Tag: hit&run

California can keep all its sanctuary cities and limit local both law enforcement cooperation and private employer cooperation with immigration officials, ruled a panel of federal circuit judges.

The Department of Justice has been challenging three immigration-focused laws passed by California in 2017. One (SB 54) essentially turned the entire state into an immigration “sanctuary,” significantly restricting the ability of law enforcement officers within the state from assisting the Department of Homeland Security in tracking down or detaining illegal immigrants unless they have been convicted of certain crimes. The second (AB 450) prohibits private businesses from voluntarily allowing federal immigration officials to enter non-public areas of their companies, as well as preventing them from accessing their records unless the feds have warrants. The third (AB 103) imposes inspection requirements on federal immigration detention facilities within California.

The Department of Justice argued that all of these laws are pre-empted by federal government immigration law and inappropriately attempted to impose burdens on the feds. Not so for two of those laws, said three judges with the U.S. District Court for the Eastern District of California. It’s federalism!

The judges’ reasoning for rejecting the feds should be familiar to anybody who paid attention to the conflicts as states started legalizing marijuana for medical use. It’s true that the federal government has the authority to round up people in the country illegally or anybody who has committed crimes that allow for deportation. But the federal government lacks the authority to demand state-level assistance in enforcing federal immigration guidelines, much like the federal government cannot force state or local police to arrest people for violating federal drug laws.

“SB 54 may well frustrate the federal government’s immigration enforcement efforts,” the panel ruled. “However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anti-commandeering rule, to refrain from assisting with federal efforts.”

For AB 450, the Justice Department argued that the bill intruded on the relationship between the feds and employers and attempted to impose requirements on federal inspections that weren’t authorized by Congress. Here the judges said that, actually, the imposition is on the relationship between employers and employees. It controls what employers must and must not do, not what the feds can do. The feds can certainly ask an employer to let them inspect a facility without a warrant. But it’s the employer that will get punished if he or she cooperates.

That may sound like a weird dodge, but it does raise the question of what would happen if a business owner challenged the law. By what authority does the state of California tell private citizens when they can cooperate with immigration officials? That’s significantly different from telling government employees when they can work with the feds.

The judges did determine that AB 103 does, unlike AB 450, burden the federal government with demands that are out of the scope of California’s authority in part and that a lower court erred when it concluded this burden was not significant.

So in the end, the court rejected the Department of Justice’s attempts to stop the first two laws from being implemented and sent the third one back down to a lower court for a second look. It’s another loss for the Trump administration, whose legal efforts against sanctuary city practices have been largely unsuccessful.

Read the ruling here.

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It’s hard to be pessimistic about marijuana legalization these days. Recreational cannabis is legal in 10 states and decriminalized in another 14. Virtually all presidential candidates, including Trump, favor letting states decide the legal status of marijuana. Polls show a majority of Republicans even support legalization. And six proposals to move marijuana laws in a more or less libertarian direction are now making their way through Congress. 

What do these policy proposals look like? How are states navigating the conflicts between state and federal law? And are there any obstacles left on the path to nationwide legalization? 

Reason’s Todd Krainin sat down with Erik Altieri, the executive director of NORML, the National Organization for the Reform of Marijuana Laws, to talk about the building momentum toward nationwide legal pot.

Music—”Reggae Life” by Goymamba.

Produced, hosted, and edited by Todd Krainin. Cameras by Austin Bragg and Meredith Bragg.

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Broward County sheriff’s deputies were called to a popular teen meet-up area, a McDonald’s parking lot, Thursday afternoon. The police were there ostensibly to breakup a fight, not start one.

But according to video footage of the encounter, sheriff’s deputies pepper-sprayed at least one black teenager, tackled him, punched him in the head repeatedly, grabbed him by the back of the neck, and slammed his face into the pavement. The Sun Sentinel reported that the victim was a 14-year-old student at J.P. Taravella High School.

Okay c’mon #BlackTwitter , this needs to be seen period! These are MINORS, they going to school to get literally beat up by the police? Oh nah ????????‍♀️ #BlackTwitter Tag the right people so this could be seen cause this is truly SICK. I am disgusted. pic.twitter.com/dwVORGg74m

— Lea ????????‍♀️. (@LeProsperity) April 18, 2019

The victim left the scene in an ambulance, blood covering his face.

