Tag: hit&run

In October, the Supreme Court punted in FDA v. American College of Obstetricians and Gynecologists. At the time, I speculated that the five-member bloc to rule against the Trump Administration vanished with Justice Ginsburg’s passing. And, without a clear majority, the Court hoped the federal district court would take a hint, and modify or dissolve the nationwide injunction. After all, the Court was short-handed, and did not wish to decide an abortion case shortly before the election. The Chief give Judge Chuang “one last chance” to mend his ways. Two months later, Judge Chuang has left the nationwide injunction in place.

Now, the Acting Solicitor General has filed a supplemental brief in support of a stay. And the SG, once again, contends that June Medical reversed the Whole Woman’s Health benefit/burden framework:

[The District Court’s injunction] flouts this Court’s admonition that a law’s “incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” the law if the law “serves a valid purpose, one not designed to strike at the right itself.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (plurality opinion). And it resuscitates the free-wheeling burdens-and-benefits “balancing test” that five members of this Court rejected just last Term. Appl. App. 37a. Moreover, it does all of that on a nationwide basis untethered from injuries to the plaintiffs (or their members) in this case, and thus from the specific case or controversy that the district court holds “[t]he judicial Power” to resolve. U.S. Const. Art. III, § 2, cl. 1.

What does the Court do here? I can see three possible options. First, the Court could issue an unsigned order staying the injunction. This shadow docket ruling would not need to resolve the status of June Medical. But there would probably be concurrences by up to four justices, reiterating that Whole Woman’s Health is no longer the law of the land. The lower courts would take notice. It’s possible that position could garner five, or even six votes. Second the Court could leave the injunction in place but narrow the nationwide relief to Maryland.

I am skeptical about these two options. In about a month, the Biden administration will simply rescind this policy, rendering the controversy moot. Does the Court really want to weigh in the June Medical debate from the shadow docket? Does the Court really want to cabin the district court’s powers to issue a nationwide injunction on the cusp of an administration change?

There is a third option that could be prudent. The Court could treat the application as a petition for cert before judgment, and grant certiorari. Plus, the Court would enter a stay pending resolution of the petition. The Court could then put the case on the docket, knowing full well that the controversy will be mooted out on January 20.

I think this option would be attractive to the Court’s progressives. A one month stay on a fairly narrow issue could forestall a major abortion ruling for the rest of the term. At this point, the Kagan-three needs to minimize collateral damages. This option would avoid opining, directly or indirectly, on June Medical and nationwide injunctions. And as part of a compromise to avoid a merits ruling, Justice Breyer and/or Justice Kagan would not signal a dissent from the grant of a stay. Justice Sotomayor would be the designated dissenter.

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Echoing New York Gov. Andrew Cuomo, New York City Mayor Bill de Blasio warned city residents this week to prepare for a “full shutdown” as part of ongoing efforts to slow the spread of COVID-19. The two elected officials better not hold their breath waiting for compliance. Evidence from around the country shows that many Americans are thoroughly sick of impoverishing, socially isolating lockdown orders, and are revolting against the often-hypocritical politicians who issue them.

“The Governor said in a New York Times interview over the weekend that we should prepare for the possibility of a full shutdown. I agree with that,” Mayor de Blasio told interviewers on December 14. “We need to recognize that that may be coming and we’ve got to get ready for that now, because we cannot let this virus keep growing.”

The mayor commented following Cuomo’s ban on indoor dining at New York City restaurants. That was issued a week after Staten Island residents cheered bar owner Daniel Presti, who was arrested for defying pandemic restrictions. Days later, Presti ran his car into a sheriff’s deputy who sought to rearrest him for continuing to serve patrons. Both of the deputy’s legs were broken.

While Presti’s level of violent resistance against lockdowns is much too extreme, he’s not alone in his opposition. From coast to coast, businesses and individuals are ignoring restrictive rules that threaten their livelihoods, stifle social contact, and threaten to strangle the necessary interactions of everyday life.

“Another shutdown just isn’t an option for us,” the Seven Sirens Brewing Company of Bethlehem, Pennsylvania announced last week on its Facebook page. “We, and thousands of other small businesses throughout the country simply will not survive. […] After speaking with our bank, staff members, families, attorneys, and local government officials…we have decided we will not comply with future shutdown mandates. We will continue to operate with the same, proven-safe measures we implemented 5 months ago.”

The brewery is only one of many businesses listed by Pennsylvania Opening Businesses/Defying the Governor, which has over 43,000 members on Facebook as I write. The group encourages the public the patronize anybody who bucks state rules to continue offering goods and services to willing customers.

“Many readers side with businesses that may stay open in defiance of Pennsylvania’s coronavirus shutdown orders,” the Morning Call newspaper noted of public response to such stories.

The ReOpen Minnesota Coalition similarly represents hundreds of businesses defying closure orders and raises money for legal defense against state enforcement actions.

