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I’m investigating what seems to be an interesting and unconstitutional prior restraint on a media outlet imposed by a Guam Superior Court judge. Any of our readers Guam lawyers (or connected go Guam lawyers), Guam media folks, or otherwise Guam-linked? If you are, and are willing to chat with me briefly about this, please e-mail me at volokh at law.ucla.edu. Thanks!
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We did it, America. After letting our social media panic rise for years, we finally helped convince Twitter to ban God.
OK, it wasn’t God, per se, but rather TheTweetOfGod, a satirical account run by a former “Daily Show” writer who posts quips such as, “What happens after you die is pretty funny actually.” Twitter, which like all social media platforms is under increasing consumer and political pressure to police bigotry and extremism, ruled on Tuesday that the ersatz Yahweh had engaged in suspension-worthy “hateful conduct” by tweeting, “If gay people are a mistake, they’re a mistake I’ve made hundreds of millions of times, which proves I’m incompetent and shouldn’t be relied upon for anything.”
The company quickly reversed itself after the ensuing brouhaha, claiming it had made an “error.” Still, this should be (though it almost certainly won’t be) a wake-up call — not to the Lords of social media, but to the rest of us heathens. We keep asking Silicon Valley to enforce speech manners on the commons, then recoil in horror when the results inevitably don’t go as expected.
Every damned day in 2019, far too many of us wake up in the morning, fire up Facebook, Twitter or YouTube, and then demand that the managers of same censor, demonetize, and even ban people who say things we don’t like.
Last week it was the eminently dislikable but nonetheless popular conservative shock-bro Steven Crowder nominated for YouTube de-platforming. Crowder has long mocked Vox video producer Carlos Maza, taunting him as a “lispy queer” and “gay Mexican.” (Maza, for the record, is gay of Cuban extraction.)
Maza says Crowder’s fans send him torrents of homophobic abuse via social media and text message. So, like many of our modern de-platformers, albeit with considerably more skin in the game, Maza went rifling through YouTube’s terms of service for disqualifying violations, and came up with the site’s prohibitions on “content or behavior intended to maliciously harass, threaten or bully others.”
YouTube initially responded that Crowder’s trolling didn’t quite rise to the level of incitement. But then the video platform, which is owned by Google, suspended his channel’s monetization — basically, preventing him from selling ads until he removes specific content such as links to his site selling “Socialism is for F*gs” T-shirts.
With the controversy at a high boil (Rep. Alexandria Ocasio-Cortez and Sen. Ted Cruz were weighing in on Twitter, natch), YouTube then announced a sweeping policy change banning “extremist” and denialist videos. Almost immediately, legitimate journalists and historians who cover controversial subjects found their work purged from YouTube.
We are asking social media companies to do the impossible — impose and enforce editorial standards on an endless global stream of user-generated content. The very reason that Facebook, Twitter, YouTube et al became popular in the first place — they’re so easy to use even Grandpa can do it! — dooms all these post-facto cleanup exercises to failure. An algorithm will never replicate the judgment of a magazine editor, and no human hands can reproduce the efficiency of a 24/7 automated publishing system used by millions.
“Casting a wide net into the Internet with faulty automated moderation technology … also inadvertently captures useful content like human rights documentation, thus shrinking the democratic sphere,” warned a joint report published last month by the Electronic Frontier Foundation, Syrian Archive and Witness. “No proponent of automated content moderation has provided a satisfactory solution to this problem.”
Among civil libertarians, the deeper worry is that social media panics are already turning into bad speech-restricting legislation and regulation. Congress last year overwhelminglypassed a likely unconstitutional Online Sex Trafficking Act that holds web publishers retroactively liable for prostitution advertisements posted by users. Each week brings some new Capitol Hill hearing where politicians browbeat technology companies for alleged viewpoint discrimination.
But let’s not give short shrift to government censorship’s kissing cousin, censoriousness. That’s where users increasingly ask technology companies — sometimes under threat of government force — to shut down the speech of people we find distasteful. We really need to knock that off.
The more we treat social media companies like speech-providing utilities, the more they’re going to act like utilities — which is to say they’ll never go away. Possibly the best single thing about social media behemoths has been that they have a tendency to disappear. No longer are we under the boot heel of Friendster, MySpace or Flickr. There’s a reason Facebook and Google are now openly inviting Congress to regulate them — that way they get to help write the rules governing any future competitors.