The Broward Sheriff’s Office is “investigating the incident to determine exactly what happened, how it started, how it escalated and they’re looking at the outcome of it,” a police spokesperson told The Miami New Times. But bashing a person’s head against hard concrete is never appropriate, regardless of which party escalated the encounter. The officers involved could have killed this young man, and they should face serious consequences.

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Just in time for 4/20, a CBS News poll shows that Americans increasingly support legalizing marijuana.

The April 9-14 poll of 1,010 adults, 65 percent of whom said they support legalization, is roughly in line with the results of similar surveys. It’s yet another sign that more and more Americans are tired of pot prohibition.

When CBS commissioned a similar poll in 1979, just 27 percent of respondents wanted legalization. That number rose to 45 percent in 2013, 59 percent in April 2018, and 65 percent, a record high, in the most recent polling.

Again, this latest number isn’t terribly surprising. An October 2018 Gallup poll showed that 66 percent of Americans supported legalization, up an astounding 44 percentage points from 12 percent in 1969. Moreover, 62 percent of respondents told the Pew Research Center they supported legalization in a survey released in October. The results of the University of Chicago’s General Social Survey, released last month, differed slightly, but not by much. A record-high 61 percent of Americans supported legalizing weed in that poll, up from just 16 percent in 1990. And Quinnipiac University’s national survey, the results of which were also published last month, showed 60 percent of Americans support legalization.

So which demographics favor legalization in CBS’s latest survey? Well, 72 percent of adults between the ages of 18 and 34 think weed should be legal, as well as 49 percent of adults ages 65 and over. This phenomenon was also seen in the Quinnipiac survey, where 85 percent of the former age group supported legalization, but just 44 percent of the latter demographic.

“The baby boomers say no to the drug that helped define an era, while the millennials say bring it on,” Tim Malloy, assistant director of the Quinnipiac University Poll, said at the time. “In between are enough voters to rubber stamp legalizing marijuana for recreation as well as medical reasons.” Sixty-three percent of voters between the ages of 35 and 49 supported legalization in the Quinnipiac survey, as well as 59 percent of respondents between the ages of 50 and 64. CBS News did not provide information on those demographics.

Legalization is relatively popular no matter your partisan persuasion, the CBS poll shows. Fifty-six percent of Republican respondents support legalization, as do 66 percent of independent voters and 72 percent of Democrats.

Overall, just 42 percent of respondents said a presidential candidate’s potential support for legalized marijuana would affect whether or not they vote for him or her. Twenty one percent—including 10 percent of Republicans and 25 percent of Democrats—said they’d be more likely to vote for that candidate. Another 21 percent—including 34 percent of Republicans and 12 percent of Democrats—said they’d be less likely to cast their ballot for that candidate.

(It’s worth noting, as Reason‘s Jacob Sullum and Nick Gillespie did on a recent podcast, that most of the 2020 presidential candidates, including Donald Trump, think legalization should be left up to individual states.)

Nearly two-thirds of Americans—66 percent—agree that marijuana is less dangerous than most other drugs. Twenty-seven percent believe it’s equally dangerous, and 5 percent think it’s more dangerous. For whatever it’s worth, it’s virtually impossible to die from a pot overdose: You’d need to consume 1,500 pounds of the stuff within 15 minutes to overdose, according to David Schmader, author of Weed: The User’s Guide, as I’ve previously explained.

Americans’ increasing acceptance of weed is reflected in changing laws around the country. Thirty-two states, as well as the District of Colombia, have legalized weed consumption in at least some cases. In 10 of those states, plus D.C., it’s legal for recreational use. States like New York and New Jersey are dragging their feet on legalization for recreational use, but they’re likely to get there sooner rather than later.

The next step, as Reason‘s Zuri Davis has pointed out, is for states that have legalized weed to address past marijuana convictions and bring the criminal justice system fully up to speed.

Bonus links: Saturday, coincidentally, happens to be 4/20, and Reason has got you covered with a wide array of Weed Week stories. (You should particularly check out my personal favorite, in which Liz Wolfe got high and did her taxes.)