“The last nine months have needlessly put small business owners and employees in the regrettable position of watching their dreams evaporate before their eyes and their families go without basic necessities,” the group commented this week on the effect of pandemic lockdowns. It calls for stripping Gov. Tim Walz of his emergency powers and for ignoring restrictions so that people can decide for themselves when and how to interact.

On the West Coast, many restaurants also open their doors to customers despite state orders to the contrary.

“While some of the larger chains and corporations are following the orders, many of the mom and pop shops say going to takeout only would put them out of business,” ABC News reported last week.

The city council in Solvang, a tourism-fueled community in Santa Barbara County, recently voted to ignore shutdown orders that threaten locals’ livelihoods. Officials “directed that the City of Solvang will not actively enforce these latest State shutdown orders, and that the City request the County and State regulators to prioritize education and that they also not enforce the orders within the City limits,” according to a letter from Mayor Ryan Toussaint.

None of this should be a surprise. Small businesses have taken it in the teeth from restrictions that cut them off from customers and cash; data gathered by Yelp shows many of them closing permanently. Restaurants, which traditionally have tight profit margins to begin with, have been especially hard hit.

“Many of those in the Twin Cities and greater Minnesota restaurant industry have told the Star Tribune that they feel they may never recover,” the Minneapolis StarTribune reported this week.

“As of today, 17% of restaurants—more than 110,000 establishments—are closed permanently or long-term” as a result of this year’s economic distress, the National Restaurant Association announced on December 7.

Fatigue with lockdown orders was predicted by experts months ago, and voiced by the public in growing numbers.

Renewed restrictions are likely to be met by “silent compliance, critical compliance or visible resistance,” Britain’s Scientific Advisory Group for Emergencies (SAGE) cautioned in June.

Americans “are far less willing to comply with shelter-in-place advice today than they were in the early weeks of the coronavirus pandemic this spring,” Gallup reported last month. Forty-nine percent “say they would be very likely to stay home for a month if public health officials recommended it due to a serious outbreak of the virus in their community. This contrasts with solid majorities in the spring who said they were likely to comply with such shelter-in-place advice, including a high of 67% in late March/early April.”

Politicians actively fanned the flames of resistance with their “rules are only for the little people” flouting of their own orders. Amidst a flurry of high-profile examples, California Gov. Gavin Newsom’s expensive gathering with other officials at The French Laundry stands out for its arrogance. Why should regular people driven to the brink of poverty and despair pay any attention to the dictates of such creatures?

In distress and after due consideration, many Americans have decided that they shouldn’t comply. Individually and in organized groups, often with the support of their communities, people are pushing back against lockdown orders that they find more threatening than COVID-19.

Mayor de Blasio, Cuomo, and their colleagues near and far may loudly announce new restrictions on life, but they’re going to find ever-shrinking ranks willing to listen.

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From In re Wizenberg, decided yesterday by the Eleventh Circuit (in a per curiam before Judges Charles Wilson, Adalberto Jordan, and Britt Grant):

Anna Wizenberg’s death in 2010 sparked a long and bitter intrafamily dispute between her sons, Peter and Howard Wizenberg. What started as a probate case and then moved into bankruptcy court is now before us as an appeal of a district court order imposing sanctions under 28 U.S.C. § 1927 against Peter, a pro se debtor. The district court’s order adopted the bankruptcy court’s report, which recommended sanctioning him for his conduct in an adversarial proceeding filed by his brother Howard, who is a creditor in the bankruptcy case.

Peter, a member of the Florida bar who holds himself out as a bankruptcy attorney, argues that the district court abused its discretion in sanctioning him. The conduct that led to the sanctions included, among other things, his repeated “shushing” of opposing counsel during a deposition; his submission of lengthy and superfluous filings, one in which he wrote a nonsensical haiku; his argument that the bankruptcy court lacked subject-matter jurisdiction to preside over a dispute explicitly provided for in the Bankruptcy Code; and his assertion that he did not know what a privilege log was despite being a barred attorney….

[At one point in the litigation,] Peter filed a 153-page motion for reconsideration of the bankruptcy court’s order denying him summary judgment, including in it accusations of domestic violence against Howard, as well as other immaterial details about family life. The filing concluded with what the bankruptcy court would later describe as “pointless poetry”—the haiku, which read: “All know: talk is cheap; Liars can claim anything; No evidence?! Balk!” The bankruptcy court denied the motion for reconsideration.

Howard deposed Peter on August 6, 2018, and Peter deposed Howard the next day. Throughout Howard’s deposition, Peter engaged in several hostile exchanges with Howard and opposing counsel. Peter asked repetitive and unprofessional questions, told opposing counsel to “[s]hush, shush, shush,” and bickered with opposing counsel on the record.

The next day, Howard moved the bankruptcy court to compel Peter to produce a privilege log, and said that when Peter was deposed, he testified to the existence of relevant and responsive documents that he did not produce based on attorney-client privilege. Howard said that Peter had not produced a privilege log and that he claimed not to know what one was. The bankruptcy court granted Howard’s motion and ordered Peter to produce a privilege log detailing which documents and communications he thought were protected.