There are important reasons for individuals to avoid being a terms-of-service tattletale, too. Especially at a time of increased polarization and political apocalypticism, all of us need to get better at old-fashioned persuasion, and less reliant on third-party authorities to make the bad people go away. Keep politicians away from social media regulation, and let God tweet.
This column originally appeared at the Los Angeles Times.
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With birth rates plunging and baby boomers retiring, the American economy is going to need workers. Unless someone comes up with a magical formula to boost fertility, that means we’ll need more immigrants.
So the Economic Innovation Group (EIG), a consortium of politically diverse investors, entrepreneurs, and economists, deserves credit for trying to figure out an immigration-based plan that would spare America from the coming labor crisis that could drain economic growth to under 2 percent. But the EIG’s proposed solution, which is to create a special category of visas that would repopulate Rust Belt towns and other places that have been left behind by the modern economy, is flawed.
It’s true that the Northeast and the Midwest have been hit particularly hard and that they risk falling into a cycle where, as populations shrink, employers flee, taking jobs with them. This erodes the tax base, which in turn impacts public services, causing further population loss. Rinse, wash, repeat.
To reverse this cycle, the EIG suggests granting “Heartland Visas” to skilled foreigners on the condition that they move to depressed areas targeted for renewal, such as Detroit. The authors liken this plan to Canada’s Provincial Nominee Program, in which Canada’s central government hands every province a number of visas with which to recruit immigrants of their choice, in addition to those admitted by Ottawa. In essence, it lets provinces write their own immigration policies for about a third of those allowed in.
The Canadian system isn’t a top-down effort at economic renewal or development. It allows a granular matching of workers to local economic needs. Even though immigrants could move out of their sponsoring province, about 80 percent don’t. The EIG doesn’t flesh out its proposal in detail, but it’s pretty clear Heartland Visas wouldn’t work the same way.
In Canada, provinces can recruit immigrants of any skill level, from welders to computer engineers. Heartland Visas, meanwhile, are recommended only for “skilled” foreigners, amplifying the current bias in America’s immigration system that prioritizes the demands of high-tech industries over rural economies. (The EIG is funded mostly by folks from the technology sector.) That could breed a mismatch between local needs and the immigrants who are admitted.
Moreover, disproportionate population losses are a symptom of broader governance problems. Local and state governments in these places have often failed to achieve crime-free environments with good schools and decent public services. They also erect regulatory obstacles that thwart entrepreneurship. Plunking immigrants in such places and expecting them to perform miracles when they can’t vote or run for political office will only set them up for failure and diminish public support in the long run.
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This month, Denver announced it would roll back some restrictions on drinking in public. Elsewhere, a new North Carolina law loosened some beer-distribution rules.
State (and local) alcohol laws are forever changing. Often, as in Denver and North Carolina, the changes are welcome.
That’s also the case in Connecticut, where a law will allow out-of-state wine stores and retailers to ship wine to state residents. And it’s true in Kansas, where a new law allows the sale of beers up to 6% ABV in grocery stores.
In many cases, one could be forgiven for a creeping sense of optimism. Wow, it’s great that’s legal now. But I tend to think otherwise: Why the heck wasn’t that legal until now?
Still, my pessimism over the slow pace of progress is tempered by the fact that these incremental changes for the better are so often juxtaposed against far worse things—namely awful booze laws that won’t change or, worse still, lousy, laws that have only recently found their way onto the books.
In fact, for every state that’s embraced one or more facets of alcohol deregulation, you’ll find others have done just the opposite. It’s in this way that New Jersey’s awful, backsliding new craft beer regulations, which I wrote about last week, hardly stand alone.
In Massachusetts, for example, all happy hour drink specials continue to be illegal and have been since the mid-1980s. The incident that spurred the ban took place when a drunk woman jumped onto the hood of a car in the parking lot of a Ground Round, a local pub chain. The car was also driven by another drunk person, right after both had consumed cheap beer at the pub. The woman fell off the car and died.
Massachusetts’s happy hour ban was supposed to combat such tragedies. But it continues not to do so. Just this week, a 74-year-old allegedly intoxicated man was arrested after the police say he plowed into two people outside an Applebee’s restaurant.
That’s on top of the fact, as I wrote in a 2015 column, that Massachusetts “has the second-highest rate of drunk driving in New England, and a rate that’s 15 percent higher than the national average.”
Oftentimes, even in states that deregulate, the stench of Prohibition often still lingers.