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An independent analysis of President Donald Trump’s ballyhooed rewrite of the North American Free Trade Agreement (NAFTA) projects that the new three-way trade deal would provide a boost to the U.S. economy but would result in the outsourcing of more automaking jobs.

Overall, though, the United States-Mexico-Canada Agreement (USMCA) is a modest, mild set of reforms—Trump has called NAFTA “one of the worst deals ever” but his proposed replacement is basically NAFTA 2.0, according to the estimates provided by the International Trade Commission (ITC) in a report released Thursday. The new report is unlikely to ease the USMCA’s passage through Congress, where factions on both sides of the aisle remain skeptical about the merits of replacing the 26-year-old NAFTA.

The ITC report projects the USMCA would hike U.S. gross domestic product by $68.2 billion (0.35 percent) and U.S. employment by 176,000 jobs (0.12 percent). The U.S. would see gains in both imports and exports if the deal is ratified, the ITC estimates.

“Since NAFTA removed almost all tariff barriers, the gains from USMCA are modest and largely come from reductions in the remaining non-tariff barriers,” writes Inu Manak a trade policy scholar for the libertarian Cato Institute.

Perhaps the most politically important part of the report focuses on how the new trade deal would affect automakers. The Trump administration pushed for the inclusion of stricter rules that make it more difficult for cars and car parts to cross national borders duty-free—something the administration believes would reverse the trend of automaking jobs moving to Mexico under NAFTA. Under the proposed new rules, 75 percent of the component parts of vehicles would have to be produced in North America, and 40 percent would have to be built by workers earning at least $16 an hour—effectively putting a minimum wage on Mexican manufacturing plants.

Instead of complying with the new regulations to trade duty-free, it’s likely that carmakers would simply pay the higher tariffs and pass those costs along to consumers. As a result, the ITC report says, consumer prices on cars in the U.S. would increase, resulting in an estimated 140,000 fewer vehicles sold. Auto manufacturing jobs would decline by about 1,500.

Matt Blunt, president of the American Automotive Policy Council, a trade group, called the ITC analysis “flawed” in a statement issued Thursday.

“The report underestimates the longer-term investments and increased U.S. auto parts sourcing that will be made in our sector as a result of the certainty and predictability the USMCA will deliver,” he said.

Previously, interest groups representing automakers and dealers had been skeptical about the NAFTA rewrite. Throwing support behind Trump’s USMCA may be a political calculation—essentially, a bet that getting the USMCA through Congress is the best way to get the president to back away from his threats to tear-up NAFTA without a replacement, an outcome that would be disastrous for automakers and the rest of the U.S. economy.

There’s something to be said for that promise of trade stability. Canada and Mexico are the two largest export markets for the United States, not to mention the second- and third-largest import markets.

It will now be up to Congress to weigh the modest gains and losses promised by the USMCA against the danger of not giving the president the win he seeks on trade. It’s now clear that the NAFTA replacement won’t dramatically alter the economic future of any of the three nations involved, but that doesn’t mean Congress will shrug its shoulders and simply pass it.

“Donald Trump’s NAFTA represents at best a minor update to NAFTA, which will offer only limited benefits to U.S. workers,” said Sen. Ron Wyden (D–Ore.), the ranking Democrat on the Senate Finance Committee, which handles trade issues, in a statement. “The administration shouldn’t squander the opportunity to lock in real, enforceable labor standards in Mexico.” Democrats appear poised to oppose the USMCA on the grounds that it does not do enough to prevent moving jobs to Mexico—Speaker of the House Nancy Pelosi (D–Calif.) has said she will not hold a vote on the new trade deal until Mexico makes changes to its own labor policies.

But the deal is already too protectionist for other members of Congress, including a faction of Senate Republicans who oppose the new rules of origin for cars. In a statement released Thursday, Senate Finance Committee chairman Chuck Grassley (R–Iowa) was noncommittal about the USMCA. “I’m glad to see the report recognized USMCA’s new economic benefits,” Grassley said, promising a “thorough and thoughtful review” of the trade deal and ITC analysis.

