Tag: hit&run

In federal district court in Washington, DC, Judge Colleen Kollar-Kotelly handed down two opinions in the last two weeks in a case involving Daniel Richman, a friend and occasional advisor to former FBI Director James Comey. In the first opinion, dated December 12, the Judge ordered the government to return to Richman digital copies of the contents of his computers.  In the second opinion, released yesterday, Judge Kollar-Kotelly clarified her first order and addressed government objections.

There’s a lot going on in these cases.  But the opinions happen to raise important questions of how the Fourth Amendment and the Federal Rules of Criminal Procedure apply to searching and seizing computers. Given my academic focus on those legal issues, I thought I would blog about them and offer some thoughts for the law nerds hoping to learn more about those legal issues and how this new set of opinions deals with them.

Here’s the basic problem.  When the government gets a warrant to search a computer, it generally seizes the physical device, copies all the data, and then searches the government’s copy of the data for the evidence sought.  Put another way, investigators make a copy of the digital haystack and then search the copy for the needle that the warrant described as the evidence to be sought.

All of this has an important implication: When the case is over, either charged or uncharged, the government still has a copy of that digital haystack.  And if you’re the government, you might want to keep that digital haystack.  Storage is cheap, so it’s not like you need to free the space. And having that haystack might come in handy some day.  Maybe someday, maybe even in an unrelated case, you’ll have an investigative need that can be met by going back to that digital haystack and looking for a whole new set of needles.

The key question now is, what are the rules for dealing with that haystack years later?  Can the government search that already-previously-seized data again, this time for new evidence, either without a warrant—or even with one?  And if the owner of the haystack wants the haystack back, can he get it back—and what does getting it back mean?

(1) Introducing the Richman Case 

Daniel Richman is a lawyer and law professor who is a close friend of James Comey.  Richman has sometimes acted as Comey’s counsel, both informally and in the legal sense.  During the first Trump Administration, DOJ obtained warrants to search Richman’s computers and online accounts for evidence of unlawful disclosure of classified information that had been obtained through Comey.  No charges were brought, and the case was closed in 2021.  But the  government retained copies of Richman’s digital files.

Now fast forward to the second Trump Administration. A lot of people have followed this way more closely than I have, and my apologies if I get some of the details wrong here.  But as you know from following the news, there has been great deal of interest in the current executive branch in prosecuting James Comey.  As I understand things, whereas the Trump 1.0 DOJ investigated Comey for allegedly leaking classified information, the Trump 2.0 DOJ is targeting Comey for allegedly lying to Congress about whether he had authorized Richman to act as a source for news stories.

Here’s where the computers come in.

What happened, apparently, is that investigators in Trump 2.0 realized that they still had copies of Richman’s digital files held over from the investigation during Trump 1.0.  So they searched Richman’s files again, this time searching for what Comey had authorized Richman to do.  At least some of that information was then used as a basis to get an indictment against Comey.  Investigators did not get a second warrant to do this new round of search.  They had a copy of the files, so they searched it for what they wanted without new warrants.

Richman has now come into court, seeking a return of his property under Rule 41 of the Federal Rules of Criminal Procedure.  Rule 41 gives people a limited right to return of property unlawfully seized from them.  As I understand Richman’s argument, he’s saying that the government never had a right to get copies of all of his data, and that the continued retention of his files violated his Fourth Amendment rights, and that the remedy is to return to him all the copies of his data.

If I’m following this all correctly, there are really three issues in play here.  First, were Richman’s Fourth Amendment rights violated?  Second, does Richman have a remedy of returning the digital data under Rule 41?  And third, what exactly does a remedy of returning the digital data look like?

I break out that last point because I assume that’s part of what’s going on here.  If the right to the return of data means a right to the deletion of data, that could operate as, in effect, a motion to suppress made by Richman on Comey’s behalf. If the government can’t get its own files, after all, it can’t  use them to prosecute Comey.  (Although the charges against Comey have been dismissed, the Justice Department has indicated it will appeal.  Who knows what might happen in the future, either on appeal or in some subsequent set of attempted charges.)

(2) Previous Cases on Searching Digital Files From A Previous Investigation

This question of how the Fourth Amendment appplies to re-searching previously seized computer files has come up in a few cases over the years, and it’s getting more important over time.  I want to give you a flavor of the cases to provide some context.  I’ll cover two cases in particular: First, the Second Circuit’s litigation in the Ganias case; and second, a district court opinion, Nasher-Alneam.

The first case, United States v. Ganias, is one I blogged about a bunch of times here at the Volokh Conspiracy back in the day. It involves the seizure of an accountant’s computers.  First, in 2003, the government seized the accountant’s computers to get evidence of crime of his customers. The accountant himself was not suspected of involvement in crime, but during that investigation, they copied the accountant’s computers—and held on to the copies.  Years later, in 2006, investigators came to suspect the accountant himself had committed other crimes, and they realized there was a copy of the accountant’s computers already in government custody.  So the investigators obtained a second warrant to research the copy of the accountant’s computers, this time for the accountant’s crimes—looking for different needles in the held-over copy of the digital haystack.

In the initial ruling in Ganias, the Second Circuit ruled that this violated the Fourth Amendment because the government was required to delete the old haystack after it wasn’t needed in the original case.  But the ruling didn’t last: In 2016, the en banc court reviewed that ruling, held that the good faith exception to the exclusionary rule applied, and declined to reach whether the Fourth Amendment was violated.

The same basic issue arose in United States v. Nasher-Alneam, a district court case from 2019. In that case, the government obtained a warrant to search the computers of a physician for evidence that he had improperly provided narcotics to patients.  At trial, the jury hung. The government then decided to search the copies of the computers a second time, this time for evidence of billing fraud. Unlike in Ganias, however, the government did not get a second warrant.  The district court ruled that the search for evidence of billing fraud violated the Fourth Amendment, as the government could not just search for evidence outside the warrant just because it had a copy of the suspect’s computer.

What to make of these cases? The government doesn’t have unlimited authority to hold on to and re-search data leftover from old cases.  But exactly what the limits are remains uncertain.

For what it’s worth, in my scholarship and my new book, The Digital Fourth Amendment, I argue for use restrictions on digital warrants. The government is allowed to seize and copy all those files, but whatever it copies that outside the scope of the first warrant can’t be used in later case, including if the government has a second warrant.  This is needed, I argue, to ensure that the government doesn’t use the switch from physical to digital environments as a way to massively expand government power and turn all digital warrants into general warrants.  But that’s just my proposal.

(3) The Court Rules That The Government Violated Richman’s Rights

In the major opinion in the Richman case, dated December 12th, Judge Kollar-Kotelly first rules that the government violated Richman’s Fourth Amendment rights by re-searching his seized files without getting a new round of warrants:

Although the Government, in a single footnote, broadly “denies that there has been any violation of the Fourth Amendment,” it has presented no substantive argument that this warrantless search of Petitioner Richman’s files was consistent with—or even cognizant of—his Fourth Amendment rights. See Gov’t’s Opp’n & Mot., Dkt No. 12, at 16 n.11.