Take a new West Virginia law, which took effect this week, reports the Williamson Daily News. The law increases the maximum ABV beers sold in the state may contain from 12% to 15%. It also allows customers to purchase more than two growlers of beer. Another law, which also took effect this week, will allow restaurants, wineries, breweries, and others to sell alcohol on Sundays after 10 a.m. Sunday bottle sales are still illegal until 1 p.m.
Hence, if you want to buy a bottle of Dogfish Head 120 Minute IPA (which clocks in at 15-20% ABV)—or, say, a bottle of anything on Sunday morning—you’ll still have to leave West Virginia to do so.
That stench of Prohibition also lingers in Texas, where a new state law will allow some restaurants to deliver alcohol to customers who also order food. That’s great. But standalone booze deliveries are still illegal under the law. Of course, there’s a catch that basically swallows the rule.
“[I]f you are ordering a dozen beers from a pizza parlor with a beer and wine permit,” News 4 San Antonio reports, “you’ll need to make sure to add a couple orders of breadsticks to go with it.“
Craft beer—like the alcohol industry generally—can “only go as far as lawmakers will allow,” I wrote earlier this year. Even as state alcohol laws continue to evolve, it’s clear that a willingness to expand choice through deregulation is something many lawmakers don’t yet possess.
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The government in the United States has increasingly become a powerful weapon that two warring tribes repeatedly seize control of and then use against each other. For those of us who are averse to being smashed, it’s long past time to consider the machinery of the state as nothing more than a bludgeon in the hands of dangerous maniacs.
Dangerous? Indeed. It’s hard to beat the insight into the malicious heart of government offered by Rep. Ted Lieu on CNN in December.
“I would love to be able to regulate the content of speech,” the California Democrat told CNN’s Brianna Keilar. “The First Amendment prevents me from doing so, and that’s simply a function of the First Amendment.”
Lieu obviously takes it for granted that many politicians would muzzle their enemies if it were permitted and that only meddlesome legal strictures prevent them from enacting their dark desires.
Those strictures no longer look so strict. New York state’s blue-tribe government last year repeatedly abused regulatory power in assaults against independent institutions. First, it sought to intimidate financial firms and insurance companies into breaking ties with organizations that advocate self-defense rights. This emulated the Obama administration’s earlier Operation Choke Point scheme by which “powerful bank regulatory agencies engaged in an effort of intimidation and threats to put legal industries they dislike out of business,” according to John Berlau of the Competitive Enterprise Institute. New York officials followed up by threatening to declare “truant” any children attending private schools whose curricula didn’t win state approval.
For his part, Donald Trump, red tribe jefe, demands unwavering personal loyalty. He promised to punish companies that defy his nationalistic economic schemes by moving production overseas. “They will be taxed like never before,” he vowed last summer of Harley-Davidson. And the president, who once described freedom of the press as “frankly disgusting,” doubled down on his predecessor’s hostility to journalistic independence by threatening to retaliate against the critical Washington Post with antitrust action, higher postage rates, and taxes on Amazon, which shares Jeff Bezos as its owner.
Yes, politicians have misbehaved in the past. But pollsters continuously report that the dominant modern political factions hate each other to an unprecedented degree, and their chosen standard bearers are seeking to act on that loathing. It’s enough to make you think government officials shouldn’t be trusted with the powerful tools of the state—and to worry that the restraints intended to prevent misuse of those tools have broken down.
“We are at the end of the American project as the founders intended it,” political scientist Charles Murray wrote in 2015’s By the People: Rebuilding Liberty Without Permission (Crown Forum). That project, as he saw it, was an effort to “demonstrate that human beings can be left free as individuals, families, and communities to live their lives as they see fit as long as they accord the same freedom to everybody else.” Given the U.S. government’s intentional erosion of that ideal, however, Murray proposed mass civil disobedience against intrusive rules and overreaching officials.
“You have the right to defend yourself and others from state injustice, even when government agents act ex officio and follow the law,” philosopher Jason Brennan wrote in the January 2019 issue of this magazine. “Innocent people have a right not to be subject to badly made, high-stakes political decisions,” he adds in his 2018 book, When All Else Fails: The Ethics of Resistance to State Injustice (Princeton University Press). Brennan doesn’t suggest that overt resistance is risk-free, but he argues that it’s morally justified and often better than knuckling under.
Both Murray and Brennan see the government as frequently oppressive and out of control—but also as subject to correction, or at least a good knee-capping, if enough people are willing to gum up the works. “Government is the Wizard of Oz…impotent to impose its will in the face of widespread refusal to comply with its rules,” argues Murray.
