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In a major victory for federalism advocates, the U.S. Supreme Court today struck down a provision of federal law that prohibited state governments from legalizing sports gambling. “That provision unequivocally dictates what a state legislature may and may not do,” the Supreme Court observed in Murphy v. National Collegiate Athletic Association. “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”

At issue in Murphy v. N.C.A.A. was a provision of the Professional and Amateur Sports Protection Act of 1992 (PASPA), which made it illegal for “a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact” sports betting.

The state of New Jersey ran afoul of PASPA after voters amended the state constitution in order to legalize sports betting at racetracks and casinos. State lawmakers followed up by enacting a partial repeal of the existing state ban.

That partial repeal drew the ire of the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and the Office of the Commissioner of Baseball, all of which went to court in an effort thwart the Garden State’s legalization effort. The sports leagues argued that the state had explicitly contravened the federal rule barring state legalization as spelled out in PASPA. The U.S. Justice Department agreed with the leagues and filed a supporting brief urging SCTOUS to rule against New Jersey.

In its opinion today, the Supreme Court acknowledged that New Jersey had indeed violated PASPA, but then concluded that the provision at issue was itself unconstitutional under the federalism principles contained in the 10th Amendment. “The legislative powers granted to Congress are sizable, but they are not unlimited,” the Court observed. “The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”

The majority opinion in the case was written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan, and Neil Gorsuch. Justice Stephen Breyer concurred in part and dissented in part. Justice Ruth Bader Ginsburg dissented in full, joined by Justice Sonia Sotomayor.

The Supreme Court’s opinion in Murphy v. N.C.A.A. is available here.

Click below to watch a Federalist Society video on the case featuring yours truly.

Following in the steps of Facebook and YouTube, Spotify is trying to scrub its platform of controversial content. The streaming music service has released a new “hate content and hateful conduct” policy, outlining how it intends to identify and deal with music that violates the company’s core principles of “openness, diversity, tolerance and respect.”

According to the policy, any tracks or artists identified as “hate content”—defined as music that “principally promotes, advocates, or incites hatred or violence against a group or individual based on characteristics, including, race, religion, gender identity, sex, ethnicity, nationality, sexual orientation, veteran status, or disability”—will be either removed from Spotify altogether or suppressed in promotions and stripped out of any platform-generated playlists.

The “hateful conduct” part of the policy will take aim at musicians’ off-the-clock behavior. “When an artist or creator does something that is especially harmful or hateful,” the company explains, that will affect the company’s dealings with them. R. Kelly, who has been accused of sexually abusing underage girls, appears to be the first casualty of this policy: The singer’s music will still stream at Spotify but will no longer be promoted there.

Several advocacy groups will help Spotify identify “hate content.” Among them: the Southern Poverty Law Center, the Anti-Defamation League, and GLAAD.

Fighting bigotry is a fine goal, and I am sure Spotify’s intentions are pure. It also goes without saying that a private company can moderate content however it wants.

That said, the this “hate content” policy is an ambiguous mess doomed to failure. Music, including a lot of incredibly popular music, is full of hateful, racist, sexist, homophobic, and otherwise appalling messages. Attempting to sort the truly objectionable from the merely edgy or dated will only lend itself to arbitrary enforcement.

Take “Gangsta Gangsta,” from NWA’s 1988 album Straight Outta Compton. The rap has racked up an impressive 31 million streams on Spotify, dazzling listeners with lyrics like “dumb-ass hooker ain’t nothing but a dyke” and “life ain’t nothing but bitches and money”:

Or take Dire Straits’ “Money for Nothing,” which reached the top spot on the Billboard charts back in 1985 and now has been streamed some 88 million times on Spotify. This popular rock song contains such gems as “See the little faggot with the earring and the make-up/Yeah buddy, that’s his own hair/ That little faggot got his own jet airplane/That little faggot he’s a millionaire”:

Savvy listeners can certainly muster defenses of these tracks. “Money for Nothing,” for example, was based on a conversation that Dire Straits’ Mark Knopfler overheard in a store; it would be a mistake to declare the singer homophobic just because a character in his song is. But the language could still offend people. How exactly Spotify should adjudicate that is anyone’s guess.