Recognizing the extraordinary scope and sensitivity of data available on personal digital devices, the Supreme Court has commanded that officers must “secure a warrant before conducting” a search of data stored on cell phones, except in the rare case in which exigent circumstances make a warrantless search reasonable. Riley v. California, 573 U.S. 373, 386, 402 (2014). Moreover, it is well established that when the Government seeks to conduct another search after it has finished executing a previous warrant, it generally must secure another warrant. See Digital Devices II, 2022 WL 998896, at *9 (collecting cases).

These requirements reflect familiar, bedrock Fourth Amendment principles. “Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14 (1948).

In short, the Government’s warrantless search of the contents of Petitioner Richman’s cell phone and tablet in September 2025 was manifestly unconstitutional.

This holding is a lot like the United States v. Nasher-Alneam case I discussed above. The government was allowed to hold on to the files from the first warrant, but it couldn’t go back to that well and draw more water (so to speak) without getting a new set of warrants to look for the new evidence.

As I hinted at above, I would personally have gone beyond that holding, in that I don’t think the government should be able to go back and re-search the data even with a new warrant.  I’ve detailed this argument in this article and in my new book, but the basic idea shouldn’t be able to vastly expand its power when we switch from physical to digital searches.  The government only has a copy of the extra information that was non-responsive to the first warrant for practical reasons: Courts allow the government to over-seize that irrelevant data in executing the first warrant to allow for a later forensic search.  I think that part is reasonable.  But, in my view, allowing the government to  double-dip into those files years later with a second warrant is unreasonable; it lets the practical need from the first warrant be the basis for expanded power unrelated to that warrant.

I take the Court here as adopting only a much more modest position.  Richman retains Fourth Amendment rights in the copy for the files that were not the subject of the first warrant,  and the government searching the computer for those files is a new search that requires a new warrant.  So far, that’s not an unexpected holding.

(4) The Court Concludes that Rule 41 Allows an Order to Return Property Here.

Having found a Fourth Amendment violation, the next question is whether there’s a remedy.  The right to a return of property under Rule 41 is limited, and usually Rule 41  can’t be used while a case is ongoing.  (Basically, you don’t want Rule 41 to be used as a sort of suppression remedy, so it’s saved as an equitable remedy to get property back, not to stop a case.) This situation is odd, though. There’s no pending case against Richman, only against Comey.  Judge Kollar-Kotelly rules that Rule 41 is available here and that Richman has a right to the return of his files.  A brief excerpt:

The Fifth and Ninth Circuits have each adopted four-factor tests for evaluating whether a court should exercise its equitable jurisdiction to order the return of property under Federal Rule of Criminal Procedure 41(g). See Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975); Ramsden v. United States, 2 F.3d 322, 325 (9th Cir. 1993).3 The four relevant factors are: (1) “whether the Government displayed a callous disregard for the constitutional rights of the movant”; (2) “whether the movant has an individual interest in and need for the property he wants returned”; (3) “whether the movant would be irreparably injured by denying return of the property”; and (4) “whether the movant has an adequate remedy at law for the redress of his grievance.” Ramsden, 2 F.3d at 325; accord Richey, 515 F.2d at 1243.

Other courts, including at least one court in this District, have applied the same or similar factors. See, e.g., In re Singh, 892 F. Supp. 1, 3 (D.D.C. 1995) (SSH); Trump v. United States, 54 F.4th 689, 694 (11th Cir. 2022) (per curiam) (following Richey as binding precedent in the Eleventh Circuit); Matter of Search of 4801 Fyler Ave., 879 F.2d 385, 387 (8th Cir. 1989) (concluding that “callous disregard” of Fourth Amendment rights, “irreparable injury if relief is not granted,” and “lack of an adequate remedy at law” are each required).

Applying the Fifth and Ninth Circuits’ four-factor tests to the facts of this case, this Court concludes that each factor weighs in favor of exercising equitable discretion to order the return of Petitioner Richman’s property here.

There’s a lot going on in this part of the opinion, but with my apologies I’m going to pass over it to get to the really interesting question: If there’s a right to the “return” of digital data, what exactly does that remedy look like?  That’s up next.

(5) But What Exactly Is the Rule 41 Remedy for Digital Files?

Now we get to the details of the remedy.  Judge Kollar-Kotelly takes this to be an equitable question in which she can fashion a remedy.  She starts with the order to “return” the files.

As far as I can tell, the Judge does not detail what “returning” the files means.  The files are lots of zeros and ones that were likely copied onto government servers— probably a lot of different servers.  But the language in the opinion suggests that returning means giving Richman a copy and then deleting all remaining government copies.   As she writes, the government has to certify that it has “(1) returned the covered materials to Petitioner Richman” and “(2) not retained any additional copy or copies of the covered materials.” In this context, not retaining sounds a lot like deleting.  So I think she’s talking about a deletion requirement, rather than, say, just handing Richman an extra copy.

But if that’s what returning the files means, does that mean the government can never access Richman’s files?  No, the Judge concludes: Rule 41 can’t be used to effectively suppress evidence for Mr. Comey. So the Judge fashions a sort of middle ground: the government can make a copy of Richman’s files and deposit that with the district court that is overseeing the Comey prosecution, and it can access those files only with a future warrant.  Here’s the explanation:

Allowing the Government to preserve a complete copy of the relevant materials in the custody of a neutral third party, in this case the U.S. District Court for the Eastern District of Virginia, permits the Court to redress the specific legal wrong that Petitioner Richman has established without unduly burdening the interests of the Government or the public at large. In other cases, courts have exercised their discretion under Rule 41(g) to allow the Government to create copies of files and preserve those copies in the Government’s own records before returning the originals to aggrieved movants. See, e.g., J.B. Manning Corp. v. United States, 86 F.3d 926, 928 (9th Cir. 1996). Here, however, the Court has concluded that the Government has not maintained the files at issue in a manner that adequately protects Petitioner Richman’s right to be free from unreasonable searches and seizures. See supra Section III.B.