There’s evidence that something as simple as shaming and social ostracism can effectively sap government agencies of energy, recruits, and resources.
Long-despised for its grabbiness and brutality, the IRS further alienated the public when it acted against Tea Party groups during the Obama years. Since then, it’s lost funding, cut way back on intrusive audits into Americans’ finances, and suffered deep demoralization. “Almost a third of its remaining employees will be eligible to retire in the next year, and with morale plummeting, many of them will,” ProPublica reported in December. That’s one-third fewer arm-twisters—at least for a while—to be called upon by Lieu and his colleagues, even as restrictions on their power erode.
Like the IRS, the FBI compounded the bad will it engendered with lethal misbehavior and the shenanigans of a habitually dishonest crime lab by allowing itself to be drawn into contentious political issues, such as investigations into the bad conduct, real and alleged, of the major 2016 presidential candidates. “Public support for the FBI has plunged,” Time reported last year. And that skepticism appears to have affected juries, which are returning 11 percent fewer convictions in FBI-led cases than they did five years ago.
Employment applications to the FBI dropped from 21,000 per year to 13,000 per year, The Washington Post has reported, necessitating a marketing campaign to haul in reluctant recruits. State and local police agencies, also tainted by news reports of brutality and bias, have likewise seen sharp drops in applicants, resulting in fewer officers to enforce the government’s will. “The number of full-time sworn officers per 1,000 U.S. residents has dropped from 2.42 in 1997 to 2.17…in 2016,” the Post notes.
Come to think of it, that just might leave a little room in the hiring process for applicants who see Edward Snowden as a role model—or even as a starting point in the necessary process of sabotaging from within overpowerful and much-misused agencies.
Most of us will prefer quieter acts of disobedience—ignoring regulations and perhaps assisting others who get caught doing the same, as Murray recommends. We might also choose to respond to the excesses of government agents as we would those of any other thugs, without offering undeserved deference, as Brennan suggests. We could refuse private services to state employees, damage government property, dox officials, and even directly intervene in incidents of oppressive action.
There’s no reason to show respect to a system that sees us as nothing more than enemies to be smashed.
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In State v. VanBuren (2018), the Vermont Supreme Court held that the state’s ban on distributing nonconsensual pornography was facially constitutional, despite the First Amendment; but just last week, it concluded that the statute didn’t apply to someone sharing a photo that the subject had “sexted” to someone with whom she had no present romantic relationship, First, the facts:
Complainant sent nude pictures of herself to Anthony Coon via Facebook Messenger, Facebook’s private messaging service. Her sworn statement reflects that on October 8, 2015, multiple people contacted her to report that the nude photos of her had been publicly posted on Mr. Coon’s Facebook page and she had been tagged in them. Complainant initially tried to untag herself but was unable to. She eventually deleted her account. She left Mr. Coon a telephone message asking that he delete the pictures from Facebook.
Complainant then received a call from Mr. Coon’s phone number. The caller was defendant [Rebekah VanBuren]. Defendant called complainant a pig and said she was going to tell complainant’s employer, a child-care facility, about “what kind of person work[ed] there.” Defendant said that she had left her “ex” for Mr. Coon. Complainant asked defendant to remove the pictures from Facebook, and defendant replied that she was going to “ruin” complainant and “get revenge.” After that call ended, complainant contacted the police.
The investigating officer spoke with defendant over the phone. Defendant admitted that she saw the nude pictures of complainant through Mr. Coon’s Facebook account and that she posted the pictures on Facebook through Mr. Coon’s account. Defendant stated to the officer, “you think she [complainant] learned her lesson.” …
The parties … stipulated that “complainant was not in a relationship with Mr. Coon at the time the photographs were sent to Mr. Coon.” Finally, they stipulated that defendant did not have permission to access Mr. Coon’s Facebook account, and Mr. Coon believes defendant gained access to his account through her phone, which had his Facebook password saved on it.
Now, the legal analysis:
[In our decision upholding the statute against a facial challenge,] we held that the statute survives strict scrutiny because it is narrowly tailored to serve the State’s compelling interest in regulating this form of speech, which because of its purely private nature has low constitutional significance, and which has the potential to cause severe harm to the individuals depicted in the images.
To avoid potential constitutional infirmity, we provided a narrowing construction of the statute’s provision excluding from the statute’s reach images involving nudity or sexual conduct in a setting in which the depicted person does not have a reasonable expectation of privacy. In particular, we clarified that this should also be understood to exclude from the statute’s reach “images recorded in a private setting but distributed by the person depicted to public or commercial settings or in a manner that undermines any reasonable expectation of privacy.” Although we upheld the facial validity of the statute, we concluded that the State could proceed with the prosecution only if it could show that (a) complainant had a reasonable expectation of privacy in the images, and (b) the statute is constitutional as applied….