At any rate, both songs peddle in homophobic and misogynistic slurs. Do they rise to level of “hate content,” though? One might argue that these songs aren’t “principally” promoting or inciting hate, as required by Spotify’s policy. But that again is a fuzzy line. Is misogyny the principle message of “Gangsta, Gangsta” or just an ancillary theme?

Then there are questions about songs that do explicitly promote hate and violence are going to be treated. We live in a time, after all, when some states are adding the police to the protected classes in their hate crimes laws. So consider another popular NWA track, “Fuck tha Police.” It’s undeniably hateful. And it includes explicit calls for violence against law enforcement, with lines like “Beat a police out of shape/And when I’m finished, bring the yellow tape”:

At a time when some states are adding the police to the protected classes in their hate crimes laws, you can see where this is going. Were Spotify to employ its “hate content” criteria neutrally across its entire platform, it would almost certainly have to suppress this song. Remember, the new policy bars incitement against groups marked by a potentially limitless set of characteristics, not just the ones explicitly listed.

Yet NWA’s invocation of violence was itself a reaction to police racism and violence. Hatred, anger, and violent fantasies are real, predictable, even common reactions to injustice. Part of what makes songs like “Fuck tha Police” so powerful and enduring is that they capture that hate and turn it into popular art that speaks to an audience. Will they have to go nevertheless?

Spotify’s new policy acknowledges this dilemma by saying that “cultural standards and sensitivities vary widely” and that “there will always be content that is acceptable in some circumstances, but is offensive in others, and we will always look at the entire context.”

OK, good. But that raises more questions than it answers.

What context might make violent or hateful lyrics safe for Spotify? Would they have to be a response to injustice, as with “Fuck tha Police”? A lot of people like being titillated by dark, violent, and grotesque images. This is particularly true of music, where whole genres of music exist to horrify their audiences with obscenely violent lyrics and themes. Try to apply Spotify’s standards to large swaths of rap, punk, and metal without barring them entirely will become an exercise in absurdity.

Take death metal superstars Cannibal Corpse’s song “Hammer Smashed Face” (5 million listens on Spotify):

The lyrics here include “I smash your fucking head in, until brains seep in through the cracks.” That might survive the cut, since they refer to a neutral “you” rather than a “you” whose race, gender, sexual orientation, or veteran’s status has been specifically stated. The band might run into more problems for its song “Entrails Ripped from a Virgin’s Cunt” (212,000 listens), since—as the name suggests—it includes some graphic descriptions of violence against women. But is smashing someone’s head in with a hammer less hateful than pulling her innards through her vagina? I guess Spotify will have to decide.

The company’s policy becomes even more troublesome when one considers that the Southern Poverty Law Center will help to guide and enforce it. Given that group’s history of using exceptionally broad definitions of “hate” and “hate groups,” one can be forgiven for being pessimistic about their ability to vet musical content with a light and sensitive touch. (I reached out both Spotify and the Southern Poverty Law Center to ask how this identification of hate content will work in practice but did not receive a reply.)

Inevitably, some songs will cross lines of acceptable expression. Part of musical exploration is finding where that line is for yourself. But now Spotify plans to put itself in the role of defining where that line has to be, undercutting its own value as a library for listeners to explore.

Watch what you tweet. When it comes to taking a joke, the feds make progressive college-kids look like George Carlin. Two recent stories highlight how aggressively Immigration and Customs Enforcement (ICE) and the FBI are policing speech on social media, seeing “threats” and “terrorism” in statements clearly not intended as such. (Sound familiar, woodchipper fans?) In the first, ICE opened an investigation into Brooklyn comedian Jake Flores because of his Twitter jokes about Cinco de Mayo, cultural appropriation, and ICE agents.

On May 5, Flores started by questioning chattering-class priorities. “It would be cool if we talked about cultural appropriation after we ABOLISH ICE,” Flores tweeted. “One of these things is a problem that we can actually solve that people are frankly not doing much about, and one of these is an unsolvable symptom of culture that we’ve built an industry around endlessly analyzing fueled by scolding, guilt, and clicks.”

These tweets were followed up by Flores laying out a modest proposal for how Cinco de Mayo should work:

White people are allowed to culturally appropriate on the condition that you help to destroy ICE. You kill 1 ICE agent and you get to wear a sombrero. 2 kills and you can wear a pancho.