Allowing the Government to retain a copy in its own possession therefore would not provide adequate redress to Petitioner Richman. Meanwhile, requiring the Government to return all copies of the files to Petitioner Richman could unduly impede the Government’s interests in pursuing future investigations and prosecutions if—as the Government strongly suggests in its briefing—it intends to pursue further prosecution of Mr. Comey. See supra Section III.C. The appropriate way to balance these interests, and to provide redress to Petitioner Richman without transforming his motion into a “collateral (and premature) motion to suppress evidence in another criminal proceeding,” see Gov’t’s Opp’n & Mot. at 7, is to allow a copy of the files to be retained for safekeeping in the custody of a court in the Eastern District of Virginia as a neutral third party. Because the Government has represented that the evidence at issue may be relevant to an investigation and potential prosecution in the Eastern District of Virginia, depositing the evidence under seal with the District Court for that District is the appropriate course of action

(6) The Clarifying Order: Richman II

Yesterday, December 23rd, the Judge entered an opinion clarifying the first opinion in response to the government’s objections. In particular, she states the following about what she is ordering:

[T]he Court is not ordering the Government to “delete or destroy” anything. The Court is ordering the Government to return the materials initially seized from Petitioner Richman and any copies thereof to Petitioner Richman and to deposit a single copy of those materials with a neutral third party: the District Court for the Eastern District of Virginia. Although the Government originally obtained these materials pursuant to Petitioner Richman’s 2017 consent and the lawful 2019 and 2020 warrants, it was prohibited from conducting warrantless searches on these materials—which included material that was not responsive to the 2019 and 2020 warrants— after the 2019 and 2020 warrants had been executed. The Court’s Order does not require the Government to return any material that it had deemed responsive and segregated from the materials it originally seized in 2019 and 2020 because the Government has not identified any such material. Nor does the Court’s Order prohibit the Government from accessing these materials in the future, so long as that access is obtained through a valid search warrant. Accordingly, the Court’s order to the Government to return to Petitioner Richman the covered materials and any copies thereof and, if the Government so chooses, to deposit a copy with a neutral third-party remains unchanged.

(6) My Own Reaction to the Judge’s Opinions

For the reasons offered above, I’m on board with Judge Kollar-Kotelly’s ruling that Richman’s Fourth Amendment rights were violated.  That seems sound.  My main questions are about the remedy.

Whether and how a Rule 41 motion to return property can apply to data without a physical device associated with the data is, as far as I know, new ground.  Off the top of my head, I haven’t seen this before.  Does it even make sense to have a Rule 41 motion for the return of intangible data?  With tangible things, the remedy is clear. When a motion to return property is granted, the government gives back the tangible thing it is wrongly possessing.  I want my stuff back, the owner says.  Give back the stuff, the court directs. Simple enough.  But I’m not sure how that maps on to a world of zeros and ones.

This reminds me of the Ganias litigation from 2014 that I discussed above.  The initial panel ruling in Ganias talked about a right to the deletion of non-responsive files.  But it was never entirely clear what that meant in practice, and the en banc court’s resolution of the case without reaching the merits left that unclear. Maybe Rule 41 motions to return property make sense for intangible data, but I’d need to think more about it.

Beyond the conceptual question, I’m not entirely sure how this works in practice, even after the clarifying order yesterday.  My apologies if I missed this, but I don’t see where in the opinions there is discussion of what to do with what the government previously learned.   A search through the copies of Richman’s computers already happened.  For the sake of simplicity, call those searches the 2025 search.  Imagine a future prosecution of Comey in which the government wants to use the fruits of the 2025 search made in violation of Richman’s rights. At least under traditional views of Fourth Amendment standing, Comey would lack standing to object to that search in a motion to suppress.  But at a future trial against Comey, if there is one, can the government use the fruits of the 2025 search?

For example, can agents testify at trial as to their recollections of what they saw in Richman’s files in the 2025 search?  If an agent cut and pasted an excerpt from the Richman files into a separate file— even just a few words—do they need to delete the new file?  If they quoted from the files in their notes, do they have to destroy the notes, or at least delete the quote?  And outside of trial, can agents use their recollection or notes to get a warrant to search the computers yet again, either just to find what they already found or to look for something new? Maybe these aren’t real issues under the facts of this case; the opinions don’t tell us enough to say.  But I’m not sure what the answers would be.

As always, stay tuned.

The post Searching Old Digital Haystacks: Some Thoughts on the Richman v. United States Litigation appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/nDSuKlP
via IFTTT

The Supreme Court yesterday declined to let President Donald Trump deploy federalized National Guard members in the Chicago area to protect immigration agents and facilities from protests that have sometimes turned violent. Although the decision is preliminary, it casts serious doubt on the broad authority that Trump has claimed under 10 USC 12406, which allows him to “call into Federal service members and units of the National Guard of any State” in specified circumstances.

As relevant here, the third subsection of that law permits federalization when the president is “unable with the regular forces to execute the laws of the United States.” Trump has invoked that provision to justify National Guard deployments in California, Oregon, and Tennessee as well as Illinois. While litigation over those deployments has mainly involved the question of what it means to say the president is “unable” to enforce federal law, the Supreme Court’s ruling in Trump v. Illinois focuses on a different issue: What are “the regular forces”?

U.S. District Judge April Perry addressed that question after Illinois challenged Trump’s use of National Guard personnel from Illinois and Texas to assist his immigration crackdown in Chicago. When Perry issued a temporary restraining order (TRO) against that deployment on October 10, she cited “several historical sources” indicating that “the phrase ‘regular forces’ was understood at the time of enactment to mean the soldiers and officers regularly enlisted with the Army and Navy, as opposed to militiamen who did not make it their livelihoods to serve their country but instead took up arms only when called forth in times of national emergency.”

Trump “made no attempt to rely on the regular forces before resorting to federalization of the National Guard,” Perry noted. “Nor do Defendants argue (nor is there any evidence to suggest) that the President is incapable with the regular forces of executing the laws. Therefore, the statutory predicate contained within Section 12406(3) has not been met on that basis alone.”

The Trump administration asked the U.S. Court of Appeals for the 7th Circuit to block Perry’s TRO while the case was pending, and it declined to do so on October 16. Although the 7th Circuit’s decision did not discuss the meaning of “the regular forces,” the Supreme Court expressed interest in that issue after the Trump administration asked the justices for a stay. In supplemental briefs, U.S. Solicitor General D. John Sauer argued that “the regular forces” refers to civilian law enforcement officers, while Illinois Solicitor General Jane Notz urged the Court to accept Perry’s reading.

Six justices thought Illinois had the better of that argument. “We conclude that the term ‘regular forces’ in §12406(3) likely refers to the regular forces of the United States military,” five of them say in an unsigned ruling. “This interpretation means that to call the Guard into active federal service under §12406(3), the President must be ‘unable’ with the regular military ‘to execute the laws of the United States.’ Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws.”

Such circumstances “are exceptional,” the majority notes. The Posse Comitatus Act prohibits the use of the regular armed forces “to execute the laws” except in situations where it is “expressly authorized” by the Constitution or an act of Congress. The implication, the Court says, is that “before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function.”

At this stage of the case, the government “has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” the majority says. “The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute ‘execut[ing] the laws’ within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute ‘execut[ing] the laws’ under §12406(3).”

Justice Brett Kavanaugh agreed with the majority that “the statutory term ‘regular forces’ likely refers to the U.S. military, not to federal civilian law enforcement officers.” And since Trump has not “made the statutorily required determination” that he is “unable” to “ensure the execution of federal law in Illinois” with “the U. S. military,” Kavanaugh says in an opinion concurring in the judgment, the majority was right to deny the application for a stay. But he adds that the Court did not need to go further than that by implying that such a determination might not be sufficient in light of the limits imposed by the Posse Comitatus Act.