The Eleventh Circuit affirmed the sanctions, and concluded Peter made frivolous arguments on appeal as well:

Because Peter relied on “clearly frivolous arguments,” we grant Howard’s motion for appellate attorney fees. We limit the award to the costs that he incurred for this appeal, because there is a corresponding Rule 38 motion pending in the district court seeking fees for that appeal. The costs for this appeal total $3,390, and we award Howard fees in that amount.

As the father of two sons (born 1½ years apart), I can confidently say: There’s no bickering like sibling bickering.

Commenters: Bonus points if your comment is in haiku form.

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It’s “too soon to give up,” says President Donald Trump, slamming Senate Majority Leader Mitch McConnell (R–Ky.) for finally admitting that Joe Biden won last month’s election. Why too soon? Trump’s last-gasp attempt to pull an election-reversing rabbit out of his hat involves a doomed plan to challenge Electoral College votes from five battleground states on January 6, when a joint session of Congress will meet to officially tabulate those results.

Under the 12th Amendment, “the electors shall meet in their respective states” and “vote by ballot for President and Vice President,” which happened on Monday. Those signed and certified results are then sent to the president of the Senate (in this case, Vice President Mike Pence), who “shall, in the presence of the Senate and the House of Representatives, open all the certificates.” The votes “shall then be counted.”

Under the Electoral Count Act, any member of Congress can object to the results from a particular state, but such objections are considered only if they are backed by at least one member from each chamber. If that happens, the House and the Senate meet separately to vote on the objection, which has to be approved by a majority in both chambers to reject the challenged electoral votes.

Rep. Mo Brooks (R–Ala.) intends to challenge the electoral votes from “various states that, in my judgment, have such flawed election systems that their vote counts are unworthy of our ratification.” During an interview with Fox Business host Lou Dobbs on Monday, Brooks presented his Trump-endorsed plan as consistent with historical practice.

“It’s happened many times in the past,” Brooks said. “Apparently, some folks have not done their history. By way of example, the Democrats in the House tried it in 2017 when they tried to strike Alabama’s votes for Donald Trump. Georgia, the same way, the House Democrats tried to strike it. Barbara Boxer tried to strike Ohio for George Bush back in 2005, so this is not unusual.”

The operative word here is tried. Congress has not actually rejected any electoral votes since it approved the Electoral Count Act in 1887. So far no senator has come forward to support Brooks’ effort, and during a conference call yesterday McConnell implored his Republican colleagues not to do so. Sen. Ron Johnson (R–Wis.), who had toyed with the idea, yesterday told the Milwaukee Journal Sentinel he does not plan to lodge any objections. “Something would have to surface that would call into question the legitimacy of the election,” Johnson said.

That’s a pretty striking statement from a diehard Trump supporter who is today holding a hearing about election “irregularities.” Johnson distinguished between those concerns and the idea, tirelessly promoted by the president, that systematic fraud enabled Joe Biden to steal the election. “All I’m trying to do is hold a very upfront, straightforward hearing talking about what controls there are in place, what fraud does occur, what can we do to prevent fraud in the future,” Johnson said. “I haven’t seen anything that would convince me that the results—the overall national result—would be overturned.”

Even if Brooks could persuade a senator to support his objections, the results of votes on them are a foregone conclusion, since Democrats control the House and at least 18 Republican senators (including Johnson) have acknowledged Biden’s victory. The New York Times reports that McConnell is keen to “stave off a messy partisan spectacle on the floor of the House that could divide Republicans at the start of the new Congress, forcing them to choose between showing loyalty to Mr. Trump and protecting the sanctity of the electoral process.”

Evidently that is exactly what Trump wants to see, which illustrates once again how his interests diverge from those of the party he continues to dominate. The GOP “must finally learn to fight,” he tweeted last night. “People are angry!”

Republicans are angry, of course, largely because of Trump’s insistence that he actually won the presidential election by a landslide, a fact that would be apparent but for a vast criminal conspiracy that denied him his rightful victory. In the six weeks since the election, Trump has not provided any credible evidence to back up that fanciful charge, as even Johnson has finally acknowledged. Yet polls indicate that most Trump supporters still believe the election was stolen.

Even as he vowed to continue his vain attempt to overturn the election, Trump retweeted a statement from evangelist Franklin Graham that conceded his defeat. Graham’s comments, which he posted on Facebook, no doubt appealed to Trump because they were full of praise for him. But they ended this way: “President Trump will go down in history as one of the great presidents of our nation, bringing peace and prosperity to millions here in the U.S. and around the world. May God bless him, Melania, and their family, as God leads him to the next chapter in his life.”

Next chapter? According to Trump, he won reelection by a landslide, and he has “tremendous evidence” to prove it. Why is Franklin Graham ready to give up and join the “surrender caucus“?