We conclude that dismissal is appropriate because the State has not established that it has evidence showing that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon. The statutory exception for images taken in a setting where there was no reasonable expectation of privacy, or previously distributed in a manner that undermined that expectation of privacy, is fundamental to the constitutionality and purpose of this statute, and must be understood as an element of the crime. The State bears the burden of establishing that it has evidence as to each element of the offense, including this one. Because the State has stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent Mr. Coon the photo, and there is no evidence in the record showing they had any kind of relationship engendering a reasonable expectation of privacy, we conclude the State has not met its burden.
The requirement that the images at issue be subject to a reasonable expectation of privacy is central to the statute’s constitutional validity under a strict-scrutiny standard. A content-based restriction on First Amendment-protected speech like § 2606 can withstand strict scrutiny only if it is narrowly tailored to serve a compelling state interest. The compelling state interest underlying § 2606 is “to protect people[‘s] reasonable expectations of privacy in intimate images of them,” and prevent the serious harms that can result when those expectations are broken. We noted that “[w]here an individual does not have a reasonable expectation of privacy in an image, the State’s interest in protecting the individual’s privacy interest in that image is minimal.” Where the State has only a minimal interest at stake—such as where the individual depicted did not have a reasonable expectation of privacy—a prosecution under § 2606 would not be a justifiable incursion upon First Amendment-protected speech. Our conclusion that § 2606 is narrowly tailored insofar as it penalizes only the disclosure of images in which the depicted person had a reasonable expectation of privacy rested in part on our construction that the statute would apply only where the person depicted had not distributed the images in a way that would undermine their reasonable expectation of privacy….
The State has not shown it has evidence that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon…. We do not attempt to precisely define here where and when a person may have a reasonable expectation of privacy for the purposes of § 2606(d)(1), except to note that it generally connotes a reasonable expectation of privacy within a person’s most intimate spheres. Privacy here clearly does not mean the exclusion of all others, but it does mean the exclusion of everyone but a trusted other or few….
We conclude that the State has not shown, as we held it must, that the images were not distributed by the person depicted in a manner that undermined any reasonable expectation of privacy. As the State acknowledged in its briefing, “it is difficult to see how a complainant would have a reasonable expectation of privacy in pictures sent to a stranger.” But the State has not presented evidence to demonstrate that, in contrast to a stranger, Mr. Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others.
Nor has it offered evidence of any promise by Mr. Coon, or even express request by complainant, to keep the photos confidential. The State stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent the pictures. In the face of this stipulation, the facts that complainant and Mr. Coon apparently knew each other, had each other’s contact information, and had a conversation about whether Mr. Coon was sleeping with defendant, are not sufficient to support an inference that she had a reasonable expectation of privacy….
Under this analysis, by the way, it wouldn’t have been a crime for Mr. Coon to post the material himself, so long as he and the complainant were no longer in a “sufficiently intimate or confidential” relationship when complainant had sent him the material (and there was no promise to keep the material confidential). Indeed, the same would presumably apply if complainant and Mr. Coon had never been in a relationship, and the sexting was a means of flirting.
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Trial lawyers have managed to bamboozle three American juries so far into showering billions of dollars onto their suffering clients based on the scientifically bogus claim that exposure to Bayer’s glyphosate (sold as Roundup here) weedkiller gave them cancer.
These jury awards are made despite the fact that the vast majority of the scientific literature and most of the world’s regulatory agencies find that glyphosate is safe to use. That includes the National Institutes of Health (NIH) and the Joint FAO/WHO Meeting on Pesticide Residues (JMPR). And also the U.S. Environmental Protection Agency (EPA) and other regulatory agencies in Europe, Canada, Japan, Australia, and Korea have consistently reaffirmed that glyphosate does not cause cancer.
Plaintiffs’ lawyers make their case in part by citing a highly politicized International Agency for Research on Cancer (IARC)monograph and a badly flawed meta-analysis that purportedly found that exposure to glyphosate increased the risk of non-Hodgkin lymphoma (NHL) in humans by 41 percent. Interestingly, it was later revealed that one of the consultants on the IARC monograph was a paid by the Environmental Defense Fund and is now an expert witness for trial lawyers. No conflict of interest there!