Justice Samuel Alito, joined by Justice Clarence Thomas, faults the majority for considering an issue—the meaning of “the regular forces”—that was not initially raised by either party. Alito also questions the majority’s “tentative view” that the phrase “execute the laws of the United States” in Section 12406 does not encompass “protective functions” such as “preventing potentially lethal attacks on civilian federal law enforcement officers or the takeover or destruction of Government facilities.” And he suggests that the president’s “inherent constitutional authority to protect federal officers and property” should be “sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”

In a separate dissent, Justice Neil Gorsuch notes that “in their initial briefing before this Court,” both sides “proceeded on the premise that §12406(3) statutorily permits the President to call up and deploy the National Guard when he is unable to execute
federal law with civilian federal law enforcement officials.” Based on that premise, he says, statements from federal officials about the impact of protests on immigration law enforcement should be enough to grant a stay.

Perry found those declarations unpersuasive. “There is evidence of protests, some of which have included acts of violence,” she wrote. “There is also evidence of property destruction, and discrete groups who have attempted to impede DHS [Department of Homeland Security] agents. At the same time, there is significant evidence that DHS has not been unable to carry out its mission. All federal facilities have remained open. To the extent there have been disruptions, they have been of limited duration and swiftly controlled by authorities.” She added that “federal immigration officials have seen huge increases in arrests and deportations,” which she thought also undermined the claim that they were “unable” to enforce U.S. law.

The Supreme Court’s ruling adds a new wrinkle to this familiar debate about how much disruption is necessary to invoke Section 12406. If “the regular forces” refers to the military, as Perry and six justices thought likely, the requirements for federalizing the National Guard under that law may be considerably stricter than the Trump administration argues.

In any case, the Supreme Court clearly does not accept Trump’s claim that there is no role for judicial review in determining when he can deploy the National Guard. “The President’s decision whether to federalize the Guard is not subject to second-guessing by the State of Illinois or a federal district court,” Sauer argued in his application for a stay. “Such decisions are committed to the discretion of the President and are unreviewable.”

If that were true, we would not be having this conversation about the meaning of Section 12406. That debate assumes the courts have a duty to interpret the law and determine whether the president is complying with the constraints imposed by Congress.

The post Refusing To Let Trump Deploy the National Guard in Chicago, SCOTUS Adds a New Wrinkle To the Debate appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/VTtp1GA
via IFTTT

From Monday’s decision in McBreairty v. Brewer School Dep’t by Judge John Woodcock (D. Me.):

In anticipation of trial, defendants filed a motion in limine seeking to prohibit plaintiff from introducing evidence related to Shawn McBreairty’s suicide. Because the general rule holds suicide as an independent intervening factor, severing causation, and that none of the exceptions applies, the court grants the motion….

Brewer School Department’s decision to allow students to use the restroom corresponding to their gender identity, rather than their biological circumstances stirred up controversy among students and members of the public. Shawn McBreairty wrote about the controversy. After reviewing evidence, speaking to witnesses, and doing research, on February 12, 2024, Mr. McBreairty published “Girl’s Bathrooms are Not ‘Safe Spaces’ When Males are Present” on the website [your]NEWS …. In the Article, Mr. McBreairty expressed his opinions about the underlying facts and his concerns about what was happening at Brewer High School….

On February 13, 2024, Attorney Melissa Hewey, counsel for the Brewer School Department, sent Mr. McBreairty an email …:

Dear Mr. McBreairty,

I am writing on behalf of our client the Brewer School Department to demand that you remove certain content from your February 12, 2024 online post entitled “Girl’s Bathrooms Are Not ‘Safe Spaces’ When Males are Present.” If you are represented by counsel in this matter, please let me know and I will be glad to direct my correspondence to them.

Although we acknowledge that much of that post contains your opinions on matters of public concern and recognize your right to express them, there are certain portions that are not protected because they are either false or an impermissible invasion of the privacy of minors and have the effect of bullying and hazing a student and a teacher at the Brewer High School in violation of Board Policies ACAD, ACAF and JICK and Maine law. In particular:

First, there is a picture of Brewer High School students in the restroom. As we understand it, this picture was taken without their consent, presumably in violation of 17-A M.R.S. Section 511.

Second, there are the following two statements concerning a Brewer High School student that identifies the student specifically:

[HD], aka “****” is a senior at Brewer High School. He goes by the pronouns they/them on Instagram and his profile name is “****.” He’s been allowed by the administration to continue to enter female spaces for the last three months. Even after students’ concerns were reported. He once stated he was “too emo for this school,” but now he is literally playing dress up, because the school policy allows it to continue and no one has the balls to stop it.

There have been various social media posts that “… he is alleged to have touched some female student(s).” Additional, yet unconfirmed reports state he is accused online of a “sexual assault” of a fellow student “in late 2021.” There was another post stating “… in September (sic) of 2022 i (sic) was taken advantage of by [HD].” Sources state these are “different people” making these serious claims. Is the school aware of these claims? Some say they are.

Third, there is a statement concerning the minor child of one of our teachers:

MacDonald has a transgender child who attends a different school (Hampden Academy. She’s a girl who pretends to be a boy on the male track team, usually coming in dead last).

All of the above are invasions of privacy of the students you have referred to and are causing the Brewer High School student and the Brewer High School staff member who is the parent of the other student you refer to severe distress within the meaning of Maine statute, 20-A M.R.S. Sections 6553 and 6554.

Please remove the referenced material by noon on February 14, 2024 and confirm to me that you have done so or we will be forced to take further action against you….

Mr. McBreairty reluctantly and fearfully removed the entire Article from the website [your]NEWS and published a copy of counsel’s email dated February 13, 2024, on his Twitter/X account.

On February 14, 2024, counsel for the School Department sent Mr. McBreairty a second email with the subject line “Brewer Follow-up.” The full text of the February 14, 2024 email reads:

Dear Mr. McBreairty,

As an initial matter, I want to thank you for complying with our request to remove the image and certain content from your post in response to the email I sent you yesterday. I understand that instead, you posted a screenshot of the email I sent you. What you may not have been aware of is that my email quoted verbatim the inappropriate content so by posting the email on X, you have effectively re-posted the inappropriate content.

Please redact the information regarding the BHS student from your second picture and the information regarding the staff member’s child on the third page.

Thank you for your prompt attention to this demand.

Mr. McBreairty died by suicide on June 3, 2024….

Plaintiff argues that Attorney Hewey “threatened Shawn McBreairty” and tried “to censor his writing” as “part of a pattern and practice” which “caused Mr. McBreairty to suffer such severe and debilitating emotional distress that he took his own life.” …

[A]s a matter of law, suicide is an independent, intervening cause, and none of the limited exceptions to this rule applies in this case. The general rule is that suicide is an intervening force that severs the chain of causation. The rationale underlying this rule … is that “so many elements may enter into a suicide that it is impossible to say that it was the natural and probable consequence of [defendant’s action],” and reaching such a conclusion would require the court “to eliminate all those elements of feeling, temperament, disposition, emotional disorders, background and lack of self-control, which might of themselves have been sufficient to bring about the tragic result ….”