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From Project Veritas Action Fund v. Rollins, decided yesterday by the First Circuit (in an opinion by Judge David Barron, joined by Retired Justice David Souter and Judge Bruce Selya):

Massachusetts, like other states concerned about the threat to privacy that commercially available electronic eavesdropping devices pose, makes it a crime to record another person’s words secretly and without consent. But, unlike other concerned states, Massachusetts does not recognize any exceptions based on whether that person has an expectation of privacy in what is recorded. As a result, Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer’s mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse….

The court held that the law was unconstitutional “insofar as it criminalizes the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces” (the argument made by plaintiffs Eric Martin and René Pérez, whose case was joined for purposes of appeal with Project Veritas’s broader challenge):

[T]he First Amendment limits the government regulation of information collection, as our decisions in Glik v. Cunniffe (1st Cir. 2011) and Gericke v. Begin (1st Cir. 2014) show. See also Branzburg v. Hayes (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”)…. That is so … because “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.'”

[There is] “particular significance” of First Amendment newsgathering rights “with respect to government,” … [because] “the state has a special incentive to repress opposition and often wields a more effective power of suppression.” … [P]rotecting the right to collect information about government officials [and especially “law enforcement officials”] “not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” …

[The logic behind Glik and Gericke and similar cases from other circuits] encompass[es] recording even when it is conducted “secretly,” at least as Section 99 uses that term…. [S]uch undetected recording can itself serve “a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs,'” and “not only aids in the uncovering of abuses … but also may have a salutary effect on the functioning of government more generally.”

In fact, … audio recording of that sort can sometimes be a better tool for “[g]athering information about” police officers conducting their official duties in public, and thereby facilitating “the free discussion of governmental affairs” and “uncovering … abuses,” than open recording is. That is not only because recording undertaken from a distance—and thus out of plain sight of the person recorded—will often be the least likely to disrupt the police in carrying out their functions. It is also because recording that is not conducted with the actual knowledge of the police officer—even if conducted proximate to the person recorded—may best ensure that it occurs at all, given the allegations that the Martin Plaintiffs set forth about the resistance from official quarters that open recording sometimes generates.

In sum, a citizen’s audio recording of on-duty police officers’ treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer’s knowledge, can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what had transpired. The circumstances in which such recording could be conducted from a distance or without the officers’ knowledge and serve the very same interest in promoting public awareness of the conduct of law enforcement—with all the accountability that the provision of such information promotes—are too numerous to permit the conclusion that recording can be prohibited in all of those situations without attracting any First Amendment review…..

After concluding that such information gathering is presumptively protected by the First Amendment, just as speech is, the court then applied intermediate scrutiny, which is the general test for content-neutral speech restrictions. Under that test, a content-neutral law must be narrowly tailored to an important government interest, and leave open ample alternative channels, and “section 99 is not narrowly tailored to further either of the identified governmental interests—namely, preventing interference with police activities and protecting individual privacy—notwithstanding their importance.”

The government is under no obligation to permit a type of newsgathering that would interfere with police officers’ ability to do their jobs…. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties. Nor does the record show how heightened consciousness on the officers’ part that recording may be occurring, even if the officers are not on specific notice that it actually is, would appreciably alter their ability to protect the public either in gross or at the retail level of more individualized interactions.

It was suggested at oral argument that officers seeking to converse with confidential informants could be constrained in their ability to do so, in light of the possibility that any such exchange would be recorded by an unknown and unseen observer. But, we presume officers are already careful when engaging in such sensitive conversations within earshot of others, and the record offers no other details about how any such heightened caution might disrupt police practice. Thus, the record provides no support for the conclusion that Section 99 reduces interference with official police responsibilities in any meaningful way with respect to at least the mine-run of circumstances—whether involving an arrest in a park, a roadside traffic stop, or a gathering in a foyer following a public meeting in a public building—in which police officers may be “secretly” recorded without their consent while discharging their official functions in public spaces.

Accordingly, we conclude that the statute’s outright ban on such secret recording is not narrowly tailored to further the government’s important interest in preventing interference with police doing their jobs and thereby protecting the public. Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing….

The District Attorney contends that … [Massachusetts] has a “significant interest” in “assur[ing] that its citizens are aware of when they are being recorded, safeguarding a specific type of privacy—not freedom from being recorded, but rather notice of being recorded.” The District Attorney also presses the related contention that protecting such a privacy interest helps ensure “the vibrancy of [] public spaces and the quality of the discourse that occurs there” by allowing speakers to take comfort in the fact that they will not be unwittingly recorded.

Protecting the privacy of the citizens of Massachusetts is a legitimate and important governmental interest. But, as we noted in Glik, “[i]n our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.” That includes the loss of some measure of their privacy when doing their work in public spaces. See Thus, even if there might be circumstances in which officers—while in public spaces and working—have some privacy interest that the prospect of secret recording could threaten, the total ban on all such audio recording of any of their official activities in public spaces simply because it qualifies as being done “secretly” … is too unqualified to be justified in the name of protecting that degree of privacy.