The report, says Manak, “is unlikely to sway anyone in Congress from changing their already strongly held opinions on the agreement.”

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With the rise of legal recreational marijuana across the country and an unwinding of the drug war on the horizon, more and more people are thinking about how best to shape America’s post-prohibition drug culture. What sorts of institutions, attitudes, and practices will help us figure out which chemicals we want to ingest to make ourselves happier, more productive, and more fulfilled? How do we best educate ourselves about the risks and rewards of better living through chemistry when everything from acid to Zoloft is legally in our home medicine cabinets?

Today’s guest is working to stage that conversation. Sarah Rose Siskind, who was the head writer on the Reason TV series Mostly Weekly, hosts a monthly show called Drug Test at New York’s Caveat theater. Each episode features a different drug—magic mushrooms, most recently—and scientists, researchers, and counselors discussing a particular substance’s chemistry, history, and associated rituals. There’s also footage of a “VIP” or “very intoxicated person” who performs a variety of mental and physical tests before and after ingesting the drug in question. The result is a frank, smart, and fun discussion of how we might all navigate the world after the drug war.

Audio production by Ian Keyser.

Links related to today’s podcast:

Drug Test with Sarah Rose Siskind on Facebook

Caveat NYC

MAPS: Multidisciplinary Association for Psychedelic Studies

How to Change Your Mind: What the New Science of Psychedelics Teaches Us About Consciousness, Dying, Addiction, Depression, and Transcendence, by Michael Pollan

Trip: Psychedelics, Alienation, and Change, by Tao Lin

Hamilton’s Pharmacopeia, on Viceland

 

 

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Hello, reader. If you or someone you know is currently too high, Maureen Dowd-style, then you’ve come to the right article. 

First, the good news: You’re probably fine. At some point in the very near future, your heart rate will return to normal, your anxiety will subside, the spins will stop, the lethargy will lift, your nausea will dissipate, and your mind will clear. It may take several hours—perhaps a whole day or night if you’ve consumed edibles—but all will once again be how it was.

Now, let’s talk about what you can do to make this experience less awful, and how you can avoid having it again.

If your heart is beating out of your chest and you feel kind of crazy, know that it’s more likely to be anxiety than a heart attack.

“Every E.R. chart I saw sounded the same,” says Larry Bedard, a retired emergency medicine physician at Marin General Hospital in California and the former president of the American College of Emergency Physicians. “Dad had finally agreed to share a joint with his son. Fifteen minutes later he’d say, ‘My chest feels tight, I feel lightheaded, maybe I’m having a heart attack, call 911.'”

If that sounds like you or a person you’re worried about, Bedard says this is most likely an anxiety response. 

Why does it feel like a heart problem? Because while marijuana may slow motor function and a person’s sense of time, the drug also increases heart rate. Not by a dangerous amount in an otherwise heart-healthy person, but it is noticeable and can be scary.

Taking your complaint to an E.R. is an expensive way to learn that there’s not much you can do but wait it out. Of all the cannabis intoxication patients Bedard can remember seeing in his time at Marin, “not a single patient needed to be hospitalized.”

If you do show up at an emergency room and report that you consumed too much marijuana, there’s not much doctors can do. “Reassurance and observation,” Bedard says. “Someone with vomiting may need an IV due to fluid loss, but not more than that.” Maybe they’ll give you some benzodiazepines to help you relax, but they can’t magically (or medically!) un-high you.  

Peter Grinspoon, a primary care doctor at Massachusetts General Hospital and a faculty member at Harvard Medical School, says going to the emergency room can actually worsen cannabis-induced anxiety.

“The ER is busy and stressful. It’s not a great place for dealing with anxiety effects of marijuana,” Grinspoon says. “If you’re having anxiety, the best thing to do is remind yourself that it’s not going to kill you, then find a quiet place, hold the hand of a close friend, and listen to some calming music.”

(Grinspoon was quick to point out that “if someone takes a huge dose of an edible and they’re a cardiac patient, then yes, they might need medical care.”)