Thus, Plaintiff cannot use Mr. McBreairty’s suicide or any prior suicidal ideation as evidence for emotional distress damages for the period between February 13, 2024 and June 3, 2024. Plaintiff seeks damages “for the emotional distress … so severe that it resulted in suicide” and considers suicide “evidence of the severity of the emotional distress.”.’s Opp’n at 4 (emphasis in original). But, although cleverly framed, the Court views this argument as indistinguishable from the argument that Defendants’ conduct caused Mr. McBreairty’s suicide. Moreover, this argument would fail under a Rule 403 analysis, since the probative value of this evidence is substantially outweighed by its prejudicial impact, planting the seed in the jurors’ minds that Defendants caused Mr. McBreairty’s tragic suicide.

There are two exceptions to this general rule, but neither applies here. Under the special relationship exception, a defendant can be civilly liable for suicide where the defendant and the deceased had a special relationship requiring the defendant take care to prevent harm or suicide. The special relationship exception applies most often in custodial or supervisory relationships such as between jailor and inmate or a medical provider and institutionalized patient. There is no allegation of a special relationship between Defendants and Mr. McBreairty.

Under the second exception, a defendant may be liable if the wrongful act creates in the deceased a delirium or frenzy that causes the victim to commit suicide. Plaintiff has not alleged that Defendants’ conduct caused a mental condition in which Mr. McBreairty could not control his suicidal impulses.

Given that neither exception applies, Mr. McBreairty’s suicide broke the “chain of causation” because it was “neither anticipated nor reasonably foreseeable” as a matter of law….

Further, the facts here do not justify letting the jury speculate about why Mr. McBreairty committed suicide. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

As to unfair prejudice, Defendants argue that “plaintiff should not be allowed to inflame the jury and gain from unfair prejudice by blaming his suicide on the school.” Attorney Hewey sent two emails to Mr. McBreairty on February 13 and February 14, 2024, and Mr. McBreairty did not commit suicide until June 3, 2024, over three months later. The “controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself.”

Here, without pure speculation, there is no evidence that would allow a jury to conclude that Attorney Hewey’s two February emails led to Mr. McBreairty’s June suicide. See Jamison v. Storer Broadcasting Co. (E.D. Mich. 1981) (concluding that in an action against the deceased former employer alleging racial discrimination and wrongful death based on suicide of white male television sportscaster after he was discharged and replaced by Black male, causation was lacking as a matter of law where experiences contributing to decision to end life were multiple and could be tied to discharge only by speculation)….

[I]t is not “the shock value of the suicide evidence itself, but rather the strong likelihood that its introduction would appeal to jurors’ sympathies and suggest that they should consider it in their damages calculation which … is improper because the plaintiff cannot recover for McBreairty’s suicide as a matter of law.” Evidence of Mr. McBreairty’s suicide would also confuse the issues and mislead the jury. According to Plaintiff, she “does not seek an emotional judgment from the jury, but Defendants cannot hide the fact that their actions caused Mr. McBreairty so much distress that he committed suicide.” Defendants aptly point out that Plaintiff tries to “disavow[ ] any claim for traditional wrongful death damages” while simultaneously asking “the jury to decide whether the defendants are culpable for McBreairty’s death.” However, as discussed, suicide is an independent and intervening cause and for which Defendants are not civilly liable.

Plaintiff also argues “[i]t is not unusual for someone placed in the crosshairs of a government threatening them with criminal sanctions … [to] take their own life rather than face the unlimited resources of a state.” However, allowing the jury to evaluate that claim would also confuse and mislead the jury. Accordingly, the Court agrees with Defendants that “even if there is some limited probative value to referencing McBreairty’s suicide, that probative value is far outweighed by the evidence’s potential to confuse the issues, mislead the jury, and unfairly prejudice the defendants.” …

Christopher C. Taintor, Russell Pierce, Jonathan W. Brogan, and Cecilia Shields-Auble (Norman, Hanson & Detroy, LLC) and Jeana M. McCormick, Kasia S. Park, and Melissa A. Hewey (Drummond Woodsum & Macmahon) represent defendants.

The post Evidence of Plaintiff's Suicide Excluded in Lawsuit Alleging Threats of Prosecution Aimed at Censoring His Posts About High School Girls' Bathrooms appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/LkyvmO7
via IFTTT

From Montmouth County (N.J.) Superior Court Judge Michael Guadagno’s opinion in State v. Metcalfe, decided in Oct. 2024 but just affirmed earlier this month by the New Jersey intermediate appellate court. Neither court discussed whether the speech fits within an existing First Amendment exception, such as for “fighting words” (face-to-face personal insults that are likely to cause a fight).

Asbury Park Police Officer Ahmed H. Lawson testified that …  he was on foot patrol … when he observed defendant talking with a security guard, Simon, who had just escorted defendant out of the [Capitoline Restaurant]. Police Officer Joseph Swansinger was standing next to Simon [by a crowd of people waiting to enter]. When Lawson stopped to talk with Swansinger, Simon was explaining to defendant why he could not be readmitted to the Capitoline. During this conversation, defendant turned to Lawson and said he felt sorry for him because he was compromising his integrity by listening to a white police officer (Swansinger is white; Lawson and defendant are black)[:]

{Brother I’m so sorry. I am so sorry that you have to deal with this shit. Here, here in this fucking County. I’m so sorry. Cause you know what, it’s not even your fault. You literally even have to deal with his ass (pointing to Swansinger). This for you to get a fucking raise or anything like that too. It fucking makes no sense either. But you know what? I just want to let you know I apologize to you. You don’t have to apologize to him. You don’t have to apologize to nobody out here. It sucks though. For you to even speak up for that right because of this white motherfucker right here.}

Lawson testified that defendant had slurred speech and was “clearly intoxicated.” He noticed that defendant’s actions were drawing the attention of some of the people in the area because of what defendant was saying. As a result, Lawson told defendant he was being disorderly and asked him to leave. Defendant began to leave and walked across the street but came back and began to address Lawson in an “obnoxious” and “belligerent” fashion, calling him a “house nigger.” {“You know what we call you back in my home? The House Nigger. Want to know why? Because whatever he does (pointing at Swansinger) it don’t matter.”}

Lawson again told defendant he was being disorderly and asked him to leave. Lawson testified that it was not his intention to arrest defendant, but when he refused to leave, defendant was arrested for disorderly conduct. On cross-examination, Lawson testified he was not upset when defendant called him a “house nigger.” …

The relevant statute, N.J.S.A. 2C:33-2, provides

[a.] Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

1. Engages in fighting or threatening, or in violent or tumultuous behavior; or
2. Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

[b.] Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present….