Rather than dispute this point, the District Attorney focuses on the fact that private citizens in the vicinity of the officers are not themselves governmental employees, let alone law enforcement officers on the job. She argues that “[c]ivilians have many reasons to voluntarily interact” with government officials, including police officers, in public and that even civilians who have no intention of interacting with police “might simply be within audible recording range.” Yet, the District Attorney notes, their words may be picked up by the recording that the Martin Plaintiffs contend they have a First Amendment right to undertake without those persons having any notice that recording is taking place.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that “when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive.” She supports this argument by invoking the Supreme Court’s captive-audience cases. In that line of cases, the Court recognized that government can protect an “interest” in “avoid[ing] unwelcome speech” if “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.” Hill v. Colorado (2000). The District Attorney argues that the recording of an unwitting private citizen is tantamount to rendering that person a captive because “that person is unaware of the recording, and thus is deprived of any meaningful opportunity to do anything about it.”

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how—across the board—the proposed secret recording results in “substantial privacy interests … being invaded in an essentially intolerable manner.” …

We can envision circumstances in which an individual who is interacting with (or in the vicinity of) a police officer might have a particularly heightened reason to wish to have notice that her comments are being recorded. Cf. Fla. Star v. B.J.F. (1989) (recognizing a privacy interest in the identity of rape victims); United States v. Tse (1st Cir. 2004) (recognizing the “important concern[]” of preventing unnecessary embarrassment to witnesses). But see Branzburg v. Hayes (1972) (minimizing the interest of newspaper informants who wish to remain anonymous where “[t]hey may fear that disclosure will threaten their job security or personal safety or that it will simply result in dishonor or embarrassment”). Notice of recording may help such private individuals avoid the shame or embarrassment of the recording of their unfiltered comments or help prevent their statements from being taken out of context.

But, as a general matter, an individual’s privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer. Thus, we conclude that Massachusetts may not deploy the blunderbuss prohibitory approach embodied in Section 99 to protect civilians in the core set of situations where their privacy interests may be heightened.

In light of our analysis to this point, we need not address whether the statute leaves open viable alternative channels for First Amendment activity. We are not persuaded, however, by the District Attorney’s assertion that Section 99 “preserves adequate alternative channels” because it “does not limit open recording in any way.” “[A]udio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public,” and the undisputed record supports the Martin Plaintiffs’ concern that open recording puts them at risk of physical harm and retaliation and thereby undermines its capacity to serve as an adequate alternative means of newsgathering if the type of recording at issue here is barred.

The court concluded, however, that Project Veritas’s broader challenge to “the secret recording of ‘individuals who lack[] any reasonable expectation of privacy'”—including both government officials beyond police officers, and people who aren’t government officials—wasn’t ripe for challenge, given the way Project Veritas had litigated the case:

The contrast between the narrowness of Project Veritas’s plans [for engaging in conduct that might violate the law] and the breadth of the remedy that it has requested leads to the concern that it has not adequately shown that it intends to engage in much of the conduct covered by the relief it seeks…. “The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of—even repetitive—[more focused] litigation.” …

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of [person] who would be recorded. It is hardly clear that a restriction on the recording of a mayor’s speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park’s grounds….

[I]n their present state, they ask us to engage in an inquiry into sensitive and difficult First Amendment issues—concerning both privacy in public and government accountability—that is too likely to be a hypothetical one, given the disconnect between the organization’s concrete allegations regarding its intentions and the breadth of the relief it seeks….

The court also rejected Project Veritas’s overbreadth challenge, on the grounds that Project Veritas hadn’t shown that “a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” I’m not sure that the court was right to so conclude (especially without reaching a legal conclusion about just how broad the statute’s legitimate sweep is); but this post is long enough as it is, so I won’t go into more detail on this.

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In 2017, the American Bar Association released a 73-page report condemning “the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues.” Concluding that the legal profession “is falling short when it comes to well-being,” the ABA report issued over 60 reform proposals and launched a “campaign of innovation to improve the substance use and mental health landscape of the legal profession.” A parallel empirical study to the ABA report found that lawyers abuse alcohol and are depressed, anxious, and stressed much more frequently than the general population. The ABA is not alone in its conclusions: headlines ask “Why Lawyers Are Miserable,” “Why Are Lawyers So Unhappy?,” and “Why Are So Many Lawyers So Unhappy?“

Unfortunately, these conclusions rest on a weak empirical foundation, as explained in our recent article, “Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey“. The ABA study’s design is representative of the methodology used by most studies of wellbeing among lawyers. These studies have four flaws:

1. They rely on volunteer respondents, rather than a random sample of lawyers.
2. They often have low response rates, meaning that non-response bias can pose a problem to interpreting the results. Together, flaws 1 and 2 mean that studies of wellbeing in lawyers draw conclusions about all lawyers from a sample of lawyers who may be unrepresentative of the legal community at large.
3. They survey only lawyers, rather than the whole population. Because surveys of the entire population may use a different methodology or instrument to measure mental illness, comparing mental illness or substance abuse between survey participants and other populations may not be appropriate.
4. They only survey lawyers at a snapshot in time, making analyses of trends over time impossible.