If you want to save several thousand dollars and an inquiry into your cannabis use, put on Buena Vista Social Club’s 1997 self-titled album. Enya and Frank Ocean are good, too. Then, find a position that lessens your discomfort and remind yourself that the THC will eventually leave your system. (I like to lie down in a dark room and put my forearm over my eyes, or walk around in fresh air. I also find regular ‘ole tap water, sipped slowly, can help settle my stomach.)

If you’re nauseated or vomiting, try a hot (not scalding) bath.

Over time, chronic cannabis users can develop something called “cannabis hyperemesis syndrome,” the symptoms of which are abdominal pain, nausea, and vomiting (that’s what “emesis” means). 

Research suggests you can curb your nausea at home by taking a hot bath. More recent studies have found that applying capsaicin cream to a person’s abdomen—capsaicin being the compound that makes peppers spicy—can also relieve the symptoms of hyperemesis. These topical creams are marketed as arthritis treatments, and you can find them at your local drugstore.

Medical researchers don’t know what causes hyperemesis in regular cannabis users, or why capsaicin and hot water seem to work as well as they do. Bedard warns against running the bath water too hot, as being high may impair your ability to gauge scalding water.

The only real “cure” for this syndrome is to take a break from cannabis altogether.

How does one avoid a scary cannabis experience? Know what you’re taking, start low, go slow, and consider vaping or smoking if it’s your first time.

1.) Know what you’re taking. While it’s tough to predict how you’ll respond to various cannabis strains, you want to make sure that you are, in fact, taking cannabis or something made from cannabis, and that you’re not taking K2 or Spice, or any other synthetic cannabis formulation. These “fake weed” products, commonly marketed as things other than fake weed, can cause both psychosis and kidney damage. While they often don’t show up on drug tests and are thus popular with people in the military or on supervised release, the health risks are simply not worth the buzz.

If you live in a state where recreational cannabis is legal, buy from a dispensary or other state-legal retailer. If you live in a state where weed remains illegal, get a referral from a friend. If you know someone who grows weed, that’s probably legit stuff as well.

Your weed doesn’t need to be top-shelf for you to have a good time, but it does need to be real weed. As with milk products, when in doubt, throw it out.

2.) Start with a low dose. “If you’re going to make a mistake on the dose, make the mistake of not taking enough and being bored, versus the mistake of taking too much and being terrified for 10 hours,” Grinspoon says. “A type 1 error is not a big deal. A type 2 error makes you anxious and miserable.”

For new users, that means taking a single, small pull from a hand pipe or joint, and then waiting to take another hit until you know how that first dose will affect you. If you’re going to vape, ask whoever provided the device to put it on the lowest heat setting, which will provide the mildest dose. 

It won’t take long to figure out if you want more. “The quickest way to get a drug into your system, other than intravenously, is by inhalation,” Bedard says. “The effect comes on in 15 minutes or so.” Sometimes it’s faster than that, sometimes a tad bit longer. The point is that a relatively short amount of time elapses between when you smoke or vape and when you know how the drug is going to affect you. Grinspoon notes that you can take more once you’ve assessed how you feel, but you can’t dial the high down if you take too much. 

If your first encounter with cannabis looks like it’s going to be through a bong, ask whoever’s hosting you to fill the chamber for you. Bongs can essentially be “loaded” with smoke and then shared. Once the bong has been loaded, take a very small pull and make sure you leave most of the smoke (which you’ll be able to see) in the chamber.

This might feel a little embarrassing, but it’s better than accidentally ripping off a huge hit, which can cause even a seasoned smoker to hate life. 

3.) If it’s your first time trying cannabis—ever in your life, or in many years—be very, very careful with edibles. This might seem counterintuitive. Smoke is bad, vapor could be bad, eating things is generally OK. Doesn’t that mean edibles are the healthier choice? Not really. Smoking a little cannabis will not majorly hurt your lungs, while it is very difficult to consume just the right amount of an edible.

“I caution my patients who use medical marijuana to be careful with edibles,” Grinspoon says. “With a vaporizer, you have a sense of your dose’s impact after 15 minutes. If you need more, you can take more. But if you take too many edibles, you won’t know for more than an hour, and then you can be in a really unpleasant place for as long as 10 hours.”