The trial court held that defendant was properly convicted under (a)(1), though its reasoning also seemed to discuss (a)(2) and (b):

[D]efendant’s reckless and offensive conduct while he was clearly intoxicated rises to the level of tumultuous behavior…. [D]efendant clearly appeared intoxicated, acted in an agitated and aggressive manner, and engaged in a loud and profane-ridden tirade that lasted for minutes. Defendant’s counsel argued that defendant was not yelling or waving his hands, but when defendant called Officer Swansinger a white motherfucker, he extended his arm and pointed his finger within inches of the officer, a far more aggressive action than hand-waiving…. Defendant’s conduct was loud, profane and done in a threatening manner.

Additionally, this court concludes that defendant’s use of racially charged language served “no legitimate purpose” and recklessly risked causing public inconvenience, public annoyance and public alarm by creating a physically dangerous condition.

It was also an intentional attempt by defendant to offend the sensibilities of both officers. The term “house nigger” is a pejorative term for a black person, used to compare someone to a house slave of a slave owner from the historic period of legal slavery in the United States. It is a term that evinces “unbridled disrespect.” …

The appellate court (in an opinion by Judges Arnold Natali and Kay Walcott-Henderson) affirmed “based upon Judge Guadagno’s thorough and well-reasoned decision,” and added:

Judge Guadagno … noted defendant’s language was offensive and distasteful and rejected his contention that defendant’s language did not rise to the level of tumultuous behavior. We are thus satisfied that the record in this case establishes that defendant caused public inconvenience and annoyance by his threatening conduct and that such behavior constitutes disorderly conduct under N.J.S.A. 2C:33-2(a)(1).

Raymond S. Santiago, Melinda A. Harrigan, and Ryan Corbin represent the state.

The post Conviction for Use "of Racially Charged Language" to Police Officer appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/M2YarKu
via IFTTT

From Doe v. Norwich University, decided last week by Washington County (Vermont) Superior Court Judge Daniel Richardson:

[Plaintiff seeks permission] to proceed in this case under [a] pseudonym …. She also seeks:

[3.] Entry of a permanent redaction/sealing order for:

1. Plaintiff’s home address and location data;
2. Plaintiff’s children’s identifying information: names, ages, schools, and activities;
3. Plaintiff’s private medical/counseling details;
4. Plaintiff’s former campus/classroom offices, schedules, extensions, and job identifiers not germane to adjudication;
5. Exhibits containing any of the foregoing.

[4.] Entry of a Protective order under V.R.C.P. 26(c) prohibiting disclosure or use sealed/confidential materials beyond this litigation.

In short, she proposes to litigate this case as a completely unidentified plaintiff against named defendants, who in addition will be subject to substantial limits on their free speech rights. She asserts in her motions and a supporting affidavit that doing so will avoid “[h]assessment [sic], doxxing, embarrassment, and professional repercussions” as well as “[i]rreparable emotional harm and exposure of sensitive facts to her minor children and their peers via internet/social media search.” She asserts without analysis that there is no legitimate public interest in her identity….

To warrant a seal [under the Vermont Rules for Public Access to Court Records], the court must find “by clear and convincing evidence, that good cause and exceptional circumstances exist for the restriction of public access.” Vt. R. Pub. Acc. Ct. Rec. 9(a)(5). And any seal must be implemented in the “least restrictive” manner possible. Vt. R. Pub. Acc. Ct. Rec. 9(a)(5)(a). Those terms are further reinforced and defined by the strong constitutional right of access to court records set out in cases such as State v. Densmore (Vt. 1993)….

Civil Rule 10(a) requires, in no uncertain terms: “In the complaint, the title of the action shall include the names of all the parties.” V.R.C.P. 10(a)…. “[O]ne of the essential qualities of a Court of Justice [is] that its proceedings should be public.” … “Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.” …

“Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess ‘the real-world aftermath of a suit,’ and to determine for themselves whether ‘justice was done.’ Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness.” …

Nevertheless, in rare circumstances, a party may appropriately be permitted to proceed under a pseudonym…. There is no binding case law in Vermont setting forth the correct analysis when a plaintiff seeks to litigate anonymously. However, federal case law is generally consistent across circuits, and the court seriously doubts that the analysis should be any different in Vermont….

Consideration of applicable factors [identified by federal courts] reveals nothing extraordinary about this case that might warrant the rare order permitting a plaintiff to litigate anonymously. First, the court understands that, to Ms. Doe, the subject matter of this lawsuit may seem highly sensitive and personal. However, civil suits with allegations about sexual harassment, discrimination, and assault are litigated in the courts commonly without suppressing party names. To the extent that she hopes to keep the litigation secret so that she can control how her children may hear about it, that loss of control is nothing unusual. It is an ordinary incident of the transparent nature of civil litigation.

Second, while Ms. Doe proposes that revealing her identity might subject her to ridicule, retaliation, or opprobrium, the concern is highly speculative and there is no basis for concluding that any such retaliation would rise to the level of physical or emotional harm…. “The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity.” …

Third, Ms. Doe is not a child or for some other identified reason particularly vulnerable.

Fourth, proceeding by pseudonym likely would not achieve the goal of anonymity in any event. The allegations of the complaint are clear that many people in the Norwich community are well aware of the underlying circumstances, and a reporter for a student newspaper sought to interview her about them. There also has been prior, related litigation.

Fifth, there would be probable prejudice in allowing Ms. Doe to make serious allegations publicly against Defendants and others who are named while remaining anonymous herself.

Sixth, whatever legal issues this case may present, the court anticipates that the facts, sprawling in the complaint, are likely to be deeply disputed. Factual disputes of this sort heighten the public interest in the identities of the parties. This case plainly does not present the sort of pure legal question that might render the identity of a party less relevant….

The request to proceed under a pseudonym is [therefore] Denied. With the request to litigate anonymously denied, most of the requests to seal or redact (and the related request for a Rule 26(c) order, lose any purpose. The exception is the request to keep secret “Plaintiff’s private medical/counseling details,” which the court presumes Ms. Doe would seek regardless whether she is permitted to litigate anonymously.

This request is Denied at this time. The court notes first that it is a completely generalized request. Ms. Doe cites nothing extraordinary about any particular medical/counseling records that might warrant secrecy. Moreover, this is precisely the sort of privacy that a plaintiff voluntarily surrenders when she chooses to file a case like this. See Mattison v. Poulen (Vt. 1976) (“We agree that, by bringing an action for damages arising from the injuries the plaintiff claims to have suffered, the [patient] privilege is waived.”); Paquette v. State (Vt. Super. Ct. 2018) (“By filing this lawsuit, Mr. Paquette has placed his current and prior back injuries and related treatment squarely at issue, and he has waived related privacy rights and privileges.”); Adams Thompson v. Potter (Vt. Super. Ct. 2018) (“Ms. Adams-Thompson certainly has privacy interests in her medical, employment, and educational records. However, by filing this lawsuit, which places those matters squarely at issue, she generally has waived related privacy rights and privileges.”)….