Several articles have observed that the “unhappy lawyers” narrative has been driven by a reliance on nonrandom survey data. But they have failed to change the state of the art for studying lawyer mental health. It is easy to see why: surveys of groups of randomly selected lawyers are much more difficult to conduct than volunteer surveys. As a result, they have remained relatively rare and ad hoc, often focusing on unrepresentative groups of lawyers, such as lawyers in a single city or individual law school in a single year.

A large public dataset from the Centers for Disease Control, the National Health Interview Survey (NHIS), provides a useful alternative. It avoids the four problems plaguing current data on lawyer wellbeing:

1. Rather than relying on volunteer respondents, it surveys a random sample of the U.S. population.
2. Rather than featuring low response rates, it has a relatively high response rate—more than 70 percent—and uses survey weights to mitigate the problem of non-response bias.
3. Rather than surveying only lawyers, it surveys the entire U.S. population using the same survey, allowing researchers to compare data for lawyers with the general population or other relevant subgroups.
4. Rather than offering only a snapshot of lawyer wellbeing, it has asked the same questions for many years, allowing comparisons of lawyer wellbeing over time.

Using the NHIS, we find that, contrary to conventional wisdom, lawyers do not suffer from extraordinary levels of mental illness. Rather, they suffer rates of mental illness much lower than the general population’s and not significantly different than that for doctors and dentists. However, rates of problematic alcohol use among lawyers are high and have grown increasingly common over the last fifteen years. These sometimes surprising and nuanced findings demonstrate the value of relying on more reliable data such as the NHIS.

These findings do not mean that recent emphasis on attorney wellbeing is misguided. The incidence of mental illness, alcoholism, and suicide is too high for the entire US population, lawyers very much included. By paying attention to lawyer well-being, the profession can reduce the prevalence of mental-health-related maladies and improve the lives of all who practice law or work in a law firm. Nevertheless, we need to be precise about the problems that lawyers face and what remedies we should employ.

Over the next two days, we will elaborate on the NHIS and the unique difficulties it suggests that lawyers do or do not face. Thursday will focus on the NHIS’s findings related to attorney mental health and alcohol abuse, and Friday will conclude.

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I’m delighted to report that Prof. Yair Listokin (Yale) and Yale law student Raymond Noonan will be guest-blogging this week about their new article, “Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey“:

Conventional wisdom says that lawyers are uniquely unhappy. Unfortunately, this conventional wisdom rests on a weak empirical foundation. The “unhappy lawyers” narrative relies on nonrandom survey data collected from volunteer respondents.

Instead of depending on such data, researchers should study lawyer mental health by relying on large microdata sets of public health data, such as the National Health Interview Survey (NHIS) administered by the U.S. Centers for Disease Control. The NHIS includes data from 100-200 lawyers per year. By aggregating years, an adequate sample size of lawyers can readily be obtained, with much greater confidence that the lawyers in the sample resemble the true population of U.S. lawyers.

When we examine the NHIS data, we find that, contrary to the conventional wisdom, lawyers are not particularly unhappy. Indeed, they suffer rates of mental illness much lower than the general population. Lawyer mental health is not significantly different than the mental health of similarly-educated professionals, such as doctors and dentists.

Rates of problematic alcohol use among lawyers, however, are high, even when compared to the general population. Moreover, problematic use of alcohol among lawyers has grown increasingly common over the last fifteen years. These sometimes surprising and nuanced findings demonstrate the value of relying on more reliable data such as the NHIS.

As a lawyer who is friends with many lawyers, and who teaches future lawyers, I much look forward to their posts!

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New York Gov. Andrew Cuomo, a Democrat, signed legislation on Tuesday prohibiting the sale of Confederate flags on public property, including at state and local fairs.

Cuomo was well aware that such legislation is likely to fail a First Amendment test, but this did not deter him.

“This country faces a pervasive, growing attitude of intolerance and hate—what I have referred to in the body politic as an American cancer,” he wrote. “By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

Cuomo noted that “certain technical changes are necessary” to make sure the ban is compliant with the First Amendment, which protects free expression—including the expression of hateful ideas.

Those changes should probably involve scrapping most of the bill, which is a mess. It prohibits the sale of “symbols of hate,” which it defines as “including, but not limited, to symbols of white supremacy, neo-Nazi ideology, or the battle flag of the Confederacy.” Keep in mind that we live in a world where some people think the OK hand gesture is a white supremacist signal, and the New York Human Rights Commission has been particularly inclined to over-interpret the government’s mandate to ban things. This is not a recipe for restraint.

The bill also exempts museums, books, and “educational purposes” in general, which provides wild interpretive leeway. And the aforementioned fairgrounds provision applies to private actors on public property, which is almost certainly unconstitutional. In 2008, the Supreme Court ruled 8–1 that a notorious hate group, the Westboro Baptist Church, could stand on public property and shout obscenities near the funerals of military service members. There’s little question that the First Amendment broadly protects hateful speech on public property.