The trial lawyers are the willing (and highly compensated) instruments of the longstanding activist campaign against modern biotech crops spearheaded by groups such as Environmental Defense Fund, Greenpeace, and Union of Concerned Scientists.
Battered by the bad publicity stemming from the ridiculous jury awards Bayer is now pledging to invest $5.6 billion in additional methods to combat weeds over the next decade. The company says that this R&D investment will aim at better understanding of how pesticide resistance develops, discovering new pesticides, and devising more precise application methods. Doubtless some considerable proportion of the pharmaceutical and crop science company’s annual R&D spending of $5.8 billion is already devoted to achieving those goals.
Since the activists basically oppose modern agriculture, Bayer’s pledge of additional R&D funding to find new ways to kill weeds will do nothing to mollify them. To meet its commitment, Bayer is presumably diverting funds from solving other pressing problems, such as, finding new ways to control disease carrying vermin in the tropics or developing new cancer cures. The price of this attempt at appeasement is likely more suffering in the world than there would otherwise have been.
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Burning Man is a week-long gathering dedicated to art and temporary community that happens every year the week before Labor Day on Nevada’s Black Rock Desert. The land it is held on is federally owned and managed by the Bureau of Land Management (BLM), which imposes a set of permit requirements on the event, which has a reputation for sometimes illegal revelry, and saw over 43 arrests last year, a vast majority for drugs, a lower number of arrests than the 58 the year before for an event that draws around 70,000 people.
Back in April, the BLM issued a draft Environmental Impact Statement (EIS) that contained a provision troublesome to Fourth Amendment fans: the event would be required, as a permit condition, to hire a private security firm with the power to search any citizen who wanted to enter the event—with neither warrant nor probable cause—and turn them over to the cops if contraband were found.
Today, after a legally required comment period, the final version of that EIS has been issued, in a volume one and volume two. While the BLM is no longer insisting that Burning Man organizers hire security, the agency says it reserves the power to search anyone entering the event and arrest them for what they might find. In their public reasoning, the agency conflates security concerns about weapons and the desire to punish people for trying to transport illegal drugs.
In response to Fourth Amendment concerns raised during the public comment period, the BLM writes that:
Comprehensive security plans begin with screening for banned items at the points of entry and a hardened perimeter. A systematic screening process is necessary to provide health and safety at the Event site, which is required by FLPMA, 40 CFR 1508.8, 40 CFR 1508.14, and BLM SRP Handbook 2930-1. DHS recommends designing and implementing surveillance, monitoring, and inspection plans for soft targets and crowded places to avert active shooter, chemical, improvised explosive device, and vehicle ramming attacks. Further, BLM policy instructs law enforcement to aggressively combat illegal substance use on public lands. The constitutionality of such security screening is well supported in instances where the Department of the Interior contracts security at points of entry to large, outdoor, mass gatherings.
One might think that the Environmental Quality Improvement Act, known as NEPA, under which this EIS is issued, should be concerned only with damages to the land or the environment, but the BLM is using the act to justify dominion over the “human environment,” which places human behaviors, like possibly possessing illegal drugs, under its purview. They also insist their handbook requires them to be mindful of general health and safety of people at events they permit.
Rudy Evenson, a BLM deputy chief of communications, said this morning that the entire document had been vetted by solicitors within the Department of the Interior. He did not want to speak to any specific Fourth Amendment-based arguments commenters made against the search proposal.
Evenson said that Burning Man requires special closure permits that inform potential visitors publicly that certain rules are in place. These rules make the area distinct from their homes or even their private vehicles on a public road. He offered, as an analogy, the performance venue Wolf Trap in Maryland, which is located on a National Park Service site and for which searches of customers entering events are customary.
John Wesley Hall, a practicing trial lawyer and author of the book Search and Seizure, said in a phone interview today that public gatherings such as football and baseball games often allow for searches as a security precaution, but that arrests for drugs discovered in a search undertaken with a security pretext might be challengeable in court. Hall also said the very threat of this practice on the part of the BLM might possibly create standing for a Burning Man ticket holder to sue to prevent the practice on Fourth Amendment grounds. That said, there are no certain results in Fourth Amendment jurisprudence until specific cases are before specific judges.
While no one should be sure beforehand they can predict how a Fourth Amendment challenge would play out, especially given the always ambiguous “reasonableness” at the heart of Fourth Amendment jurisprudence, one commenter on the original EIS pointed to the 2013 case Koontz v. St. Johns River Management District as a reason to believe that an existing “unconstitutional conditions” doctrine that “applies even when the government threatens to withhold a gratuitous benefit” could hobble the BLM’s search demand.