The post No Pseudonymity in Ex-Professor's Sexual Harassment and Assault Lawsuit Against Norwich University appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/MlxvArW
via IFTTT

“Don we now our gay apparel.” When countless Americans sing this line each Christmas season, they probably have no idea that it’s a substitute lyric. I didn’t, until recently. But now that I know the secret history of “Deck the Halls,” I’m here to share what was taken from you.

You see, the original English version of “Deck the Halls” was filled with booze.

The song first originated in Wales, under the title “Nos Galan” (New Year’s Eve), in the 16th Century. Scottish musician Thomas Oliphant penned the English lyrics we now know. They were first published in an 1862 book, Welsh Melodies With Welsh and English Poetry, Volume 2, edited by John Thompson, with Welsh lyrics from John Jones and English lyrics from Oliphant.

Here are Oliphant’s opening lyrics to “Deck the Halls” (published under the title “New Year’s Eve”):

Deck the hall with boughs of holly,

Fa, la, la, la, la, la, la, la, la!

‘Tis the season to be jolly:

Fa, la, la, la, la, la, la, la, la!

Fill the meadcup, drain the barrel,

Fa, la, la, la, la, la, la, la, la!

Troll the ancient Christmas carol.

Fa, la, la, la, la, la, la, la, la

You might notice that the part where we now sing about donning gay apparel was originally about drinking mead, a type of honey wine.

“Fill the mead cup, drain the barrel” wasn’t Oliphant’s only line about imbibing alcohol. The bit in the second verse that would later become “see the blazing Yule before us” was, in Oliphant’s version, “see the flowing bowl before us.”

And a third-verse lyric about singing together was originally about drinking heartily. But, alas, “laughing, quaffing, all together” became, at some point, “sing we joyous, all together.”

So how did we end up with the teetotaling version of “Deck the Halls” we know today?

The sanitized version appeared in the Pennsylvania School Journal in December 1877 and is thought to be the first publication of the changed lyrics. An 1881 book, the Franklin Square Song Collection, also contained the booze-free version of “Deck the Halls.”

Some have blamed America’s temperance movement for the changes. This is a fun rumor, but I could find no evidence that prohibitionist fervor prompted the lyric changes. It’s possible—but the Pennsylvania School Journal was published by the Pennsylvania State Education Association and aimed at educators. So it’s also possible the changes were simply intended to make the song more appropriate for singing in school.

Whatever the reason for the lyric changes, I’m sure the revisionists never imagined that their replacement lyrics would, too, become controversial. The 2010s saw several scandals over people replacing “gay apparel” with “fun” or “bright” duds.

The Hallmark company came under fire in 2013 for selling an ornament that said “Don we now our fun apparel” (and, because it was peak that era, the company apologized). And, in 2011, a Michigan music teacher somehow made national news for teaching students the lyrics “don we now our bright apparel.” Where’s the flowing mead bowl when you need it?

The post How 'Deck the Halls' Lost Its Booze appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/Bm1QT8K
via IFTTT

12/24/1798: The Virginia Resolution, authored by James Madison, is published.

The post Today in Supreme Court History: December 24, 1798 appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/h5vn3f4
via IFTTT

Americans are paying more for all kinds of festive products this year, from decorations to toys to holiday wine. Persistent food inflation means they’re shelling out for another beloved part of the holiday season: home-baked goods and other sweet treats.

The prices of sugar and sweets “were 5.3 percent higher in August 2025 than in August 2024,” according to the Department of Agriculture’s Economic Research Service. The Trump administration’s tariffs are a key factor driving up the cost of baking ingredients. The U.S. imported nearly $205 billion worth of food products last year and relies heavily on other countries to send goods that can’t be produced domestically in a cost-effective way, year-round, or in great enough numbers to meet demand.

Those include many baking staples and higher-quality items such as European butter and Madagascar vanilla beans. The U.S. imports over $5 billion of cocoa and chocolate products every year, for example, which is necessary since almost no cocoa is grown domestically. Vanilla, cinnamon, and nutmeg all “require tropical conditions and cannot be cultivated domestically on a commercial scale,” noted American Spice Trade Association Executive Director Laura Shumow in April. Certain fruits, oils, and sweeteners are frequently imported and are especially vulnerable to tariffs.

It’s easy to take for granted the amazing system of global trade that allows Americans to buy the ingredients needed to make a batch of gingerbread cookies or a loaf of banana bread. There simply aren’t available or affordable domestic substitutes for many items on a holiday baking list, leaving them subject to the whims of a trade-warring president.

Those hoping to buy some ready-made holiday goodies instead may find themselves with fewer options than last year as businesses struggle to cope with rising costs. Lara Adekoya, owner of the Los Angeles bakery Fleurs et Sel, told CBS News in September that she was absorbing an additional $3,000 to $4,000 per month thanks to tariffs, keeping her from expanding her business. Georgia’s Sugarless Sweets, a gluten-free and sugar-free bakery, blamed tariffs on monk fruit for its closure this summer. Prices for its preferred sweetener had tripled, owner Bo Couzzart told Fox 5 Atlanta.

Stories like these have popped up across the country, which shouldn’t come as a surprise given the scale of tariff-related disruptions. “From January to June, commercial bakers paid $182 million in tariffs on raw materials, ingredients, equipment and supplies versus $70 million over the same period last year,” noted Milling & Baking News, an industry publication, citing data from the American Bakers Association. “During the same period, tariffs on imported baked foods cost $132 million, or $110 million more than the same period in 2024 on approximately the same value of goods.”

President Donald Trump exempted a wide range of agricultural products from his high tariffs last month, including coffee, cocoa, bananas, and some spices. But the tariffs on the books are still expansive and continue to affect many imported food products and food packaging components, such as aluminum and steel.

“It is hard for the average shopper to know which products are subject to extra tariffs and which are not,” given that “duty exemptions are not for all foods,” noted Alan Wm. Wolff, senior fellow at the Peterson Institute for International Economics. Cheese and honey “are not covered on the list of exemptions,” for instance. “Perhaps it would be best to do one’s grocery shopping with a customs broker available and on call.”

Several analysts warn that consumers won’t see relief in the grocery store just yet. “Food and commodities that have risen in price were purchased and imported under higher tariffs and stored in warehouses,” noted CNBC in November. “Retailers need to sell at higher prices to recoup costs,” meaning price increases—and any tariff exemption–related price decreases—could take time to kick in.

Given how unpredictable the Trump administration’s tariff regime has been, businesses and consumers will continue to deal with economic uncertainty. One thing is clear: Tariffs have raised the prices of all sorts of products that Americans want and need. That could mean a bit less holiday cheer in the kitchen this year.

The post How Tariffs and Inflation Are Hitting Holiday Sweets appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/7sZxn8C
via IFTTT

Crumb: A Cartoonist’s Life, by Dan Nadel, Scribner, 480 pages, $35

“In the spring of 1962, an 18-year-old Robert Crumb was beaned in the forehead by a solid glass ashtray. His mother, Bea, had hurled it at his father, Chuck, who ducked. Robert was bloodied and dazed, once again a silent and enraged witness to his family’s chaos.”