Even well-labeled products for sale at dispensaries in states where marijuana is legal can cause problems. “Edibles work faster on an empty stomach, often much slower on a full stomach,” Grinspoon says. “Absorption is different with different people, based on metabolism and body weight. Edible packaging is not reliable because it’s not an exact science.” And because THC is fat soluble, you’ll get a different level of effect at a different time depending on the fat content of the edible product and the food you eat before or after.

If edibles are your only option, and you’re feeling brave, there are some guidelines you can use to maximize your chance of having a nice experience. If you are a large person, take no more than half of the serving listed on the label, and then wait at least two hours to see how you feel. If you are a smaller person, consider taking a third or even a fourth of a serving. Heck, even a large person will feel something after a third of a serving. While homemade edibles are trickier, the half-or-less serving rule will generally keep you from going overboard.

With all edibles, it’s important to wait a couple of hours before taking a second dose. THC consumed in food not only takes a while to kick in, it often lasts longer, too. If you eat half a serving at noon, become impatient and take another half at 1 p.m., and then become convinced that you are impervious to THC and take another full serving at 1:30 p.m., you will spend several hours—at least!—feeling the effects of two full servings. It will not be fun.

If you’re a seasoned smoker, don’t kid yourself into thinking you have the tolerance for edibles. “If someone is used to getting high pretty quickly from smoking, and then eats a large serving of an edible, they’ve likely got more THC in their system than they’ve ever had before,” Bedard says.

Most importantly, remember this: “Start low, go slow, and don’t overdo it,” Grinspoon says. “I just tell people to trust me on this. I’m a doctor, and I’m not anti-cannabis.”

And if you’re unpleasantly high right now, please know that we feel for you.

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Not something you hear often. First, the legal backstory, from Chief Judge Frances M Tydingco-Gatewood (D. Guam) in Davis v. Guam:

This is a civil rights action that deals with the topic of self-determination of the political status of the island and who should have the right to vote on a referendum concerning such. Plaintiff—a white, non-Chamorro, male and resident of Guam—was prohibited from registering to vote on the referendum. This court determined the prohibition was a violation of the Fifteenth Amendment’s prohibition of racial discrimination in voting and the Fourteenth Amendment’s Equal Protection Clause. Because there was a clear violation of the Fifteenth and Fourteenth Amendments, the court found it unnecessary to address the statutory arguments presented by Plaintiff.

After plaintiff’s substantive win (which is on appeal), plaintiff sought attorney fees under statutes that authorize such fee awards to prevailing voting rights plaintiffs and to prevailing § 1983 civil rights plaintiffs more broadly; here was the judge’s summary:

This case has not been an easy one for counsel to represent. Due to the highly political nature of the case, it was almost impossible for Plaintiff to find local counsel. This was demonstrated by Plaintiff when he and Adams contacted a total of 37 attorneys, all of whom declined representation for various reasons—some defended the plebiscite; others feared for their safety and property if they took on the case; and many were afraid that public officials and judges would view them less favorable if they were associated in preventing the plebiscite. This court itself witnessed firsthand the emotions running high in its courtroom and outside of the courthouse as members of the public demonstrated their constitutionally protected right to protest. For local counsel Mun Su Park to take on the case when no one else would is commendable.

With a few exceptions as noted above, the court finds that the requested fees are reasonable and certainly, there is no “padding” of billable hours by counsel. Counsel themselves did not bill for all the work performed in this case. For example, J. Christian Adams of the Election Law Center did not bill for at least 73 hours of work. In addition, Adams billed in real time, instead of billing by every tenth or fifteenth of the hour, which is rare for this court to see. Michael E. Rosman and his team from the Center for Individual Rights did not bill for approximately 210 hours. Douglas R. Cox and his team from the law firm of Gibson, Dunn and Crutcher billed for only $ 215,489.75, a more than 50% discount from the full billable amount of $ 468,368.23. Park himself billed for a little over two weeks’ worth of work for a case that lasted for over five years. Reasonable billing judgments were exercised by all of Plaintiff’s counsel. The court also notes that counsel could have asked for a lodestar upward adjustment but declined to do so.