These very obvious issues—of which Cuomo, by his own admission, is quite aware—should probably have stopped the governor from signing the bill, but alas. Here’s hoping President-elect Joe Biden does not reward Cuomo’s abysmal track record on individual liberties with the U.S. attorney general job.

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The latest legislative proposal being pushed by Sen. Josh Hawley (R–Mo.) aims for what might be thought of as the Triple Crown of contemporary conservatism. It misunderstands economics and the benefits of global trade, promises to hurt people who have done nothing wrong, and wraps itself in a feigned sense of toughness while actually doing more to help China than America.

Hawley’s bill, introduced on December 8, would temporarily shutter the Generalized System of Preferences (GSP) program, a 1974 law that grants special import status to goods received from certain developing nations. The GSP program is a unilateral trade policy—that is, America reduces its tariffs to allow more imports from nations that qualify for GSP status even if those countries don’t do the same in return—that recognizes the fundamental benefits of free trade. American businesses and consumers can buy duty-free imports, while businesses in those GSP nations gain access to the world’s largest economy, which helps them grow.

Think of the GSP program as a libertarian form of foreign aid. Rather than throwing money at developing countries, it simply removes barriers to trade and lets the international market create growth.

Hawley wants to suspend the GSP program because he has a zero-sum view of trade and economic growth. If a developing country is getting special treatment, that means American workers must be losing out.

“Trade programs should protect American workers and help their families to prosper, not benefit foreign nations or mega-corporations,” he said in a statement announcing the bill. “Yet, for decades our trade policy has decimated millions of American jobs. It’s time to put workers at the center of our trade policy.”

Under the terms of his bill, the Trade Preference Reform and Worker Protection Act, the GSP program would be suspended until unemployment in the United States falls below 4 percent—and it would be suspended again whenever America’s unemployment rises above that threshold, which is most of the time.

Cutting off beneficial trade terms with developing countries won’t help American manufacturing workers because they’re not competing to make the same products. Under the terms of the GSP program, the lowered tariffs for GSP imports do not apply to goods deemed “import-sensitive”—that is, items widely produced in the United States whose industry lobbyists have convinced Congress that more international competition would be bad. Textiles and shoes, for example, are excluded from the GSP program. According to the Congressional Research Service, a think tank housed within Congress, the most common items imported via the GSP program are “travel goods” and “jewelry.”

Unless American workers are going to start producing handmade Thai jewelry, Hawley’s bill doesn’t have much to offer. On the flip side, he would actually be hiking tariff costs on American businesses that continue to import goods from former GSP nations.

And while it wouldn’t help American workers, Hawley’s proposal would deal a serious blow to poor people running small businesses in those developing nations. A 2016 report from the Office of the U.S. Trade Representative found that “trade expansion induced by greater access to the U.S. market caused a significant acceleration in the growth rates of developing countries.”

Perhaps in the hopes that other conservatives will ignore the actual reality of what he’s proposing, Hawley staff have been wrongly presenting the GSP proposal as an attack on China. Facing criticism on Twitter, Kyle Plotkin, Hawley’s chief of staff, defended the proposal by invoking the threat of American jobs being offshored to China.

Umm…have you been paying attention for the past 8 months?

We’ve had a shortage of basic goods and skyrocketing prices because of our dependence on China and lack of domestic production https://t.co/QJPe94SZv7

— Kyle Plotkin (@kjplotkin) December 14, 2020

Except, well, China isn’t part of the GSP program at all. Ironically, terminating the GSP program would probably boost China by effectively raising American tariffs on imports from countries that compete with China. A 2019 survey of American importers found that if GSP was terminated, one-third of them would source more goods from China.

Hawley and his staff seem to be “paying a little too much attention to Twitter and not enough attention to the facts,” Patrick Hedger, vice president of policy for the Taxpayers Protection Alliance, a free market nonprofit, tells Reason. “There are serious consequences to politics like this. Governing based on likes and retweets by playing to knee-jerk populism won’t help anyone, besides maybe the politician engaged in it.”

Though Hawley’s bill is unlikely to become law, it’s still worth noting because of what it says about the senator’s view of free trade, as well as his populist approach to lawmaking that ignores inconvenient facts. After all, what he’s proposing is a policy that would blame foreigners—not even immigrants, but literally people who haven’t even tried to come here—for America’s own economic problems, which the policy change itself would not fix. And in his rush to condemn free trade for all that is wrong with the world, he’s not standing up to China but potentially handing it a larger share of global trade.

It is remarkable that Hawley has managed to pack so much of the ethos of Trump-era economic nationalism into a three-page bill, but that’s what makes him a rising star.

Bryan Riley, director of the free trade initiative at the National Taxpayers Union Foundation, a free market think tank, describes Hawley’s proposal as a “pro-communist China bill to encourage production in China instead of in developing countries” that are currently eligible for GSP.

“If you want to get tough on China,” says Riley, “it would seem to make sense to reduce barriers to imports from other countries.”

But it wouldn’t be economic nationalism if it made sense.