While Koontz was about just compensation for property takings involving land use permits, a smart lawyer might be able to analogize this search demand as a permit requirement that can’t blithely ignore the Fourth Amendment, since that doctrine “forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” If you wanted to use Koontz to stop the BLM’s warrantless searches, you’d have to convince a court that your enumerated Fourth Amendment right was being burdened by having the benefit of entering the event you paid many hundreds of dollars to attend withheld if you refused to consent to a screening search at its gate.
While neither ruling represents controlling federal doctrine, a commenter on the draft EIS also drew attention to cases from the Supreme Courts of Hawaii (1981’s Nakamoto v. Fasi) and Washington (1983’s Jacobsen v. Seattle) that indicate searching people entering ticketed events for general law enforcement is indeed questionable under the Fourth Amendment.
The BLM insists in the EIS that even a drug search has a security nexus, claiming—without providing detailed evidence of significant violence connected to illegal drug use—that “attempting to stem violent participant behavior without addressing illegal drug use will not have a significant impact on participant or law enforcement safety.”
The BLM does say in response to a comment in the EIS that reserving the right to screen all attendees “does not necessarily mean searching every individual or vehicle passing through a point of entry. The BLM is cognizant of protecting all citizens’ constitutional rights.” However, searching any vehicle without probable cause for an excuse to arrest ought to implicate the Fourth Amendment.
The BLM’s Evenson says in an email that “generally speaking, most changes noted in the FEIS will be phased in starting with the 2020 event.”
“We will be taking the next few days to fully analyze and understand [the EIS’s] contents. Our priority at the moment is the 2019 event, and we are deeply engaged in planning and production,” the Burning Man organization wrote via email this morning. “We expect BLM’s Record of Decision, due to be published in mid-July, to include no major changes for 2019.”
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Less than a year after being sentenced to prison for 40 years under a mandatory minimum sentence that the judge declared “excessive” and “wrong,” Frederick Turner, 38, was found dead in his cell at a high-security federal lockup in Colorado on Wednesday, according to a criminal justice advocacy group.
FAMM, an organization that works to repeal mandatory minimum sentences, announced Turner’s death yesterday and said his family had been working to get Turner, who had no prior criminal convictions, transferred to a different prison for his safety.
“The thing that’s so frustrating is this was entirely foreseeable,” says FAMM president Kevin Ring. “You were sending this gentle, nonviolent offender into a hell hole run by gangs.”
Ring says that Turner was sent to the U.S. penitentiary in Florence, Colorado. The prison has a reputation for violence, and Turner feared for his life after he refused to join a white supremacist gang.
The circumstances of Turner’s death are not yet known. The Bureau of Prisons did not immediately respond to a request for comment, but its online inmate locator confirms he died on Thursday.
Last July, U.S. District Judge T.S. Ellis III sentenced Turner to 40 years in federal prison after Turner was convicted of dealing methamphetamines for another man, Bassam Ramadan, as part of a larger drug trafficking prosecution in Northern Virginia.
According to his defense attorney and family, Turner struggled with addiction and depression, and he relapsed after the death of his close nephew in 2016. Around that time, Ramadan recruited Turner to sell meth after meeting him on the dating app Grindr.
Turner received a 10-year sentence for the drug crimes and an additional 30 years for gun crimes—five years for the first gun charge, and 25 years for the second gun charge. The “stacking” of gun charges in this way is one of the crueler features of federal sentencing law. (See also: the case of Weldon Angelos, who was sentenced to 55 years in federal prison under stacking firearm enhancements for selling marijuana to an undercover officer while possessing a gun.) And in Turner’s case, as in so many others, the gun penalty was based on offenses that would have not been considered criminal had Turner not also been selling meth.
According to prosecutors, Turner visited Ramadan’s house, where he knew there was a firearm, and on one occasion he retrieved a gun from Ramadan’s car that Ramadan later sold, along with meth, to an undercover officer.
The prosecutors could have chosen not to charge Turner with the firearm enhancements, as Ellis noted, but like many federal defendants who turn down plea deals, he was hammered with what criminal justice advocates and defense attorneys call the “trial penalty.” According to the Washington Post, all of the other defendants pleaded guilty and testified against Turner. All of them, including some linked to deadly shootings, received lower sentences. Ramadan, for example, was sentenced to 16 years in prison.