In sum, in this sensitive and highly political-in-nature case, Plaintiff’s billing judgment—both for attorneys’ fees and costs—demonstrates an extra ordinary dedication to containment of cost and renews this court’s faith in conscientious billing practices.

Disclosure: I’ve known Michael Rosman for about 20 years, and I’m an occasional advisor to the Center for Individual Rights.

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[You might also read my earlier posts on the subject,

• Anti-Libel Injunctions and the Criminal Libel Connection
• The First Amendment and Criminal Libel Law
• The First Amendment and the Catchall Permanent Injunction
• The First Amendment and the Specific Preliminary Injunction
• How Specific Anti-Libel Injunctions Underprotect Speech
• The First Amendment and the Hybrid Permanent Injunction
• Restricting Injunctions to Libels on Matters of Private Concern?

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

So far, I’ve said virtually nothing about speaker mens rea, though that’s normally quite important in libel damages actions (and in criminal libel prosecutions). This is because the Court’s mens rea decisions aimed to solve a problem that is largely absent in hybrid injunction cases: the “chilling” of speakers caused by the risk of liability where the facts are uncertain.

Say that I’m contemplating writing about Bob Builder, because I think he has cut corners in making his building earthquake-safe. I think this is true, but I can’t be completely certain, and, even if I’m certain of the facts, I can’t be certain that the jury will agree. I may therefore be deterred from making my allegations, because I’m afraid of a massive damages verdict or even of a criminal verdict in those states that have criminal libel statutes. Mens rea requirements (sometimes actual malice, sometimes negligence) are meant to diminish this chilling effect of civil and criminal liability.

But hybrid anti-libel injunctions don’t create this hazard. First, I’m unlikely to be deterred from speaking up front by the mere risk that my speech will lead to an injunction; the injunction itself won’t send me to jail or cost me money. To be sure, few people are enthusiastic about being enjoined, and fighting an injunction does cost money. But that prospect is not as likely to be chilling as the prospect of jail or ruinous damages.

Second, once the court finds that my allegations were false and defamatory, and issues the injunction, I will indeed face jail or fines if I keep making the allegations. But at that point, the court will already have found that the statements were false. I would know they were false, or at least very likely false. The injunction itself would thus come pretty close to assuring that that I have “actual malice” (in the sense of knowledge or recklessness as to falsehood). More importantly, the injunction will only chill statements that have indeed been found to be false.[1]

Indeed, recall that liability based on “actual malice” is tolerated even though it has some chilling effect on true speech (since a speaker might fear that the jury will misjudge both the truth of the statement and the speaker’s mental state).[2] The much smaller potential chilling effect on true speech from injunctions should be tolerable too.

It might thus be constitutional to allow specific anti-libel injunctions based on a finding of falsehood, even without a showing of culpable mental state—just as some have suggested that a declaratory judgment should be allowable in such cases. And the principles of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. shouldn’t necessarily require a showing of mens rea as to falsehood in any contempt proceeding for violating the injunction.

But a showing of a culpable mental state might in any event be required by criminal contempt law principles, at least if I’m right that (as Part V.A argues) any anti-libel injunction must by its terms ban only libelous statements. To be guilty of criminal contempt for violating a court order, the defendant generally has to have acted “with knowledge that the act was in violation of the court order, as distinguished from an accidental, inadvertent or negligent violation of an order.” If the injunction expressly bars only libelous statements, which is to say only false, defamatory, and unprivileged statements, then a defendant shouldn’t be criminally punished for violating the injunction unless he knows the statements were false.

And that showing should usually be easy to make, given that the injunction places the speaker on notice that the judge or jury has found the speech to be false. In principle, the speaker might be able to evade punishment by persuading the criminal contempt jury that he was sincerely certain the statement was true, even despite that earlier finding. But in practice that is a claim that many juries will be unlikely to believe.

 

[1] It’s possible, of course, that, despite the court’s finding that the statement was false, I would still lack knowledge or recklessness as to the falsehood—whether because I delusionally believe that the statement is true (or almost certainly true) even though the court rightly found that it was false, or because I know that it’s true, perhaps from personal experience, and that the court erred. But from the perspective of the legal system, and its desire to minimize the chilling effect on true statements while still imposing liability on false statements, it should be adequate to treat the judicial finding of falsehood as a substitute for a finding of actual malice.