3rd kill you can draw a mustache on your face in sharpie. 5 kills and you can do skull paint. It goes on and on like this up to 100…

After you kill 100 ICE agents you area allowed to be full on racist and no one can give you sh-t about it. Drive a lowrider, call people wetbacks, get a weird tattoo of a chola that’s also a clown for some reason. No one can stop you. You earned it.

The next day, Homeland Security allegedly showed up at Flores’ apartment door.

Lmao Homeland Security just busted down my door over a joke

— Jake Flores (@feraljokes) May 6, 2018

ICE Press Secretary Jennifer Elzea has at least confirmed that the agency opened an investigation into Flores after reading his tweets (no word from Elzea on the alleged apartment visit). “The kind of language expressed…even in an allegedly joking manner, is reckless and irresponsible,” she tells Splinter News. “It potentially puts at risk those who have taken an oath to uphold the law and protect public safety.”

Meanwhile, The Guardian offers up an all-too-similar story. Rakem Balogun of Texas fell under FBI surveillance for making Facebook posts that didn’t sit right with the bureau. In December of last year, agents raided Balogun’s house and arrested him; they kept him in jail for five months (with no bail allowed). But the “case [against Balogun] fell apart,” notes New York:

Eventually, the Feds resigned themselves to busting the man for illegally owning a firearm; a judge found that charge to be bogus. He was freed; but while the government had kept him locked up for the crime of expressing an affection for guns—and opinions the deep state didn’t like—he lost his car, job, home, and the opportunity to witness the first year of his newborn’s life.

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Polarization in “Real America” pales in comparison to tribalism among elites. “In our current culture, it’s precisely the elites who seem to be driving tribal identity and thought,” writes Andrew Sullivan in his latest New York magazine column. Sullivan points to a new book from Lilliana Mason detailing how “the more highly educated also tend to be more strongly identified among political lines.”

“Our elite debate,” suggests Sullivan, “has become far less focused on individual issues as such, and the complicated variety of positions, left, right and center, any thinking individual can take. It has become rather an elaborate and sophisticated version of ‘Which side are you on?'”

It’s a bad breeding ground for libertarianism. In such a “deeply tribal” atmosphere, writes Sullivan, “the individual is always subordinate to the group” and “the ‘I’ is allowed only when licensed by the ‘we.'” Read the whole thing here.

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Make China Great Again?

President Xi of China, and I, are working together to give massive Chinese phone company, ZTE, a way to get back into business, fast. Too many jobs in China lost. Commerce Department has been instructed to get it done!

— Donald J. Trump (@realDonaldTrump) May 13, 2018

QUICK HITS

• Israeli troops killed at least 37 Palestinian civilians and wounded several dozen others who were peacefully protesting near the Gaza border Monday. Along with general occupation complaints, the Palestinian protesters were upset over today’s U.S. Embassy opening in Jerusalem.
• A white police officer at a Wisconsin mall was caught on camera punching a black teenager in the face. His department said the video shows “only a small segment of the interaction between the suspect and the officer,” who was called by mall security about the teen and four others causing a “disturbance.”
• Kansas cops can no longer have sex with people in their custody and claim it’s consensual.
• Seattle leaders are scheduled to consider a controversial “jobs tax” today. (Read J.D. Tuccille for more on this nonsensical proposal.)
• Financial institutions “are increasingly wary” of doing business with recreational marijuana shops, “so it’s especially important for Congress to…pass a federal solution that will allow banks to handle funds from what is now largely a cash business,” says the Boston Globe editorial board.
• In New York City, “black people were arrested on low-level marijuana charges at eight times the rate of white, non-Hispanic people over the past three years,” according to a New York Times analysis. “Hispanic people were arrested at five times the rate of white people.”
• The average gasoline price in America are expected to soon reach $3 per gallon again.
• How Trump may have “dealt religious freedom a blow with his new White House Faith and Opportunity Initiative.”
• “My colleague Mike Allen, who has spent nearly 20 years covering the White House, says we learn more about what’s going on inside the Trump White House in a week than we did in a year of the George W. Bush presidency,” writes Jonathan Swan. It prompted him to start asking White House leakers why they do what they do—and how they ensure they don’t get caught. One leaker told Swan, “To cover my tracks, I usually pay attention to other staffers’ idioms and use that in my background quotes.”