“I think that’s excessive,” Judge T.S. Ellis III said after imposing Turner’s sentence, The Washington Post reported. “The only thing I can do is express my displeasure. . . . I chafe a bit at that, but I follow the law.”
Ring says FAMM became aware of Turner’s case after his sentencing, and the question ever since has been why he was sent to a high-security prison with a reputation for violence.
“That’s what we want to know because nobody who looked at his case and his personal profile would have sent him to a place like that because he’s never exhibited any violence,” Ring says. “He was scared for his life right from the get-go, and the prison knew that.”
Several months after Turner was sentenced, Congress passed the FIRST STEP Act, which reduced the mandatory minimum sentences for Turner’s crime. He would have only received a 20-year sentence instead. However, Congress did not make those provisions retroactive, meaning Turner could not benefit from them.
A Pew Research Center report released this week found that in 2018, only 2 percent of federal criminal cases went to trial. Massive mandatory minimum sentences give prosecutors so much leverage over defendants that turning down a plea deal and exercising one’s constitutional right to trial becomes an irrationally risky choice.
Last month at a FAMM conference, Turner’s sister, Mandy Richards, gave an emotional speech about Turner’s case. “In that prison you either join a gang or you fear for your life,” she said. “This is a brother who has never hurt a soul besides himself.”
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Four tankers off the Emirati coast were damaged last month by what investigators concluded were explosives attached to the ships’ hulls. The Trump administration immediately pointed to Iran or Iranian-directed proxies as the perpetrators of the attacks. Yesterday, two more ships were attacked near the Strait of Hormuz. And for the second time, Trump administration officials blamed Tehran for the incident, citing a grainy, black-and-white video of an Iranian vessel purportedly approaching one of the ships to remove an unexploded mine hours after the attack happened.
While the circumstances remain murky, we should not be surprised if investigators prove that Iran’s Islamic Revolutionary Guard Corps conducted or ordered these strikes. Why? Because U.S. economic sanctions against Iran are crushing an already cash-poor economy, and retaliation was inevitable. If the Trump administration continues its policy toward Iran, we could very well find ourselves in a war nobody wants.
To a wide cross-section of the Washington foreign policy establishment, Iran is the source of all mischief in the Middle East. Iran sponsors terrorism, leverages proxies around the region to keep its opponents on the defensive, threatens to use crude oil as a weapon, and continues to develop the region’s largest ballistic missile arsenal. Foreign policy pundits frequently talk about Iran as if it’s building another Persian Empire, or is just a whisker away from becoming a regional hegemon.
While those are impossible ambitions considering Iran’s limited economic, political, and military power, the Trump administration’s “maximum pressure policy” is rooted in these beliefs. In an attempt to force a significant change in Iran’s behavior, the White House has wielded the stick almost exclusively through an increasingly complicated sanctions architecture, an increase in military assets to the Persian Gulf, and threats of military action. If President Trump does call for dialogue with Iran, it’s prefaced on the Iranian government capitulating to every American demand.
The problem with this approach, however, is that Iran was never going to throw up the white flag. No Iranian leader worth his salt would even consider surrendering to a country hellbent on toppling the Islamic Republic. From the Iranian perspective, the U.S. is not to be trusted in any way, shape, or form; indeed, to do so would be reckless and irresponsible.
Any realist could have predicted how Iran’s government in Tehran would respond to Washington’s sanctions campaign. Throughout its 40-year history, the Islamic Republic has known mostly war and rivalry with stronger and wealthier adversaries; these experiences have given the country’s leaders a virtually unlimited supply of paranoia. Add to that picture Washington’s withdrawal from the Iranian nuclear deal, and it’s no wonder Tehran has concluded that cooperation invites more aggression.
Instead of coming back to the negotiating table in a weakened position, as Washington assumed, Iran is lashing out and sending a message to the United States—if you continue the economic and military pressure, expect more incidents like what happened this week in the waters of the Persian Gulf.
The question now is what the administration should do. Trump has dug into a hole he must find a way to get out of. He can continue digging, piling on even more sanctions in the hope that Iran’s current regime will collapse or give up. Or, he can put down the shovel and offer Iran a diplomatic exit-ramp before the situation gets irreparably worse.
President Trump claims he doesn’t want a war with Iran, but rather a negotiation. This is a welcoming and promising goal. But if the president actually wishes to put this goal into practice, he needs to ignore his more hawkish national security advisers.
It’s time to stop the war games and start talking. War with Iran would make Washington’s years-long war in Iraq look like a walk in the park.
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