[2] This continuing chilling effect is one reason why Justices Black, Douglas, and Goldberg would have imposed a rule of absolute immunity in public concern libel cases. See New York Times Co. v. Sullivan, 376 U.S. 254, 293, 295 (1964) (Black, J., concurring in the judgment); id. at 300 (Goldberg, J., concurring in the judgment). But the majority was willing to tolerate this danger.

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Is allowing for the construction of more housing near transit stops racist? Most people would say no. Not the Los Angeles-based AIDS Healthcare Foundation (AHF), however.

Rather the organization—founded in the 1980s to prevent the spread of HIV and AIDS—had decided to dip their toe into the housing policy debate in California, arguing in a recent mailer that allowing for more housing construction would be tantamount to the racist urban renewal programs of the mid-century.

“Urban renewal means negro removal,” reads a mailer from the AHF, which also features an image of James Baldwin— a 1960s-era civil rights advocate and novelist. TV ads blaring the same message also aired this week.

pic.twitter.com/EXNQKK6bVg

— Kyle Huey (@khuey_) April 17, 2019

The target of the mailer is SB 50, a bill that override local zoning restrictions near transit stops and in wealthy neighborhoods, allowing for taller, denser apartment buildings to be built where now only single-family homes are allowed.

Doing so, say advocates, will boost the supply of housing, helping to make the Golden State’s incredibly pricey cities a little more affordable and, by extension, a little more inclusive.

Not so says the AHF, which argues that deregulating housing construction along the lines of SB 50 will benefit the rich at the expense of poorer, minority communities.

“SB 50 is a handout to greedy developers,” reads the AHF mailer, which goes on to say that the bill would these developers “free rein to displace working class communities of color.”

The argument that loosening California’s restrictions on new housing construction will result in gentrification of minority neighborhoods as “luxury condos” replace older, more affordable housing stock, is hardly unique to AHF.

Indeed, this criticism has dogged most any attempt to peel back zoning restrictions legislatively, and is often employed to stop individual projects working their way through local planning processes as well.

AHF’s mailer is unique, however, both in how bluntly it makes this case against SB 50, and in how many untruths it spreads about the bill.

For example, the AHF’s mailer says that “SB 50 bans cities from rejecting big residential luxury developments containing only a small number of affordable units.”

This is a reference to many cities’ “inclusionary zoning” policies which require that private developers designate a certain percentage of new units in a projects as “affordable”—meaning they are rented out at below market rates to people earning less than an area’s median income.

Regardless of the wisdom of these inclusionary zoning requirements (which some research suggests reduces the supply of new housing), this claim is simply untrue.

SB 50 requires that any housing project that benefits from its upzoning provisions, and is larger than 20 units, include somewhere between 15 to 25 percent affordable units. And contrary to AHF’s claims, the law includes an explicit provision saying that local governments could impose higher affordability requirements should they wish.

Reads an analysis of the bill prepared by state Senate committee staff, “if the local government has adopted an inclusionary housing ordinance and that ordinance requires that a new development include levels of affordability in excess of what is required in [SB 50], the requirements in that ordinance shall apply.”

The rest of the mailer is more hyperbole than outright falsehoods, calling SB 50 a “trickle-down housing bill” that would “accelerate the consequences of gentrification” and “build luxury towers without adequate affordable housing.”

That argument is deeply ironic coming from AFH, given the group’s past support for a policy that is known to spur gentrification: rent control.

Back in 2018, AFH spent some $21 million advocating for Prop. 10, a ballot initiative that would have repealed state-level limitations on the ability of California’s local governments to impose rent control.

A Stanford University study from the same year found an expansion of rent control in San Francisco during the ’90s actually sped up gentrification by encouraging landlords to take rent-controlled housing units off the market and convert them into pricier condominiums that could be sold at market price.

Were AFH truly as concerned about gentrification as their noxious mailer suggests, they might want to reconsider their past rent control advocacy as well. Instead the group had decided to cynically deploy identity politics in an effort to spread myths about what is, at the end of the day, a marginal loosening of California’s ridiculously restrictive zoning laws.

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