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President-elect Joe Biden is continuing his business-as-usual approach to filling out senior posts in his administration by selecting Pete Buttigieg—former mayor of South Bend, Indiana, and presidential contender—for his secretary of transportation.

Mayor @PeteButtigieg is a leader, patriot, and problem-solver. He speaks to the best of who we are as a nation.

I am nominating him for Secretary of Transportation because he's equipped to take on the challenges at the intersection of jobs, infrastructure, equity, and climate.

— Joe Biden (@JoeBiden) December 16, 2020

Innovation in transportation helped build my hometown, and it propels our country.

Now is the time to build back better through modern and sustainable infrastructure that creates millions of good-paying union jobs, revitalizes communities, and empowers all Americans to thrive.

— Pete Buttigieg (@PeteButtigieg) December 16, 2020

As a former mayor of a midsized Midwestern town and a consultant before that, Buttigieg is hardly a career transportation wonk. His selection comes as a surprise to some observers who had expected or hoped Biden would pick either a public transportation veteran or a large city mayor well-versed in urban transportation issues.

Buttigieg’s resume, however, isn’t too out of step with past officials.

President Barak Obama’s picks to lead the Department of Transportation (DOT) included a former mayor (Anthony Foxx) and a former state legislator (Ray LaHood). Elaine Chao, Trump’s transportation secretary, is probably the most experienced of recent DOT heads, having served as a deputy secretary of transportation in the George H.W. Bush administration.

Obviously, politics is playing a role in Buttigieg’s selection. The New York Times reports that Biden and Buttigieg bonded on the campaign trail and that Biden was set on finding some role for the former mayor in his administration.

As to his actual record, Buttigieg’s transportation legacy seems to rest on his $25 million “Smart Streets” program that added bike lanes and trees to South Bend’s downtown.

Streetsblog reports that Buttigieg’s transportation plank for his 2020 presidential bid would massively boost spending on highways, public transportation, and intercity rail, none of which is great from a small government perspective.

On the positive side, he endorsed the idea of replacing the federal gas tax with a mileage tax, which would charge motorists for every mile they drive as opposed to how much gas they buy. That idea, which has been endorsed by Trump’s Council of Economic Advisers, would shore up highway funding and get it closer to a user-fee model beloved by free marketers.

Josh Barro over at Business Insider suggests that Buttigieg’s interest in foreign affairs might be valuable in his coming role as transportation secretary as he’ll be able to ask other countries how they manage to complete transportation projects for way less money.

Elsewhere, Biden plans to nominate former Michigan Gov. Jennifer M. Granholm—who was apparently helpful in taking money from taxpayers and giving it to automakers—as his secretary of energy. She’s since become an evangelist for renewable energy.

The New York Times reports that Biden’s decision on who he’ll pick to head the Environmental Protection Agency is being held up after “environmental justice” groups issued a letter condemning his initial choice—career environmental regulator Mary D. Nichols—over her record on “environmental racism.” Biden is now reportedly searching for a more diverse candidate like Los Angeles Mayor Eric Garcetti.

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FREE MARKETS

Ongoing challenges to the results of the 2020 presidential election have not stopped outgoing President Donald Trump from adding to his deregulatory legacy. On Tuesday, Trump’s Department of Energy issued a new rule that loosens restrictions on how much water showerheads can emit.

The Washington Examiner has the details:

The Energy Department’s move doesn’t change the level of the water conservation standards set back in 1992, but it alters a definition set by the Obama administration requiring the entire showerhead fixture to meet a limit of 2.5 gallons of water per minute. The Trump administration’s definition will allow each showerhead nozzle, even if there are several in a single fixture, to meet the 2.5 gallons per minute standard.

Though this is just a small win, it’s also a reminder of just how intrusive federal regulations have become over the years.

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FREE MINDS

Trump is reportedly weighing a pardon for Ross Ulbricht, who received two life sentences for his role in founding the Silk Road, an online drug marketplace.

Reports the Daily Beast:

According to three people familiar with the matter, the White House counsel’s office has had documents related to Ulbricht’s case under review, and Trump was recently made aware of the situation and the pleas of the Silk Road founder’s allies. Two of these sources say the president has at times privately expressed some sympathy for Ulbricht’s situation and has been considering his name, among others, for his next round of commutations and pardons before the Jan. 20 inauguration of his 2020 Democratic opponent.

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QUICK HITS

• The United Nations has issued a new report finding that people are the cause of most of the world’s problems. Thanks, guys.
• Trump is reportedly considering the appointment of a special prosecutor to investigate Hunter Biden’s business dealings.
• Showerheads aside, a new essay from the Cato Institute argues Trump will leave little lasting effect on federal regulatory policy.
• Los Angeles is suing the operators of an underground night club for throwing some bitchin’ parties during coronavirus times.
• The latest COVID scold? Tom Cruise
• Politicians in Washington, D.C., have passed a bill requiring bars and restaurants to offer to hire back the staff they were forced to let go because of lockdowns imposed by D.C. politicians.

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