So begins Dan Nadel’s Crumb: A Cartoonist’s Life. What follows is an engrossing blow-by-blow account of Robert Crumb’s peripatetic life, during which the artist almost single-handedly inspired the underground comix movement. At times, his work was called sexist, racist, and obscene, but even his critics often acknowledged that he was hilarious and original.

Crumb played a major role in inspiring and encouraging the anarchic crew of young underground press cartoonists of the mid-to-late 1960s, a group that included me. We learned to rid ourselves of internal inhibitions and external censors (including the often-fussy leftists who typically staffed the underground papers) and go for broke—sometimes literally.

I had the good fortune to meet Crumb in Chicago in the summer of 1968. He was on one of his cross-country trips, crashing on the couch of Jay Lynch, a local underground cartoonist and mutual friend. I was fresh out of high school and eager to learn the craft of cartooning.

I pored over Robert’s jam-packed sketchbook of ink drawings of goofy characters and sketches of gritty urban life. It changed my life: His bolt of inspiration fed my creative work for years to come. He had that effect on other artists too.

His childhood was often traumatic. Crumb and his four siblings were military brats, at the mercy of their Marine father’s rotation from post to post around the U.S. His parents did not get on well, to put it mildly, and their kids took solace in the world of comic books. Soon, under the tutelage of Robert’s older brother, Charles, they went beyond reading and began writing and drawing their own.

Crumb’s mother, Bea, made sure that her kids read only “funny animal” comics and similarly innocent fare. It’s easy to see how Crumb’s rebellion against his dysfunctional parents would lead to his first hit character: Fritz the Cat, a mischievous rogue perennially on the make, living a bohemian life in an urban setting populated by other anthropomorphic animals and birds.

After high school graduation, Robert moved to Cleveland where he applied for work at American Greetings. To their credit, the managers there recognized his budding talent. He took their professional skills and techniques training program; when he emerged, he was still an alienated and awkward young man, but he was one who could produce quality art with popular appeal.

In the mid-’60s, even a declining industrial center like Cleveland had an emerging counterculture. There, Robert met Dana, his soon-to-be wife. Both were barely out of high school, and what was probably puppy love turned into an awkward marriage of naifs who clung to each other, trying to make decisions about a future they could barely imagine.

After a few years of grinding out greeting cards and ingesting LSD and marijuana, Robert and Dana relocated to San Francisco in early 1967. That year, droves of would-be flower children arrived for the legendary but ill-fated “Summer of Love.” Robert made contact with local hip printers and artists while continuing to do cards for American Greetings and Fritz the Cat strips for Cavalier, a men’s magazine out of New York. His readership grew considerably.

As the underground papers declined, the locus of counter-cultural cartooning shifted to underground comic books, such as Crumb’s Zap Comix. Free artistic expression and looser pornography laws meant comix could make fun of everything, including the pretensions of the counterculture and the left, sometimes in taboo-breaking and X-rated fashion. Soon the new comix were in head shops, indie record outlets, and bookstores. Crumb stayed financially afloat with a steady flow of hits, including Big Ass Comics, Motor City Comics, XYZ Comics, and Despair.

To his everlasting chagrin, Crumb’s celebrity would attract many sleazy operators and rip-off artists. On the upside, he and Dana worked out an open-marriage arrangement, allowing both to have other lovers. But the tensions between Robert and Dana increased over time, and once he met Aline Kominsky, a cartoonist in her own right and a more suitable match, his first marriage unraveled and Robert married Aline. There followed decades of their self-satirizing comix chronicling their eccentric life together.

Of all the taboo-breaking cartoonists active in the underground comix movement, why did Crumb prove the most popular? The foremost reason, I think, is that he’s an extremely gifted draftsman. He shifted between several drawing styles, from old-timey to more realistic, depending on the story he was telling, but all of them were instantly identifiable as Crumb’s work.

Then there was Crumb’s policy of fully expressing his kinky libido and id in his comix, no matter how much flak he got from feminists or puritans. It was arguably sophomoric, but it was also entertaining and titillating. Crumb’s devotion to celebrating powerful Amazonian women, with large rumps and thick thighs, gave a name to a cultural niche-fetish—what became known as “Crumb women.”

Another factor in Crumb’s popularity was that Crumb, by temperament, adored the past (and largely despised the present). That made him a good fit for a 1960s pop culture infused with nostalgia for earlier eras. Robert and Dana arrived in a San Francisco mobbed with long-haired flower children, the girls in ankle-length granny dresses and their boyfriends sporting 1880s beards, gamblers’ vests, and cowboy boots. Folk musicians like Joan Baez were reviving traditional musical styles, and rockers like the Rolling Stones were paying homage to older country and blues. Graphic designers such as Push Pin Studios used themes and tropes from art nouveau, art deco, and even Wild West signage to create distinctive ads, book covers, posters, and more.

Crumb loved the music of the 1920s and loved newspaper comics going back to the earliest era. It may not be a coincidence that one of his most popular characters was a would-be guru and con man named Mr. Natural, who walked the city streets dressed nearly identically to the star of the first American comic strip to achieve widespread fame.

That strip was The Yellow Kid, R.F. Outcault’s comic about an Irish urchin of the Lower East Side nicknamed for his trademark yellow nightshirt. It began its run in Joseph Pulitzer’s New York World in 1895 but was lured to William Randolph Hearst’s New York Journal in 1896 and achieved legendary status there. New full-color web presses of the era had revolutionized printing. Newspapers competed to attract readers with lavish color supplements with top illustrators and Sunday funnies featuring smart-aleck comic strips. All this soon proved hugely popular.

Today, the humor of those early comic strips needs context. Up through the 1940s, American popular humor was dominated by stereotypes and caricatures; racial, ethnic, national, class, and sex-based differences were often juxtaposed for comic effect. This was also true of the cartoons of other countries and cultures: The other was always perceived as somewhat ridiculous.

It is purely my own hunch, and not one suggested in Nadel’s evenhanded biography, that Crumb’s glee in toying with stereotypes of men, women, races, and social groups is not an exercise in bigotry so much as an homage to an earlier time, when everyone, no matter who, was granted agency and was fair game for teasing. In any event, Crumb’s wit, talent, insight, and unflagging dedication to his own shameless vision have earned him a place in the company of American defenders of free expression.

The post How Robert Crumb Inspired the Underground Comix Movement appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/0uXbKHj
via IFTTT

The New York City Council has passed a bill that would require landlords to provide air conditioning or cooling systems in tenants’ apartments upon request at no charge. The bill, which still requires the mayor’s approval, would also require landlords who control building temperatures to keep apartments cooled to 78 degrees between June 15 and September 15 each year.

The post Brickbat: Cool Down appeared first on Reason.com.

from Latest – Reason.com https://ift.tt/z3B7UZG
via IFTTT