arrives at Hutchinson, Kan. prison, begins suffering a variety of increasingly alarming symptoms: numbness, decreased vision, his arms shake uncontrollably, his fingers bend in abnormal directions. He tells medical staff “it feels like something is eating my brain.” The staff either fabricate or mistakenly document an MRI scan of his brain that turns up normal. Soon after, he begins talking incoherently, drinks his own urine, defecates on himself and doesn’t clean up. A real MRI is taken, revealing a widespread infection in his brain. Instead of being taken to a hospital, he’s put back in isolation. The next day his heart stops and he is rushed to the hospital where he dies. Tenth Circuit: The allegations against a particular doc aren’t sufficiently specific, so qualified immunity. (The case is proceeding below against other medical staff, however.)
• While in jail on misdemeanor charges, inmate asks guard if he can charge his cell phone, which was not taken from him during booking. Uh oh! He’s charged with possessing contraband! Trial court: “[C]onsider yourself fortunate” that I’m only sentencing you to 12 years in jail, with parole eligibility after three, instead of a full 15-year sentence. Mississippi Supreme Court: “While obviously harsh, [a] twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.” Concurrence: Our case law does, indeed, demand we uphold a 12-year sentence against this father of three for a victimless crime likely caused by a failure in booking procedure, but the prosecutor and trial judge deserve a mild finger-wagging for being so punitive. (H/t @jduffyrice)
• And in cert grant news, the U.S. Supreme Court will review Barr v. American Association of Political Consultants, which we previously summarized thusly: American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones, but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We’ve got good news and bad news. The good news is that we agree with you. The bad news is that we’re going to fix the problem by prohibiting the loan collectors from making robocalls, too.
• And in en banc news, the Third Circuit will not reconsider its decision that an inmate cuffed to a bed in an uncomfortable position and forced to lie in his own filth for nine days can sue over the length of the confinement but not the conditions.

Last August, a DEA agent seized over $80k in cash from Rebecca Brown at the Pittsburgh International Airport. But even though it’s perfectly legal to fly with that much cash and Rebecca hasn’t been charged with a crime, the feds won’t return the money. In fact, the cash belongs to Rebecca’s dad, Terry, a retired railroad engineer. Terry spent years saving it up and hiding it in his home (following a practice he’d learned from his parents). After he downsized to a new apartment, Terry decided he was uncomfortable with that much cash in his apartment and asked Rebecca to deposit it in a joint bank account. This week, IJ launched a class action against the TSA and the DEA (and its agent), seeking the return of the money and permanent nationwide injunctions against the agencies’ unconstitutional and unlawful cash seizure practices. Click here for more from The Washington Post.

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